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Complaints Procedure

The Construction Industry Register Ireland (CIRI) is established and operated by the Construction Industry Federation (CIF) for the purpose of developing and promoting best practice in the sector. In its establishment the CIF has responded to the wishes of the Minister for the Environment, Community and Local Government and expects that the Register will help users of construction services when selecting a competent contractor/ builder and otherwise discharging their responsibilities under the Building Control Regulations.

All CIRI registered members have made firm commitment to excellent building principles and to abide to an Industry Code of Ethics. In addition the Register contains important information about its members and this information may assist owners when selecting a contractor/ builder.

CIRI registered members must be VAT registered (if applicable), maintain appropriate insurances, and must ensure compliance with all statutory regulations.

The CIRI Code of Ethics requires registered members to be advocates of quality construction practice to colleagues and to the general public, and to accept the economic, social and environmental responsibilities associated with working on construction projects.

If you have any concerns that your CIRI registered member is in breach of the undertakings provided on registration, or that the information provided on the Register is incorrect or misleading, you may make a complaint to the Construction Industry Registration Board (CIRB). The Construction Industry Registration Board (CIRB) is an independent board established to provide governance to the Construction Industry Register Ireland. Decisions of the CIRB regarding any complaint may be appealed to an independent Complaints and Appeals Committee who’s decision shall be final and binding.

Whilst registered members have to conform to certain criteria upon joining the Register and throughout their membership, the Construction Industry Register Ireland (CIRI) does not offer any guarantee against their work. The Construction Industry Registration Board offers a formal complaints procedure where it is believed that a registered member is in breach of a statutory requirement, has failed to adhere to the Code of Ethics or Commitments made on registration, or has provided incorrect or misleading declarations on registration. CIRI will endeavour to provide advice and to assist in the resolution of any issues between a registered member and their client amicably and in a timely fashion in so far as is possible.

The CIRB or the CIF is not in a position to make a judgement on the technical and construction rights or wrongs or a particular case or in apportionment of blame to an individual or company.

Before making a complaint to the CIRB, the following actions are advised:

If you do not receive a satisfactory response to the concerns raised, or if you cannot reach agreement on an appropriate solution, you may contact the CIF for general advice.

Some concerns and disputes may relate to matters agreed in the construction contract and these are best dealt with by using the facilities provided in the contract for resolving disputes. These may include; Mediation, Adjudication, Conciliation, Arbitration and possibly Litigation, all of which are further discussed in Appendix 1.

What can CIRI do?

CIRI provides guidance and advice on the duties and responsibilities of registered members and assist you in ascertaining the appropriate procedures to follow. If the matter is straightforward such as an alleged delay in communication between the registered member and the client, CIRI can intervene and ask that the member deals with the client’s business expeditiously.

Under the provisions of the Construction Industry Register Ireland, CIRI will offer an independent Mediation Service aimed at resolving problems and disputes between registered members and their clients. The Mediation Service will require the agreement of both the client and the member to proceed. Mediation has the advantage that if a resolution is possible, the matters can be resolved quickly and at low cost. Normally, each party (the client and member) bears their own costs and the parties are jointly liable for the mediator’s costs in equal shares unless the mediator decides otherwise.

CIRI is not in a position to intervene in any contractual dispute between a registered member and a client or to give specific advice or assistance on any technical issue.

Formal Complaint to the Construction Industry Registration Board

Any person may make a formal complaint to the Construction Industry Registration Board (CIRB) if it has grounds to believe that the registered member is in breach of a statutory requirement, has failed to adhere to the Code of Ethics, or has provided incorrect or misleading declarations on registration. All documentation submitted should be referenced as “Notice of Complaint to CIRB”. The CIRB will investigate all complaints and will enforce appropriate sanctions where complaints are upheld. The sanctions may include removal of the member from the register. The CIRB has the authority to suspend a member whilst investigations are being carried out.

