Article / 8 Sep 2020

Issues arising with cladding remediation claims

Insight shared by:

Gateley Legal

Construction litigation is often fraught with challenges and never more so in the current cladding context where the Government is doing its best to push a square peg into a round hole. 

We have listed below just a few of the issues arising in the large number of cases we are currently dealing with.

Issues arising

  • The passage of time has affected the evidential trail on all sides, so there are all the usual problems locating contracts, purchase orders, insurance cover and marrying these up with what was actually built and signed off by building control.
  • Many of the original design professionals and contractors involved in the design and build process are no longer trading or are becoming insolvent as a result of the sheer volume of claims and lack of insurance cover for the relevant period.
  • Whilst Government and public pressure completely ignore the realities of contractual obligations and limitation periods when demanding remediation by developers, the Judges, Arbitrators and Adjudicators presiding over recovery claims will not ignore contractual relationships and limitation periods, or allow developers to recover an outlay they were not legally obliged to incur. This is putting a whole new dimension on recovery of remediation outlay and putting developers between a rock and a hard place.  
  • Through various technical advice notes issued since the Grenfell Tower Tragedy, the Government is effectively rewriting the regulatory regime retrospectively by saying that compliance with Approved Document B (ADB) is no longer adequate to demonstrate compliance with the functional requirements of the Part B Fire Safety requirements of the Building Regulations.  This position is in direct conflict with the statutory effect of Approved Documents (via Section 7 of the Building Act 1984)  which demonstrates that the very purpose of ADB in the first place is to provide parties with a ‘linear’ route to achieve compliance with the Building Regulations.
  • Claims against designers and design and build contractors are being defended on the very basis that compliance with ADB was the custom and practice at the time and cannot, therefore, amount to breaches of duty or negligence.

What is clear from the Government Response last week is that there will inevitably be an increase in cladding and fire investigations into existing buildings which will lead to claims. Wherever you are in the chain - developer, contractor, designer, architect; you should be getting advice at the earliest point so that you have the best chance of success.

How can we help?

Our experienced team can help in the following ways:

Assessing liability for façade defects across property portfolios:

  • Working in partnership with leading technical experts
  • Unravelling complex ownership structures and contractual arrangements

Claims for contributions and recoveries

  • e.g. from original consultants, approved inspectors, contractors and insurers

Reputation management

  • Advice on interim safety measures
  • Engagement with key stakeholders

Remedial works

  • Advice on funding and procurement arrangements
  • Bespoke drafting of contracts for remediation work

Next steps

If our team are able to assist you with any of the problems listed above, please get in touch with the experts listed below.