Grenfell Tower’s legal uncertainties

A corporate scandal, or no case to answer?

Image: the fire at Grenfell Tower in the early hours of 15 June 2017.¹

The main difference that distinguishes public authorities from corporations is that corporations must compete for market share; public authorities get given it. Three corporations in particular have been inculpated—at least in terms of the public inquiry, not yet the criminal law—in Sir Martin Moore-Bick’s report on the Grenfell Tower tragedy. He also finds blame on the part of most every other party that had to do with Grenfell Tower, with the notable exception of its residents: they lost their homes, and their property, and 72 of them lost their lives, 18 of them under 18. For the aforementioned reason, the two public authorities in question (the council of the Royal Borough of Kensington & Chelsea, or more exactly its tenant management organisation, the building’s owner and landlord, and the London Fire Brigade) have both shown some remorse and readiness to learn lessons; the three corporations, by contrast, have issued staunch denials of their culpability in response to the inquiry report (phase 2), which came out on Wednesday, 4 September. My purpose here is to consider the validity of their denials.

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Briefly (since the facts are narrated far more fully elsewhere), Grenfell Tower was a residential high-rise block of flats located in the North Kensington area of London, and owned as social housing by the council there. On 14 June 2017, it burned down. Its construction had been completed in 1974. Aside from a small fire in a hallway in 2020, which was easily contained, and some redesignation as residential accommodations of lower floors initially intended for commercial use, the only other major work ever to be carried out on the building was a full renovation in 2015-2016. These works may be of crucial importance, since a part entailing fitting exterior cladding to the property in order to up its energy efficiency has been identified as a key factor by which the fire spread so rapidly. The cladding was done using coil-treated aluminium sheeting. At the same time, irregularities that were encountered when the windows were replaced were filled for air-tightness using spray foam. Both the cladding and the foam were combustible. So efficient were these materials at spreading fire that the fire brigade’s instruction to tenants to remain sealed in their homes—a typical procedure in the case of fires in high-rise properties, owing to the received wisdom that there is a low likelihood of a fire spreading in such a property—proved fatal.

The inquiry levels the following criticisms at the three companies involved in this refurbishment work: Arconic, Celotex and Kingspan. Arconic manufactured the cladding panels that were the main conduit for the fire from one flat to the next. The other two manufactured the foam insulation used to stop up gaps in window frames and the like. The inquiry concluded that these companies behaved with systematic dishonesty and engaged in deliberate and sustained strategies to manipulate the testing processes, misrepresent test data and mislead the market.

Arconic in particular

deliberately and dishonestly conceal[ed] from the market the true position in relation to [its product] Reynobond PE in cassette form … Arconic itself must take responsibility for the use of Reynobond 55 PE on Grenfell Tower because it knew that the sale of the product had been obtained on the basis of the British Board of Agrément certificate, which it was well aware gave a misleading impression of the way in which the product in cassette form reacted to fire.

So, there you are: guilty as charged. Except, they haven’t been charged yet. While it is trite law that a man is innocent until proven guilty, only Shakespeare ever castigated someone for denying something at an early stage (I believe it was in Hamlet: “The lady doth protest too much” (said regarding attempts to uncover evidence of a crime, so perhaps appropriate here). Schoolboy character Billy Bunter, as penned by Frank Richards, would get summoned by authority just after he had purloined someone’s cake, or the like. Upon appearing before his schoolmaster, he would not only lie outrageously, saying he had definitely not stolen any cake from Nugent’s study, but his anticipatory denial alone was the ground for an enquiry into a crime that Bunter had manifestly intended to obviate. Arconic’s manifestly intended vehement denial is as follows:

Arconic Architectural Products sold sheets of aluminium composite material as specified in the design process. This product was safe to use as a building material, and legal to sell in the UK as well as the more than 30 other countries in which AAP customers bought the product. We reject any claim that AAP sold an unsafe product.

AAP regularly conducted tests of its materials using third-party testing bodies. Reports on these results were all publicly available, and AAP made these reports available to its customers.

AAP did not conceal information from or mislead any certification body, customer, or the public.