Where it is determined that a registered member is guilty of poor professional performance or misconduct the CIRB may;

Any sanction taken by the CIRB against a registered member may be deemed to be information available to the public and be available on the CIRI public database.

If the complainant or the registered member is dissatisfied with the outcome, they may appeal the decision to the CIRI Complaints and Appeals Committee (CAC). Notice of appeal must be received by CIRI within 21 days of the date of the CIRB’s decision.

CIRI will appraise the complainant of progress and let them know of the outcome.

Complaints about a registered member should be submitted to:

Construction Industry Registration Board
Construction Industry Federation
Construction House
Canal Road
Dublin 6

 

Appendix 1

Mediation

Mediation is an informal process designed to establish agreement between the parties. A mediator may be identified in the building contract or appointed by agreement between the parties. Mediations are generally low cost, however where agreement cannot be reached the mediator will not make a recommendation and the parties will have to proceed to another form of dispute resolution, unless the matter is otherwise agreed.

The parties to a construction contract may agree to mediation whether or not it is provided for in the contract.

Conciliation and Arbitration

Conciliation and Arbitration are the standard dispute resolution procedures provided in most building contracts. Conciliation is a two step process where, firstly, the conciliator seeks to establish an agreement between the parties. Where this cannot be achieved the conciliator will issue a recommendation. The conciliator’s recommendation is binding on the parties, save in the circumstances that one or other seeks an Arbitration. Conciliation is a semi-formal process and the costs are moderate to high for the parties concerned.

Conciliation procedures have been published by the Royal Institute of Architects of Ireland in agreement with the Society of Chartered Surveyors and the Construction Industry Federation.

Arbitration is normally final and binding on the parties. It is a formal and often lengthy process similar to litigation. Costs are generally high, sometimes to the extent that it may not be an affordable option.

Adjudication

The Construction Contracts Act 2013 introduced Statutory Adjudication to building contracts. Adjudication has been used in the UK and other countries from many years and is seen to be an expedient and low cost procedure for dispute resolution. Adjudication will be available to parties to a building contract on a statutory basis irrespective of whether it is provided for in the contract

The Construction Contracts Act 2013 sets out the adjudication process in the event of payment disputes. Procedures for appointment of Adjudicators have not yet been finalised by Government.

Legal Action (Litigation)

Litigation is seldom desirable as a means of resolving construction disputes, however where the building contract does not provide, or the parties cannot agree on any of the Alternative Dispute Resolution (ADR) methods discussed above, it may be the only option available. Advice should always be sought from a legal practitioner, expert in construction law, before resorting to the Courts.

The procedure for the appointment of Mediators, Conciliators and Arbitrators is set out below. Note that the specific procedures for appointment may vary depending on the terms and conditions of the contract entered into between the parties. Parties are advised to check the terms and conditions of their contract prior to appointment of mediators, conciliators or arbitrators:

Mediators

Either party may activate the mediation process by giving written notice to the other party seeking the appointment of a mediator. If the parties are unable to agree upon a mediator within a period of 15 working days of the notice seeking the appointment of a mediator, either party may apply to the President of the Construction Industry Federation who shall appoint a mediator. If there is a fee for the appointment, the parties shall share it equally. Once a mediator has been appointed to a dispute between the parties, unless the parties agree otherwise, the same mediator shall deal with all other disputes between the parties, provides he/ she is agreeable to do so.

Conciliators

If the mediation is concluded without the dispute having been resolved, either party may activate the conciliation process by giving written notice to the other party seeking the appointment of a conciliator. If the parties fail to agree a conciliator within 15 working days of the notice seeking the appointment of a conciliator, either party may apply to the President of the Construction Industry Federation who shall appoint a conciliator. If there is a fee for the appointment, the parties shall share it equally.

Arbitrators

The parties shall jointly appoint an arbitrator and, if the parties are unable to agree an arbitrator to be appointed, the arbitrator shall be appointed by the President of the Construction Industry Federation.

