Cladding defences - Kennedys and 4 New Square continue to lead the way

Kennedys’ Christopher Butler (Partner) and Lee Cooper (Associate), together with Paul Cowan and Simon Hale of 4 New Square, have recently successfully represented a party in the defence of ‘post-Grenfell’ cladding claims relating to the exterior cladding of high rise buildings, and the compliance (or otherwise) of those cladding systems (panel and insulation) with the relevant building regulations in force at that time. In one of a wider series of such claims, this latest decision was in respect of a major claim that had been submitted to adjudication.

Recent examples include decisions where:

  1. Adjudicators have found that the now infamous “Approved Document B” is itself not standalone “legislation” but “guidance” as to possible, but not exhaustive, means of demonstrating compliance with the relevant building regulation(s).
  2. It is very important properly to construe the nature and scope of the relevant design obligations, and whether the standard of performance is “reasonable skill and care” (as is commonly the case with design obligations) or is one of strict liability.
  3. Technical literature/arguments/materials should only be considered as at the date of a given building contract, and where relevant, up to the date of completion of works.
  4. Approval of systems by third parties (including approved inspectors, independent certifiers, etc.) can provide “compelling”, although not necessarily “conclusive”, evidence that a given cladding system complied with building regulations at the relevant time.
  5. Traditional lists of “deleterious materials” commonly include the term “composite cladding products”. However, this has been found to apply to composite "sandwich” panels, and not to ACM panels, at least not as they were understood pre-Grenfell.
  6. The burden of proof for establishing non-compliance with the relevant building regulations (notably B4(1)) rests with the party making that assertion – particularly where the building was deemed to be compliant at the relevant time.
  7. Post-Grenfell test results and literature are (in most cases) “after-the-event” and therefore ‘unhelpful” in analysing the position, and the industries’ understanding pre-Grenfell.

The cases and decisions we are seeing highlight the necessity of a forensic analysis of the relevant contractual provisions, and that great care must be taken in understanding the factual background as to how cladding systems came to be specified and installed and whether at the relevant time it was truly in breach of the relevant building regulation(s), rather than with the hindsight and greater knowledge that the Grenfell tragedy has brought to the fore.

Related item: Service of the Claim Form - cladding claim dismissed