The owner of a nine-storey building in east London has been prosecuted for failing to meet a deadline to correct unsafe cladding, despite blaming contractual delays with Willmott Dixon.
Newham Council brought the charges against Chaplair Limited for failing to respond in time to an improvement notice. The authority said it was the first time a council had successfully prosecuted a company over delays in removing cladding.
Caplair was served with an improvement notice on 3 September 2020 to repair the external facades of Lumiere House at Forest Gate by 31 March 2021.
However, the 71-story building was not repaired on time. Contractor Lawtech started work in May 2021 and completed it in February 2022.
Chaplair said the repair delays were “primarily” caused by being unable to agree contract terms with his original preferred contractor Willmott Dixon. He added delays were also caused by funding issues and Network Rail’s requirement for permission to agree certain works.
However, City of London Magistrates’ Court Deputy Magistrate Tan Ikram said Chaplair was responsible for the late repair. In a written judgment obtained by Construction newshe said Chaplair “did not satisfy me that he had a reasonable excuse for not complying with the improvement notice”.
Chaplair argued that he acted reasonably following legal advice to reject the contract with Willmott Dixon after the contractor “unilaterally proposed unacceptable modified contract terms and then refused to negotiate on those terms”.
According to the court ruling, Willmott Dixon “sought to exclude liability for the design and consequential losses that had previously been the ‘design and build contractor’ under what had previously been the standard terms and conditions of these terms”.
Philip Eyre, a Glovers lawyer who advised Chaplair on the negotiation of the original contract, said the proposed contractual revisions would have meant Willmott Dixon could try to avoid contractual liability by blaming subcontractors.
However, he told the court he was not aware of the enhancement notice, and Judge Ikram said he was therefore not satisfied that taking legal advice to terminate the contract with Willmott Dixon was reasonable.
“Had the Glovers known the timescales for the completion of the work, it is impossible to foresee that they would not have given further advice and highlighted the consequences of delay and the options,” the judge said.
Chaplair also suggested that Newham Council did not properly consider an application in October 2020 for an extension of the improvement notice period.
However, Judge Ikram said: “I think there was simply not enough information provided [Newham] so that they vary and extend the time unilaterally.
“The reasonable course [for Chaplair] it would have been a detailed and direct assessment of the situation [Newham] with real proposals. I find that this never happened. Rather, there was ambiguity, lack of clarity and lack of communication.”
Chaplair had also argued that it was stopped due to delays in receiving payment from the Building Security Fund, as well as the necessary permits from Network Rail for certain works. However, the judge rejected these defences, saying that waiting for funding was not a reasonable excuse as the building’s owner could have raised the money for the works in other ways.
“I agree with [Newham Council]; [Chaplair] he took a chance or “bet” that the government would eventually pick up the bill,” the judge said.
The judge also said the change in main contractor stalled Network Rail’s permitting process.
The sentence will take place on October 31.
In comments following the case, Mayor of Newham, Rokhsana Fiaz, said: “Six years on from the Grenfell Tower disaster, today’s decision by the tribunal symbolizes a landmark decision in our fight to raise standards and hold building owners in Newham to account.”
In a statement, a spokesman for Willmott Dixon said the company was not part of the court case and therefore could not defend itself against the allegations made as part of it.
They added that contractual changes must be agreed upon by both parties and therefore cannot be “unilaterally proposed” or imposed.
CN The priest was contacted for comment.
