Recent fire safety court decisions UK

On this page, we have set out several English Court decisions which may be relevant to disputes in relation to cladding or building safety issues:

• Redrow PLC & Ors, R (On the Application Of) v Secretary of State for Levelling Up, Housing and Communities [2024] EWCA Civ 651: Application refused for judicial review of the Secretary of State's decision that the appellants would complete remedial works in respect of cladding defects in high-rise developments in Birmingham and reimburse the respondent for funds paid out of the Building Safety Fund

• Leaseholder protections for cladding remediation (service charges) - UPPER TRIBUNAL (LANDS CHAMBER) AN APPEAL AGAINST A DECISION OF THE FIRST-TIER TRIBUNAL (PROPERTY CHAMBER) FTT REF: LON/00BE/LSC/2021/0375 17 May 2024 – Mr M Lehner v Lant Street Management Co Ltd re flat 44 Sanctuary St, London SE1 – 17th May 2024

• Remediation order under section 123 of the Building Safety Act 2023 - Spur House, 1 Milner Road, London, SW19 3BS: LON/00BA/HYI/2023/0017 - 2nd April 2024

• Remediation order under section 123 of the Building Safety Act 2023 - Various flats at 419 High Road, Space Apartments, London N22 8JS: LON/00AP/HYI/2022/0017 - 28th Feb 2024

• Triathlon Homes v (1) Stratford Village Development Partnership (2) Get Living PLC (3) East Village Management Limited [2024] UKFTT 26 (PC). Remediation Contribution Order granted (watch our analysis here)

• Mistry & Ors v Wallace Estates Ltd - 4 January 2024 - Remediation Order granted re Centrillion Point.

• Octagon Overseas & Ors v Unsdorfer & Ors (LON/00BG/HYI/2023/0022) (21 December 2023): Determination of who is the Accountable Person for the buildings in question, and looking at the role of a tribunal-appointed manager.

• Building Safety - remediation order – 2-4 Leigham Court Road, London SW16 2P (ON/00AY/HYI/2022/0005 & 0016): Remediation Order made by FTT under s.123 BSA following applications by leaseholders in two adjacent blocks with combustible insulation panels. Although “no standard or benchmark for such work is specified in the Act… the remediation works must: (1) Comply with the Building Regulations applicable at the time the remedial work is carried out; and (2) At the very least, a post-Works Fire Risk Appraisal of External Walls (FRAEW) pursuant to PAS 9980:2022 should not prevent a satisfactory Form EWS1: External Wall Fire Review from being issued”.

• Assethold Ltd v Leaseholders Of Corben Mews_ (LANDLORD AND TENANT - SERVICE CHARGES - whether reasonably incurred - costs of a waking watch) [2022] UKUT 282 (LC) (02 November 2022) (bailii.org). Waking watch expenditure in response to a survey report indicating an "intolerable" fire safety risk (albeit later survey conclusion thought to be wrong) was not irrational or unreasonable on information then available. No dispute before the Upper Tribunal that the terms of the lease meant that reasonably incurred costs could be recouped through service changes.

• Batish & ors v Inspired Sutton Ltd & Ors (LON/00BF/HYI/2022/0002): FTT decision granting what we believe to be the first Remediation Contribution Order made under s124 Building Safety Act. RCO made against a landlord/developer of a high-rise block of flats in respect of around £195,000 of service charges paid towards the remediation of building safety defects.

• LDC (Portfolio One) Limited v (1) George Downing Construction Limited; (2) European Sheeting Limited (in liquidation) – second post-Grenfell judgment on liability for building safety issues.

• St James’s Oncology Spc Ltd V (1) Lendlease Construction (Europe) Limited (2) Lendlease Construction Holdings (Europe) Limited [2022] EWHC 2504 (TCC): In a dispute involving works to a hospital, the court found that there had been breaches of technical standards and contractual terms (in particular failure to comply with the requirements of Health Technical Memorandum (HTM) 81, HTM 2007 and HTM 2011 in multiple respects), and the works therefore did not comply with the Building Regulations. Defects included inadequate fire separation (compartmentation) between primary and secondary power supplies within the plant room, inadequate or non existent fire stopping in walls, absence of a fire suppression system, and there was no evidence of any fire engineering justification to explain “numerous failures to comply with the Applicable Standards”. The contractor’s fire strategy was not an agreed and justified fire engineering solution. Note that there is criticism of several expert witnesses and failures to comply with CPR Part 35 obligations in various respects.

