Next one.. AFDDs. Looks like there's a change from High Risk Residential Buildings to Higher-risk buildings (innocuous enough of itself as the definition seems to be similar (18m or 7 storeys and containing 2+ residential units) but the actual definition is indirected to the Building Safety Act and "The Secretary of State may by regulations make provision supplementing this section.". Does this mean than BS 7671 has become "ambulatory" and it's precise meaning could change at any time without the knowledge or consent of JPEL/64? (or the reader of BS 7671)?

   - Andy.

AJJewsbury said:

Does this mean than BS 7671 has become "ambulatory" and it's precise meaning could change at any time without the knowledge or consent of JPEL/64? (or the reader of BS 7671)?

No, I do not think that anything has changed there. Statutes, be they primary legislation (Acts) or secondary (Regulations, etc.) will always trump standards.

This is what Amd 2 says (Note 1 to 421.1.7): "It is anticipated that in many areas higher risk residential buildings will be defined in legislation which can be subject to change over time, as well as in risk management procedures adopted by fire and rescue services. Current legislation should be applied.)

Amd 2 was issued on 28 March 2022, but the Act received Royal Assent a month later on 28 April 2022 so it seems that the Committee was aware of the Proposed new legislation, but clearly could not refer to something which did not yet exist.

Statutes .... will always trump standards.

It's not so much the legislation trumping the standard (the legislation isn't saying install AFDDs, BS 7671 does that still), it's more the ability to say what BS 7671 actually means. Normally references out to other standards are to a particular fixed version of that standard (as listed in BS 7671 Appendix 1) - so when there's say a contract that says we agree to work to BS 7671:2018 AMD 2022 say, it is possible for all parties to know exactly what that means (as undoubtedly the lawyers will check). But if there's a contract or certificate that says BS 7671:2018 AMD 2026 we won't know, precisely. So say a contract is signed in January agreeing to BS BS 7671:2018 AMD 2026, designed in March, according to BS 7671:2018 AMD 2026, and then delivered in December  - but somewhere in between some politician changed their mind and reclassifies the type building the installation is in as a HRB - who takes the hit of paying for and installing all the extra AFDDs? (possibly hundreds of them). The customer because it wasn't a requirement when the contract was signed or the installer because what they delivered now doesn't comply with BS 7671, as stated in the contract?

   - Andy.

AJJewsbury said:

Does this mean than BS 7671 has become "ambulatory" and it's precise meaning could change at any time without the knowledge or consent of JPEL/64? (or the reader of BS 7671)?

That is a good question, and in a way, the precise meaning of BS 7671, as with any other standard, can already change from what any of us thought it meant in given circumstances ... simply the because only a court can interpret a Standard. All you can get from anywhere else is an opinion on the meaning.

AJJewsbury said:

Does this mean than BS 7671 has become "ambulatory" and it's precise meaning could change at any time without the knowledge or consent of JPEL/64? (or the reader of BS 7671)?

That is a good question, and in a way, the precise meaning of BS 7671, as with any other standard, can already change from what any of us thought it meant in given circumstances ... simply the because only a court can interpret a Standard. All you can get from anywhere else is an opinion on the meaning.

can already change from what any of us thought it meant in given circumstances ... simply the because only a court can interpret a Standard.

Fair point - the words might not mean what we think they mean, but a situation where the words themselves change, seems worse to me.

   - Andy.

gkenyon said:

only a court can interpret a Standard. All you can get from anywhere else is an opinion on the meaning.

Yes, a judge will make a judgement which declares the meaning of a provision. However, judges make errors (that is why we have appellate courts and tribunals) and sometimes their judgements are less than clear.

Chris Pearson said:

Yes, a judge will make a judgement which declares the meaning of a provision.

Or interprets the meaning for a particular circumstance.

Chris Pearson said:

However, judges make errors (that is why we have appellate courts and tribunals) and sometimes their judgements are less than clear.

Not sure of the point being made here? Surely it's only the proper course of action.

And of course, clarifying meaning for one circumstance may not help other circumstances.

Just out of curiosity, has there ever (yet) been a case of a court deciding on the correct interpretation of BS 7671?

   - Andy.

AJJewsbury said:

Just out of curiosity, has there ever (yet) been a case of a court deciding on the correct interpretation of BS 7671?

Surely any case where one or more experts provide opinions based on the standard must determine, for the purposes of the case, the veracity of those opinions?

And when opinions provided for both sides provide different interpretations, the experts' opinions must be reconciled somehow?

So, I would say 'yes'.

gkenyon said:

Not sure of the point being made here? Surely it's only the proper course of action.

And of course, clarifying meaning for one circumstance may not help other circumstances.

Regarding the second point, a lawyer would say that the current case may be distinguished from a previous one on the facts.

My point was that judges are not infallible and a particular judgement may be less than clear.

The principle of binding precedent means that lower courts, e.g. the County Court must follow higher ones, i.e. High Court and above. That may be a problem when it comes to interpreting e.g. a High Court judgement.

It's a money-go-round for lawyers!

I suspect not. However, there have been cases where compliance with BS 7671 has been material to contract disputes.

If two experts disagreed, a court might have to choose between one or the other, but they prefer a consensus between experts, or even a joint expert report.

Where is JP?

It all depends what is says in the contract.

You would have to be pretty daft to agree to a contact to supply or do something unknown. A PC sum or provisional sum could be included for an unknown in the contract.

The client  cannot apply a new provision post contract  unilaterally, but can negotiate a change or an addition to the contract after the initial contract which is done frequently in the construction world. 

The Olympics in London  was sold to the government of the day for £5.7b with an out turn cost in excess of £25b. Similar massive increase in costs for Cross Rail. HS2 and defence costs. A case of just another £10 million should fix this problem minister! 

JP

I'm reminded of the yes minister episode about 'the moral dimesnsion' .

"We have looked into every brown envelope and found nothing wrong."

My personal view is by the time folk are saying 'see you in court' the situation has already passed the point of intelligent technical discussion and sensible resolution, the legal process adding neither, and more often than not, every one will end up feeling hard done by.

Except perhaps the barristers.

That said, with the right input information from the right experts, some judges can grasp and rule on remarkably technical stuff, picking up just enough in the time available to decide sensibly. But it is horribly random.
Para 3 of this judgement is a very good case in point and is vaguely electrical.

Mike

Try this link instead

or a better version here