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Yesterday (Thursday 14 July) the UK's Technology and Construction Court (TCC) handed down its first judgment on a fire safety external wall insulation (in the jargon "EWI") case.
The case of Martlet Homes Limited v. Mulalley and Co Limited [2022] EWHC 1813 (TCC) concerned a contract to refurbish five tower blocks in Gosport with an external wall insultation system (StoTherm Classic K, manufactured by the German manufacturer Sto.) that included combustible expanded polystyrene insulation (EPS), fire breaks and render covering.
There were defects in the installation of both the fire breaks and the EPS. Martlet (the buildings owner) decided to replace the StoTherm system with a non-combustible EWS and claimed the cost of doing so - and the waking watch in the meantime - from its contractor Mulalley.
Mulalley defended the claim on the basis that the real reason for the replacement scheme was not the defects in their work, but the heightened specification requirements post Grenfell.
In response to that assertion, Martlet argued the StoTherm EWS was in breach of specification at the time of actual installation by Mulalley.
His Honour Judge Stephen Davies:
1. found for Martlet, in relation to both the defects claim and the breach of specification claim;
2. found that consequentially Martlet were therefore entitled to damages representing the cost of the implementation of the replacement scheme; and
3. found that Martlet were also entitled to recover the costs of the "waking watch". These costs were not too remote, and were reasonable mitigation given the much greater loss associated with moving everyone out of the tower etc.
Although clearly fact specific as any case is, this is an interesting and important case, for fairly obvious reasons given the number of similar points being taken in relation to Grenfell related fire safety remediation cases currently. In particular, I would anticipate many will note the awarding of the "waking watch" costs and the failure of the "it was an upgrade" argument.
"Whether the breach is the installation breach or the specification breach or - as I have found - both, it is plain that the need for temporary fire-safety measures to be taken pending a permanent solution is a natural or a reasonably contemplated consequence of such breach." His Honour Judge Stephen Davies
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