CPA Bulletin

www.cpa.uk.net CPA Bulletin > November 2022 43 Q&As: 2 First of all, I would suggest you use the 2021 version of the CPA’s Model Conditions, which were launched last October. As the 2011 version was being used for this particular hire, then three clauses you need to refer to are: - 5(a) - where the Plant will be deemed to be in good order within 3 days on site if supplied without an operator except for an inherent fault or a fault not ascertainable by reasonable examination. If the customer was having problems with either or both machines, then if they had a genuine grievance on the machine’s capabilities, then would they not have raised this with you at that time. - 5(b) - where the customer has to keep themselves acquainted with the state/condition of the machine and report any problems. Should any problems have arisen during the hire period, then this should have been identified through the daily/weekly checks, and you should have been informed immediately. However, if they continue to use either machine when there was a problem, then any resulting damage, or any costs incurred for the machine’s ‘down-time’ will be with the customer. - 12) - you cannot be held liable for the customer’s loss of production/productivity/consequential losses/etc. for issues which are outside your reasonable control. If the customer had not reported any problems - including under performance - with either machine at that time, then they cannot hold you liable and withhold payment from you. Until the customer provides further information on how/why either machine is under performing, then it may be amatter of pursuing the debt, with or without the assistance of a debt recovery agency. We had hired out two items of plant on a ‘self-drive’ basis to a customer under the Model Conditions. The customer is claiming that both machines are ‘performing poorly’ - but has not provided any detail on how they are under- performing. Instead, he is withholding payment on the basis that he has had site personnel unable to complete their tasks and has also been penalised by his own client. What is your advice under the CPA 2011 conditions? I am unclear why your customer would want to see your insurance policies, when you are simply hiring out under the Model Conditions. However, it is your decision whether to provide copies or not, but I would certainly enquire as to why they think they need them. This request may have come from the main contractor/client to ensure all companies supplying the site - whether directly or indirectly - has the appropriate insurance cover in place. One of our customers who regularly hires from us on a ‘self- drive’ basis, has requested a copy of our insurance details, although no specific insurance policy has been specifically asked for. I could understand their request, if we were offering a transport/machinery movement service, but we are not. I was wondering why our customer would want to see our normal/standard policies when we are simply supplying plant under the Model Conditions. Any guidance would be appreciated. As the pump was brand new, then it is less likely to have failed due to any mechanical or electrical fault; but was more likely ‘blocked up’ from an unsuitable concrete batch that first went through the pump, which then caused subsequent problems on the day. This is affirmed by the fact that the machine did not suffer from any problems prior to this hire, nor any subsequent ones. As the first concrete batch does not appear to be suitable for pumping, then I would refer your customer to clauses 2 - which refers to concrete suitability - and 8 – which refers to blockages - of the CPA’s Concrete Supplementary Conditions, and to clause 12 - Limitation of Liability - of the CPA’s Model Conditions. By referring to these clauses, it clearly outlines your position, and that you are not liable for these costs, nor for the customer’s consequential losses. You may wish to offer you customer information about the pump’s capabilities and history, should they wish to challenge the concrete supplier’s charges for the day. We had supplied a concrete pump to a customer under the Model and Concrete Supplementary Conditions. On the day of the hire, as the first supply of concrete was poured into the hopper, the pump quickly became blocked, and so subsequent deliveries of concrete mixers had to be turned away while we tried to remedy the situation. The customer has since received costs from the concrete supplier, and is trying to pass these on to us, as well as loss of production with men standing around. The pump is brand new, and we have had no problems prior to this hire, and nothing since. What is our position? Can you confirm what will be the dates for this year’s Christmas shutdown? At the time of writing this, the Construction Industry Joint Council (CIJC) has not yet stated what those dates will be, but they may likely suggest that sites close on Friday 23rd December 2022, and re-open on Monday 9th January 2023. These dates may change, and some clients/sites may re-open earlier than that date. Once the dates are confirmed by CIJC, then we will alert the membership.