Cladding and fire safety: key considerations

Following the Grenfell disaster in June 2017, many of those with an interest in buildings which contain residential accommodation and which are over 18 metres have been carrying out investigations on their buildings to see if, from a fire safety perspective, they were built in accordance with the Building Regulations in force at the time of construction. Anyone who has been following the Grenfell inquiry in any detail will be unsurprised to hear that it has been discovered that many of these buildings were not built in accordance with the Building Regulations in force at the time of construction.

The Government has issued advice regarding residential buildings (which specifically includes overnight patient accommodation). It says that where such a building has cladding similar to Grenfell, it presents a significant fire hazard at any height with any form of insulation and action to remove such cladding should be taken as soon as possible.  It says it has advice that these buildings would not have met Building Regulations. It also advises that in any other residential buildings, over 18 metres in height or buildings at any height where residents would need significant assistance to evacuate, the cladding should be checked and remediation works may be necessary.

Following the discovery of such fire safety defects, many have been seeking legal redress from those responsible for designing and constructing the building (in most cases the design and build contractor), and in this article we set out some of the key considerations for those involved in such claims.

Is there a contractual link?

If the NHS Trust is not the entity that employed the contractor to construct the building pursuant to the original construction contract it [ how likely is this Tania- if it isn’ then please delete this section] cannot bring a contractual claim under the original construction contract because they are not a party to it. Given that most construction contracts exclude the Contracts (Rights of Third Parties) Act 1999, in order to bring a contractual claim the Trust would need a collateral warranty in their favour, which, essentially, is an additional contract pursuant to which the contractor warrants to the recipient that it has complied with its obligations under the construction contract.

This is an important point because it is well-established in English law that the cost of remedying defective construction work constitutes pure economic loss, meaning that, absent a special relationship, it is irrecoverable in the law of tort. Ordinarily, therefore, in order to recover such losses a contractual link is required.

Limitation

Many of the buildings that it has now been discovered are suffering with fire defects will have been constructed some time ago. As such, a key issue is limitation.

Unless the Trust in question has a claim in tort against the contractor (i.e. can establish a special relationship) or is able to run an argument that the contractor has deliberately concealed the defective work (see RG Securities v R Maskell [2020] EWHC 1646 (TCC) in this regard), then, in respect of any contractual claim, they will have 6 years from the date of breach to bring a claim if such claim arises under a simple contract and 12 years from the date of breach if the claim arises under a deed. In respect of the date the breach occurs, under a design and build contract this will ordinarily be the date of practical completion.

What should be clear from the above, is that those with potential cladding claims should not delay in carrying out the necessary investigations and establishing whether their building is suffering with defects that give rise to a claim. If they do delay, they risk any claim they may have becoming time barred.

Experts, experts, experts

Numerous experts are ordinarily required when dealing with cladding claims. Firstly the Trust will need to engage a fire consultant to produce a report assessing whether or not their building has been constructed, from a fire perspective, in accordance with the Building Regulations in force at the time of construction. Of course, the defendant contractor will then need to engage its own fire consultant to pass comment on that report.

In addition to fire consultants, each party will most likely be required to engage architectural experts as well. In short, many cladding claims arise due to the specified cladding materials not complying with the Building Regulations in force at the time of construction (i.e. they concern design issues). In the vast majority of design and build construction contracts, the contractor’s liability for design issues is limited to that of an architect. To put it broadly, what this means is that the contractor will only be liable if it can be established that they have made an error in design that no other reasonable member of the architectural profession would have made. In order to establish whether such an error has been made, expert opinion from architectural experts will be required.

Final thoughts

Set out above are some of the key points that are likely to apply in almost all cladding claims. Of course, each matter will have its own specific facts that will give rise to many other issues. What should, hopefully, be clear from this blog is that it is vital for parties involved in cladding claims to establish the contractual position and for those with potential claims to move quickly in order to prevent limitation from becoming an issue.