15 January 2014

Dispute Resolution in Construction Contracts

INTRODUCTION

1. Building and engineering work in Ireland covers a very wide scope of industrial, commercial and residential construction activity, ranging from infrastructure projects costing several hundred million euro to the renovation and/or extension of small residential or commercial properties.  The vast majority of this work will be carried out under one of the many standard forms of construction contract. Many of these contracts have been in general use, both in Ireland and internationally, for several decades and include a range of RIAI, FIDIC, EI/ICE, and NEC contract forms.  In 2007 the Department of Finance introduced a suite of contracts, known as the Public Works Contract Forms, which are in use on virtually all Government funded projects.  These contracts are now available from the website of the Department of Expenditure and Reform.

2. The documentation comprising a construction contract includes not just the formal conditions of contract, but also, as a minimum, the specification and drawings describing the work to be completed, and a pricing document setting out the basis on which the Contractor will be paid for the construction work. Disputes can arise during construction work for a variety of reasons, including, but certainly not limited to, unforeseen site conditions, the cost of instructions to the Contractor to carry out additional or varied work, and disagreements over the scope and specification of the design.  It is internationally recognised that litigation in the Courts is a particularly unsatisfactory process for the resolution of construction disputes.  Such disputes are often technical and complex and not necessarily related to the interpretation of the contract terms and conditions but to the interpretation of the ancillary documentation describing the design, specification and the site conditions which will be encountered during the course of the work.

3. Historically, all standard forms of construction contract included at least one dispute resolution process as an alternative to litigation. Currently, virtually all provide that the parties engage in a two-step alternative dispute resolution process when construction disputes arise.  Originally arbitration was the chosen alternative, but over the past fifty years arbitration has evolved into an expensive and protracted procedure which has singularly failed to deliver satisfactory dispute resolution outcomes to construction disputes.  In consequence, since the mid 1980’s, parties to construction contracts in both Ireland and the UK have sought alternatives to arbitration. In Ireland this quest led to the development of conciliation (or more recently mediation) as mandatory dispute resolution steps in construction contracts before proceeding to arbitration.  In the UK, the mandatory first step before arbitration is adjudication under 1996 and 2009 Economic Development and Construction Acts.  In Ireland the Construction Contracts Act 2013 was introduced by the Government as a statutory process to deal with payment disputes in response to difficulties encountered by sub-contractors on major development projects.

4. Any consumer or private entity, who engages a Contractor to carry out construction work on their behalf, should ensure that they do so by means of a formal contract.  Ideally one of the standard forms of contract should be used. If not, the contract documentation should be in writing, and should include a clear description of the scope of the work to be undertaken, the agreed payment terms and contain a dispute resolution process which is an alternative to arbitration or litigation.  The use of a standard construction form of contract will usually meet this latter requirement and will facilitate the timely and cost-effective resolution of any dispute which arises from the construction work.  Remember that if disputes arise and an alternative dispute resolution procedure, ideally either conciliation or mediation, is not specified, then the default procedure will be litigation.  

Hereunder is a brief description of the various alternative dispute resolution mechanisms referred to above.

5. Adjudication

Adjudication, in Ireland, is a statutory process intended to regulate payments under construction contracts.  The legislation in question is the Construction Contracts Act 2013 which sets minimum contractual payment arrangements for all construction contracts, covered by the Act.   Either party to the contract may refer a payment dispute to the adjudication of a person agreed between them, or failing such agreement, on the application of either party, to the adjudication of a person appointed by the Chairperson of the Construction Contracts Adjudication Panel.

Contracts with a value of less than €10,000, or which relate only to a dwelling with an area of less than 200 m2 , occupied, or intended to be occupied, by one of the parties, are exempt from the Act.  A detailed explanation of the arrangements for the conduct of adjudications is set out in a Code of Practice, published by the Department of Jobs, Enterprise and Innovation.  Adjudication in Ireland is untested and was primarily intended to resolve payment disputes between Main Contractors and sub-contractors and may not be suited for the resolution for disputes on private residential contracts.

