Expert Witness Journal Issue 68 August 2026 - Flipbook - Page 79
that the landlord’s failure to address the cladding
constituted a derogation from grant.
Repair, remediation and lease obligations
Although the landlord sought to distinguish between
‘repair’ and ‘remediation’, the court did not treat
that distinction as legally determinative. Instead, it
focussed on the breadth of the lease obligations.
The claim was framed in substance as an attempt
to secure what the court described as “a building
safety remediation order” through private law
mechanisms, in circumstances where statutory
regimes such as the Building Safety Act did not
apply to hotels.
The good condition covenant was interpreted as
extending to remedying 昀椀re safety defects in the
building fabric, even where those defects arose
from original construction. The court treated the
presence of dangerous ACM cladding as placing the
building out of ‘good and substantial condition’.
The landlord’s defence rested on two primary
arguments. It contended that the works were
not within the scope of its lease obligations. In
particular, it sought to characterise the works as
remediation of inherent defects rather than repair,
suggesting that such obligations should fall outside
the lease framework. It also relied on the tenant’s
historical involvement in specifying and installing
the cladding system and on indemnity provisions
under the original lease prior to the 2017 cut-o昀昀
date.
In parallel, the legal obligations covenant
incorporated duties under the Fire Safety Order.
The court held that the presence of ACM cladding
amounted to a 昀椀re safety risk requiring action
by the ‘responsible person’ and that contractual
mechanisms permitted enforcement of those duties.
Importantly, the court held that compliance with
statutory duties could require substantial capital
works, including replacement of cladding systems,
and that such obligations could be enforced through
lease covenants.
The landlord further argued that removal was not
necessary or proportionate, relying on mitigation
measures including 昀椀re safety management
strategies and proposed building modi昀椀cations.
It submitted that a risk-based approach under the
Fire Safety Order allowed for consideration of
proportionality and cost.
Knowledge, historical responsibility
and risk allocation
A central issue was whether the tenant’s historical
involvement in the cladding works shifted
responsibility back to it. The court rejected this
argument, 昀椀nding that the tenant had no knowledge
– and could not reasonably have had knowledge – of
the 昀椀re risks prior to Grenfell.
Finally, it challenged the reasonableness of the
tenant’s decision to close the hotel, suggesting
alternative solutions could have avoided closure.
Court’s decision
Building safety risk and the necessity
of remediation
The indemnity and remedial provisions in the earlier
lease were therefore not engaged. The allocation of
risk under the current lease placed responsibility
squarely on the landlord for the structure and
cladding after the cut-o昀昀 date.
The court began with the factual and technical
question of whether the cladding system required
replacement. It noted that both 昀椀re safety experts
agreed that the building presented an ‘intolerable
risk’ under PAS 9980 principles.
This aspect of the judgment is particularly signi昀椀cant
for construction professionals, as it underscores that
historical compliance with then‑current standards
will not necessarily determine liability where risks
only become apparent later.
The court rejected the landlord’s reliance on
mitigation measures. Whilst acknowledging that
additional precautions might reduce risk, it held that
such measures could not eliminate the fundamental
danger posed by combustible ACM panels. The
evidence showed that ignition risk could be reduced
but not prevented and that consequences remained
severe if ignition occurred.
Reasonableness of the closure decision
The court found that the tenant’s decision to close
the hotel was reasonable. It relied heavily on expert
advice, particularly the opinion that “the hotel
should close until the ACM cladding is removed”.
The court rejected the suggestion that piecemeal
measures were a viable alternative, stating that
leaving “the vast majority of the highly combustible
category 3 ACM cladding panels in place” could not
be justi昀椀ed. Replacement was therefore treated as
both necessary and proportionate.
EXPERT WITNESS JOURNAL
The court emphasised that a party acting on
competent expert advice in a safety‑critical context
would rarely be found unreasonable. It also
recognised the relevance of reputational risk and
the risk of criminal liability in assessing commercial
decisions.
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AUGUST 2026
