The eagerly awaited judgement in St James’s Oncology SPC Limited v Lendlease has been handed down now by Mrs Justice Joanna Smith DBE.
The case concerned a large oncology centre designed and built by Lendlease. Those running the centre alleged that when it was built, there were several serious fire safety and electrical engineering defects.
The Judge found against Lendlease on pretty much every single point, because: (1) the contract documentation was clear as to what was required in this design and build contract and who would bear the risk; and (2) the constructed installation within Plantroom 2 and the electrical substation were not built to the designed fire strategy.
We will be providing a full note of the Judgment and its implications for the industry shortly, but in the meantime, here are a few key points of interest.
- In this case, changes were made during construction which did not fully implement the original fire design, but there was no evidence of a considered fire engineered approach to justify those changes and which demonstrated that they met the equivalent or better requirement against the required standard. The message to industry is that any changes must be properly considered, documented and must explain exactly why they are equivalent or better than the requisite standard.
- The Judge stated that the existence of approval by the client and/ or building control does not amount to evidence that changes to a fire strategy have been raised with and/ or been justified to the relevant authorities – a clear indication to industry that “this received building control sign off” is no defence at all.
- The Judge made it clear that: “approval of a fire strategy that purports to be code compliant when it is not, cannot be a defence”. The context here is that there was no evidence of justification or explanation for a fire engineering approach which deviated from the original HTM81 compliant design.
- The Judge rejected any suggestion that there was any contractual significance to the issue of the Building Regulation Completion Certificate – a reminder to the industry that Regulation 17(4) Building Regulations 2000 makes clear that a Completion Certificate is not conclusive evidence that the Building Regulations have been complied with; the certificate only confirms what the “authority has been able to ascertain” at the time of issuing the certificate.
- In failing to deal with fire risk adequately, Lendlease also therefore failed to deliver its contractual obligations to minimise business continuity risk – a warning to industry that fire safety defects will be looked at in the context of the contract as a whole in terms of liability and quantum.
- Even though in this case both the Stage 1 and Stage 2 remediation works were considered necessary, practical and proportionate in light of the defects identified, the Judge indicated that she had not been provided with any viable alternative to consider as a result of the way in which Lendlease presented its case. It seems clear on this aspect, that the Judge would have been open to considering a sensible proportionate alternative to the full Stage 1 and Stage 2 remediation costs sought, but in the absence of proper expert evidence on this, she was happy to go with the information that had been presented to her by the claimant, backed by its expert.