Picture of tower block to illustrate cladding

It is now more than six months since the Grenfell Tower fire of 14 June 2017. This has led to reassessment of the fire risk of cladding to high rise buildings, many of which are residential. There have been reports in the papers and on the news of lessees facing payment liabilities for fire wardens patrolling buildings, pending the completion of a safety review of the building or the performance of any necessary remedial work.

Owners, therefore, of these buildings will have justifiable concerns for their own responsibilities under the Occupiers Liability Act of 1957 following this tragedy and the known fire risks from specific cladding which are being reviewed.

The guidance issued by the Department of Communities and Local Government and the various Fire Authorities will no doubt lead to the need to replace the cladding in many buildings, no doubt with safer solutions being adopted. Many reports suggest that the costs for this work will extend to many hundreds of millions of pounds. Many of the owners of these buildings are Local Authorities and Housing Associations who will struggle to meet the cost liabilities without funding from Central Government.  They will also face the costs for re-housing lessees/tenants during the remedial works.

These building owners will naturally consider whether they may seek recompense from a third party which specified or supplied the cladding in the first instance which is now thought to be dangerous. These may typically include the architects and designers of the buildings who may have named and specified the cladding, contractors who supplied the product or the suppliers themselves. These parties should have insurance covering their potential liability. Typically designers will have the benefit of professional indemnity or design liability risks. Contractors will have public liability cover insuring against damage or personal injuries. Suppliers will have product liability insurance cover which will again insure the risk of damage or personal injury.

Any claimant will need to establish primary liability. Any culpability will also be judged at the time that the cladding, now considered to be dangerous, was specified or supplied. If the cladding complied with the relevant Fire Regulations and safety requirements at the time, this may be a sufficient defence.

A number of potential courses of action may be relevant. Firstly, a claim may arise against the contractor under Section 1 (1) of the Defective Premises Act 1972, if by use of improper materials a dwelling was not fit for habitation. The individual flats, would constitute dwellings but not the common areas and thus considered to fall within the scope of the Act.

Designers may be liable if they failed to make proper enquiry and investigation of the suitability of specific materials. It will not be a sufficient defence to state that they relied on the advice and recommendation of the manufacturer or supplier. The fire risk within the building may also rest with not only the choice of the cladding but also the manner in which when incorporated within the overall design of the building, the increased risk of fire arises. Contractors will also have a duty to warn should they become aware of any design defects, and this would include the choice of the cladding material. A further relevant consideration will be whether any cause of action is statue barred. Any claim for an alleged breach of contract will be subject to either a six or twelve year limitation period. These periods will commence from the date of breach of the contract. A claim in the tort of negligence has the potential to arise at a later date which is when the damage occurs.

If primary liability is established, the existence of insurance offering an indemnity against these liabilities should provide claimants with some comfort. Claimants will have to demonstrate that they have taken all steps to mitigate their loss and may well be met by an allegation of betterment from insurers. To claim the cost of new cladding to replace the old, may well confer an improved situation for a building.  It will not be for insurers to subsidise a claimant who may have paid for a cheaper product but whom now seeks a more expensive replacement.

Given the anticipated cost for replacing cladding to high rise residential blocks will no doubt result in the Courts having to resolve these dilemmas in the years to come.

RR Paice