Key takeaways
Building Safety Act enables recovery from cladding supplier
The Court has for the first time had to assess the respective ’just and equitable’ contribution for a cladding supplier.
Significant liability for defective cladding products
If section 149 is triggered the product supplier is exposed to a significant percentage.
Note
The case is important but the non-participation of the product supplier is also relevant.
Introduction
In our recent article we reported that the construction and building sector is being asked to take part in two consultations. The construction products white paper and, in parallel, a consultation in relation to the general safety requirement for construction products which relates to the introduction of a general safety requirement (GSR) for currently unregulated construction products.
One of the areas highlighted in the white paper for reform was:
‘7. A review and improvement of the legal routes to redress for those affected by faulty products. This includes historic claims when defective cladding products make the building not fit for habitation (sections 147 to 151 of the Building Safety Act 2022).’
The recent case of Mullalley -v- Sto is a case that was brought against a product supplier under the current routes of redress. We analyse the decision in brief below.
Case analysis
Main contractors and developers alike may be interested to know there is now a trodden path for recovery of losses arising out of defective cladding (and perhaps related) products under the Building Safety Act.
The Court has this week determined the amount a Claimant design and build contractor (Mullaley & Co. Limited) is entitled to following an earlier default judgment on liability for damages.
The TCC held in a judgment handed down this week that Sto Ltd (the cladding supplier) was 87.5% responsible for the defective cladding on a high rise building in Essex built by the Claimant contractor.
The Court made Sto (the product supplier) subject to a Building Liability Order (BLO) under section 130 of the Building Safety Act 2022, and the Claimant sought a contribution in respect of Sto’s UK subsidiary’s liability for defective cladding products, brought under section 149 of the BSA in respect of which it was also successful.
The key takeaways from this recent decision are:
the Court has for the first time had to assess the respective ‘just and equitable’ contribution for a cladding supplier under a design and build contract
the Court held that the cladding product supplier was 87.5% responsible for the cladding issues on the property because it failed to supply a product that complied with the functional requirement B4(1) and regulation 7 of the Building Regulations (as in force at the relevant time)
Sto was found to have made misleading statements about its StoTherm Classic product or system, a product/system that was inherently defective
the defective nature of the product was the cause of the apartments in the property (tower block) being uninhabitable
while the case is an important landmark in terms of the recovery of losses from the product supplier arising from cladding defects, as a note of caution Sto did not actively participate in the case. There is therefore little in the way of background facts or analysis of the facts.
For more information on how we can support you with Building Safety Act requirements, visit our Construction and Engineering service page and for advice relating to Building Safety Act disputes contact Sarah Emerson and Sam Beer.
