Over five years on from Grenfell the Technology and Construction Court (TCC) has made its first judgment on a “cladding” dispute. In this case, the cladding system in question was a render system with combustible expanded polystyrene insulation rather than a panel type system.
Martlet Homes Limited v Mulalley & Co. Limited
The decision is a significant moment for those affected by fire safety issues. The court found in favour of the claimant and ordered that the developer must pay the cost of replacing the cladding system.
The court decided that on the basis that:
- The Developer was required to consider all aspects of the guidance to the Building Regulations, including updated versions
- They had failed to do so and the system specified did not pass a full-scale fire test (the BS 8414 test), which was a requirement of the updated guidance
- It was not sufficient for the Developer to say that it was likely that the system would pass a BS 8414 test, they were required to prove this
- It was also not sufficient for the Developer to have relied on a BBA Certificate which said that the system was adequate, as that certificate did not consider or discuss the up to date standard to be met
- A conscientious specifier would have realised this and taken steps to satisfy themselves that the system otherwise complied with the guidance. If it did not have evidence of this, they should have specified a different system that did, noting many were available on the market at the time
- The Developer had therefore failed to meet the Building Regulations
- In addition, the Developer had failed to use reasonable skill & care in design to ensure that the Building Regulations were met.
The last point in particular is important. The “conventional” defence of the party with an obligation of reasonable skill and care that “others were doing the same thing” was held to be a misconstruing of the existing law and is not, at that level, a defence. Those seeking to avail themselves of that defence will have to go a lot further to be successful and the court were not convinced that there was, at the time, a responsible body of opinion which would justify the Developer having ignored the requirements of the guidance to the Building Regulations.
As a result of the Developer being liable, the court ordered that it must pay:
- the cost of replacing the system with non-combustible alternatives, and
- the full cost of the Waking Watch implemented to reduce the fire risk at the time.
Whilst there were specific facts and contract provisions in this case which did affect the outcome of the proceedings, the judgment decides a number of legal points and points of wider application, which those involved in cladding disputes have been arguing in correspondence for years now.
The court’s decision will be welcomed by many acting for claimant parties and building owners who are required to pursue those who built the properties in the first place. Recovery of both the cost of replacement and the full waking watch costs will again be welcome news to the many building owners and management companies who have paid out millions to date.
The clarity of the judgment and the points decided, it is hoped, will encourage parties to settle claims and focus on the important work of making these buildings safe and ending residents’ purgatory in residential developments.
If you need legal advice on cladding systems, please contact our specialist lawyers.
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