Article Contaminated Land Loss Prevention

Asbestos PII Update

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Tags: AGS Asbestos bodily injury claims collateral Griffiths & Armour Professional Risks law PII Policy professional indemnity insurance

The subject of asbestos cover is one that has been in the spotlight for many years since the restriction (and in some cases the complete withdrawal) of professional indemnity insurance (PII) cover for asbestos risks in 2002/03.

Wider cover is now available in the PII market to those consultancy firms that might inadvertently come across asbestos in the normal course of their activities, although it will not usually be offered to those firms undertaking asbestos inspections.

In the past, cover has generally only been available for negligence claims in respect of the direct cost of remediation or diminution in value of property due to the presence of asbestos. Any indirect costs, such as consequential delay costs, would have been excluded. With a few exceptions, cover can now be obtained for any asbestos related negligence claims regardless of whether the loss in question relates directly to remediation or diminution in value, and cover will therefore extend to cover economic and consequential losses. The exceptions relate to bodily injury claims and claims relating to property located outside the United Kingdom (including the Channel Islands or the Isle of Man) and the Republic of Ireland, which continue to be generally excluded.

Those firms undertaking ‘management’ and ‘refurbishment or demolition’ surveys as described in the Health and Safety Executive guide HSG264 (previously known as type I, II or III asbestos surveys) or similar surveys are unlikely to qualify for the wider cover and will need to negotiate specific cover with their insurers or approach a specialist provider. Consultants with UKAS accreditation should note that UKAS requires Accredited Bodies to carry asbestos cover for bodily injury claims and this is available to such bodies via specialist markets. If you require assistance with this, then please do not hesitate to contact Griffiths & Armour using the contact details below.

For those consultants who may appoint sub-consultants to undertake asbestos inspections on their behalf it is worth remembering that, in the eyes of the law, you are fully responsible for their actions and any claim that arises from work they may have undertaken is likely to expose the consultant’s PII policy in the first instance. If you are appointing third parties to undertake asbestos inspections then you should check the terms of your PII policy to ensure that you are adequately protected.

The scope of cover provided under PII policies can vary considerably and if you are in any doubt about the extent of asbestos cover under your own PII policy you should consult with your broker for further advice.

Griffiths & Armour Professional Risks
0151 600 2071

Article Loss Prevention

When is a financial cap likely to be an effective cap?

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Elvanite Full Circle Limited v AMEC Earth & Environmental (UK) Ltd [2013] EWHC 1191

Article by Sarah McNeill, Griffiths & Armour Professional Risks

The decision in Ampleforth Abbey Trust v Turner & Townsend was reviewed in a previous newsletter under the heading ‘when is a financial cap not a cap?’ as an example of a consultant’s cap on liability being unenforceable. Is that always going to be the case? Should consultants cease to raise the subject of liability caps when negotiating contract terms? Certainly not. The more recent decision in Elvanite reflects much more positively the very real financial value of limitation and exclusion clauses – provided that they successfully satisfy the applicable tests.

Elvanite, a demolition and recycling contractor, brought a claim against AMEC, its professional consultant, for breach of contract. AMEC were alleged to have failed to submit a planning application before the deadline stipulated in their services agreement.

A buyer had agreed to purchase the site from Elvanite subject to a condition that planning permission had been obtained prior to the date of transfer. Elvanite brought a claim against AMEC for consequential losses when the purchaser pulled out of the proposed deal due to planning permission not having been obtained within the expected period. AMEC denied the allegations and counterclaimed against Elvanite for its outstanding professional fees.

At trial the Judge found against Elvanite on the facts, and from that point onwards the above clauses were unimportant. However, he thenhelpfully went on to discuss how those clauses fared under UCTA in the given circumstances and whether therefore they would have been enforceable in principle.

The Defence

Amongst other arguments in its defence, AMEC sought to rely on various exclusion clauses included in its standard terms and conditions, namely that:

  1. AMEC would not be responsible for any consequential, indirect or incidental losses.
  2. The total liability of AMEC would be limited to the total fee received by AMEC or £50,000, whichever was less.
  3. All claims would be deemed to have been relinquished unless ‘filed’ within one year of the substantial completion of the Services.

Elvanite contended that that these clauses were ‘unreasonable’ and therefore unenforceable under the Unfair Contract Terms Act 1977 (UCTA).

At trial the Judge found against Elvanite on the facts, and from that point onwards the above clauses were unimportant. However, he then helpfully went on to discuss how those clauses fared under UCTA in the given circumstances and whether therefore they would have been enforceable in principle.

