Contractors subject to claims in CPR35 proceedings as duty holders under the Fire Safety Order (FSO)

Many qualified professionals including Chartered Engineers and registered architects, are currently engaged in disputes involving the remediation of defective fire safety provisions in buildings.

Many of these relate to internal fire compartmentalisation and safety in fire of external cladding systems.

Whilst a significant number of the current cases evolved from investigations ordered following the Grenfell Tower fire on 14 June 2017, many were already underway due to defects having already been discovered.

It appears that the advice being provided from some quarters to Contractors responsible for these defects is that they are not duty holders under the requirements of the Regulatory Reform (Fire Safety) Order 2005 (FSO).

Is this advice robust?

Article 5(3) of the order states that:

“Any duty imposed by articles 8 to 22 or by regulations made under article 24 on the responsible person in respect of premises shall also be imposed on every person, other than the responsible person referred to in paragraphs (1) and (2), who has, to any extent, control of those premises so far as the requirements relate to matters within his control.”

Where a Contractor is subject to a claim by the building owner for alleged defects, the contractor has admitted the defects and is working with the claimant to address the defects, even if this involvement is limited at any time to disputing the extent of the defects and/or cost of their remediation, the Contractor could reasonably be considered to assume a duty under Article 5(3) of the FSO by having an influence on relevant requirements of the FSO which may include but not necessarily be limited to :

• Article 4 Reduce the risk of fire and its spread – for instance, the Contractor may be engaging with the claimant on matters relating to the remediation of defects in internal fire compartmentation or the ability of external cladding to resist fire spread.
• Article 14 Emergency Routes and exits – for instance, the Contractor may be engaging with the claimant on matters relating to remediation of defects in construction that forms protected escape routes.
• Article 13 Fire-fighting and fire detection – the Contractor may be engaging with the claimant on matters relating to remediation of defects in these provisions.
• Article 22 co-operation and co-ordination – the Contractor is engaged in this activity with the Responsible Person and its outcome directly affects the status of fire safety in the premises and consequent risks to which relevant persons are subjected.

Unfortunately, the nature of these disputes is that they can rumble on for a considerable amount of time.

It is important for all those involved to consider that a prosecution for a breach of the FSO will cast the widest possible net in terms of persons of interest. Where defects in building fire safety provisions are determined by the prosecuting authority to be material to the alleged breach then a Contractor responsible for these defects may well become a person of interest to the prosecution. Where the Contractor is currently engaged in any capacity in respect of remediation of these defects then identification of the Contractor as a person with duties under Article 5(3) of the FSO could potentially be relatively straightforward.

Should the worst happen, a fire resulting in casualties, then criminal proceedings for potential corporate manslaughter or manslaughter through gross negligence may be instigated. Irrespective of the extent of responsibilities set by Article 5(3) of the FSO, a Contractor responsible for defects considered under investigation to have possibly contributed to these casualties will become a person of interest along with others even if they have yet to have been notified by any party of these defects and are unaware of them.

Mostyn Bullock

BEng CEng FIFire Director, Tenos