BUILT ENVIRONMENT JOURNAL

Who is the client?

Opinion: Even if a single party does agree to act as client, all possible clients still retain certain duties under the CDM Regulations

Author:

Jeffrey Tribich

01 February 2020

Building surveying

Health and safety

Legal

Answering the question 'Who is the client?' is not necessarily as straightforward as it might seem. Several parties may satisfy the designation, and this is particularly significant under the Construction (Design and Management) Regulations 2015 (CDM 2015), which define a client as 'any person for whom a project is carried out.'

The Health and Safety Executive's guidance to CDM 2015, L153, clarifies that clients are organisations or individuals, and this includes 'clients based overseas who commission construction projects in Great Britain.'

This means the situation can be complicated, because although a particular party may carry out a development it could be doing so on behalf of another organisation. There may be a special purpose vehicle or a joint venture between various parties, and there are of course project funders too.

More than one client

But if there is more than one potential client, which of them is the client for the purposes of CDM 2015? The regulations recognise the potentially multiple and simultaneously disparate nature of clients, any or all of whom may be construed to be clients for regulatory purposes with the resultant duties falling to them.

Paragraph 26 of the guidance in L153 goes on to state that uncertainty about who the client is 'should be resolved as early as possible by considering who:

(a) ultimately decides what is to be constructed, where, when and by whom;
(b) commissions the design and construction work (the employer in contract terminology);
(c) initiates the work;
(d) is at the head of the procurement chain; and
(e) appoints contractors (including the principal contractor) and designers (including the principal designer).'

Potential difficulties

All parties defined as clients will be responsible for discharging the full range of client’s duties; however, in Part 2, Regulation 4 the CDM Regulations foresee the potential difficulties that this could cause, and make provision for them by stating that ‘one or more of the clients may agree in writing to be treated for the purposes of these regulations as the only client or clients.'

In the light of CDM 2015's provisions, a funder for example may wish to negotiate with a borrower that the latter is acting as the sole client for regulatory purposes.

However, clients must be careful. Significantly, even if one party agrees to act as client, all possible clients still retain certain CDM duties: first, to provide any information they have that may be relevant to compiling the pre-construction information; and, second, to cooperate with anyone involved in the project. These duties are central to good health and safety management. All clients, whatever their status and their different roles, could hold information or documents that may be vital to preserving life and limb, maintaining good health and promoting well-being.

And what of domestic clients? They are duty-holders under CDM 2015 too, but, as people who have construction work carried out that is not as part of a business, different requirements apply. That's another story.