Test of Reasonableness

The court considered whether the clauses were in fact ’fair and reasonable’ pursuant to section 11(1) and Schedule 2 of UCTA. Mr Justice Coulson took as his starting point the statement of Chadwick LJ in Watford Electronics v Sanderson CFL Limited[1] that the court should not interfere in an agreement negotiated by ‘experienced businessmen representing substantial companies of equal bargaining power’. This he believed was ‘the best judge on the question whether the terms of the agreement are reasonable’.

Here both parties were indeed ‘relatively substantial’. Whilst AMEC was a subsidiary of a much larger group of companies, it was held that this did not make any difference to the parties’ commercial standing. It was of critical importance that both parties were of equal bargaining power and that there was no evidence that Elvanite had not known what it was agreeing to – more than once they had been sent AMEC’s terms and conditions and had raised no objections. (This is an important difference to the situation in Ampleforth Abbey Trust v Turner & Townsend (see below) where a change to the consultant’s standard terms and conditions imposing a new limitation clause was not brought to the client’s attention.)

As a result, all three limitation clauses were found to be ‘reasonable’ for the purposes of UCTA.

  1. INDIRECT/CONSEQUENTIAL LOSS EXCLUSION

AMEC argued that the loss of profit claimed by Elvanite constituted consequential or indirect damage and that the losses claimed by Elvanite were therefore excluded.

Coulson J considered that ‘indirect damages’ referred to losses recoverable under the second limb[1] of Hadley v Baxendale[1]. AMEC had undertaken to use reasonable skill and care in its completion of the planning application for Elvanite, and therefore any loss of profit was indirect because it was conditional upon Elvanite having agreed to sell the site to a third party on specific terms.

AMEC was not aware that Elvanite was the owner of the site until after the appointment had been concluded. For that reason, the court considered that on this basis, it was also considered that the indirect losses claimed by Elvanite would have been too remote to be recoverable regardless of the exclusion clause.

  1. FINANCIAL CAP ON LIABILITY

AMEC argued that it had been paid £13,987 for its services and therefore that its liability was limited to this sum.

 

The court acknowledged that it is common for companies providing professional services to limit their liability by reference to pre-determined sums, usually the value of the fee or the limit of any relevant insurance policy. Coulson J referred to the decision in Ampleforth Abbey Trust v Turner and Townsend [2012][1] in which a limit of liability was held to be unreasonable on the basis of the ‘stark disparity’ between the purported £111,000 liability cap and the PI insurance requirement of £10M. AMEC on the other hand were not bound by any such insurance obligation in this case.

 

The court, therefore, concluded that the term was not unreasonable and that AMEC’s total liability would not have exceeded the amount paid by Elvanite for the services.

 

  1. TIME LIMITATION

AMEC also sought to rely on the clause stating that all claims by Elvanite would be deemed to have been relinquished unless filed within one year after the subsequent completion of the Services.

Coulson J observed that ‘the parties to a contract can vary the statutory six year limitation period’, reinforcing the decision in Inframatrix Investments Limited v Dean Construction Limited[1] that the statutory rules can be superseded by agreement.

However, AMEC nearly fell foul of rather loose drafting in this clause. They no doubt had intended to bar any proceedings issued at court more than one year after they had substantially completed their services – but this clause referred to ‘filing’, which is an unusual word to find in this context. The Judge determined that since claims are issued and not ‘filed’ this must have been a reference to serving a formal Letter of Claim. Elvanite had sent a letter notifying

AMEC of its claim within the limitation period, but the letter did not comply with the Pre-Action Protocol. Accordingly Elvanite’s claim was deemed to have been ‘relinquished’ under the terms of this provision.

Conclusions

While technically ‘obiter’ and thus not binding, the comments of Coulson J are a useful guide as to how the courts approach exclusion and limitation clauses and are a reminder that when clearly and carefully drafted a consultant can effectively rely upon them.

What is especially important to note here was the significance placed on the equal bargaining power of each of the parties and the court’s reluctance to intervene with contractual limitations when this is the case. Where the parties are on an equal commercial footing limitation provisions are much more likely to be regarded by a court as being reasonable for the purposes of UCTA than in cases where one party is clearly in a dominant commercial position over the other.

Both Ampleforth Abbey and Elvanite were decided on their specific facts and do not create new law. They are, however, useful reminders of long-standing principles of contractual formation and interpretation, particularly the need for clear and unambiguous language and the need to bring any unusual or onerous clauses to the other party’s attention.

