Cladding – The Legal Implications of the Grenfell Tower Inquiry

Cladding – The Legal Implications of the Grenfell Tower Inquiry

10th October 2017

The tragedy at Grenfell Tower left the UK stunned with questions being asked about construction practices in both new builds and refurbishment projects here in the UK.  The construction industry is continuing to focus on cladding materials and their use in projects across Britain.  The renovation work being carried out at Grenfell Tower included the installation of new cladding and insulation.  The speed with which the fire took hold has raised questions about the materials used and whether they acted as a catalyst, allowing the fire to spread so quickly to all parts of the tower block.

The UK government has approved the public inquiry’s terms of reference, which are to include the following:

·         The design and construction of the building including the refurbishment and ongoing management.

·         The scope and adequacy of UK Building Regulations, particularly the guidance on fire safety and other legislation, guidance and industry practice relating to the design, construction, equipping and management of high rise residential buildings of this type.

However, the inquiry will not be examining the wider construction industry and the current procurement landscape, so it won’t be dealing with the complicated divisions of design responsibility on a construction project and the different routes by which a project can be structure.  This is despite the fact that some in the industry consider that these type of concerns would help deal with the context of the procurement decisions that were taken when planning the Grenfell Tower refurbishment.  Several construction industry players have been undertaking a review of their cladding works, materials and contractual responsibilities as a result of the Grenfell fire.

Most construction contracts require contractors, subcontractors and consultants to comply with good industry practice and carry out the work with reasonable skill and care, complying with all statutory requirements, including Building Regulations.  Most construction contracts contain clause which prohibit the use and specification for use of “deleterious” materials which are usually defined as those which are known to be or suspected of posing a health and safety threat to the structural stability or durability of the works or project to be in accordance with codes of practice and industry standards.

The requirement which prohibits the use of deleterious materials will generally be burdensome.  However, in cases where it’s discovered that cladding has been installed in breach of these contractual obligations, the responsibility will lie with the construction professional involved.  Should the relevant professional (or its insurers) refuse to accept that responsibility, formal legal proceedings are likely to follow. 

Most construction contracts have either six or twelve year limitation periods which means that, after that specified period of time, a claim under the contract would not be able to go ahead.  When seeking to identify any possible issues, it would be wise to check when contractual documentation was entered into and to ensure that adequate insurance provision is in place.