6. Conciliation

Conciliation is a dispute resolution process which, in Ireland developed as an alternative to arbitration in the mid 1980’s.  In many standard construction contract forms it is a mandatory, first dispute resolution step, and the parties proceed to arbitration only if they fail to reach agreement at conciliation.  It is, in effect, a facilitated negotiation with the primary purpose of assisting the parties to reach an agreed settlement.  Correctly conducted it is a quick, informal and relatively low cost procedure with no role for formal advocacy or legal representation.

Conciliation is a confidential and without prejudice process where the Conciliator’s role is to explore the strengths and weaknesses of each parties’ position.  The Conciliator can meet with them separately and/or jointly and explore possibilities for settlement not possible in either adjudication or arbitration. If an agreed settlement is not achievable, the Conciliator will then issue a formal Recommendation which will state the Conciliator’s opinion as to how the parties can best dispose of the dispute between them.

Originally the intention of the Conciliator’s Recommendation was a pragmatic settlement proposal which could take account of factors outside the strict contractual relationship between the parties and was “not necessarily based on any principles of common law or equity”.  Under the Government’s Public Works Contract Forms the Conciliator is obliged to base the Recommendation “on the rights and obligations of the parties”.  Each of the Professional Bodies and the CIF maintains panels of Conciliators from which the parties to a construction contract can select a Conciliator. Each has Conciliation Procedure documents which govern the conduct of conciliation, and will, on the application of one of the parties, and if the contract conditions so provide, nominate a Conciliator to deal with their dispute.

Mediation

The use of mediation as an alternative dispute resolution process has increased significantly in recent years, not just for the resolution of construction contract disputes but with a more general application to litigation before the Courts.

Mediation, like Conciliation, is a form of assisted negotiation, but unlike Conciliation it is purely facilitative, and the role of the Mediator is to assist the parties to arrive at their own decision.  It provides even greater flexibility than Conciliation and the parties are not necessarily bound by the rights and obligations set out in their contract in seeking a compromise on their respective positions.

Mediation is a voluntary process and as such is one which is most likely to result in the retention of existing commercial relationships.  It is conducted on a wholly confidential and without prejudice basis and, as in Conciliation, if it is unsuccessful in achieving an agreed settlement, nothing revealed in the course of the process can be used in any subsequent proceedings.  It is also a relatively inexpensive and speedy process in which the role of the Mediator is to explore with the parties their interests, strengths and weaknesses and identify possible areas of compromise which could lead the parties to an agreed settlement.  It can be used at any stage in the development and/or adjudication of a dispute.

All the Professional Bodies maintain Panels of Mediators and can provide Mediation Procedure documents.  In addition, the Mediation Association of Ireland are available to advise on the appointment of Mediators.

Arbitration

Arbitration was originally developed in the UK in the eighteenth century as a confidential alternative to litigation.  It began life as a process whereby commercial disputes between members of trade associations were resolved by referring them to the determination of a respected peer group or individual within the trade association.  It was designed as an inexpensive, easy and timely process which resolved disputes without damaging existing commercial relationships.  Over the years it has evolved into a highly legalistic, potentially very expensive, and protracted process which is unsuited to other than high value disputes.


Disclaimer
While CIRI has made every attempt to ensure the accuracy and reliability of the information provided. It is provided without warranty of any kind, and we do not guarantee its accuracy, integty or quality. The information provided cannot be substituted for the advice of a licenced professional relevant to your circumstances. You should not rely on any information appearing on dev.ciri.ie to make (or refrain from making) any decision or to take (or refrain from taking) any action on which reliance should be placed. Please see CIRI Terms and Conditions which apply to the use of the CIRI register.