30-CE-0517177/00-36

IMPLEMENTED BY

FOR

ENTERPRISE AND INDUSTRY DG

www.dbblaw.eu

STUDY ON POSSIBLE NATIONAL LEGAL OBSTACLES

TO FULL RECOGNITION OF ELECTRONIC PROCESSING
OF PERFORMANCE INFORMATION ON CONSTRUCTION
PRODUCTS (UNDER THE CONSTRUCTION PRODUCTS
REGULATION), NOTABLY WITHIN THE REGIMES OF
CIVIL LIABILITY AND EVIDENTIARY VALUE

Jean ALBERT
Team Leader

COUNTRY REPORT
UNITED KINGDOM
Submitted by
Simon WAIN
Country Expert
December 2013
_____________

1.
CHAPTER 1: INTRODUCTION ................................................................................................3
1.1. Summary of the regulation implementing Directive 89/106/EEC ....................................3
1.2. Summary of the changes that are taking place following the adoption of the CPR.....4
1.2.1.
Current system..........................................................................................................................4
1.2.2.
Change proposed or implemented (including repealing of Directive
89/106/EEC transposing legislation..........................................................................................................9
Implementing the regulations in the UK................................................................................................11
2.
CHAPTER 2: LEGAL CONTEXT IN WHICH THE DOP MAY BE RELEVANT.......12
2.1. Presentation of the type of legal contexts in which the DoP may be relevant (i.e.
authorizations, liability, procedure and evidentiary rules) ..........................................................12
2.1.1.
Summary of construction products liability..............................................................12
2.1.2.
Statute of limitations in the area of construction products liability...............16
2.1.3.
Summary of the rules relating to authorizations pertaining to the use of
construction products....................................................................................................................................17
2.2. Administrative bodies that may require the DoP ...................................................................18
2.2.1.
Presentation, role, function and competence of these bodies...........................18
2.2.2.
Link with the field of construction products.............................................................18
2.2.3.
Context in which these bodies might need access to the DoPs (including
reference to rules and examples) .............................................................................................................18
2.3. Judicial bodies that may require the DoP...................................................................................18
2.3.1.
Presentation, role function and competence of these bodies............................18
2.3.2.
Link with the field of construction products.............................................................21
2.3.3.
Context in which these bodies might need access to the DoPs (including
reference to rules and examples) .............................................................................................................21
2.4. Insurance organisations.....................................................................................................................22
2.4.1.
Role of insurance organisations in the construction products industry ......22
2.4.2.
Context in which these organizations might need access to the DoPs ..........26
3.
CHAPTER 3: ELECTRONIC / DIGITAL PROVISION OF THE DOPS BEFORE
ADMINISTRATIVE AND JUDICIAL BODIES...........................................................................................26
3.1. Provision of electronic documents to administrative bodies............................................26
3.1.1.
Admissibility of electronic documents (including reference to rules and
summary of case examples) ........................................................................................................................26
3.1.2.
Weight of admissible electronic documents (including reference to rules
and summary of case examples) ...............................................................................................................26
3.1.3.
Authentication and integrity requirements (including those on
preservation) .....................................................................................................................................................26
3.2. Provision of electronic documents to judicial bodies ...........................................................27
3.2.1.
Admissibility of electronic/digital evidence (including reference to rules
and summary of case examples) ...............................................................................................................27
3.2.2.
Weight of admissible electronic/digital evidence (including reference to
rules and summary of case examples)....................................................................................................27
3.2.3.
Authentication and integrity requirements (including those on
preservation) .....................................................................................................................................................28
4.
CHAPTER 4: CASE STUDY.....................................................................................................29
5.
CHAPTER 5: CONCLUSION ...................................................................................................32
5.1. Use of electronic means to provide DoPs before administrative bodies ......................32
5.2. Use of electronic means to provide DoPs before judicial bodies .....................................32
2

1. CHAPTER 1: INTRODUCTION
1.1.

Summary of the regulation implementing Directive 89/106/EEC

Construction products regulation

Construction products for use on construction and civil engineering projects and
buildings are regulated in the UK and the EU. This introduction summarises the practical
effect of this regulation, focusing on the legal aspects of the Construction Products
Regulations 1991 (SI 1991/1620) (as amended) (Construction Products Regulations
1991), which implements the Construction Products Directive (89/109/EC) (as
amended) in the UK, and the Construction Products Regulation 305/2011/EU
(Construction Products Regulation 2011), which is in effect in the European Economic
Area (EEA) from 1 July 2013.
Introduction
This introduction does not summarise all the regulations regarding construction
products. It aims to give a construction and engineering practitioner an overview of the
rules in connection with:
Which regulation is in force, from when.
CE marking.
The link between the regulations and health and safety, including the REACH
regime (that is, the Registration, Evaluation, Authorisation and Restriction of
Chemicals).
What are construction products?
In effect, nearly all products used on building and civil engineering sites, which are
incorporated into a finished structure, are construction products.
In the UK, up to 30 June 2013, a construction product is:

"any product which is produced for incorporation in a permanent manner in...

construction works, including both buildings and civil engineering works". ( Definitions
of "construction product" and "works", section 2(1), Construction Products Regulations
1991.)
(This is subject to a "minor part" exception, where there is no or low risk of that minor
part causing injury.)

How are construction products regulated?

