Mills & Reeve Education Law Blog: Fusion

Cladding claims - key considerations

Following the Grenfell disaster in June 2017, many of those with an interest in residential buildings, especially those over 18 metres (ie including student accommodation and whether as building owners/funders/tenants) have been carrying out investigations on their buildings to see if, from a fire safety perspective, they were built in accordance with the Building Regulations in force at the time of construction. Anyone who has been following the Grenfell inquiry in any detail will be unsurprised to hear that many of these building owners, funders and tenants are discovering that their buildings were not built in accordance with the relevant Building Regulations.

Following the discovery of such fire safety defects, many of these building owners, funders and tenants have been seeking legal redress from those responsible for designing and constructing the building (in most cases the design and build contractor), and in this blog we set out some of the key considerations for those involved in such claims.

Is there a contractual link?

Many building owners, funders and tenants, such as institutional investors, will not be the entity that employed the contractor to construct the building pursuant to the original construction contract (the employer under the construction contract will often be an SPV set up by the developer). Accordingly, such entities cannot bring a contractual claim under the original construction contract as they are not a party to it. Given that most construction contracts exclude the Contracts (Rights of Third Parties) Act 1999, in order to bring a contractual claim they will need a collateral warranty in their favour. This, essentially, is an additional contract pursuant to which the contractor warrants to the recipient that it has complied with its obligations under the construction contract.

This is an important point because it is well-established in English law that the cost of remedying defective construction work constitutes pure economic loss, meaning that, absent a special relationship, it is irrecoverable in the law of tort. Ordinarily, therefore, in order to recover such losses a contractual link is required.

Limitation

Many of the buildings that it has now been discovered are suffering with fire defects will have been constructed some time ago. As such, another key issue is limitation.

Unless the building owner, funder or tenant in question has a claim in tort against the contractor (ie can establish a special relationship) or is able to run an argument that the contractor has deliberately concealed the defective work (see RG Securities v R Maskell last year), then, in respect of their contractual claim, they will have six years from the date of breach to bring a claim if such claim arises under a simple contract and 12 years from the date of breach if the claim arises under a deed. In respect of the date the breach occurs, under a design and build contract this will ordinarily be the date of practical completion.

What should be clear from the above is that those with potential cladding claims should not delay in carrying out the necessary investigations and establishing whether their building is suffering with defects that give rise to a claim. If they do delay, they risk any claim they may have becoming time-barred.

Experts, experts, experts

Numerous experts are ordinarily required when dealing with cladding claims. Firstly the building owner, funder or tenant will need to engage a fire consultant to produce a report assessing whether or not their building has been constructed, from a fire perspective, in accordance with the Building Regulations in force at the time of construction. Of course, the defendant contractor will then need to engage its own fire consultant to pass comment on that report.

In addition to fire consultants, each side will most likely be required to engage architectural experts as well. In short, many cladding claims arise due to the specified cladding materials not complying with the Building Regulations in force at the time of construction (ie they concern design issues). In the vast majority of design and build construction contracts, the contractor’s liability for design issues is limited to that of an architect. To put it broadly, what this means is that the contractor will only be liable if it can be established that they have made an error in design that no other reasonable member of the architectural profession would have made. In order to establish whether such an error has been made, expert opinion from architectural experts will be required.  

Final thoughts

Set out above are some of the key points that are likely to apply in almost all cladding claims. Of course, each matter will have its own specific facts that will give rise to many other issues. What should, hopefully, be clear from this blog is that it is vital for parties involved in cladding claims to establish the contractual position and for those with potential claims to move quickly in order to prevent limitation from becoming an issue.

Matt Bromilow

Stepchange: mentally healthy universities

To coincide with Mental Health Awareness Week, Universities UK has published a refreshed call for action and framework guidance document - "Stepchange: mentally healthy universities".

The vision set out in this document is for:

"UK universities to be places that promote mental health and wellbeing, enabling all students and staff to thrive and succeed to their best potential."

This guidance builds upon the work of Student Minds and the development of the University Mental Health Charter.

This framework encourages principles of good practice relating to four domains:

• learn - including various aspects of teaching, learning and assessment;
• support - including a range of support services within and outside the higher education institution;
• work - bringing together staff mental health with student mental health; and
• live - including the promotion of healthy activities, residential accommodation and leadership.

It is recognised that a university needs to develop its institutional-wide approach in collaboration with relevant external health and care bodies who can provide professional support where that is appropriate. The document rightly notes the care which is needed in respect of sharing personal data.

Within the learning domain, Fitness to Study and Fitness to Practice policies are highlighted.

Moving out of lockdown - guidance for labs and research facilities

The UK Government’s efforts to bring the country out of lock-down in a safe way includes extensive guidance for different kinds of workplace. Although organisations are expected to think through the risks and how to prepare in their own particular context, tailored guidance for different kinds of work environment aims to provide a practical framework to support this process.