On a final note, it is also worth remembering that having successfully negotiated a liability cap in an agreement, it is then critically important to check the rest of the document for potentially inconsistent terms.

References

  1. [2001] 1 All ER (Comm) 696
  2. Damages for breach of contract are recoverable under two limbs under Hadley v Baxendale: (i) Damages which may fairly and reasonably be considered as arising naturally from the breach; and (ii) Damages which may reasonably be supposed to have been in the contemplation of the parties at the time that the contract was formed as being the likely result of breach
  3. [1854] EWHC Exch J70
  4. The Trustees of Ampleforth Abbey Trust v Turner & Townsend Project Management Limited [2012] EWHC 2137 (TCC)
  5. [2012] EWCA Civ 64

 

Article

AGS Members’ Day – March 2015

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Tags: AGM Asbestos consultants HS2 lab testing March 2015 members day

9.30am – 16.30pm, Wednesday 18th March 2015

Royal Geological Society, 
1 Kensington Gore, London SW7 2AR

AGS Members day incorporates our AGM and will feature a number of presentations on the issues that are front of mind for the geotechnical and geoenvironmental industry.

This year’s programme includes a panel discussion on Asbestos and the issues it raises within the practice area of managing the risks for contaminated land. Presentations will also be given on the “Ground Investigation Requirements for HS2” and “Educating Consultants on Laboratory Testing”.

The full programme can be download here –  AGS Members’ Day programe A4 FINAL

 

Article Loss Prevention

Depositing geotechnical records with the BGS

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Tags: BGS borehole copyright digital files exploration GeoIndex geological mineral National Geoscience Data Centre NGDC open-file records

The British Geological Survey (BGS) collects borehole records, borehole materials and site investigation reports which are maintained by the National Geoscience Data Centre (NGDC). The Survey has statutory rights of access to information and samples from certain mineral exploration and water supply boreholes. The BGS also welcomes donations of information from anywhere in Great Britain in various formats, including analogue, digital and material collections. If digital files are available these are preferred, and in particular in AGS format data.

The AGS supports the aims of the BGS and encourages its members and their clients to donate their geological records, particularly where in AGS data transfer format in order to propagate its use, to the benefit of member companies, industry and for the general public good.

Most of the collections are part of the public record and are made available through a not-for-profit cost enquiry service, and scanned copies of borehole logs can be accessed for free using the BGS website’s GeoIndex. If specified on the BGS standard deposition form, data can be held as commercial-in-confidence for 4 years before it becomes open-file. Special arrangements need to be made with the BGS for longer periods.

It is therefore important that the ownership of the information itself and that of the copyright and other intellectual property rights must be clearly established before data is deposited, and the AGS recommends that members and their clients discuss this issue at an early stage in the commission. It is recommended that members ask their clients to confirm in writing that the member can donate the records to the BGS at the end of the commission. Alternatively, members could include in their standard conditions a clause stating the information will be donated to the BGS on the due date for payment of their final invoice unless otherwise informed in writing by their client.

The BGS offers advice and guidance about clearing intellectual property rights including copyright. Further information can be obtained from the BGS website www.bgs.ac.uk

The Loss Prevention Working Group of the AGS is collecting the experiences, comments and views of its members and their clients on the submission of information to, or the requesting of information from, the BGS and whether they have submitted or requested information in AGS format. Please contact the AGS at ags@ags.org.uk.

Article Business Practice

Work permits for Non-UK and EU Ground Engineers

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Tags: Engineering EU Ground Forum Recruitment SOL Specialist Occupations List UK

Although there are indications that the supply of UK and EU graduate engineers is increasing, there are still sufficient hard to fill vacancies to indicate a continuing shortage of ground engineers. Although immigration currently has a high press and political profile, it is worth noting that where the Home Office acknowledges that a skill shortage exists, certain work permits can still be fast tracked – despite the tightening of visa rules for migrants from outside Europe.

Recruitment from outside Europe requires the employer to hold a sponsorship licence (see www.gov.uk/government/collections/sponsorship-information-for-employers-and-educators.) Once this has been obtained, the visa application procedure requires the employer to fulfil the requirements of Resident Labour Market Test (RLMT) – i.e. to demonstrate that it is not possible to fill the post from within the UK or EU. This can be time consuming and risks the possibility that the desired applicant finds alternative employment elsewhere before the work permit is received.