• Evolve Housing and Support v Bouygues (U.K.) Ltd [2022] EWHC 906 (TCC): The court considered an application for further information in a dispute between the claimant social housing charity and the defendant architect firm in relation to a dispute over the alleged fire safety defects of the cladding facade on a YMCA hostel building that the third defendant had consulted on.

• 24 January 2022 Court of Appeal decision in Mulalley & Co. Ltd v Martlet Homes Ltd: the Court of Appeal held that although allegations made by the claimant in a Reply constituted a "new claim", the claimant should nonetheless be granted permission under CPR17.4 to amend its Particulars to include them. The allegations arose out of the same or substantially the same facts. Not least, the amendments were said to flow naturally from issues raised by the defendant itself in its Defence.

• Naylor v Roamquest: Judgment 23 December 2021. The Claimants were given permission to amend their claim in part. In assessing whether the Claimants’ amendments had a real prospect of success, the Court considered whether its expert evidence demonstrates at least a prima facie case. The Court did not consider that criticisms of one expert’s qualifications were a matter for summary disposal.

• 018.03.09 the 'Citiscape' decision re. liability to pay service charges: First-tier Tribunal, Property Chamber - Residential Property decision re: FirstPort Property Services Limited v the various long leaseholders of Citiscape

• Sportcity v Countryside Properties (UK) Ltd [2020] EWHC 1591 (TCC): strike out on limitation grounds - claim under DPA re original works completed in 2010 was statute barred and works to cladding in 2014 did not reset the clock on that claim.

• RG Securities v Allianz[2020] EWHC 1646 (TCC): Summary judgment on limitation grounds refused - decision looks at concealment and the limitation period under the Defective Premises Act and Limitation Act.

• Naylor & Ors v Roamquest Ltd & Anor [2021] EWHC 567 (TCC) (10 March 2021) (bailii.org): decision the Court was not in a position to determine the validity of the pleaded case on residual diminution in value following completion of remedial works on a summary basis or strike-out application.

• Naylor v Roamquest Ltd [2021] EWHC 2353 (TCC): permission granted  for the inspection of replacement cladding panels on six tower blocks following remedial works.

• Crest Nicholson Operations Ltd v Grafik Architects Ltd [2021] EWHC 2948 (TCC): rejection of BCS’s application to strike out Crest’s claim on the basis that it was insufficiently particularised. CPR r 16 requires that the particulars of claim must include "a concise statement of the facts on which the claimant relies"; the principle being that the defendant must know the case that it has to meet. This was a professional negligence claim against both the architect and NHBC Building Control Services Limited (BCS) for the cost of remedial works to the external wall systems of a residential apartment building. The claim largely detailed design defects on the part of the architect, with BCS accused of failing to identify, and notify Crest of, those defects. Held that the Particulars (“whilst succinct”), clearly set out all the elements of the cause of action pursued. The Court also commented that “…in addition, this claim is made at a time when there are many similar claims for defects in buildings which have been identified as failing to meet the fire safety requirements of the Building Regulations” whilst that “does not absolve Crest from the need to explain its case, BCS's ability to understand the case it has to meet has to be viewed in the context of the very high level of awareness in the construction industry of the issues surrounding the problems that have been identified in many buildings with facade systems that do not meet the fire safety requirements of the Building Regulations…”.

• USAF Nominee No 18 Ltd v Watkin Jones and Son Ltd [2021] 11 WLUK: strike out rejected for claim relating to alleged fire safety defects in a block of student accommodation. The defendant applied to strike out the claim on the basis that this was an abuse of process under the principle in Nomura International Plc v Granada Group Ltd [2007] EWHC 642 (Comm). The Nomura principle is, essentially, that it is abusive to issue a claim simply to protect against limitation, without proper knowledge of the facts or basis for the claim. The Court held that although the claim was not fully particularised, the claimant believed that it had a claim of substance and intended to pursue the claim, and it was clear that the claimant was saying that defects in the works had resulted from failures by the defendant.