Before 1 July 2013
From 27 December 1991, the Construction Products Regulations 1991 (SI 1991/1620)
(Construction Products Regulations 1991) have regulated construction products in the
UK. The 1991 regulations were introduced as a result of the Construction Products
Directive 1989 (Council Directive 89/106/EEC of 21 December 1988 on the
approximation of laws, regulations and administrative provisions of the Member States
relating to construction products).
The Construction Products (Amendment) Regulations 1994 (SI 1994/3051) (Construction
Products (Amendment) Regulations 1994) updated the 1991 regulations with effect
from 1 January 1995, following Council Directive 93/68/EC, which altered CE marking
rules in Europe.

1.2.

Summary of the changes that are taking place following the adoption

of the CPR
1.2.1. Current system
Construction products regulation in UK before 1 July 2013
The Construction Products Directive 1989, and the UK's implementation of it in the
Construction Products Regulations 1991, aimed to reduce or eliminate technical barriers
to trade in construction products between members of the European Economic Area )
(EEA). To achieve this, the Directive (and the Regulations) included four main elements:
A system of harmonised technical specifications.

 An agreed system for manufacturers and others to declare that their products
conform to each product family (such as concrete products).
A framework of notified bodies in the members states , who are notified to the
Commission, and may carry out testing and other activities.
The CE marking of products. In the UK, applying a CE mark is voluntary for a
product placed on the market before 1 July 2013.
The Construction Products Directive 1989 did not aim to harmonise the detail of
regulations in members states beyond these key elements. Member states and public
and private sector procurers remained free to set their own requirements on the
performance of works, and therefore the performance of products. However, the
Directive (and the Regulations) do harmonise:
The methods of testing products.
How manufacturers and others should declare a product's performance values.
How the UK and other member states can check that products conform to
European standards.
The choice of required values for the chosen intended uses of a product or product
family is left to the regulators in the UK and each member state. For example, the level
(or value) of insulation actually required in a building's "thermal insulation products"
could be very different in Edinburgh compared to Athens.
Regulation 3: a product must satisfy the essential requirements
Although we set out regulation 3(1) in full below, it is not easy to follow:
"A construction product, other than a minor part product, shall have such characteristics
that the works in which it is to be incorporated, assembled, applied or installed can, if
properly designed and built, satisfy the essential requirements when, where and to the
extent that such works are subject to regulations containing such requirements."
Breaking this regulation down, and assuming you are dealing with a "construction
product", the key elements of regulation 3(1) are:
There is a possible exception for a minor product, but this is unlikely to apply in
practice and is beyond the scope of this introduction.
The construction product must have characteristics to meet the "essential
requirements" .

 It only takes effect where the works are subject to regulations that contain "such
requirements" .
One way of paraphrasing this is that the Construction Products Regulations 1991
do not apply to products:
Which will have no implications for the health, safety or energy efficiency of
construction works.
Where the construction works are not subject to regulation.
In addition, the Construction Products Regulations 1991 do not apply where the product
was legally supplied (placed on the market) in the UK before 27 December 1991.
Essential requirements
The essential requirements that a construction product must meet relate to:
Mechanical resistance and stability.
Safety in case of fire.
Hygiene, health and the environment.
Safety in use.
Protection against noise.
Energy economy and heat retention.
Other regulations bring the Construction Products Regulations 1991 into play
Any statute or statutory instrument (or any provision "with the force of law") can bring
the Construction Products Regulations 1991 into effect (regulation 3(2)). Perhaps the
most obvious example of this in England is the Building Regulations 2010 (SI 2010/2214)
(BR 2010).
Part A of Schedule 1 to BR 2010 refers to the structure of a building. If a person supplies
a construction product in connection with the structural fabric of a building (assuming
that BR 2010 apply and that the product was first placed on the market after 27
December 1991), that person supplies a product where the works are subject to a
regulation that contains an essential requirement. As such, the product must (if the
works are properly designed and built) satisfy the essential requirements.
Regulation 4: CE marking on products

Applying a CE mark to a construction product brings benefits to that product's

manufacturer. Regulation 4 (as amended) states that a CE-marked product must be
presumed to comply with regulation 3, unless there are reasonable grounds for
suspecting otherwise (or for suspecting that the mark was not properly applied).
Regulations 5-7: applying CE marks and providing information
Regulations 5, 6 and 7 set out the circumstances in which a party may attach a CE mark
to a product. Whether or not they attach a mark, they have a duty to provide information
about a product. Where a party attaches a CE mark, that duty includes keeping a copy of
a declaration or certificate of conformity for ten years.
Regulations 7A-11 and 14: non-conformity, prohibitions and suspension
Regulation 7A, introduced by the Construction Products (Amendment) Regulations 1994,
allows an enforcing authority to issue a certificate of non-conformity, if they identify a
product that does not comply with the Construction Products Regulations 1991 (as
amended).
Regulations 9, 10 and 11 allow:
The government to prohibit a person from supplying construction products.
The government to require a person to issue a notice to warn, stating that a
product they supplied did not comply with the Construction Products
Regulations 1991.
Any enforcing authority to suspend a person from supplying construction
products.
An appeal against a suspension notice.
Regulations 12 and 13: forfeiture
Regulations 12 and 13 provide for the forfeiture of goods that do not comply with the
Construction Products Regulations 1991.
Regulation 14: information
Regulation 14 gives the government the power to demand information to determine
whether:
To issue a prohibition notice.
To require a notice to warn to be issued.
Goods should be forfeited.
Regulations 15-25: enforcement