The good news, however, is that Ground Engineers are on the Shortage Occupation List (SOL). This does not affect the requirement for employers of migrant labour to be licensed, but once this hurdle has been overcome (and the necessary administrative and monitoring structures have been put in place) – the RLMT is not necessary and the issue of a visa should be relatively straightforward and reasonably quick.

A number of things to be aware of:

  • Your HR Department may not be aware that Ground Engineers are on the SOL.  (Civil Engineers were removed from the list some years ago). See Table 1.

    Table of data

    Table 1

  • The visa issuing people do not understand ground engineering. To minimise problems, avoid the temptation to use your company’s job title.  Stick to the generic occupations listed in the SOL. These are (April 2014)
  • A minimum salary applies:  for new entrants this is £19,700 (SOC code 2142);   £20,000 (SOC code 2113); and £20,200 (SOC code 2121).  For experienced people it is £24,600 (Soc Code 2142); £27,000 (SOC Code 2113); and £28,700 (SOC code 2121).  (Higher thresholds may apply if the holder is accompanied by his/her family).
  • The fees for applications via the SOL route are slightly lower than normal Tier 2 application rates.
  • Since 2011 there has been a limit of 20,700 work permits issued each year under the Tier2 regulations.  Applications for job titles on the SOL have priority.
  • For very experienced, very specialist roles who don’t easily fit into the above job titles – it may be possible to get a work permit under the Tier 1 Exceptional Talent rules. These require a letter of personal recommendation from someone in the UK who is familiar with the  applicant’s work and his/her contribution to the field, and qualified to assess his/her claim to be a world leader or a potential world leader in the field. Applications will be assessed by the Royal Academy/Royal Academy of Engineers/The Royal Society.

Further information and forms can be found online – and contact numbers are readily available for guidance by UK Visas and Immigration staff.

The Ground Forum would be very interested in receiving feedback (positive and negative) from anyone obtaining visas for ground engineers – and advice that might be helpful to other applicants.

REMEMBER: Recruitment from outside the UK is not a substitute for developing UK talent.  The industry urgently needs more well qualified UK ground engineers.  Many employers are already reaping the rewards of closer liaison with universities and the early recruitment of undergraduate students and recent graduates who can benefit from work experience and specialist training in the ground engineering industry.

Article Business Practice Executive

Ground Engineering Talking point on RoGEP

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Tags: Engineering RoGEP

UK Register of Ground Engineering Professionals (UK RoGEP)

It is nearly a year since we launched UK RoGEP and things have moved on at quite a pace. UK RoGEP Register now has over 60 registrants and the number of applications is increasing. The uptake by ground engineers has been higher than we originally considered and we are anticipating a 50% increase in applications during the next year!

One of the key drivers from a client perspective was that ground engineering work was being carried out by people  working outside their area of expertise and qualifications. This unfortunately is still occurring on a regular basis as noted by AGS members. The AGS are about to publish a client’s guidance document which will provide advice and guidance for procuring ground engineering services with a particular emphasis on UK RoGEP and SiLC registrations.

With regards to UK industry recognition of UK RoGEP, various client organisations have been positive in the aims, objectives and needs for registration of ground engineers. The Welsh Government, UK Highways Agency and Network Rail are all fully and publically endorsing UK RoGEP registration. There is also evidence that some clients are now requiring ground engineering specialists and advisers to be involved in their projects, the Scottish Forestry Commission being one of them. The three levels of registrant are now also beginning to appear in guidance documents and client specifications. The recently published Site Investigation Steering Group specification document provides details of the roles that should be undertaken for the three levels of registrant.

The high number of applications for registration has led to, on a few occasions, a longer turn-around of application processing. We originally thought six weeks would provide sufficient time for the assessment and auditing process to be carried out; however there have been occasional “hiccups” which the UK RoGEP Panel have addressed.  We have apologised to candidates where delays have occurred and explained the reasons behind the delay.

These “hiccups” include those you might expect in a new organisation where “new ground is being broken” (excuse the unintended pun!). We have had to modify certain application forms to make the process easier for both applicants, sponsors and indeed for the assessors.

Other delays have occurred when the sponsor’s statements and the sponsorship forms have not followed the guidance provided. This has particularly been seen with regards to the personal statement, where one of the key factors used by the assessors are evidence of the six attributes (Innovation, Technical Solutions, Integration, Risk Management Sustainability and Management) which can be identified in carrying out projects, research and writing technical papers.