So, there you are, not guilty after all. I find it striking that the criticism levelled by the inquiry at Arconic hinges on the British Board of Agrément certificate. The British Board of Agrément essentially approves materials for construction work. Basically, if they say you can use it, you can. And, it seems, if you tell them to tell you you can use it, that’s good as well. You have to submit the specifications and the results of the tests you have done to assure the BBA that the material is fit for its intended purpose. The BBA itself doesn’t test materials, but, interestingly, what it says on its website is this: [t]he BBA helps clients generate a competitive advantage. Now, I know commercial-speak is everywhere and we have industries that do no industry and language is flexible. But if I need to submit a product for approval (which is what agrément is), what is the purpose for which, if I put it thereto, it has to be fit? It could be (I don’t actually know) that it needs to comply with a fire-retardant test in order to be fit for purpose, although the ostensible purpose to which Arconic’s cladding was put was to up energy efficiency. The inquiry says it needed to be fire retardant, so I guess they’ll know. It’s a bit circular: the agency itself talks of manufacturers as its clients, whom it can help to penetrate the market. That sounds a little as if its judgment is not entirely neutral. Yet it is on this agrément that the inquiry hangs its hat when casting aspertions at Arconic. Is there nothing besides the BBA to support the aspertions cast against Arconic? After all, people died in this fire.

It first has to be added that the cladding question and the BBA are a matter still up in the air: for Arconic is alleged to have cheated in the fire-retardance tests done on its cladding in any case. It apparently added fire-resistant sheets into the ply mix of the cladding, without actually telling anyone, and the cladding as installed did not include this (or these) fire-resistant layer(s). If fire resistance is required by the BBA, then that will be a crucial element in the causation of these deaths. Because, if the BBA agrément makes no stipulations as to fire resistance, Arconic may be right when they say that they did not mislead any certification body. It will depend what they actually said to the BBA. And what clout the BBA even has, as a certification body.

They also state that their product was legal to sell in the UK and safe to use as a building material. The first of these raises a smile with me: as if there’s a suggestion this might be contraband or an illegal substance. Hm. Interesting is that they add that it can legally be sold in 30 other countries: given the reference to the BBA, that is a meaningless assertion. Whether cladding can be applied to a tower block in London has nothing at all to do with whether it can be added to a building in 30 other countries. If it had the agrément, then, is that why it was legal? Was what was fitted the same material as that which was approved? We shall no doubt learn in the fullness of time, but I’m not sure that the inquiry’s reference to the agrément is necessarily conclusive.

In a way, I hope it isn’t. Because it is, as we now know, of crucial importance that nothing should compromise the basis on which fire brigades attending tower block fires tell residents to remain in their flats. Because, if the fire brigade know that that basis has been compromised, they need to know they have to fight the blaze differently.

But, more than that, this cladding matter and the agrément raises in me something of a hackle. Does Sir Martin want to tell us, after seven long years, that, but for this agrément, there would be no come-back whatsoever against Arconic? Well, why should there be any?

Suppose I am a building contractor and I win a contract to supply renovation works. The materials that I use are, let’s say, aluminium and wood. Wood is notorious for its combustibility. Anyone who’s seen an aircraft fire knows that aluminium goes up like a toffee wrapper. Yet, for some applications and some aesthetics, these are admirable materials to use for a renovation project. Again, I’m not entirely sure how compulsory BBA agrément is: I think it’s more of a badge of honour, rather than a full-blown necessity, but I may be wrong. However, that aside, there are clearly applications where wood would not be fit for purpose. Like on the 24th floor of a tower block. However, wood can legally be sold as a building material in the UK and I’ve little doubt I could get an agrément for it if I tried. So, what is it that decides whether wood, or in the case in point, coil-treated insulated aluminium cladding, is a viable material, not just on the first floor but also on the 24th floor of a tower block that has only one central set of stairs as an escape route?

The thing that starts to surprise me is the prospect that, but for this BBA reference, there would be nothing at all to prevent such cladding from being installed exactly where it was installed, bar one thing: the architect. The problem with this is that, at Grenfell Tower, the architect said yes, and may well have done so on the basis of the agrément. I sympathise with Arconic’s stance, but their argument seems to come down to saying we can be as sorry as we want about the 72 dead, the lost property, and the destroyed building, but even if our panels spread the fire beyond the abilities of the fire brigade to extinguish it, there is no principle in law that holds us liable for any of that. They’re wrong. There is: causation, and it’s not very remote. But the desire to find a guilty party must wend its way down the meandering lane of proof in order to achieve its fulfilment. Desiring it is not enough. This will be an interesting case, and it is far over time: the delays in the process are holding back justice for those who lost their everything, and the police are saying they may need to take up to 18 months to even decide if a prosecution can be brought on the strength of the inquiry report. It will be ten years after the fact before any kind of redress is even on the cards.

