Claim concerning fire safety defects in cladding on a high rise building
19 July 2022
Following our article on 30 June regarding those circumstances in which a Claimant will be permitted to amend their Particulars of Claim, His Honour Judge Stephen Davies has now handed down a landmark judgment in the case of Martlet Homes Ltd v. Mulalley & Co Ltd [2022] EWHC 1813 (TCC): the first of its kind following the Grenfell tragedy in 2017.
In considering the claim, Davies J ruled in favour of the claimant, Martlet Homes Ltd (“Martlet”), and awarded £8million in damages against the defendant, Mulalley & Co Limited (“Mulalley”), for a defective cladding system designed and installed by Mulalley as part of refurbishment works at four tower blocks in Gosport, Hampshire. Further claims were also made for the replacement scheme and the cost of a waking watch, which were also proven successful.
Gosport Towers, consisting of five tower blocks, were built in the early 1960’s to provide social housing. All five towers were significantly in excess of 18 metres in height, which is of particular relevance and the subject of wide attention because of increased fire safety in so-called ‘Higher Risk Buildings’.
A decision was made in the early 2000’s to refurbish all five towers including works for the application of EW1 cladding by the, then owner, Kelsey Housing Association Limited (“Kelsey”). Kelsey entered into a JCT 1998 Standard Form Building Contract with Contractor’s Design, incorporating some bespoke amendments with Mulalley. Works subsequently took place and the refurbishment works to all towers were completed by April 2008.
Given the tragic consequences of Grenfell in 2017, Martlet (who by that time had acquired Gosport Towers from Kelsey) became immediately aware of its duty of care towards the residents of Gosport Towers and subsequent investigations were made. These fairly quickly resulted in the conclusion that the cladding system included combustible EPS insulation boards together with serious installation defects.
Martlet decided to remove the entire original EW1 cladding and replace it with a new, non-combustible, cladding system. Martlet immediately implemented a ‘waking watch’ regular fire patrol system for the towers pending removal of the defective cladding system.
Whilst Mulalley admitted there were installation defects in its workmanship, they disputed the extent of those defects, specifically the extent of the gaps between the fire barriers or the inadequate dowels used in the fixing. Mulalley also argued that the defects did not warrant a whole replacement of the cladding; but could have been rectified with a less expensive repair solution. What is more, Mulalley argued that they should not be liable for the entire replacement costs since Martlet would have replaced the cladding anyway due to the changed fire-safety landscape post-Grenfell.
The judge rejected Mulalley’s arguments, stating that “the specification breach case is of particular interest, since it raises for determination the question whether or not the specification of combustible EWI rendered cladding breached fire safety standards as they existed in the early to mid 2000’s, well before the Grenfell Tower fire. However, like most other similar cases this case turns very much on the specific contractual provisions and the specific fire safety standards applicable to the particular product chosen as well as on the particular cases pleaded and argued and the evidence called”.
In considering the issue of causation, Davies J held that “the change in the fire safety regulatory regime and the impact of Grenfell, [was] not conduct amounting to fault by some third party or conduct which should negative the defendant’s responsibility for the consequences of its earlier fault”. There was therefore no question that Martlet would be entitled to recover costs incurred in replacing the cladding, as well as for the waking watch scheme.
This judgment not only provides significant guidance for the construction industry as to how the courts will deal with claims for defective cladding following the Grenfell tragedy, It is also provides welcome relief for building owners and leaseholders who may also be faced with similar cladding problems in Higher Risk Buildings.
At Birketts we have a specialist multi-disciplinary team in place to ensure that our clients get the best advice on cladding related issues or general construction advice. Please do not hesitate to contact us.
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Sarah Prior
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at July 2022.