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Notre Dame fire raises issue of liability on UK heritage refurbs

On 15 April, a huge fire lasting for about 15 hours broke out in the medieval Notre Dame Cathedral, causing extensive damage that provoked a big, emotive international response.

While the exact cause of the fire has yet to be conclusively determined, it has been linked to the extensive renovation and restoration works that were being carried out on the building.

This has served to refocus attention on ensuring major heritage projects currently being undertaken in the UK are carried out in the safest manner possible to prevent a similar situation arising.

With extensive restoration work currently taking place, such as to the Palace of Westminster, it is worth considering what would happen legally if a Notre Dame-style fire occurred.

What can a building owner do to protect themselves and, should their building be damaged by refurbishment or restoration works, where would legal responsibility lie?

Risk of significant damages

Firstly, to protect themselves and their property, an employer should ensure they employ a reputable, trusted contractor and consultant team that is appropriately qualified, and appointed under contracts containing sufficiently robust terms and conditions.

An employer should also make sure that each party maintains adequate insurance cover for the works and the building.

Should a fire occur that damages their building, the primary party an employer would likely try to bring an action against would be the main contractor.

The Joint Contracts Tribunal (JCT) suite of building contracts place an obligation on the contractor to carry out and complete works in a proper and workmanlike manner.

Assuming that the JCT building contract is unamended, any employer would have a reasonable argument that the works were not carried out in a proper and workmanlike manner if they resulted in a fire and significant damage was caused to the building.

The level of damages due from a contractor could be significant. Where a fire resulted in the destruction of the premises, or part of them, and the employer had no option but to rebuild, the level of damages would be the cost of replacement.

Claims against subcontractors

It is likely in refurbishment projects of a certain scale or nature that specialist subcontractors are employed. Whether an employer was able to bring a claim directly against those subcontractors would depend upon the contractual relationships.

An employer would need to rely on either a collateral warranty or third-party rights to get around the principle of privity of contract and bring a claim directly against any subcontractor.

The parties that formed the professional consultant team should also be aware of potential claims, particularly if the cause of the fire could be linked to any aspect of their design or advice.

Following the Notre Dame fire and the Grenfell Tower tragedy, the importance of employing a fire consultant on projects has also become paramount.

Whether a claim should be brought against the fire consultant would depend on the nature of their involvement; if the consultant did not have any design input and was not specifying any materials, then it may be difficult to prove a breach of the terms and conditions of their appointment.

In the event of a serious fire, provided that the appropriate contracts, professional appointments, collateral warranties and insurances had been put in place, an employer would likely be able to bring a number of claims against a variety of potential parties from which they may be able to recover 100 per cent of their losses, should the contracts not contain a net-contribution clause.

Inevitably, an employer would primarily pursue whichever party was most able to afford to pay the potential damages or which had the highest professional indemnity insurance cover or other insurances to fall back on.

There are certainly lessons to be learnt from Notre Dame and those working on heritage projects need to take extra care. This is true not just in terms of ensuring refurbishment and other works protect an historic building's integrity, but also that they do not damage or destroy it.

This article first appeared in Construction News on 23 July 2019.

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