The other key matter is the sponsorship of candidates. The original members of the Panel approved the sponsorship of all applicants whom were personally known to them. As the number of registrants increased they in turn were able to sponsor further applicants whom they had known and worked with. With the success of UK RoGEP registration there were issues with some applicants who could not obtain registered sponsors.  We have therefore allowed particular non-registered ground engineers to become sponsors subject to the approval of the Panel.  However, this is a temporary arrangement that will be determined in the near future as going forward there should be sufficient sponsors who are registered.

Continuing Professional Development (CPD) is a requirement for admission to the Register and applicants are asked to provide details of both their CPD Plan and Record. Whilst it is expected that such documents would cover general professional discipline matters, registrants are additionally expected to plan and undertake occupational CPD specific to the Register. Furthermore, UK RoGEP Registrants are also bound by their own institution’s rules of professional conduct. UK RoGEP will be issuing further guidance notes concerning CPD in the near future.

For further information on UK RoGEP visit the www.ukrogep.org.uk or www.ice.org.uk

Article Business Practice

BIM Regional Hubs Events

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Tags: BIM Building construction Information Modelling

A BIM Focus

Learning or extending your Building Information Modelling (BIM) knowledge through the BIM Hubs

In line with the launch of the BIM Regional hubs this autumn CIC, in conjunction with the BIM Task Group are running a series of FREE half day workshops across the UK to help educate attendees on all things BIM.

These workshops will feature presentations from BIM Task Group members who will explain the Government’s BIM policy and how you can engage with the new BIM Hubs. There will be local case studies which will illustrate the experience some organisations have had in implementing BIM, for example what business considerations were there, how their information management process changed, the legal implications and many other relevant influences that can have an effect or be affected by the BIM context.

There will be an opportunity for Q&A with the BIM Task Group members which will enhance the understanding of BIM issues and explain any concerns you may have. There will also be a chance to network with fellow professionals who also have an interest in understanding BIM and its benefits.

The BIM Hubs themselves will help raise awareness and the benefits of BIM to the industry as a whole and facilitate the early adoption of BIM processes and working methods throughout the UK’s construction industry as well as providing a valuable link into the BIM Task Group and the Government. At these events you will get a chance to find out more about how the BIM hubs will work in your area with an invitation to be involved and shape its future operation.

These events will be of interest to anyone within the Built Environment such as Practising construction professionals, Members of professional and trade bodies, Contractors, Asset and Facilities managers, Clients and Academia.

Events

Newcastle 25th September 2012 2pm – 5pm
Edinburgh 26th September 2012 10am – 1pm
Glasgow 26th September 2012 2pm – 5pm
Wrexham 1st October 2012 10am – 1pm
Manchester 2nd October 2012 10am – 1pm
Cambridge 18th October 2012 10am – 1pm
Coventry 22nd October 2012 10am – 1pm
Nottingham 23rd October 2012 10am – 1pm
Exeter 29th October 2012 2pm – 5pm
Bristol 30th October 2012 10am – 1pm
Cardiff 31st October 2012 10am – 1pm
Leeds 1st November 2012 2pm – 5pm
Hull 2nd November 2012 2pm – 5pm
London 5th November 2012 10am – 1pm
Northampton 6th November 2012 10am – 1pm
Belfast 8th November 2012 10am – 1pm

To book your FREE place at these events please go to www.cic.org.uk/events if you have any further questions please contact BIMhubs@cic.org.uk

Please note places are limited and will be allocated on a first come, first served basis.

Article Business Practice Loss Prevention

BGS Question and Answer

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Tags: BGS boreholes Drilling legislation

BGS – Legal Obligations Regarding Drilling

Many Members of the AGS received a letter on the 31st May referring to legal obligations regarding drilling and the submission of borehole logs to the BGS. Clarification was sought to ascertain the legal position with regard to boreholes drilled for the purposes of soil analysis for engineering and scientific purposes for the construction industry.

Are there any legal obligations for submitting these records to the BGS?

Roderick Bowie from BGS replied:

“The legal obligations in England Scotland and Wales only apply to those boreholes covered by the Water Resources Act and the Mining Industry Act.  These include some types of monitoring boreholes and geothermal bores  This does not cover boreholes drilled for engineering or construction purposes although we would be pleased to accept this type of information and already do so from a wide variety of different sources including the Geotechnical Industry.  In fact recognising this gap in the legislation the Government did encourage local authorities to deposit this type of information with us, the aim being to help to ‘add to the value of the advice given by the Survey’.  Part of the contractual arrangement between the Highways Agency and their Consultants/Contractors is that a full copy of the factual sections of any report produced as part of their Ground Investigation work is supplied to the Survey. This has included for some time the digital data in standard AGS format.

