Ð԰ɵç̨

I visited Grenfell Tower following the fire, and what I saw will not leave me. A lot has happened since in seeking to hold those responsible to account and in seeking to avoid another such tragedy. We have seen remediation schemes being undertaken up and down the country. We have seen new legislation, the publication of green papers, the creation of the government appointed building safety regulator and chief construction adviser, and we have a new building safety gateway regime embedded for new projects, all with a fresh impetus for safety in design and safety in construction.

All laudable actions – but in terms of attempts to ensure that those responsible for defective cladding foot the bill, it has been awful to watch how this has played out. Insurers rejecting claims by their insureds for cover for fire safety claims, curtailing future exposure, the senseless expenditure on legal and expert costs instead of applying this towards settlements and companies going out of business. 

I often wonder what if, in the wake of that awful tragedy, there had been a different reaction from government

I often wonder what if, in the wake of that awful tragedy, there had been a different reaction from government. What if they had set up, in collaboration with the construction and insurance industries, a cross-disciplinary panel of senior technical experts and that panel had published a list of non-compliant materials and cladding systems (there are only a small number)?

And what if, with the assistance of a panel of leading KCs, they had provided guidance on likely apportionment of liability on a typical design and build high-rise building project as between main contractor, specialist cladding subcontractor, architect, fire engineer, approved inspector and product manufacturer? That panel could have also made a fair assessment to reflect the government’s own responsibility for the cladding debacle. Guidance on the apportionment, with a percentage range, for all high-rise cladding projects with non-compliant systems. 

The shortcomings of the government’s response mean we have seen delays by claimants in advancing claims as they seek to establish eligibility for initial funding through the Ð԰ɵç̨ Safety Fund… and hurried implementation of the Ð԰ɵç̨ Safety Act, which has overturned established laws

If that had happened and fast-track resolution guidance been published by the government, while not all disputes would have settled pre-litigation, it would have enabled judges at case management conference (CMC) stage to have called parties and their representatives to account and enquired why not. Thereafter, the narrow issues in dispute, which differentiated that particular case from the guidance, could have proceeded speedily in a much more focused way, instead of the same issues being rehashed time and again by lawyers and experts, in the tidal wave of cladding disputes that have followed Grenfell. Legislation could even have made pre-action or pre-CMC mediation mandatory, with the resolution guidance to be used in all mediations.

Perhaps this would have been too simplistic when, as lawyers have argued, each project and each contractual framework is different. But typically, on a design and build project for a high-rise building, architects are there to provide a conceptual or scheme design, to specify materials or their performance requirements and to co-ordinate the designs. Specialist cladding subcontractors are there to provide the detailed design and to install. Fire engineers are there to advise on internal and external fire strategy. Approved inspectors are there to certify compliance with building regulations and main contractors are there to supervise and manage the whole process start to finish. Those services are unlikely to have been curtailed to any great extent by the facts or the contracts.

The shortcomings of the government’s response mean that instead we have seen delays by claimants in advancing claims as they investigate their buildings and seek to establish eligibility for initial funding through the Ð԰ɵç̨ Safety Fund. Alongside this we have had the hurried implementation of the Ð԰ɵç̨ Safety Act 2022, which has overturned established laws on how long claimants have to bring claims and overturned established laws around the sanctity of the corporate veil. We now have the Supreme Court’s decision in URS Corporation Ltd v BDW Trading Ltd [2025] UKSC 21, finding in favour of a developer that had long since disposed of its asset. Grenfell had previously seen commitments from some developers to address building defects, and – with an eye on their reputations and no doubt a fear of being banned from building new homes – developers have set about remediating their current building stock and on occasion, as happened with BDW, properties they no longer had any legal interest in.

>>Also read: How landmark Supreme Court ruling clarifies liability and limitation on building safety

>>Also read: ‘Why?’ is the question we should be asking in 2025 – and here is the answer

Thereafter developers have looked around at where they could recover their costs from, and – lo and behold – their designers and their professional indemnity policies falls into view. That is understandable where they have had involvement in a building that has a non-compliant cladding system or has other serious safety defects, but the difficulty is that defects in building are rarely caused by one single thing. There are usually multiple causes, not a single cause, and it is typically a mixture of poor materials, poor design, poor workmanship, poor co-ordination and poor supervision.

The decision in URS vs BDW merely encourages the pursuit of litigation, leaving important defences such as limitation, the corporate veil and the right to a fair trial in tatters

The multiple causes and multi-layered responsibility, with scope gaps in the contractual framework, leaves the claimant pointing the finger at one or more defendants (remember, it can choose just one wrongdoer under the principle of joint and several liability), and it leaves the whole supply chain being dragged in where they are still standing, or their parent or sister companies dragged in, through the new building liability order regime. It leaves the supply chain pointing fingers at each other in full view of a claimant and it has led to long, drawn-out, expensive disputes with settlements being reached eventually because no one wants to be the first case before the courts where liability is being apportioned as between the project team (there is still no such UK case).

Unfortunately, to my mind, the decision in URS vs BDW merely encourages the pursuit of litigation, leaving important defences such as limitation, the corporate veil and the right to a fair trial in tatters. Stripping away those defences may seem to some to be the right thing to do to make companies liable for building safety defects, but is it getting the fair allocation of liability right or is the buck stopping with the designers who have stayed in business and maintained their professional indemnity insurance because it is either a requirement to do so or because it is good practice for a well-run business?

My experience of the construction industry is that it is full of professional people who love what they do, producing well-designed, well-constructed, safe and sustainable buildings and surrounding infrastructure. It wants to do the right thing to redress past mistakes, but it needs a proper, well thought-out and fair forum for doing so. That, in my opinion, is not litigation and the draconian force of the courts.

Sheena Sood is senior partner at Beale & Co