What about the other suppliers of building materials? First, Kingspan and Sir Martin’s words about them.

The story of the development and marketing of K15 for use on buildings of over 18 metres in height between 2006 and 2019 is one of deeply entrenched and persistent dishonesty on the part of Kingspan in pursuit of commercial gain coupled with a complete disregard for fire safety.

The effect of Kingspan’s dishonest marketing of K15 was to create a spurious market for a polymeric insulation product suitable for use on high-rise buildings generally, which drew in Celotex as a competitor.

Doesn’t miss them and hit the wall, eh? To which the riposte is comprehensive, if not overkill:

We welcome the publication of today’s report, which is crucial to a public understanding of what went wrong and why. It explains clearly and unambiguously that the type of insulation (whether combustible or non-combustible) was immaterial, and that the principal reason for the fire spread was the PE ACM cladding, which was not made by Kingspan.

Kingspan has long acknowledged the wholly unacceptable historical failings that occurred in part of our UK insulation business. These were in no way reflective of how we conduct ourselves as a group, then or now. While deeply regrettable, they were not found to be causative of the tragedy.

Kingspan has already emphatically addressed these issues, including the implementation of extensive and externally verified measures to ensure our conduct and compliance standards are world leading.

We remain committed to playing a leading role in providing safe and sustainable building solutions, including continuing to work with government and industry partners.

I bet they welcome the report, I bet they do. This is all very virtuous language, which makes me want to reach for a sick bag. But it’s polite and its creditable and, more to the point, it is creditworthy, for they could be right: if, as the inquiry has said, the blaze sprang from flat to flat due to the cladding, then any role played by the insulation will be negligible. Is that not so? To be honest, I don’t know. I think Sir Martin still wants Kingspan in the dock, even if they’re ultimately acquitted. But I feel they’re off the hook if (a) Arconic is on the hook (but not if it ain’t; well, because) and (b) the cladding relegates the insulation to an immaterial level of fire hazard. For the rest, they say we didn’t manufacture what caused the fire to get out of control, even though we regret it; we have been naughty boys in the past, but we aren’t now. We have a leading role in providing safe and sustainable solutions. Or, put differently: we are sorry for something that is not our fault, and we are a leader in providing safety with a product that, like it or not, is actually flammable. I think that covers it. In fact, what they say is that because the insulation did not contribute majorly to the fire’s spread, it doesn’t matter whether it’s flammable or not, and so it doesn’t matter if we lied about it not being flammable. There, that’s a wee bit better, I think.

Last, but not least: Celotex, in the damning words of Sir Martin.

Celotex embarked on a dishonest scheme to mislead its customers and the wider market … the dishonest and cynical way in which RS5000² was tested and marketed reflected a culture within Celotex stretching back to at least 2009.

First, their own reply.

We conducted our own review to interrogate the circumstances in which the RS5000 product had been tested, launched and marketed. This review was a significant and thorough undertaking, and the results of that work were disclosed promptly and proactively to relevant stakeholders, including the Grenfell Tower inquiry.

Independent testing commissioned following the review demonstrated that the cladding system described in the Celotex RS5000 marketing literature met the relevant safety criteria. That system was substantially different to that used at Grenfell Tower. Decisions about design, construction and the selection of materials for the Tower were made by construction industry professionals.

Since the fire, we reviewed and improved process controls, quality management and the approach to marketing within the Celotex business to meet industry best practice. Celotex Limited continues to cooperate fully with all official investigations into the Grenfell Tower fire.

We conducted our own review to interrogate the circumstances in which the RS5000 product had been tested, launched and marketed. (Please, tell me if I ever write like that.) They wanted to know (to the point of an interrogation), not how the product had been tested, launched (interesting … free samples?) and marketed (the implication being that, by the time you get to the marketing, you’re … what? Lying?), but rather the circumstances in which all that corporate frenzy was conducted. Maybe they will also tell us at some point (or at least the judge) what the results of that interrogation of circumstances review were.

