Claiming for the cost of replacing cladding   

Much attention and concern has focussed on the use of combustible cladding in high rise buildings since the Grenfell Tower tragedy in 2017 where a fire destroyed the  24-storey block of flats in North Kensington and 72 people died. This prompted an independent review of building regulations and fire safety and local governments have investigated other tower blocks to find those that have similar cladding. Efforts to replace the cladding on these buildings are ongoing. The recent Technology and Construction Court  TCC decision in Martlet Homes Limited v Mulalley & Co Limited is the first occasion where the Court has considered a claim for the cost of replacing such cladding.   

Martlet’s was the owner of five 1960s tower blocks. Mulalley, as design and build contractor, had installed StoTherm Classic (external wall insulation comprising expanded polystyrene) as part of refurbishment works in 2005.   

Following the Grenfell Fire, Martlet replaced the cladding with non-combustible stone wall insulation and instituted a ‘waking watch’ until these works were completed.  It successfully claimed from Mulalley the cost of the works, totalling approximately £8 million. 

Martlet’s claim included: 

• Mullalley’s installation of the cladding system and its cavity barriers was defective 
• The use of StoTherm Classic did not meet the fire standards in place at the date of the contract 

Both claims succeeded.  Although every claim will be decided on its own facts and merits, the decision gives a helpful indication of the principles that the Court is likely to apply in other cladding disputes. 

• The Building Regulations 2000 included an obligation for external walls to resist the spread of fire, taking into account the height, use and position of the building 
• A British Board of Agrément certificate is not a guarantee of compliance with Building Regulations 
• An action can still be negligent even it was common practice in the industry at the time 
• The cost of a waking watch is reasonably foreseeable and likely to awarded as a separate head of loss 

The judgment is particularly timely in the light of the extended limitation periods and causes of action introduced by the Building Safety Act 2022, which may open the door to other similar claims.