This update on dealing with the practicalities of defective cladding and external wall claims, we look at the Defence strategies and common defences often raised in response to defective cladding and external wall claims.
Defence Strategies
All cases turn on their own facts, as to do the Defence strategies that may be employed.
As a general rule though, and as with most claims, the most common defence strategy that is employed by Defendants in defective cladding and external walls claims is to attempt to resolve said claim – and so contain their exposure to damages and ongoing costs – on the best terms possible.
In some of the cases that we have dealt with – and where we have successfully highlighted the Defendants’ exposure – this has resulted in settlements either prior to or shortly after the commencement of legal proceedings. In other cases however, Defendants have adopted a far more bullish / less conciliatory approach to the claim at hand.
There are two main reasons why a Defendant might adopt a less conciliatory approach in a cladding claim. Either they consider that they have a strong Defence which can be relied upon to successfully defend the claim at trial, or they consider that by adopting an entrenched position it will be possible to ‘brow beat’ the Claimant into accepting a reduced settlement, down the line.
Our comments on this and the most common Defences that are employed in such claims are set out below.
Common Defences
Claimants’ Perspective
As a very high level overview there are 4 main types of external wall claims:-
- Claims against the Developer or Builder or Installer of the external wall system for poor workmanship. A good example of this might be claims for defectively installed or missing fire cavity barriers.
- Claim against the Developer or Builder or Designer of the external wall system for negligent design. A good example of this might be the design or specification of unsuitable or combustible wall insulation or ACM panels.
- Claims against the Clerk of Works or Employer’s Agent or Contract Administrator or such other party with supervision or inspection or certification duties for failing to identify reasonably identifiable defects or signing off on the same.
- Claims against Building Warranty Insurers. Policy coverage cases are however outside of the scope of this update.
Sometimes, Defendants will attempt to deny the existence of defects, or will seek to argue that they are de-minimis or have arisen as a consequence of intervening events. For instance, in some of the cases that we have dealt with, Defendants have sought to downplay the seriousness of defective fire cavity barrier arrangements (asserting that they will still function properly or adequately in the event of a fire), or have sought to argue that intervening events such as the act of opening up an external wall for inspection has worsened or damaged the subject components.
Defendants might also seek to assert that design defects should not be regarded as design defects. By way of an example, we have dealt with a number of claims where we able to submit compelling evidence of serious and dangerous design defects, which breached contemporaneous Building Regulations, notably Approved Document B (Fire Safety) Volume 2 (‘ADB2’). Some Defendants have sought to raise Defences along the lines that regardless of building regulation breaches, it is not admitted that the as-built walls could not achieve compliance by way of alternative routes for compliance such as a fire engineer’s assessment or BR135 certification and that the Claimant is put to proof – whilst conversely not advancing any positive evidence of their own.
When faced with claims that widespread / endemic categories of defects should, at the very least, have been identified, some of the Defendants that we have litigated against have sought to put the Claimants to the task of setting out when, precisely, each individual defect should have been identified, whilst maintaining that a competent inspector could not be expected to identify and by extension by liable for each individual defect.
Ultimately, these types of Defences turn on the credibility of the expert evidence. Robust expert evidence highlighting the defects in question, the seriousness of the defects, the breaches of contemporaneous Building Regulations and why the presence of such defects would render alternative means for compliance impossible to be achieved is a necessary prerequisite to pursuing a successful external wall claim. So too is expert evidence as to what defects should have been reasonably identified and whether and how this might reasonably be expected to lead to a chain of investigation.
Following the decision in Martlet Homes Ltd v Mulalley & Co Ltd, we have found that many Defendants are seeking to focus more on mitigation as a Defence, and in particular whether a particular remedial scheme claimed for is reasonable and proportionate. In that respect, we are seeing more calls for PAS 9980 assessments, and general mitigation Defences – to which we refer to our update on Mitigation in Construction Disputes.
Defendants’ Perspective
When faced with a claim for poor workmanship or negligent design or for failing to identify defects, it is important to carefully consider the allegations of breach and to put Claimants to strict proof by advancing supporting expert evidence.
If on receipt of this a Defendant intends to defend the allegations of breach or the reasonableness of a particular remedial scheme then it too will need supporting expert evidence. Conversely, if a Defendant considers that other parties are jointly or ultimately responsible for the defects in question, then the onus will be on them to obtain supporting expert evidence so to prosecute such a claim.
On a cautionary note, whilst it may be to a Defendants’ tactical advantage to delay the settlement of a claim, in the hope that by obliging a Claimant to incur the cost of litigation this will force them into accepting a lower settlement, this can be a risky and costly tactic. Ultimately Claimants and Defendants would be well advised to attempt to deal with (and if appropriate to settle) these types of cases sensibly and commercially.