Regulations 15 to 25 provide for enforcement of the regulations by local authorities and

by HM Revenue & Customs (HMRC), and regulate information demanded and disclosed if
enforcement is contemplated.
Regulation 26: due diligence defence
If a party is accused of a breach of the Construction Products Regulations 1991, regulation
26 may assist them. It is a defence to an offence under the Regulations if the accused
party can show that it "took all reasonable steps and exercised due diligence to avoid
committing the offence".
However, if the accused party claims that it relied:
On the act or default of a third party.
On information from another party.
Then the accused party must:
At least seven clear days before the date of any hearing, give a notice including all
the information the accused party has about that third party.
Show that it was reasonable in all the circumstances to rely on any information
provided by that third party.
Regulations 27-32: procedural matters
Regulations 27 to 32 address other procedural matters, such as the duties of
enforcement authorities and where to commence enforcement proceedings.
Regulation 33: health and safety defence
Regulation 33 allows a party accused of a health and safety offence to demonstrate that
it has complied with the Construction Products Regulations 1991 as a defence to those
health and safety proceedings (as defined in section 53(1) of the Health and Safety at
Work etc. Act 1974 (HSWA 1974)). In other words, if a prosecution was brought against
a party under health and safety legislation in connection with a construction product, it
should consider whether it has fully complied with the Construction Products
Regulations 1991, and (if so) whether that amounts to a defence.
For more information on the prosecution of health and safety offences, see (for example)
Schedule 1: the CE mark
Schedule 1 (as amended) displays the form of the CE mark.
Schedule 2: the essential requirements
The essential requirements that a construction product must meet relate to:
Mechanical resistance and stability.
8

 Safety in case of fire.

Hygiene, health and the environment.
Safety in use.
Protection against noise.
Energy economy and heat retention.
The introduction to Schedule 2 introductions that:
Construction products must be suitable for construction works that are fit for use
"as a whole and in their separate parts". That is, a construction product should be
suitable for a project overall and suitable for its particular use within the project.
It is acceptable to "take account of economy". That is, it is not necessary to gold
plate every construction product or every selection of a construction product to
achieve the best possible result.
The essential requirements must be satisfied for the economically reasonable
working life of a product, taking into account normal maintenance.
The requirements relate to "foreseeable" actions. For example, use of a window
as an emergency fire escape may be foreseeable, but use of a window as a normal
means of entry or exit may not be foreseeable.
There is clearly some overlap between this introduction to Schedule 2 and
regulation 3 (see Regulation 3: a product must satisfy the essential requirements).
Introduction that the Eurocodes may be used to assess the essential requirements of the
structural performance of products. (The Eurocodes are a flexible, pan-European set of
standards for use in structural design.)
Schedule 3: the attestation of conformity
Schedule 3 sets out the required form of a manufacturer or other party's attestation of
conformity.
Schedule 4: forms of notices
Schedule 4 sets out the form of a notice to warn and a prohibition notice.
1.2.2. Change proposed or implemented (including repealing of Directive
89/106/EEC transposing legislation
Construction products regulation in EU from 1 July 2013: Overview of the reforms

From 1 July 2013, the Construction Products Regulation 2011 (Regulation (EU) No
305/2011 of the European Parliament and of the Council of 9 March laying down
harmonised conditions for the marketing of construction products and repealing Directive
89/106/EEC) applies.
The Construction Products Regulation 2011 took some time to negotiate in Europe, but
the Commission's original aims were:
"...to clarify the current drafting of obligations in the Directive, simplify the processes
(especially for smaller businesses) and improve the credibility of the CE marking by
introducing stricter requirements for the bodies involved in testing and certification."
In the UK, one key change will be to introduce compulsory CE marking, subject to
limited exceptions. At present, this is voluntary.
From a construction and engineering practitioner's perspective, key aspects of the
Construction Products Regulation 2011 include:
Although the Regulation formally took effect 20 days after publication in the
Official Journal, the Regulation is, in effect, "in force" from 1 July 2013. Before 1
July 2013, and for products placed onto the market before that date, the
Construction Products Regulations 1991 applies in the UK (Article 66).
The "basic requirements" (the same requirements referred to as the essential
requirements in the Construction Products Regulations 1991) that all
construction products have to meet additionally refer to:
o

health and safety performance throughout their life-cycle; and

energy efficiency during construction and dismantling, rather than only

energy efficiency in use.

(Article 3 and Annex 1.)
Compulsory requirements for a declaration of conformance and CE marking
(Article 4), save for limited derogations.
Limited exceptions to compulsory CE markings (Article 5). They include:
o

bespoke products;

products created on site for incorporation into the works on that site; and

traditional and heritage conservation products.

Building materials containing hazardous substances must be labelled to protect

the health and safety of building workers and other users. The declaration of
10

performance will have to include information on hazardous substances, as

required by the Article 6 of the REACH Regulation (Regulation (EC) No 1907/2006
concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals
(REACH), establishing a European Chemicals Agency, amending Directive
1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission
Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and
Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC) (EC
1907/2006)). REACH stands for the Registration, Evaluation, Authorisation and
Restriction of Chemicals.
The CE marking must be the only marking that attests the conformity of the
construction product (Article 8). Alternative national labelling systems are
prohibited. For example, manufacturers' associations should ensure that any
markings applied by their members do not conflict with this requirement.
Implementing the regulations in the UK
We anticipate that the government will introduce a statutory instrument to amend or
replace the Construction Products Regulations 1991, to take effect on 1 July 2013.
Approved Document 7 in England
In December 2012, a new Approved Document 7 to Schedule 1 to BR 2010 was
published. It is due to come into effect on 1 July 2013 and provides updated guidance on
adequate materials and workmanship for building work to take into account the
Construction Products Regulation 2011.
Approved Document 7 in Wales
On 29 April 2013, the Welsh Government (WG) published a consultation on a number of
proposals, including changing Approved Document 7 to provide for the Construction
Products Regulation 2011. The consultation closes on 21 June 2013..