Both Kingspan and Celotex will be fingers crossed that the cladding comes out as the bogey man, and hence that he is without sin whose sin is immaterial to the damage. Ironically, Celotext came in to the Grenfell Tower renovation project with an inferior product (it says ’ere) and managed to snaffle 95% of the insulation supply for itself. I think they’re a magnificent company. And I think that Kingspan needs to review its marketing material.

What, exactly, are the relevant safety criteria for a system that is substantially different to that used at Grenfell Tower? Would they not be the safety criteria for Grenfell Tower? What Celotex appears to say is that their product—as marketed (now that’s a far cry from an agrément)—met relevant safety criteria which were not the safety criteria for where the product was fitted. I think we should get them in the dock, if only to explain what on earth that means. They fitted the stuff. In Grenfell Tower. Did they just disregard their very own, oh, so-authoritative marketing material? And they call that quality management? At least they’re still cooperating. Nice touch, that.

There are other aspects to this story beyond the building materials, though those do form the basis of why this fire took so many lives. There is the fact that North Kensington is part of a wealthy borough, which is accused of adopting a sneering attitude to the kinds of people who lived at Grenfell Tower. The property had been scheduled for new door-closure mechanisms, but the installation plan was stretched over several years, in order to reduce the budgetary impact. Many doors were therefore open on the night of the fire.

It seems almost irrelevant, and it came within a whisker of being so, had it not been for the efforts of Nabil Choucair, a resident who lost six members of his family that night: did the 72 victims of Grenfell Tower die because they were racial minorities? Is cutting quality and cost okay when it’s just for them? I would be surprised if Grenfell Tower’s residents had gold bathroom fittings; however, I can but hope that fire safety is not now a race matter. The sinking of Bayesian, the yacht that recently foundered in Sicily with some eminent persons on board, took a lesser toll of life, and I find it hard to comprehend how, on a vessel that took only 60 seconds to go under, the ladies and gentlemen who perished on her could not liberate themselves from the confines of its below-decks. The boat’s designers and the experts will no doubt be looking at how such drownings (and asphyxiations) can be prevented in the future and what factors proved fatal in the boat’s design and operation. The Bayesian disaster shows all too well that tragedy can strike whether we be wealthy or of modest means. But if I, again, had to draw a distinction, this time between the Bayesian and the Grenfell Tower, it would be to say that the former occurred despite every best effort, and the latter occurred … all too easily.

If, as they would now have done, the London Fire Brigade had executed a rescue mission immediately instead of telling residents to stay put, then I suspect those who are now the survivors and the families of the victims of the tragedy would have nothing more than a passing interest in the inquiry.³ But their interest is far from being a passing one: that June night has been seven years long till now, because all this time they have yearned for answers to the questions of why, who, and will they receive a sign of contrition, from those found to be at fault? One cannot shake off the feeling that a monetary compensation is likewise the order of the day. If the companies that contrived to obtain approvals and secure contracts ended up making Grenfell Tower into a tinder box, then it’s only right that they should pay where it hurts. Lord knows, these residents were hardly passengers on the Bayesian.

Of course, the fire at Grenfell Tower did not occur because of its cladding. It occurred because of an electrical fault on the fourth floor. That’s how the fire started. I hope our corporate wordsmiths are not planning using that argument to deny any part in Grenfell Tower’s burning to the ground. If they do, maybe at that point immateriality will not even be material, so that anyone who lied about using materials that are combustible will be deemed to have added their own splint to the blaze; if they did that, they can add their penny to the pot.

I’m unsure whether to class the denials of Arconic, Kingspan and Celotex as being akin to Queen Gertrude in Hamlet, or to Billy Bunter. In the best traditions of Greyfriars School, they do sound awfully like one of William G.’s howlers, and, boy, he could tell them. I suspect they’ll be taking on a more legalistic allure in the course of time; time that corporations have and that poor immigrant families don’t. Seventy-two lives changed the Grenfell Tower incident from a property claim of passing interest into what could well be a corporate scandal that does lip service to the Post Office.

1. By Natalie Oxford - https://twitter.com/Natalie_Oxford/status/874835244989513729/photo/1, CC BY 4.0, https://commons.wikimedia.org/w/index.php?curid=59913134.

2. Celotex’s insulation product in the case in question.

3. That’s oxymoronic—it is unlikely there would be a public inquiry if there had been no loss of life.