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The judgment in the first substantive claim concerning cladding defects on a high-rise building since the Grenfell Tower Fire has now been handed down by the Technology & Construction Court in the case of Martlet Homes Limited ("Martlet") V Mulalley & Co. Limited ("Mulalley").

Martlet owns five social housing tower blocks in Gosport ("the towers"). Following the Grenfell Tower Fire, Martlet undertook an inspection of the towers and found that the StoTherm Classic system specified and installed by Mulalley during refurbishment of the towers contained defects, including in the installation of the system and fire barriers which created a fire risk at the towers. Martlet took expert advice, put in place a 'waking watch' as a fire safety precaution and undertook remedial works to remove and replace the StoTherm Classic system with a non-combustible system. It sought the cost of doing this – approximately £8million – from Mulalley.

By the time of the hearing, Martlet had two distinct bases of claim:

Whilst some defects in the installation were admitted by Mulalley, causation and liability were strongly denied. Mulalley contended that the defects were not enough to justify the complete replacement of the system, and repair works should have instead been carried out. Similarly, Mulalley argued that the provision of a 'waking watch' was not justifiable.

Martlet was successful on both bases of claim. This was fortunate for them, as the judge confirmed that they would have only been entitled to recover damages by reference to the cost of repairs if they had only succeeded in proving the installation breach case. The Court therefore found that Martlet was entitled to recover the cost of the replacement work carried out, as well as the waking watch costs, which were considered a reasonable step to mitigate the potential fire risks caused by the combustible cladding.

All of this placed Mulalley in breach of contract, leaving it liable for the full value claimed by Martlet.

The court also considered whether Martlet needed to show Mulalley's actions were the dominant cause of the repair (the "but for" test) or were simply an "effective cause" of the repair. Mulalley argued that the main factor influencing the decision to replace the cladding was not any deficiency in its works, but rather it was concern about the presence of combustible cladding post-Grenfell. The judge sided with Martlet, noting that the replacement remedial action taken was the "only sensible way to address" to address the problems caused by the defendant's defective installation and the presence of combustible cladding. As the installation breaches were one of the factors which led to the decision to replace the cladding, Mulalley were liable for the costs.

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