The ruling of Judge Stephen Davies will raise concern within the construction sector as it marks the first significant judgement related to cladding following the Grenfell Tower fire and starts to set precedent for future cases that will undoubtedly follow. 

Cladding contractor Mulalley was engaged on a design and build JCT 1998 Standard Form of Building Contract in 2005 to re-clad the exterior of the five tower blocks for Martley Homes.

Mulalley opted for a cladding system comprising EPS insulation and mineral wool fire barriers under a render overcoat.

Post Grenfell, an inspection of the cladding system found a number of defects.  These included defectively installed fire barriers and fixings (with application of adhesive dabs leaving a continuous void), missing cavity barriers, a shortage of dowels and failing to adhere to cladding manufacturer’s instructions and the current BBA certificate.

As a consequence of the defects, the Martlet opted to remove and replace the cladding system with a non-combustible alternative, and, in the interim period, prior to replacement the company implemented a waking watch patrol to manage any safety concerns.

The case largely hung on Mulalley asserting that Marlet’s decision to remove and replace the cladding centred on concern over the presence of combustible insulation within the cladding, not the defects identified in the inspection.

Marlet countered that that the cladding failed to meet the functional requirements of the building regulation at the time it was installed and so is itself a defect and hence the decision to replace was wholly justified.

In his summary Judge Davies noted

“The position is relatively clear so far as the installation breach case is concerned but highly contentious and thoroughly unclear as regards the specification breach case.”

“I am satisfied that any reasonably competent designer specifier could not have failed to be aware at the time that BRE 135 (2003) – as the most up to date and authoritative report on the topic – contained a clear recommendation and advice to avoid specifying a product such as the StoTherm Classic system with a combination of combustible EPS insulation.”

“I accept the claimant’s argument in closing submissions that the argument that “everyone else was doing it” does not, on a proper application of the “Bolam” principle, operate as a get out of jail free card.

The judgement makes a number of observations about the Regulations, guidance, testing and manufacturers information that was available to the team at Mulalley leaning  heavily on  evidence given through the Grenfell Inquiry.

Commenting on the case FIS CEO Iain McIlwee stated:

“This case is the first of many that will start to set precedent on historic claims and now that the Defective Premises Act has been updated and extended, it is likely that this will spread beyond the realms of cladding.  We remain committed to ensuring that the mechanisms to manage disputes advance at the same speed as the Polluter Pays agenda so that the judgments are fair, but that  huge time and resources is not wasted on legal fees and that we can focus our energies as an industry on getting to grips with the unacceptable legacy that the systemic failure created”

Full details of the case are available here