Many companies are concerned about passing client information to the BGS, but we can and do keep information Commercial in Confidence if requested and some of our donors write into their contracts that data will be deposited with us if the clients don’t object.

There is different legislation in Northern Ireland where all boreholes over 20m are notifiable and records must be kept irrespective of the type or reason for drilling.”

Article Business Practice

Eurocode Readers Question

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Tags: EC7 standards

AGS Comment on Geotechnical Sampling to Eurocode 7
In the September 2011 issue of the AGS Newsletter “ Advice to AGS Members on Geotechnical Sampling in Relation to Eurocodes” makes no reference to the paper “Ground Investigation and Eurocode 7: A Scottish Perspective” (Ground Engineering Magazine, July 2011, pg26-31) relating to the difficulty in obtaining Class I samples from stony glacial till.  I presume that the guidance note was issued without the knowledge of this paper.  I would seek your comments on the above given the position statement now issued to members of the AGS.

As regards section 4.0 of the guidance note I would draw your attention to the contents of the paper which essentially demonstrates that some amendments to BS EN ISO 22745-1 are necessary and best achieved through open dialogue as opposed to proving the point in any court action. Dr J Taylor, Geotechnical Engineer.

The advice note that appeared in the September edition of the AGS newsletter was intended to convey the fact that both EC7 and its supporting documents could, in relation to geotechnical sampling, be used in the UK by the geotechnical industry. In preparing the advice note, the authors deliberately referenced the available published guidance on EC7 so that readers had additional material to which to refer.
Ever since the introduction of EC7, and more particularly BS EN ISO 2245-1 (the latter which was published in 2006), certain proactive elements of the UK geotechnical community have recognised the need to integrate the ‘new’ standards into the site investigation industry. That is not to say that some errors and contradictions haven’t been identified in the standards. Indeed these have been well documented and are available elsewhere for reference.
The standards are, however here and for the time being the UK geotechnical industry needs to make use of them. EC7 and BS EN ISO 22475-1 provide plenty of scope for the site investigation designer to choose sampling and / or in situ testing techniques appropriate to the diverse range of material types that occur in the UK. EC7 even allows the geotechnical specialist to use ‘local knowledge’ as a ‘trump card’ if they believe that this is more reliable than trying to obtain samples in particular classes.

It has long been recognised that there are both soil and rock types within the UK that present a challenge with regard to sampling and in situ testing. These material types have always been present and obviously predate the introduction of Eurocodes. Such challenging materials have always required the site investigation designer to think about the most appropriate methods of obtaining deign parameters; but as Baldwin and Gosling pointed out in their article in Ground Engineering in 2009, this was often not done. With the advent of Eurocodes the designer is forced to think about how best to obtain design parameters and record the rationale for the method(s) adopted. This should be seen as a step in the right direction as far as quality is concerned.
For those in the industry who believe that changes need to be made to the Eurocode documents used in the UK, there are mechanisms for their voices to be heard. Constructive comments can be directed to the appropriate UK standards committee who are tasked with relaying comments made by industry in the UK to the European central committee tasked with producing the first revision / update of EC7 and 22475-1 etc.

Professionals working in the UK geotechnical industry can endlessly debate the merits of Eurocodes for use in the UK. This, however, will not change the content of EC7 et al. The most effective way to get documents improved is to collate constructive comments with the UK standards committee and then let them represent the UK. A collective voice will carry far more weight than individual comments that are lost in the ‘ether’ of local debate.

The AGS is willing to act as a recipient for comments that members may wish to make in relation to EC7 and other supporting documents. Such comments can be as general or specific as members wish, but must be constructive since the basis for discussion is the fact that these standards are in force and can only be modified with good reason.
C Danilewicz- Halcrow and M Baldwin- Soil Engineering

Article Executive

Visa for Geoprofessionals

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Tags: Professionals shortage visa

The Shortage Occupation List  maintained by the UK Boarder Agency (UKBA) identifies those job titles which are officially considered to be in short supply.   Ground Engineering Professionals were added to the list in 2005 and were retained on the list when more rigid and formal procedures were introduced in 2008.

