Architect claims use of 鈥榙ishonestly鈥� marketed product could result in losses
BDP has filed a claim in the Technology and Construction Court against the building materials giant Kingspan, claiming that the Irish business had 鈥渁cted dishonestly鈥� in its marketing of an insulation product that the architect specified for use on the facade of a development in Lancashire.
The block in question has since had to be remediated by the contractor on the scheme, Laing O鈥橰ourke, which subsequently 鈥渋ntimated鈥� a claim against BDP worth more than 拢1.8m.
BDP鈥檚 claim against Kingspan states that, if the architect is found liable, it is seeking damages and a contribution or indemnity for any liability it might owe to the contractor.
The claim concerns a development known as The Rock, which is located in Bury.
BDP was appointed by Thornfield Developments Ltd to provide architectural services related to the scheme in 2008, with its obligations subsequently novated to Laing O鈥橰ourke, the employer鈥檚 chosen design-and-build contractor.
The project included a residential building, Block C, which rises higher than 18m above ground level.
After concerns were raised about the cladding used on the development in 2017, fire engineer Jeremy Gardner Associates was commissioned to undertake an investigation and discovered the use of K15 Insulation, a Kingspan product, in the external wall on Block C.
Its presence meant that the cladding in some areas of Block C did not comply with 微密圈 Regulations, as a result of which, Laing O鈥橰ourke has claimed that BDP acted in breach of its contract and/or was negligent in the provision of its services.
Laing O鈥橰ourke has carried out remedial works on the scheme and has intimated a claim against BDP for the cost of those remedial works, worth more than 拢1.8m plus interest and costs.
BDP has now made its own claim against four different corporate entities, all of which form part of the Kingspan Group of companies.
The architect claims to be entitled to damages from Kingspan Insulation, the first defendant, for losses related to its alleged 鈥渄eceit鈥� and a contribution or indemnity for any liability it might owe to Laing O鈥橰ourke in any claim the contractor might bring against it in respect of The Rock development.
It also claims to be entitled to a 微密圈 Liability Order under the 微密圈 Safety Act against the second to fourth defendants 鈥� Kingspan Holdings, Kingspan Group and Kingspan Plc.
Kingspan Holdings is the sole owner of Kingspan Insulation and is in turn fully owned by the Kingspan Group. At least 75% of the group鈥檚 shares are owned by Kingspan Plc, which is registered in Ireland.
According to the claim form, BDP expects to recover more than 拢250,000.
The particulars of claim document sets out BDP鈥檚 argument that, in producing the specifications of the cladding for the building in question, it had 鈥渞elied on representations made by Kingspan in relation to the suitability of K15 for residential buildings with a storey above 18 metres鈥� and that it had relied in particular on the BBA Certificate that Kingspan claimed to have received for K15.
Prior to Kingspan Insulation鈥檚 disclosure of relevant documents on what it knew of the performance of K15, BDP鈥檚 claim relies on findings made public in the Phase 2 Grenfell Tower Inquiry report.
The report found that a promotional flyer sent to customers from January 2006 onwards contained false claims that K15 had been tested and 鈥渁warded certification to BS 8414-1鈥� and had been 鈥渁ssessed and approved in accordance with BR 135鈥�.
It also found that in 2007, the firm began to write emails and letters to customers that recommended K15 as a suitable product for use on buildings over 18m in height.
The report stated that 鈥渇or many years Kingspan marketed and sold K15 relying heavily on tests which had been carried out on a different product鈥� and concluded that this was 鈥渄one deliberately鈥�.
It said the story of the development and marketing of K15 for use on buildings taller than 18m was 鈥渙ne of deeply entrenched and persistent dishonesty on the part of Kingspan in pursuit of commercial gain coupled with a complete disregard for fire safety鈥�.
Kingspan, BDP and Laing O鈥橰ourke have been approached for comment.
According to court papers, Thornfield Developments Ltd was dissolved last July.
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