Following the Grenfell disaster in June 2017, many of those with an interest in multi-storey, multi-occupied, residential buildings over 18 metres in height have been carrying out investigations on their buildings to ascertain 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 they have 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 multi-occupied, multi-storey residential buildings. It has made it clear that its advice covers overnight patient accommodation, for example, hospitals. The advice states that where a building has cladding similar to Grenfell (ACM cladding (and other metal composite cladding) with an unmodified polyethylene filler (cat 3 in screening tests)), 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 such buildings would not have met Building Regulations.
The Government has also advised that in any other multi-storey, multi occupied residential building (or overnight patient accommodation), over 18 metres in height, or at any height where residents would need significant assistance to evacuate, which therefore includes care homes, the cladding and/or external wall systems should be checked and, if necessary remediation works should be undertaken, in some cases as soon as possible. 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.
So far as hospitals are concerned, it has been reported that there were 8 hospitals with Grenfell style cladding and 6 of these, in late 2020, had no plans for remediation.
In relation to care homes, the Public Account Committee reported in September 2020 that the government had said it was confident there were no high-rise care homes (above 18 metres in height) with dangerous cladding.
However, while the government estimates there are around 40,000 care homes, sheltered homes and hospitals below 18 metres in height—of which around 800 are between 11 and 18 metres—it has no data on whether any of these have unsafe cladding.
Is there a contractual link?
Often the NHS Trust or care/nursing home provider is the employer under a building contract, but if, for any reason, it is not, then it cannot bring a contractual claim under the original building contract because it is not a party to it. Given that many construction contracts exclude the Contracts (Rights of Third Parties) Act 1999, in order to bring a contractual claim there would need to be a collateral warranty in its 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.
So step one is to check the parties to the building contract and if the Trust or care/nursing home provider is not a party then step two is to check if there are any collateral warranties.
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 or care/nursing home provider in question has a claim in tort against the contractor (ie 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  EWHC 1646 (TCC) in this regard), then, in respect of any contractual claim, they will have six 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 investigating the position. If they do delay, they risk any claim that they may have becoming time barred.
Experts, experts, experts
Numerous experts are ordinarily required when dealing with cladding claims. Firstly the Trust or care/nursing home provider 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 (ie 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.
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 article is that it is vital for parties involved in cladding, and other fire safety claims to establish the contractual position and for those with potential claims to move quickly in order to prevent limitation from becoming an issue.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.