Since 2010 the Government has introduced a number of measures to reduce immigration to the UK and it has become virtually impossible to get a work permit for non-EU nationals unless their job title is on the list.  Thanks to the information supplied by Members on each occasion, Ground Engineering occupations have survived reviews in 2009, 2010 and 2011.

The 2011 review was the most difficult to date.  It was apparent that there are now fewer Geo-Professionals employed and it is hard to argue that there is a shortage at the relatively inexperienced end of the field  where new graduates are sometimes finding it difficult to get their first job. However experienced people remain in short supply – and certain specialist areas (eg tunnelling and hydrogeology) are particularly difficult.  As workloads pick up however, the picture is likely to change again, and the emigration of experienced people to Australia and New Zealand suggests the future may be even worse than pre-recession.

What does the Shortage Occupation List look like today for Geo-Professionals?

SOC code 2113 – Physicists, geologists and meteorologists
Only the following job titles are included:
Hydrogeologist; geophysicist; geoscientist; geophysical specialist; engineering geophysicist; engineering geomorphologist; geologist; geochemist; environmental scientist

 

SOC code 2121 – Civil Engineers
only the following job titles within this occupation are included:
Geotechnical engineers; geotechnical design engineer; geotechnical specialist; reservoir panel engineer; rock mechanics engineer; soil mechanics engineer; geomechanics engineer; tunnelling engineer; (and a number of job titles from the petroleum industry)

UKBA is trying to simplify the list.  Our research suggests that most of these job titles could be removed and replaced by:  engineering geologist, geotechnical engineer, and tunnelling engineer.  We will continue to work towards this.

Finally, if applying for a visa you should be aware that:-

1.  When applying for a visa it is ESSENTIAL to use one of the job titles on the list.  A job title not on the list will not get a visa.

2.  Engineering geologist does NOT currently appear in SOC Code 2113.  This is an oversight and until the list is next revised, visa staff at UKBA have been instructed that an engineering geologist is a geologist (and therefore on the list)

3.  Civil engineer is not on the list. Some HR departments have interpreted this as meaning that visas are not available for Chartered Engineers and therefore do not make an application.  However, geotechnical engineers (and currently variants on this theme) ARE there and CAN get visas.

Article Loss Prevention

PI Requests for Higher Limits of Indemnity

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Tags: indemnity insurance

Professional Indemnity Insurance ~ Requests for higher Limits of Indemnity

It is not unusual for Consultants to be faced with a request for a higher limit of indemnity. The limit required may be much higher than the general limit of indemnity usually maintained by the Consultant for their activities. Requests for such higher limits can also be exacerbated by the low level of fee the Consultant may receive for the services, relative to the limit of indemnity being requested by the client. The following sets out some of the common queries relating to higher limits of indemnity.

Do I have to increase cover for all work or can cover be increased on a project specific basis?

It is worth being aware that some Insurers may be prepared to provide an increased limit of indemnity on a project, client or work type specific basis. In some cases, this may provide you with a more cost effective solution to the required increase. However, due to insurers minimum premium levels, there may be no cost benefit to increasing your cover in this way and the cost of increasing cover for all work could be the same as the cost of increasing cover on a project specific basis. Your broker will be able to advise you on what options may be available to you.

Can I pay a one-off premium for the increased limit of indemnity?

It is extremely important to remember that any increase in your limit of indemnity will not just incur a one-off premium for the current policy period. Professional Indemnity insurance (PII) is a ‘claims made’ form of insurance and cover will need to be renewed, to include the increased limit, on an annual basis to cover future claims. When increasing your limit of indemnity, consideration should therefore be given to the long- term costs, as the requirement to maintain a higher limit is likely to run for six or twelve years following completion of your services. Your insurers are likely to require an additional premium for the top-up arrangement long after the fees for the project have been received and these long-term additional costs should be given consideration in your fee bid.

My contract requires me to maintain the increased limit of indemnity for 12 years following completion of my services, how much will this cost?

It is impossible to predict the future cost of PII premiums as the cost of insurance can fluctuate from one year to the next.  Premiums will be affected by claims experience and future capacity in the insurance market and allowance should be made for possible future premium increases when looking at the long-term potential costs of maintaining higher limits of indemnity.

Although it will not absolve you from any liability to the client, any contractual requirement to maintain PII should be made subject to its continuing availability in the UK market at commercially reasonable rates.

 

The above is a general overview only and for specific advice on increasing your limit of indemnity please contact your professional indemnity insurance broker.

