Siderise Insulation Ltd v The Royal Borough of Kensington and Chelsea: A judicial review challenge rooted in Grenfell fallout
In December 2024, the Royal Borough of Kensington and Chelsea (RBKC) made a decision to prohibit the use of Siderise Insulation Ltd products in its construction and maintenance projects. This decision was part of a broader policy aimed at distancing the council from companies allegedly linked to the Grenfell Tower fire tragedy of 2017.
The decision under challenge
Siderise, a UK-based manufacturer of passive fire protection systems, was among the firms whose products were used in the Grenfell Tower refurbishment. However, the Grenfell Inquiry Reports did not attribute any blame to Siderise’s products for the fire or its spread, but did conclude that they had been negligently fitted by other contractors.
Siderise was not named in Phase 1 Report of the Grenfell Tower Inquiry, but the Phase 2 Report criticised the datasheets used by Siderise (but not the products themselves), stating that the datasheet could have described the nature of the tests carried out more fully.
Following the Phase 1 report, RBKC adopted a policy not to use, or permit the council contractors to sub-contract with, the companies named in the Phase 1 Report. After the Phase 2 report, RBKC strengthened this ban by implementing a ban on all companies criticised in the Phase 2 Report, on the basis that the Council should not allow such companies to be engaged on its projects where they have been shown by the Phase 2 Report to have been highly incompetent, or have conducted themselves dishonestly or in a way that was misleading, and this contributed to the Grenfell Tower fire or its spread.
RBKC included side rise within this ban following the comments made in the phase two report.
Siderise issued a judicial review challenge in respect of this decision. In keeping with the process for a judicial review, this challenge required the permission of the court to continue to a full hearing, requiring Siderise to show an arguable case, which was resisted by RBKC.
The Legal Action
Siderise argued that RBKC’s decision was:
- inconsistent with the Council’s own policy criteria and/or that it was irrational and premised on a misreading of the Phase 2 Report; and
- inconsistent with the Public Contract Regulations 2015 (PCR15).
In respect of the first of these arguments, Siderise contended that RBKC’s exclusion policy was intended to target companies whose actions or omissions contributed to the Grenfell disaster, or who were found to have been dishonest or misleading during the inquiry. Whilst the Phase 2 Report criticised certain aspects of Siderise’s marketing materials, since the inquiry did not find Siderise responsible for any such conduct, the company argued it should not have been included in the exclusion list.
The court found that this was a properly arguable claim.
In respect of the PCR15, Siderise argued that it was arguable that the Regulations did not provide RBKC with the power to exclude Siderise from future procurement exercises. Regulation 57 sets out the detailed provisions for mandatory and discretionary exclusion of economic operators from procurement exercises, but Siderise argued that this did not allow for the blanket exclusion of a company based on the criteria applied by RBKC.
Again, the court held that this was properly arguable claim and it was not a straightforward question so therefore should be allowed to proceed to a full hearing.
Siderise have therefore been given permission to pursue their claim further to a full hearing, where full arguments will be heard on these matters on a definitive conclusion reached by the court (assuming the parties do not settle this claim before a full hearing).
Comment
It is important to note that this claim concerned the Public Contract Regulations 2015, and not the new Procurement Act 2023, which is now in force for procurements going forward and includes enhanced provisions for excluding contractors from future procurements. However, should this matter progress to a full hearing, the resulting decision will still be of great interest to contracting authorities considering grounds for blanket exclusions of contractors.
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