11

2. CHAPTER 2: LEGAL CONTEXT IN WHICH THE DOP MAY BE

RELEVANT
2.1.

Presentation of the type of legal contexts in which the DoP may be

relevant (i.e. authorizations, liability, procedure and evidentiary rules)

2.1.1. Summary of construction products liability

A Supplier or Sellers liability for construction products is governed by the Sale of
Goods Act 1979 and the Sale of Goods and Services Act, as well as by Common Law
involving Contracts and tort.
Section 14 (2) of the Sale of Goods Act provides as follows
Where the seller sells goods in the course of a business, there is an implied term that the
goods supplied under the contract are of satisfactory quality.
(2A)For the purposes of this Act, goods are of satisfactory quality if they meet the
standard that a reasonable person would regard as satisfactory, taking account of any
description of the goods, the price (if relevant) and all the other relevant circumstances.
(2B)For the purposes of this Act, the quality of goods includes their state and condition
and the following (among others) are in appropriate cases aspects of the quality of
goods
(a)fitness for all the purposes for which goods of the kind in question are
commonly supplied,
(b)appearance and finish,
(c)freedom from minor defects,
(d)safety, and
(e)durability.
(2C)The term implied by subsection (2) above does not extend to any matter making the
quality of goods unsatisfactory
(a)which is specifically drawn to the buyers attention before the contract is
made,

12

(b)where the buyer examines the goods before the contract is made, which that
examination ought to reveal, or
(c)in the case of a contract for sale by sample, which would have been apparent
on a reasonable examination of the sample.
Section 14 (3) states
Where the seller sells goods in the course of a business and the buyer, expressly or by
implication, makes known
(a)to the seller, or
(b)where the purchase price or part of it is payable by instalments and the goods
were previously sold by a credit-broker to the seller, to that credit-broker,
any particular purpose for which the goods are being bought, there is an implied that the
goods supplied under the contract are reasonably fit for that purpose, whether or not
that is a purpose for which such goods are commonly supplied, except where the
circumstances show that the buyer does not rely, or that it is unreasonable for him to
rely, on the skill or judgment of the seller or credit-broker
This is the principle statutory provisions relating to supply of construction products,
and is implied into all contracts. These sections are categorised as 'conditions', breach
of which entitles the innocent party to reject the goods and claim the purchase price.
Reliance by the purchaser is an essential component of the fitness for purpose
obligation. In a case in which the buyer has made known his purpose, there is, on the
face of it, an implied condition of fitness. The supplier can only defeat this by proof that
the buyer did not rely, or that it was unreasonable for him to rely, on the skill or
judgment of the supplier
According to recent case law (Lowe & Anor v W Machell Joinery Ltd) fitness of the goods
for their purpose must include the compliance of the goods, when installed and used,
with the Building Regulations.
A summary of the case is as follows
Lowe & Anor v W Machell Joinery Ltd
Background
Mrs and Mrs Lowe wanted a bespoke oak staircase in their barn conversion. They
ordered the staircase from the defendant, Machell, and paid 16,000. The Lowes
13

took delivery but rejected the staircase (by letter) on the basis that the staircase
was not what they had ordered.
They were supplied with a different staircase from another source. There was no
written contract between the Lowes and Machell. The Lowes commenced legal
proceedings in the Technology and Construction Court in Leeds for the recovery
of the price of the original staircase with damages to be assessed.
The facts
Machell was to deliver the components for the staircase. The design of the
staircase was undertaken by an employee of Machell. The spaces between the
spindles were sufficient to allow a 100mm sphere to pass through two adjacent
spindles. This was in breach of the Building Regulations.
The Lowes alleged that Machell was in breach of the implied terms of satisfactory
quality (which was accepted by Machell) and fitness for purpose under section
14 of the Sale of Goods Act. They also argued that Machell was in breach of a
further implied term that the staircase would comply with the Building
Regulations.
In relation to fitness for purpose, Machell denied this on the basis that no
particular purpose was alleged. As regards breach of the Building Regulations,
Machell argued that further spindles could have been added in order to comply.
The first instance decision
The first instance judge found that only the implied term regarding the Building
Regulations had been breached, which did not justify rejection of the staircase (in
contrast to any breach of section 14 implied terms (satisfactory quality and
fitness for purpose)) and the Lowes were bound to accept modifications to the
staircase.
The judge held that the Lowes' original reasons for rejecting the goods (the
staircase was delivered in parts and not assembled) were unjustified, but that
14

Machell was in breach of contract because the Building Regulations would not
have been complied with if the staircase had been installed. However, this was
not sufficient to justify rejection of the goods because the design could easily
have been modified. Consequently, the Lowes were not entitled to any relief and
costs were awarded against them.
The appeal
The Lowes appealed. They argued that the judge was wrong - having found that
Machell was in breach of contract (due to non-compliance with the Building
Regulations) - to go on to find that the Lowes were not entitled to reject the
staircase and that they would have been bound to accept modifications to the
staircase.
Machell sought to uphold the judgment on other grounds, including by asserting
an implicit finding by the judge that the goods were of satisfactory quality and
the judge was wrong to find that there would have been a breach of the Building
Regulations. Equally the same conclusion could be supported on the basis, among
other things, that it was the Lowes' responsibility to ensure compliance with the
Building Regulations.
Lloyd LJ who gave the leading judgment, found that the first instance judge was
right to decide that installation of the staircase as supplied would result in a
failure to comply with the Building Regulations. The key issue was whether the
judge's finding of breach of contract was consistent with his conclusion that the
Lowes were not entitled to reject the staircase.
Lloyd LJ found that both the implied terms relating to satisfactory quality and
fitness for purpose (a staircase to be fit for the purpose of being installed in a
building to be used as a residence) applied to the contract. The first instance
judge had commented that the defendant should, at the very least, have warned
the Lowes of the need to ensure that the building control officer would accept the
particular design. Lloyd LJ ruled that this clearly supported the proposition that
the Lowes did rely, and were reasonable in relying, on Machell in this respect.
15