The guidance for labs and research facilities is intended to cover the following kinds of workplace:

• engineering centres
• clean rooms
• prototyping centres
• wet labs
• wind tunnels
• computer labs
• simulators
• material development labs
• specialist testing rooms

There is a lot of detail for organisations to absorb, but the guidance is targeted and practical.

As might be expected, the first step is to carry out a risk assessment. This need not be a bureaucratic exercise – very small organisations are not expected to do it in writing – although detailed engagement with workers is required. Larger organisations will need to consult with a health and safety representative selected by a trade union or (where there isn’t a trade union) a representative chosen by the workers, and businesses with more than 50 workers are expected to publish the results of such risk assessments on their websites.

Risk management steps such as handwashing and surface cleaning, working from home and social distancing take a high priority. The guidance recognises difficulties of maintaining 2m distancing, around fixed equipment for example, and offers advice on what steps might be undertaken in these circumstances. It goes on to detail ventilation management operations to be considered prior to the reopening of business premises, as well as recommending ongoing cleaning procedures to reduce the risk of infection from commonly used equipment, communal areas, frequent touch points and commercial vehicles.

Implementing the guidance in detail will require extensive planning and preparation. It is likely to involve additional costs in relation to the installation of one-way flows at entry and exit points, hygiene and waste facilities, transparent screens in confined areas and, possibly, providing personal protective equipment (and related safety instructions) for staff.

Some suggested changes may be more difficult. Getting staff to and from work, providing additional car or cycle parking and appropriately managing external deliveries are likely to present greater challenges. Further action may be required to minimise the costs of reduced staff activity time or staggered shifts where necessary.

However, many of the suggested changes will not be costly to implement and will enable organisations to have confidence that they can continue their lab research activities without adversely affecting their staff and external contacts. 

James Field

Government bans using combustible materials in high rise residences

Regulations were laid before Parliament on 29 November 2018 and will come into force on 21 December 2018. The Regulations ban the use of combustible materials in the external walls of high-rise residential buildings and apply to all new residential buildings, boarding school dormitories, student accommodation, registered care homes and hospitals above 18 metres. Existing buildings within one of these categories will be covered by the ban where building work is a "material change of use”.

Please click here for the Government’s press release.

Anyone signed up to a live building contract, or with a project about to start, needs to consider how change in law risks are dealt with. For example, under the unamended JCT Design and Build Contract 2016, a concern for Employers must be clause 2.15.2.1 and the possibility that compliance with the amended regulations will necessitate alterations which give rise to a Change. Given the increased cost of A1 and A2 cladding, a Change could end up resulting in significant additional costs for Employers.

If you are currently negotiating a building contract which will commence before the Regulations are changed, then a carefully worded Schedule of Amendments could be used to address this issue.

Lena Barnes

The new Clinical Trials Regulation - moves towards streamlining and transparency

Clinical trials for medicines in Europe are tightly regulated. The current system, introduced in 2001 under the Clinical Trials Directive, has been criticised for being too onerous and costly. The proposed new Clinical Trials Regulation is intended to cut red tape and make it easier for pharmaceutical companies to conduct multinational clinical trials.

Because the current rules were introduced by Directive, they had to be implemented by each country individually to become operational. Although a Directive sets out uniform rules, it allows some flexibility in how member states give effect to them. In contrast, a Regulation is an EU level instrument which takes effect without any need for national action and with no variability between countries.

A welcome introduction is the concept of ‘low-intervention clinical trials’. These will impose a lighter regulatory burden on trials which are seen as exposing subjects to lower risk; an example being the comparison of already approved medicines.

One area that has received much attention from policy-makers and the media is transparency. The new rules will make it compulsory to publish all clinical trials, including those that do not support use of the medicine.

The Regulation has recently been finalised, although it cannot take effect until the new EU Portal for central submission of data is up and running. This is expected to take until mid 2016.

Meanwhile, the European Medicines Agency is planning to move from reactive to proactive publication of clinical trials data.

The EMA is already releasing documents submitted as part of applications for EU marketing authorisations in response to requests. It claims to have made public nearly 2 million pages of data from November 2010 to April 2013 alone. The system allows for redaction to protect personal data or commercially sensitive information, although at least two companies have brought proceedings against the EMA for giving access to clinical data.

The EMA is now aiming for proactive publication of clinical trial data once the decision on whether to grant an EU marketing authorisation is made. A consultation launched last summer received a wide range of comments and the EMA has been refining its approach. The policy is due to be finalised in June this year.

Many pharma companies are now embracing transparency. Astra Zeneca's global policy is one example. A sensible approach now that it is becoming inevitable.

