EWJ FEB 59 2025 web - Flipbook - Page 21
The alleged breaches were that, in the inspection by
officers of the FRA, it was found that the following
defects were identified:
• excessive gaps between the door frames and the surrounding structure (i.e. the inner skin of the cavity
wall);
• there was no, or no adequate, fire-resisting/fire
stopping material to remedy these gaps; and
• the door frames were inadequately fixed to the
surrounding structure.
that these strips were not present notwithstanding all
the evidence served to the contrary.
This culminated in the FRA’s investigating officer
producing a witness statement several days after an
“application to dismiss” (i.e. a hearing to determine
whether the case should be stopped before trial due to
an insufficiency of evidence) which asserted emphatically (and in capital letters) that there were no intumescent strips by reference to photographs that did
not show the relevant parts of the doorsets.
That this claim was baseless (alongside other stark
errors by the FRA) was pointed out in further defence
expert evidence (the defence also wrote to the FRA
and the court stating that it was considering a future
costs claim); however, the damage had been done:
the judge ruled that it was not for him but for a jury
to decide a dispute between “experts”. The case
continued.
However, from the disclosure provided in advance of
the first court appearance, it was apparent that none
of the inspections had been properly conducted.
The photographic evidence was poor but established
that the inspections were looking in the wrong place.
For two of the four doorsets, the inspection had not
been of the doorsets but of a decorative door reveal
liner some distance away (attached to different blockwork). The FRA continued to make allegations in relation to the gap between blockwork unrelated to the
installations. There was no evidence in relation to the
fixings (and this point was later dropped).
Following the dismissal application and service of a
“defence statement”, the defence applied to the judge
to direct that a further invasive inspection take place.
Some of the doorsets installed by the contractor were
still in situ and so the presence, or otherwise, of the
intumescent strips could be confirmed definitively.
Insofar as the inspections were in the right general
location, photographic and other evidence flatly contradicted the FRA findings in relation to the presence
of fire stopping and size of the gaps.
After much back and forth, a representative of the
FRA, Colin Todd, Lin Parry and a prosecution expert witness (appointed after the dismissal hearing)
visited the site to observe an entire doorset being removed, at which time it was found, unsurprisingly,
that the twin intumescent strips were indeed present.
The inspection also confirmed the presence of other
fire-stopping from the contractor’s installations, only
partially removed during reinstallation, which the
FRA had alleged not to be present.
Importantly, the FRA inspection had also examined
three of the four doorsets that had already been subject to invasive inspections by the third party / housing
association. This prior inspection included remedial
works the nature of which were never disclosed to the
defence (despite numerous requests). Significant damage caused by the prior inspection was clearly
evidenced in the photographs.
Subsequently, a joint statement by Colin Todd and the
prosecution expert witness agreed every material aspect of the defence case, including that the FEDs
should have been inspected from within the flats, and
ultimately that there was insufficient evidence to establish a breach of the Fire Safety Order still less that
any relevant person had been placed at risk of death
or serious injury in case of fire.
The contractor’s solicitors, BCL, appointed Colin
Todd as an expert witness for the defence, and in turn
Lin Parry, a recognised expert in timber fire doors.
Both consultants confirmed that the inspection by the
officers of the FRA was seriously flawed, and pointed
out that, because the doorsets were fixed within the
inner skin of the cavity wall, the inspection of the
doorset should have taken place from inside the flat,
failing which it was simply not possible to determine if
there were any breaches.
Accordingly, at a hearing earlier this year, the FRA
offered no evidence on the single count on the indictment, and the Court directed that a Not Guilty verdict
be entered.
A further major issue in the case was the presence, or
otherwise, of intumescent strips in the rear face of the
frame, to swell and seal the gap between the frame
and the wall to which it was fixed in the event of fire.
The doorsets were third party certificated on the basis
of a fire resistance test, in which these intumescent
strips were fitted. The manufacturer’s data sheet
showed that strips were fitted in their product. They
were not, for example, fitted by installers on site.
The claim for costs
The contractor then applied to the Court for an order
for costs against the FRA, under the Prosecution of
Offences Act. Being a case that was brought on the
basis of “expert” evidence, the test in R v Aylesbury
CC [2018] applied: was the “expert” evidence “plainly
wrong in a way that should have been obvious to the
Crown”?
The version of BS 8214 applicable at the time of installation advised that, in the case of an FD 30 door,
gaps of greater than 10 mm between the frame and
the wall could be addressed by fitting a single intumescent strip. The doors in question were designed
with two parallel strips. Yet, the FRA were adamant
EXPERT WITNESS JOURNAL
There was little doubt that the FRA was “plainly
wrong” – the key issue was when the FRA should have
known. The prosecution also reminded the judge that
an order under the Prosecution of Offences Act was a
very rare one to reflect stark impropriety.
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