The Building Regulations

The appeal judge found that "fitness of the goods for their purpose must surely
include the compliance of the goods, when installed and used, with the Building
Regulations." He found that there was no separate implied term relating to the
requirement to build the staircase in accordance with Building Regulations (in
contrast to the first instance judge).
The appeal judge encapsulated the Lowes' dilemma as follows:
"...the Claimants had got exactly what they wanted and had contracted for, but
they could not lawfully use it for the purpose for which, to the knowledge of the
Defendant, they had ordered it."
In response to this dilemma, he further commented that:
"However, on the basis that the goods, supplied in exact conformity with the
contract, could not lawfully be used for their intended purpose, known to the
seller, it does not seem to me that they were reasonably fit for purpose, nor that a
reasonable buyer would find them satisfactory."
In brief, the appeal was allowed on the basis that the first instance judge was
right to conclude that Machell was in breach of contract because the staircase
would not comply with the Building Regulations. However, the first instance
judge was wrong to hold that this did not entitle the Lowes to reject the goods
and be repaid the purchase price.

2.1.2. Statute of limitations in the area of construction products liability

The Limitation Act 1980 governs the period of liability for construction products. The
time periods are as follows

Claims for breach of contract

A claim for breach of contract must be brought 6 years from the date of the breach of
contract. The date of the breach will ordinarily be the date of supply. However, if the
claim is against a contractor that installed the product then the six year period will
ordinarily run from completion of the building works.

16

The time period can be extended if the contract is executed as a deed. In this case the
buyer will be liable for 12 years from the date of breach.
It is important to note that this is not a warranty as to the design life of a product, and
that liability is only for defects inherent at the time of supply.
Claims for negligence
A seller may also be liable in tort (see above). A claim for tort must be brought six years
from the date of damage. The date of damage is a matter of fact in each case and it is not
possible to give all embracing guidelines. However, it will usually also be at the date of
supply, because at that stage the buyer will suffer a loss.
Note also that the Latent damage Act 1988 applies to claims in negligence (but not
claims in contract). This extends the time period for bringing claims to15 years from the
date of damage (as above), or 3 years from date of discovery, or date when the damage
should reasonably have been discovered.

2.1.3. Summary of the rules relating to authorizations pertaining to the use of

construction products
Construction Products should be fit for their purpose, of merchantable quality. The
Building Regulations 2010 provide detailed requirements in relation to Construction
Products pertaining to the following:
Mechanical resistance and stability
Safety in case of fire
Hygiene, health and the environment
Safety and accessibility in use
Protection against noise
Energy economy and heat retention
Sustainable use of natural resources

17

2.2.

Administrative bodies that may require the DoP

2.2.1. Presentation, role, function and competence of these bodies

Local Authorities responsible for agreeing planning permissions, and assessing
whether a building complies with Building Regulations, which will include assessing
whether Construction Products comply with EU requirements.
The Health and Safety Executive is responsible for administering Health and Safety
rules, in so far as these apply to construction products

2.2.2. Link with the field of construction products

As above
2.2.3. Context in which these bodies might need access to the DoPs (including
reference to rules and examples)
In order to pass a structure for Building Regulations, a Local Authority may need access
to the DoPs. If there is an accident on a building the Health and Safety Executive may
also require such access. There are no formal rules that we are aware of relating to
these. While manufacturers do not need to declare performance for every characteristic
of a construction product, they do need to do so for those characteristics for which there
are provisions (i.e. regulations or technical rules) in relation to the intended use or uses
in the Member States where the manufacturer intends the product to be made available
on the market.

2.3.

Judicial bodies that may require the DoP

2.3.1. Presentation, role function and competence of these bodies

Contracts are governed by the Laws of England and Wales, and any claims relating to
them will be heard in these courts (save as set out below).
The Structure of the Court system is as follows:

18

County Courts
Most claims are heard by County Courts. County Courts are statutory courts with a
purely civil jurisdiction. They are presided over by either a District or Circuit Judge and,
except in a small minority of cases such as civil actions against the Police, the judge sits
alone as trier of fact and law without assistance from a jury.
County Courts are local courts in the sense that each one has an area over which certain
kinds of jurisdictionsuch as actions concerning land or cases concerning children who
reside in the areaare exercised. For example, proceedings for possession of land must
be started in the county court in whose district the property lies. However, in general
any county court in England and Wales may hear any action and claims are frequently
transferred from court to court. It sits in 92 different cities of UK.
High Courts
The High Court of Justice functions both as a civil court of first instance and a criminal
and civil appellate court for cases from the subordinate courts. It consists of three
divisions: the Queen's Bench, the Chancery and the Family divisions. The divisions of the
High Court are not separate courts, but have somewhat separate procedures and
practices adapted to their purposes.
Cases relating to construction products will ordinarily be heard in the Queens Bench
Division of the High Court. However, they may be heard in the Chancery Division,
particularly where any dispute includes Intellectual Property Rights.

