The construction industry continues to focus on the ongoing review of cladding materials and their use as part of the fall-out from the Grenfell Tower fire. Renovation of Grenfell Tower saw new cladding and insulation fitted to its exterior and it is suspected that the materials used were flammable and acted as a catalyst in spreading the fire. The Government has now approved the public inquiry’s terms of reference which include:
- the design and construction of the building, including its refurbishment and management; and
- the scope and adequacy of Building Regulations, including guidance on fire safety and other legislation, guidance and industry practice relating to the design, construction, equipping and management of high rise residential buildings.
It is worth noting that the inquiry’s remit falls short of examining the wider construction industry and the existing procurement landscape. That is to say that the inquiry will not deal with the often complicated division of design responsibility on a construction project and the different routes by which a construction project can be structured. Industry commentators have speculated that addressing those type of concerns would have assisted in dealing with the context of the procurement decisions taken in relation to Grenfell Tower and its refurbishment. Nevertheless, as a result of this recent tragedy, many in the construction industry have been undertaking a whole-scale review of their cladding works, materials and contractual responsibilities.
The majority of construction contracts require a contractor, sub-contractor or consultant to comply with good industry practice, undertake work with reasonable skill and care and comply with all relevant statutory requirements, which here would include compliance with Building Regulations. Additionally construction contracts usually contain clauses which prohibit the use and specification for use of deleterious materials. “Deleterious materials” is then usually defined as being those which are known or generally known to be or suspected of posing a health and safety threat, posing a threat to the structural stability or durability of the works or project and failing to be in accordance with industry standards and codes of practice.
It would be prudent for those involved in the review of existing cladding or specifying cladding materials for use in future projects to ensure that their contracts include adequate wording concerning the use and/or specification for use of deleterious materials. In terms of future projects it would be worth considering whether such contractual provisions are drafted widely enough to capture any particular concerns about cladding materials and whether these would be considered “deleterious” for the purposes of the contract. The requirement prohibiting the use of deleterious materials will generally be the more onerous contractual requirement.
As a consequence of testing and/or review, should it be found on a project that cladding has been installed in breach of these contractual obligations then responsibility will lie with the construction professional concerned. Formal legal proceedings may ensue if the relevant professional, more likely its insurers refuse to accept that responsibility and consequently pay out. In addition, the majority of construction contracts have either 6 or 12 year limitation periods, meaning that after that specified period of time, a claim under that contract would not be able to be brought. In identifying any possible issues, it would be prudent to ensure when contractual documentation was entered into in the event of a possible claim and whether this remains viable. As part of this exercise it would also be worthwhile to check that adequate insurance provisions are in place, particularly in the scenario of multiple sites. As part of that exercise a review of other security documentation (by way of example parent company guarantees and/or bonds) in place or to be put in place would ensure that the financial security and construction assurance on a project has been further assessed.
If you would like any further information, please contact Elizabeth Weeks on 0207 955 1469.
This article should not be taken as definitive legal advice on any of the subjects covered. If you do require legal advice, please contact Rosenblatt as above.
This article was first published in Emap’s Construction News on 7 September 2017.