 

Griffiths & Armour Professional Risks
Sarah McNeill

Article Business Practice Executive

University Meets Industry

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Tags: courses Engineering Geotechnical Universities

Engineering Geology and Geotechnical Engineering MSc courses – what is the problem?

A recent meeting arranged by the AGS on behalf of The Ground Forum brought together academics and industry representatives in order to better understand the problems and pressures facing MSc courses and the impact that these will have on the ground engineering sector’s need for qualified and competent professionals.

There are currently 15 universities in the UK offering courses in subjects that would qualify as ground engineering.  Several courses have closed in the past few years – including courses in hydrogeology, even though experienced hydrogeologists are in short supply.

So what is the problem?

University Finance:  All courses are under pressure to diversify income, and Government support is now heavily biased  towards research and research degrees.  Most universities now have a strategy in place to improve research income and increase PhD recruitment.  MSc courses continue – but only if they are profitable.

Student Numbers:   To be self sustaining an MSc course needs 16 or more students.  In the past student numbers were limited by a shortage of students completing first degrees in civil engineering and geology.  This problem has been resolved to some extent in recent years but has been replaced by new difficulties:-

  • 4 year MEng and MSci Courses:  How likely is it that someone who has spent 4 years obtaining a Masters degree in civil engineering or geology will want to do a further year in order to qualify as an engineering geologist or geotechnical engineer?   Yet universities have confirmed that 4 year first degree courses do not contain sufficient ground engineering to make someone proficient in this area.
  • Increasing Fees:  The rise in undergraduate tuition fees is likely to have three effects relevant to this discussion:
    • decrease in undergraduate enrolment
    • increased levels of student debt
    • a corresponding rise in the cost of postgraduate course fees

      A survey by Birmingham University of students who enrolled for an MSc course but withdrew before it began (‘non-arrivals’) revealed that finance was a significant factor.  When Leeds University increased course fees to £5,000 this year, there was a 40% drop in enrolments.   MSc fees next year could rise to £12,000…..

  • Withdrawal of Grants:  NERC and EPSRC funding ended some time ago.  There are now almost no grants available for MSc ground engineering students – and course fees must be paid at the door!

The problem is compounded by the relatively poor pay for ground engineers and the lower status of engineers in the UK (compared to Europe and elsewhere).

Can Industry Help?
The message that went back to Universities from Industry was – not much at present.  Companies already sponsor students and prizes; provide research projects and facilities for MSc dissertations and PhD research; make visiting lecturers available; contribute to industry sponsored bursaries; provide work experience.  Some do more than others, and some would do more if Universities were more adept at making and fostering relationships with companies. But the realities of the economic situation at present make increasing financial support a non-starter.

A number of universities offer flexible courses (eg part time, or block release courses and even distance learning).  These are welcomed and there is scope to increase them and make them more suited to employers requirements.  Closer liaison between academia and industry could improve both the suitability of courses (place, time, structure) and the usefulness of the courses (subject matter and research).

Where to go from here?

One of the most positive results from the meeting was that academics were brought together and agreed to form their own alliance for future contact with the ground industry.  This alliance is expected to meet regularly with representatives from The Ground Forum Members (eg AGS, BDA, BGA, FPS, GeolSoc, PJA, and others) to explore innovative ways to ensure that courses continue, and that they meet the needs of employers.

The Ground Forum will also consider whether there are ways of fulfilling its skills needs other than an MSc.  This would not be with the intention of abandoning the MSc as a qualification, but to widen the diversity of options available through training, very possibly delivered by Universities, but leading to certificates and diplomas rather than a second degree.

The Ground Forum has lobbied for Government recognition of the importance of ground engineering and the need for ground engineers.  It will continue to do so via a meeting of the Parliamentary and Scientific Committee at the end of February 2012, and via an article in Science in Parliament that will emphasise the contribution that ground engineering makes to the economy and to emphasise the need for Government Departments that make use of ground engineering skills (eg DEFRA, DEC, BIS, etc) to also fund training and to understand the relationship between margins and industries ability to support its own professional development needs.

Finally
During the meeting it was agreed that both parties are missing opportunities to support each other and develop more effective communication. Universities have a communication network that includes both past and present students.  Industry has recruitment needs –for permanent positions but also for short term and temporary posts which could be facilitated by the university network.  Students benefit from work placements and work experience – and the company that provides it has an opportunity to assess them and their capabilities for future employment.  Similarly, companies providing dissertation projects benefit from cost effective research, and the possibility of future employees. Expect to hear more of this in 2012 …..