Steve Carey is a partner and Carolyn Davies is an associate at Charles Russell Speechlys
The case of Martlet Homes Limited v Mulalley and Co Limited is the first post-Grenfell Technology and Construction Court decision on a claim relating to fire safety and cladding. While the court went out of its way to emphasise that the case was fact-specific, everyone concerned with cladding claims will pore over the decision.
“One of the key take-home elements from this case is that the defence of ‘everyone else was doing it’ seems to be given short shrift”
Social housing provider Martlet owns five tower blocks in Gosport, Hampshire, all taller than 18 metres. In the early 2000s, the previous owner engaged Mulalley to undertake refurbishment work, which was completed in 2008. This included the application of external wall insulation (EWI) to most elevations to improve thermal performance.
No particular problems were observed in the cladding system following practical completion. However, after the Grenfell fire, Martlet undertook urgent investigations, after which it decided to replace the towers’ cladding and maintain a ‘waking watch’ until remedial works were complete.
Martlet claimed the resulting costs from the contractor on the basis that there had been (a) a breach of the specification and (b) a failure to install the EWI system using proper workmanship.
Breach of regulations
The specification had expressly required the contractor to comply with BR 135, which introduced a fire-performance standard for external thermal insulation on multistorey buildings. The court said that, given the nature of the works, any reasonably competent designer at the time ought to have had regard to BR 135 and enquired whether the EWI system met the functional requirements in the building regulations. It found that the contractor was plainly in breach of this obligation.
The court noted that this logic applied irrespective of whether there was an express contractual obligation to comply with BR 135, and whether everyone else was doing it at the time.
The court rejected the contractor’s reliance on a vaguely worded 1995 BBA certificate on the EWI as evidence that it complied with building regulations. While such product certificates can be used as one of the many tools in assessing compliance, they are not definitive evidence.
Mulalley also argued that Martlet’s remedial actions were due to guidance issued post-Grenfell rather than the contractor’s works. However, the court held that the contractor’s breach of the specification was an effective cause of the remedial works and therefore Martlet was entitled to recover the cost of these works (with some adjustment).
If Martlet had been able to demonstrate that the contractor was liable only for the poor standard of the installation (rather than also being liable for the defective design), Martlet’s recovery from the contractor would have been limited to the cost of a repair scheme only, rather than for the full replacement costs and a waking-watch scheme.
Remediation options vary
The practical implication is that if there was an EWI system with installation defects, this does not automatically mean the entire system must be replaced if a more limited remedial scheme could remedy the relevant defects.
The introduction of PAS 9980 in January provides a baseline methodology to inform appraisals of remedial work to external walls. We may see more cases in future that consider different remediation options, based on this code of practice.
One of the key take-home elements from this case is that, in the context of exercising reasonable skill and care, the defence of ‘everyone else was doing it’ seems to be given short shrift. The court will not exonerate a party that simply proves that others were just as negligent.
It is also plain that the construction industry needs to focus on improving competence and keep up with the requirements introduced by the Building Safety Act 2022 and the new Building Safety Regulator.