Isabel Teare, Professional Support Lawyer

Volunteers and protection from discrimination

A recent decision of the Supreme Court in X v Mid Sussex CAB has established that volunteers without a legally binding contract are not protected by either domestic or EU anti-discrimination law. In this case, it was alleged that a volunteer had been prevented from continuing to volunteer at a CAB because of their disability, namely because they were HIV positive, and therefore was seeking redress in the Employment Tribunal.

Discrimination legislation gives protection to those who are working under a "contract personally to do any work", and it was found as a matter of fact in this case that there was no legally binding contract between the CAB and the volunteer.

While this result will be a relief for organisations like the CAB, it is important to emphasise that it rests on the finding by the lower courts that the volunteer agreement was not legally binding. It is still possible to envisage cases where a volunteer is able to persuade an Employment Tribunal that a binding contract did exist, perhaps because in practice the organisation involved imposed the same kind of obligations on the volunteer as it would on a paid worker.

In addition, volunteers come in many forms and those volunteers who are seeking vocational training and/or practical work experience would have protection under European discrimination legislation that could be enforced in our domestic courts.

Guest contribution by
Kathryn Haigh, Associate
+44 (0) 1223 222525

Shared services: Mills & Reeve's Procurement Portal examines the key legal and practical issues

The use of shared services as a means of delivering savings and efficiencies is increasingly common within both Further and Higher Education sectors.   Sharing services can take a variety of forms, but generally involves institutions working or joining together to make savings or efficiencies through pooling knowledge, skills and resources in the development or delivery of services (most commonly administrative or back office functions).

Examples of this include:

• Two Further Education colleges deciding to jointly outsource their back office finance and payroll function to a private sector company.
• A university entering into a joint venture with a private sector company to provide HR and payroll services for both the university itself and other universities in the region.
• A spin-out employee mutual company providing services back to its originating university.

In the latest update to our Procurement Portal we explore the legal and practical issues associated with sharing services, including when shared services fall within or outside the EU procurement law regime, and also what lies ahead based on the proposals in the latest draft of the EU Procurement Directive (due to be adopted by the EU in 2014 and implemented in the UK in 2015).

If you need help with setting up a shared services arrangement, need to know whether the procurement rules will apply to your preferred model, or need any more information please contact Ruth Smith, our National Head of Procurement Law.

Guest contribution by
Ruth Smith, National Head of Procurement Law
+ (44) (0) 121 456 8434

Liability of educational organisations for external activities

Two recent cases explore the extent to which schools can be liable for external organised activities.  Whilst the cases concern schools, they will also be of interest to other educational organisations that arrange field trips, expeditions or activities using contractors.  In both cases the schools were held not liable, but the judgments provide a useful insight into how the law of negligence operates in this area.

In Woodland v Essex County Council, a pupil suffered severe injuries during a swimming lesson run for her school. The Council was responsible for the school. However, the lesson was provided by an independent contractor at a pool operated by another council.

The High Court concluded that the Council was not vicariously liable for the negligence of the contractor’s staff.  The normal principle of “vicarious liability” is that an employer is liable for damage caused by the negligence of its own employees acting in the course of their employment.  It is much harder to succeed with a claim that an organisation should have vicarious liability for non-employees.

An alternative argument was that the Council owed the pupil a direct “non-delegable duty of care”.  By a 2:1 majority the Court of Appeal held that the Council did not owe such a duty. 

In XVW & YZA v Gravesend Grammar School for Girls, the High Court held that neither a school nor a specialist expedition company were vicariously liable for the acts of a man who raped three girls on a school expedition in Belize, while they were working and staying on his farm.  Again the man was not an employee, nor had his involvement in the volunteer work undertaken by the expedition been sufficient to fix the school or company with vicarious liability.  Further, the court held that the school and the company had taken appropriate safety precautions during the expedition.

In both cases, the findings were made after a very detailed examination of the facts.  The courts’ reluctance to extend the scope of liability is due -in part- to concerns about effect of litigation on external activities.  In the Woodland case, one of the judges commented that to have imposed liability would have risked creating “a chilling effect on the willingness of education authorities to provide valuable educational experiences for their pupils”.

Budget 2012: Health & Safety law and the "compensation culture"

As part of the 2012 budget the Government has announced it intends to “scrap or improve 84 per cent of health and safety regulation, including legislating in 2012 so that ‘strict liability’ provisions in health and safety law will no longer hold employers to be in breach of their duties when they have done everything that is reasonably practicable and foreseeable to protect their employees.”

This is in line with the Government’s November 2011 response to the Lofstedt review of health and safety regulation.

Further legislation will set out the detail, and it remains to be seen how far these changes will achieve the Government’s stated aim of tackling the “compensation culture”.

Guest contribution by
Philip Grey, Associate (Barrister)
Tel: +(44)(0) 1223 222463
Philip.grey@mills-reeve.com