Technology and Construction Court

There is a specialist Court which deals with issues relating to the Construction Industry.
This is the Technology and Construction Court. The Technology and Construction Court
("TCC") is a specialist court, which deals principally with technology and construction
disputes. The full range of work undertaken by the TCC is set out in the Civil Procedure
Rules (CPR) Part 60 and the accompanying practice direction.

19

The Practice Direction states that the TCC is suitable for all claims relating to the quality
of goods sold or hired, and work done, materials supplied or services rendered;
all county court TCC cases in London.

Regional Centres
The court centres outside London at which the TCC principally operates are:
Birmingham
Bristol
Cardiff
Chester
Exeter
Leeds
Liverpool
Newcastle
Nottingham
Manchester

At each of these court centres both High Court and county court TCC cases may be
issued and tried. There are full time TCC judges at Birmingham, Manchester and
Liverpool. At the other court centres TCC judges are available but they devote a
substantial amount of their judicial time to non-TCC work. Judges authorised to deal
with TCC business are also available at Leicester, Sheffield and Southampton. However,
county court claims cannot be issued at those court centres.
There is no equivalent to the TCC in Scotland. Construction Cases would be heard in the
Court of Session (for larger cases) and the Sherriffs Courts for smaller cases.
Appeal Courts
The Court of Appeal deals only with appeals from other courts or tribunals. The Court of
Appeal consists of two divisions: the Civil Division hears appeals from the High Court
and County Court and certain superior tribunals. The Court of Session is the Appeal
Court in Scotland.

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The Supreme Court

The Supreme Court is the highest appeal court in almost all cases in England and Wales,
and (under Scottish Law) Scotland. Prior to the Constitutional Reform Act 2005 this role
was held by the House of Lords.

Arbitration
Parties can agree to exclude the Courts Jurisdiction and refer claims to Arbitration,
which is governed by the Arbitration Acts. An Arbitrator will be competent to hear all
disputes under the contract, and will act in a quasi judicial capacity. Parties can appeal
on points of law only to the High Court.

Adjudication
All construction contracts relating to installation and maintenance of construction
products are governed by the Housing, Grants, Construction and Regeneration Act,
which means that a party can refer a dispute to Adjudication at any time. Adjudication
produces a decision that is binding until finally decided by a Court or Arbitrator. The
Construction Act does not apply to supply only contracts.

2.3.2. Link with the field of construction products

This will be relevant if there is an issue of defective work heard by a Court.
2.3.3. Context in which these bodies might need access to the DoPs (including
reference to rules and examples)
If a court case involved quality and specification of materials, then reference to DoPs
could be important This would be done at evidential stage and in court proceedings
themselves. Adjudications are conducted typically in writing.

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Typically a party to a case must set out its case in pleadings. These are served at the
start of an action. If a party wishes to refer to a DoP it must do so in the pleadings,
stating the relevance to the claim, and why it is relied upon.
The Court may order expert evidence to be adduced in respect of the allegations made
by the Court. Experts would be able to refer to DoPs in their reports which are usually
exchanged at the same time (rather than consecutively). The court also has the power to
order a single joint expert.
The DoPs may be referred to a hearing before a Judge if they have been adduced in
evidence (witness statements, or disclosed) or expert evidence

2.4.

Insurance organisations

2.4.1. Role of insurance organisations in the construction products industry

The following types of insurance are relevant to the Construction Products including:
1.

Product Liability Insurance;

2.

Professional Indemnity Insurance;

3.

Contractor All Risk Insurance;

4.

Public Liability Insurance;

5.

NHBC / or equivalent cover.

6.

Latent defects insurance

Product Liability Insurance

Is Insurance that pays for any damage or injury (within the limits of the cover provided)
resulting from the use of the insured's goods or services. Product liability insurance
protects against liability for injury to third parties or damage to their property, arising
out of products supplied by a business.
Suppliers of equipment to construction and engineering projects are often required to
maintain such insurance in respect of proprietary materials, goods or technology they
supply to a project (for example, lifts or escalators). A clause requiring a party to

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maintain products liability insurance is usually similar to a clause requiring professional

indemnity insurance

Public Liability
PL insurance is the mandatory insurance that parties are required to have in order to
cover negligent damage to third party property, or to third persons. This provides an
indemnity against any civil action brought by a third party non-employee against the
insured. It is not concerned with the harm to the insured beyond indemnifying the
insured against claims covered by the policy.
The extent of the cover will depend on the policy wording. Usually, the insurer has to
indemnify the insured in respect of claims covered only when liability to the third party
has been established and quantified, either by a judgment or by an arbitration award or
settlement. A third party may also have rights against the insurer under the Third
Parties (Rights Against Insurers) Act 1930 in the event of the insured's insolvency.
The insured may be obliged under the terms and conditions of the policy to take
reasonable care to avoid causing harm to third parties. A breach of this term requires an
intentional act or recklessness on the part of the insured.

Professional Indemnity
This Insurance covers a parties liability caused by negligence in carrying out
professional duties (architect, engineer etc).
Professional indemnity insurance insures against liability arising from professional
negligence (which usually includes a contractual liability that is equivalent to
professional negligence, such as a breach of a contractual obligation to exercise
reasonable skill, care and diligence when carrying out design). In construction projects
professional negligence can arise from negligent design and from negligent performance
of other professional services, such as surveying, project management or contract
administration.

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Professional indemnity insurance is usually required from:

A professional consultant. (For more information see Practice note, Professional
appointments: insurance: Professional indemnity insurance.
A contractor with design responsibility (for example, under a design and build
contract).
A sub-contractor whose duties include a significant design element.

