The Week That Was - 29 April 2022

Welcome to The Week That Was, a round-up of key events in the construction sector over the last seven days.

Construction Products Association responds to Government

The Government recently issued a warning to manufacturers against continued delays in agreeing to fund plans to solve the cladding crisis.  In response, the Construction Products Association (the "CPA") has "politely outlined" to the Government the positive and proactive approach it is taking.

However, the CPA states that its members are troubled by the lack of details in terms of scope and definitions for the proposed works.  In particular, the CPA requested that the Government take into account the recommendations in the Select Committee Report.  This includes a renewed push for a common sense approach by surveyors and mortgage lenders in determining safety status, engaging other sectors of the industry, and considering a wider remit of works beyond cladding and insulation to ensure that buildings are made fully safe for leaseholders.

A full copy of the CPA's letter is available here.

Construction Leadership Council issue latest assessment on product availability 

The Construction Leadership Council's Product Availability working group (the "Working Group") has issued its latest assessment of the current situation for product availability.  The Working Group has stated there remains a good supply of most products and materials across the UK.  However, challenges remain for certain products including bricks, aircrete bricks and some roofing products. 

The Working Group stated that the impact of the war in Ukraine was only just beginning to be felt by the UK construction industry with reports of nickel prices doubling, which will affect the price of stainless steel.  The Working Group's biggest concern is the rate at which increased energy and raw material costs are driving up prices, particularly for steel, cement, glass and other energy-intensive products.  This has resulted in price inflation of 10-15% across the last three months. 

The full statement is available here.

High Court considers approach to causation, loss and "after-coming" evidence in professional negligence claims

In Coote v Ullstein and another, the defendants were successful in their application for summary judgment brought on the grounds that the claimant's claim against her former solicitors had no real prospects of success.  The claimant pursued an action against the manufacturers of the MMR vaccine (the "MMR Claim") which became time barred, and then brought an action against her solicitors for their alleged failure to advise on limitation.  

The defendants submitted that the claimant could not prove that, had she received correct advice about limitation, she would have proceeded with her claim and received damages, since legal aid would not have been available and no other MMR claimants had succeeded in similar claims.  The Court considered that, in professional negligence claims, it may consider "after coming" or late evidence, such as the expert evidence presented by the defendants which replicated evidence which a defendant to the MMR Claim would have submitted. On reviewing this, the Court found the claimant had no real prospects of success.

You can read the full judgment here. 

Scotland bans combustible materials in high rise buildings

The Scottish Government has banned the use of combustible cladding on high-rise buildings.  The Minister for Building Standards, Patrick Harvie, said the move would help reduce the number of people who could be killed or harmed.  

The legislation will cover buildings "used as a place of assembly" and includes flats (and other domestic properties), hospitals, care homes and entertainment venues.  Patrick Harvie has said: “This is the third set of changes made to fire safety standards for cladding in Scotland since the tragic Grenfell Tower fire, requiring any cladding on domestic or other high-risk buildings above 11 metres to be strictly non-combustible."

The legislation will also make improvements to energy performance standards to make them easier to heat and ventilate.  

Read more here.

High Court comments on the right to disclosure of documents in witness statements 

In Hoegh & Anor v Taylor Wessing LLP & Anor, the second defendant sought disclosure of a document that it submitted was referred to in the claimant's witness statement, in accordance with Paragraph 21 of Practice 51U ("PD51U").  PD51U provides that a party may request a copy of a document "mentioned" in a witness statement.  Specifically, the statement referred to a "review" carried out by the claimant's accountants and it was argued that this review referred to a document or class of documents.  

It was held that the use of the word "review" in fact referred to a process, which might have generated documents, but which itself was not a document nor a direct allusion to a document. 

The decision is a useful example of the Court's application of PD51U.  It highlights the importance of language in the witness statement, and the risk of unintentionally referring to and having to disclose documents.

You can read the full judgment here.

Henry Brothers receives award for H&S practices

Construction firm, Henry Brothers, has received the prestigious RoSPA Gold Award for its health and safety efforts in keeping its employees, contractors and clients safe.  This is following the completion of Sherwood Lodge which forms part of the new headquarters for Nottinghamshire Police and Fire and Rescue Service.

Safety, Health, Environment and Quality Director, David Wallace said: “It is a huge honour to win a RoSPA Gold Award and is a testament to the commitment, diligence and dedication of our staff and contractors in completing this project in a safe manner. At Henry Brothers, our operations are built on the values of acting with integrity and dependability while delivering high-quality construction. All of our employees and partners receive continuous health and safety training, and we actively engage in a number of forums to ensure our high standards are maintained."

To read more please click here.

Thanks to Ciara Stewart, Rakesh Pandit, Paul Smylie and Ella Ennos-Dann for contributing to this week's edition.

Disclaimer: The information in this publication is for guidance purposes only and does not constitute legal advice.  We attempt to ensure that the content is current as at the date of publication, but we do not guarantee that it remains up to date.  You should seek legal or other professional advice before acting or relying on any of the content