The recent events at Grenfell Tower have sparked national outcry and raised important safety questions. It seems that the cladding applied to the external part of the building may well have contributed to the abnormally rapid spreading of the fire. So where does this leave the various parties involved with the design, manufacture and installation of said cladding?

These parties will include not just the private companies and consultants involved with the project, but also the local authority which would have commissioned the works, agreed the specification and monitored the installation, or engaged others to do so for them.

At this stage there is no clear view of whom is to blame, but prosecution cannot and should not be ruled out, not least because of the high profile nature of the incident.

So, what are the key issues to be considered by the police, CPS and, possibly, a jury?

Firstly the investigation will concentrate upon identifying whether there is significant evidence to support charges of gross negligence manslaughter or corporate manslaughter.

Gross Negligence Manslaughter

Gross negligence manslaughter is a form of involuntary manslaughter where the defendant is ostensibly acting lawfully. Involuntary manslaughter may arise where the defendant has caused death but neither intended to cause death nor intended to cause serious bodily harm. While constructive manslaughter (or unlawful act manslaughter) exists where the defendant commits an unlawful act which results in death – gross negligence manslaughter is not dependant on demonstrating that an unlawful act has been committed. Gross negligence manslaughter can be said to apply where the defendant commits a lawful act in such a way as to render those actions as criminal.

The test for gross negligence manslaughter is:

1. Was there a duty of care owed by the defendant to the deceased;

2. Did a breach of that duty of care lead to the death(s);

3. Did the behaviour of the defendant fall so far below the standard which could reasonably have been expected that it warrants criminal liability.

Corporate Manslaughter

The Corporate Manslaughter and Corporate Homicide Act 2007 creates a means of accountability for deaths caused by serious management failings. Prior to the act coming into force, a corporate entity, could be prosecuted for a wide range of criminal offences, including the common law offence of gross negligence manslaughter. However, in order for the company to be guilty of the offence, it was also essential for someone with overall responsibility, who could be said to embody the company, to also be guilty. As of the 2007 legislation, the offence is now concerned with corporate liability and does not apply to directors or other senior individuals in the company or organisation.

The test for corporate manslaughter is broadly similar to that of gross negligence in that the organisation (there is no individual liability under the Corporate Manslaughter and Corporate Homicide Act 2007) is guilty of an offence if the way in which its activities are managed or organised:

1. Causes a person’s death;

2. Amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

The organisation is guilty of an offence only if the way in which its activities were managed or organised by its senior management is a substantial element in the breach.

So far as the charge of gross negligence manslaughter is concerned, issues will arise for the prosecution should they identify negligence on the part of a number of people but no single person’s negligence led to the fire. The offence does not allow the aggregation of various people’s negligence to be taken into account. The Corporate Manslaughter and Corporate Homicide Act 2007 does allow for aggregation of negligence but as it does not allow for individual liability.

Was One Entity to Blame?

On a project such as the refurbishment of a high rise tower, there would have been more than one person or corporation responsible for design. However, there is also very likely to be one entity or person with overall responsibility for design. As lead consultant, architects would traditionally have assumed this role. But it is not just that consultant’s scope of service or assumption of responsibility that should be scrutinised here. It would be more appropriate to assess likely liability for gross negligence, in this instance, within the realms of what they should do about high risk fire issues, at law. That boils down to one issue.

Which of the entities involved had a duty to warn?

In this case that question can probably be reduced to the issue of who had knowledge, and who ought to have had knowledge, of the issue with the cladding?

Of course, deciphering who had a duty to warn is not easy to determine in itself. Some involved on the project may have been unaware that the cladding was not fire retardant. Some, despite knowing that it was not, may still be entitled to assume that design would be implemented which prevented the cladding from spreading fire.

Designer’s Liability and a Duty to Warn

While there is no general duty to warn in English Law, there is a duty to warn where there is danger to the lives of humans (see Akenhead J, in Cleightonhills v Bembridge Marine).

Ultimately, all the construction professionals, contracted with the Council, who knew that the cladding was not fireproof are likely to have had a duty to warn, unless the circumstances show that they could have, feasibly, assumed the cladding would then become fire proofed during the installation process.

Once it is established that someone owes a duty to warn, to comply with their duty they must proceed with extreme caution. Ordinarily, simply warning an employer, for example, of a risk of catastrophic fire is not enough. One must warn vigorously or, where the risk is high, simply refuse to proceed with the works, perhaps even take steps to prevent others from proceeding.

Without seeing the contracts, professional appointments, and explanations as to why decisions were made, it would be inappropriate to attempt to place definitive blame on the cladders, contractors, architect, engineers, those checking building regulation compliance, or the employer. But, on the face of it, if there was a lead designer or consultant, that individual may find it difficult to argue that they did not have a duty to warn. Meanwhile, the assumption that others will be “designing out” a fire risk is likely to protect the lead consultant. Indeed, it may be that those with overall design responsibility may only be able to vindicate proceeding, once aware of a fire risk, with the cladding installation, if they had been told expressly that the cladding was fire retardant.

Commercial v Residential Buildings

While the Grenfell Tower disaster relates directly to the use of cladding in high rise residential buildings, the tragic events undoubtedly raise questions and concerns over commercial properties in addition.

The nature of cladding selected for a building will vary depending on considerations such as purpose, conditions, cost, local context, planning and building regulation requirements as well as structural obligations. However, the key issues to consider when it comes to liability and prosecutions in circumstances such as these remain the same, irrespective of whether the building as a residential or commercial purpose.

As enquiries continue, it remains unclear who may find themselves standing in the dock but it could well be any of the designers, contractors or even the local authority which commissioned the works. From this list it is possible that all three entities could be prosecuted for breaching a duty to warn. Whether a breach of a duty to warn in this instance constitutes gross negligence manslaughter or corporate manslaughter will ultimately be a matter for the jury to decide.

But one thing is for certain, these events will serve as a tragic reminder to everyone involved in the design and construction industry as to the importance of safety and the responsibility that rests upon their shoulders.

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This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.