Professional indemnity insurance usually operates on a "claims made" basis, so a

professional appointment, building contract or sub-contract invariably requires that is it
maintained throughout the insured's period of liability, not just until the end of the
project. (See "Events occurring" and "claims made" cover distinguished).
While professional indemnity insurance protects against liability for professional
negligence, it may not extend to other forms of liability, for example, if an architect
guarantees that its design will be "fit for purpose". An insured must check the scope of
its cover before agreeing such an obligation. Some professional indemnity insurance
policies may expressly exclude all cover on a project where the professional consultant
has agreed a fitness for purpose obligation, including instances where the professional
consultant has acted negligently. This is particularly important when dealing with
products in the Construction Industry, where there may be a fitness for purpose
obligations.

Contractor All Risk Insurance

This insurance covers accidental damage to construction works. it is likely to exclude
damage caused by defective products installed.
All risks insurance covers physical damage to the works and site materials. This
insurance may be maintained by the contractor or the employer, and the party
responsible for this should be specified in the construction or engineering contract. In
practice, the contractor usually maintains all risks insurance, because it usually carries
such cover in the course of its business.
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Typically, a construction or engineering contract requires all risks insurance to be:

In the joint names of the contractor, the employer and any other party with an
interest in the project, for example, a funder of the project. (See Joint names
insurance is preferable to noting an interest on the policy).
Maintained until practical completion of the project
Many insurers offer a single liability insurance policy which has separate sections
covering employer's liability, public liability and products liability.

NHBC Cover
NHBC is provided by the National House Builders Confederation.

It provides the

following cover
Damages and defects to a home bought with the benefit of this cover. For the first two
years the developer will rectify any defects, and then for the following eight years,
defects will be rectified under the NHBC. This will include rectifying defects caused by
defective products.

Latent defects insurance

Latent defects insurance (also known as decennial insurance) typically lasts for ten
years from the original construction of a building. It usually protects the owner of a
building (and sometimes the tenants) against material damage to the building. It is
generally taken out when a building is first built, altered or rebuilt after damage,
sometimes where collateral warranties or third party rights from the professional
consultants, contractor and sub-contractors are not available.
Latent defects insurance means that the building owner does not have to prove fault by
any party, unlike a fault-based claim against a contractor under a collateral warranty. If
a latent defect (unidentified at completion of construction) arises or is discovered, the
policy should pay for that defect to be remedied. Typically, defects in the weatherproof

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envelope and structure of a building are covered by the policy, but not other defects.
(Some policies may offer additional, limited cover for key mechanical and electrical
equipment.)
2.4.2. Context in which these organizations might need access to the DoPs
Product Liability Insurance covers defective products and is most relevant in
determining whether to settle claims; DOP would be of primary assistance.
Similarly, the DOP may be of assistance in deciding whether a professional was negligent
in specifying materials.

3. CHAPTER 3: ELECTRONIC / DIGITAL PROVISION OF THE DOPS

BEFORE ADMINISTRATIVE AND JUDICIAL BODIES
3.1.

Provision of electronic documents to administrative bodies

3.1.1. Admissibility of electronic documents (including reference to rules and

summary of case examples)
We are not aware of particular rules pertaining to Administrative bodies. For example
in assessing whether a building complies with Building Regulations, it may be necessary
to demand examination of electronic documents, but there is no particular requirement
as to their format.

3.1.2. Weight of admissible electronic documents (including reference to rules

and summary of case examples)
As above
3.1.3. Authentication

and

integrity

requirements

(including

those

on

preservation)
We are not aware of any rules relating to the preservation of electronic documents for
administrative purposes.

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3.2.

Provision of electronic documents to judicial bodies

3.2.1. Admissibility of electronic/digital evidence (including reference to rules

and summary of case examples)
Electronic documents are disclosable according to the Civil Procedure Rules, Practice
Direction 31B. This may involve the parties providing information about the categories
of electronic documents within their control, the computer systems, electronic devices
and media on which any relevant documents may be held, the storage systems
maintained by the parties and their document retention policies. In the case of difficulty
or disagreement, the matter should be referred to a judge for directions at the earliest
practical date, if possible at the first Case Management Conference.
A specific question has been asked about memory sticks. There is no limitation on the
provision of information by memory stick, save that the usual rules of evidence will
apply. Similarly there is no restriction on the use of websites.
3.2.2. Weight of admissible electronic/digital evidence (including reference to
rules and summary of case examples)
The admissibility of documents is governed by the Civil Procedure Rules.
Part 31 of the Rules applies. This states that document means anything in which
information of any description is recorded.
The Practice Direction in relation to Electronic Disclosure states
Rule 31.4 contains a broad definition of "document". This extends to Electronic
Documents
Electronic Document means any document held in electronic form. It includes, for
example, e-mail and other electronic communications such as text messages and voicemail,
word-processed documents and databases, and documents stored on portable devices such
as memory sticks and mobile phones. In addition to documents that are readily accessible
from computer systems and other electronic devices and media, it includes documents that
are stored on servers and back-up systems and documents that have been deleted. It also
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includes Metadata and other embedded data which is not typically visible on screen or a
print out
No less or different evidential weight is placed on these documents than any others. The
rules state that
When considering disclosure of Electronic Documents, the parties and their legal
representatives should bear in mind the following general principles
(1) Electronic Documents should be managed efficiently in order to minimise the
cost incurred;
(2) technology should be used in order to ensure that document management
activities are undertaken efficiently and effectively;
(3) disclosure should be given in a manner which gives effect to the overriding
objective;
(4) Electronic Documents should generally be made available for inspection in a
form which allows the party receiving the documents the same ability to access,
search, review and display the documents as the party giving disclosure; and
(5) disclosure of Electronic Documents which are of no relevance to the
proceedings may place an excessive burden in time and cost on the party to
whom disclosure is given.

