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What’s needed to bring a claim for defective cladding?

  • United Kingdom
  • Construction and engineering

13-05-2022

The Building Safety Act 2022 will extend the ways in which a party can seek legal redress for defects relating to building safety.  However, how should a party go about making a defects claim?  Often the defects are self-evident, but deciphering the cause and the party responsible can be difficult. That is especially so for a claimant who lacks technical knowledge, does not have information available about the construction of the building, and will often be dealing with defects hidden within the external walls of their property.  

Helpfully this matter was considered in the recent case of Evolve Housing + Support v Bouygues (UK) Limited and Others1.  

Background

The claim was brought by Evolve Housing + Support (“Evolve”), a charity and registered provider of social housing, in respect of alleged fire safety defects in the façade of a YMCA hostel built in 2012. Missing and defective work had been discovered to the terracotta and copper cladding systems, which required Evolve to replace the external walls.

Façade claims are commonly multi-party proceedings and this was no exception. The defendants were Evolve’s design and build contractor, a firm of architects (“STL”) from whom Evolve had a collateral warranty and a construction consultancy who acted as employer’s agent. A building envelope contractor was joined as a third party and an approved building control inspector as a fourth party.

Request for Further Information

The court had to consider an application by STL for a Request for Further Information from Evolve on its Particulars of Claim under rule 18.1 of the Civil Procedure Rules (“CPR”).  STL argued that such Further Information was necessary because Evolve had failed to particularise its case on causation and breach, meaning that STL was unable to effectively reply to the claim.  In response, Evolve said that it was unable to properly plead its case until it had been provided with designs and inspection records from the defendants upon disclosure.  

What is required to plead a claim?

In assessing the positions of each party, Mr Roger Ter Haar QC (sitting as a deputy high court judge) first set out what is necessary to plead a claim. 

  • CPR r.16.4(1)(a) requires “a concise statement of the facts on which the claimant relies.” 

The meaning of this phase has been subsequently developed in case law:

  • the claim must be pleaded in such a way to allow the defendant to know the case it has to meet, what it has failed to do, and the consequences of that failure2;
  • the claim should not be so vague and incoherent that the defendant cannot plead to it in response, disclose documents relevant to it, or prepare witness statements; and 
  • the court must be able to understand the case so that it can decide it fairly, expeditiously and saving unnecessary expense3.

This was important context in considering whether Evolve’s pleaded case was sufficiently detailed or whether STL’s Request for Further Information was valid.

Status of claimant’s knowledge

Evolve’s position was that it knew what the defects to its property were and that they arose in part from STL’s performance. However Evolve did not have insight into precisely what role STL had played on the project and therefore could not specify which of STL’s duties had been breached and how, so as to cause the defects. Evolve would not gain such insight until it saw contemporaneous project documents on disclosure.

In fact, STL gave evidence that considerable disclosure had already been given to Evolve. This was determinative. The judge decided that enough disclosure had been provided to enable Evolve to serve the Further Information requested - even if it might need to be supplemented upon receipt of more documentation during the formal disclosure process. As he put it:

STL is entitled to know how Evolve puts its case on the basis of what has already been disclosed”.

Implications for cladding claims

The take-away message from the case is that claimants need to be careful to avoid gaps in their pleaded claims, especially where the material that can fill such gaps is available to them.

It is interesting that the judge determined that Further Information was required with reference to the level of disclosure previously given to Evolve. Neither CPR r.16.4(1)(a), nor the passages from the three key cases to which the judge referred in his judgment5, expressly link the necessary content of pleadings to disclosure.

How much disclosure has been given by pleading stage will vary from case to case. If the Pre-Action Protocol for Construction & Engineering Disputes has been used effectively, considerable information may already have been shared before proceedings are commenced.

In contrast, where defects are identified close to the expiry of the limitation period – as has happened with many cladding defects post-Grenfell - the claim may have to be issued without going through the Protocol, in order to avoid the claim becoming time-barred. Particulars of Claim may then follow with relatively little material having exchanged hands.

Does this mean that a more lenient approach could be taken to any Request for Further Information in these last-minute cladding claims?

Perhaps, but there is another problem lurking for a claimant who has issued proceedings late in the day and is still piecing together the jigsaw of what happened to its cladding. If the jigsaw reveals new claims, but the limitation period has expired, the claimant can only amend its pleadings and bring the new claims before the court if they arise out of “the same facts or substantially the same facts” as a claim for which a remedy is already sought (CPR r.17(4)).

It is therefore crucial for claimants to consider with their lawyers, as early as possible pre-action, what routes (contractual and procedural) should be pursued to obtain information relevant to their claims. That way the claims can be pleaded as comprehensibly as possible from the outset. The need for Further Information can be avoided and the prospects of success maximised.   

Pre-emptive measures

Evolve’s position is symptomatic of many property owners, who were not close enough to or involved in the design and construction phase on their project, to know precisely who did what to cause the problems.  The difficulty is compounded when those involved in the project at the time have left the business. This is often the case by the time latent defects (such as combustible cladding and insulation) manifest.

Property owners can protect themselves against this “information gap” to an extent during the early stages of the project, by:

  • including in their building contracts and professional appointments, rights to attend meetings and to see documentation that will offer insight into the roles being performed by the various parties on the project.
  • maintaining detailed records during and after the project. (If relying on the professional team’s records, it is essential to ensure that the team is contractually required to retain the records for, and preferably beyond, the limitation period.)
  • “downloading” information and documents from employees with first-hand knowledge of the project when they leave the business.
  • instructing a cladding expert early on upon discovery of the defect to investigate the issues.

Building Safety Act

Hopefully the information gap in building safety claims will be more easily resolved once the “Golden Thread” regime under the Building Safety Act comes into force. Under this regime, all parties working on the design and build of a property are required to provide its residents with information relating to its construction and safety.  This may make future defective cladding claims easier to pursue, but until then the parties should proceed with caution and additional proactive steps are necessary.  


  1. 2022 EWHC 906 (TCC)
  2. Pantelli Associates Ltd v Corporate City Developments No 2 Ltd [2010] EWHC 3189 (TCC)
  3. Towler v Wills [2010] EHC 1209 (Comm)
  4. Footnoted above