3.2.3. Authentication

and

integrity

requirements

(including

those

on

preservation)
The documents should be preserved throughout proceedings, from when a party is
aware of potential litigation. As soon as litigation is contemplated, the parties' legal
representatives must notify their clients of the need to preserve disclosable documents.
The documents to be preserved include Electronic Documents which would otherwise
be deleted in accordance with a document retention policy or otherwise deleted in the
ordinary course of business.
If Electronic Documents are best accessed using technology which is not readily
available to the party entitled to disclosure, and that party reasonably requires

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additional inspection facilities, the party making disclosure shall co-operate in making
available to the other party such reasonable additional inspection facilities as may be
appropriate in order to afford inspection
We have been asked for comments on the law relating to Scotland and Wales. The law of
Wales is the same as that in England. While Scottish law is separate, again subject to the
rules of evidence there is no restriction on use of electronic documents, memory sticks
or websites in Scottish Courts.

4. CHAPTER 4: CASE STUDY

CASE STUDY
Manufacturers X and Z have supplied with the construction products the reference number
for the DoPs and the Internet address (Website) where the DoPs can be found.
Manufacturer Y has placed on the construction products QR codes that contain the content
of the DoP and Website where the DoPs can also be found.
The Builder goes to the Websites of Manufactures X and Z, inputs the reference number for
the DoP on the Website and a DoP appears. It can be downloaded the form of PDF or
similar files, is readable and contains the information required by the CPR.
The Builder downloads the DoPs onto his computer and archives it.
The Builder uses his smartphone to read Manufacturer Ys QR Codes, enabling him to view
the DoPs contents. He downloads the DoPs contents onto his smartphone. The
information contained in the QR Codes is readable and reflect the information required by
the CPR.

Hypothesis 1
A couple of years later a claim is brought up having a bearing with the factual
performance of a construction product.
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The Builder seeks to produce a digital medium (memory stick, cd, smartphone) containing
the content of the relevant DoPs (bearing in mind that for a building there might by
hundreds of DoPs) before a court (administrative or civil).
What type of digital medium, if any, is accepted by the Courts to be used in Court?
Would the content of the digital medium produced be accepted as evidence of the DoPs
(please describe in detail in which circumstances and under which conditions (citing
relevant rules or case examples), if any, the digital medium would or would not be
accepted as evidence)?
Would the content of the digital medium produced be accepted as evidence of the
content of the DoPs (please describe in detail in which circumstances and under which
conditions (citing relevant rules or case examples), if any, the digital medium would or
would not be accepted as evidence of the content of the DoPs)?
Would this be given the same weight as other types of evidence?
The Builder provides the addresses of the Websites where the DoP information can be
found.
Would the Court accept the DoP information from the Websites as evidence of the
DoPs (please describe in detail in which circumstances and under which conditions
(citing relevant rules or case examples), if any, the Website addresses would or
would not be accepted as evidence of the DoPs)?
Would the Court accept the DoP information from the Websites as evidence of the
content of the DoPs (please describe in detail in which circumstances and under
which conditions (citing relevant rules or case examples), if any, the Website
addresses would or would not be accepted as evidence of the content of the DoPs)?
Would the Court give the same weight to this as other types of evidence?
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Hypothesis 2
The builder needs to obtain a final building permit from the authorities.
He/she, as part of the documentation used to obtain the final building approval produces a
digital medium (memory stick, cd, smartphone) containing the content of the relevant
DoPs.
Would the building inspectors/approval body accept the builders medium (please
describe in detail in which circumstances and under which conditions (citing
relevant rules or case examples), if any, the digital medium would or would not be
accepted)?
He/she, as part of the documentation used to obtain the final building approval produces
the Website addresses.
Would the building inspectors/approval body accept the builders provision of the
Website addresses (please describe in detail in which circumstances and under
which conditions (citing relevant rules or case examples), if any, the Website
addresses would or would not be accepted)?

An e document may form part of a parties submission in written Adjudication

proceedings under the Housing Grants Construction and Regeneration Act. It would
need to be referred to in the written submission with the referral to Adjudication.
Copies would need to be provided to Adjudicator, and to the other party.

In

Adjudication, it is possible for the parties to agree means of disclosure, as there are no
formal rules as to evidence, or in the absence of agreement, the Adjudicator will direct
how submissions are made. This could be by providing memory sticks, discs or by e
mail.

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In Court, the parties are governed by the Civil Procedure Rules. 31B requires disclosure
of relevant electronic information. The parties can agree the format of this. The parties
should cooperate at an early stage as to the format in which any electronic documents
are to be disclosed. Further if there is any disagreement the assistance of the court is to
be sought at the earliest practical date, if possible at the first CMC. In Court, the
documents may be referred to using the computers available in Court; there may be an
e disclosure trial bundle, which contains discs, memory sticks or similar which will
contain the information the parties need to refer to. There are computers in Court, and
screens showing the information

5. CHAPTER 5: CONCLUSION
5.1.

Use of electronic means to provide DoPs before administrative bodies

5.2.

Use of electronic means to provide DoPs before judicial bodies

In both cases there is flexibility as to how DoPs can be submitted. In Court proceedings,
electronic data will be viewed no differently than other forms of data or other
documents in assessing their validity and use. There should be co-operation between
parties and the Administrative and Judicial bodies as to how documents are handled and
assessed. In particular in Court proceedings the rules are quite clear on limiting the
costs of electronic disclosure, and emphasise the need for co-operation.

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