Edgewater (Stevenage) Limited & Ors v Grey GR Limited Partnership [2026] UKUT 18 (LC)

“…the Applicant shall use all reasonable endeavours to pursue reasonable remedies available to it in respect of any litigation and/or claim relating to the design and construction of the Building and/or manufacture of any part or parts of the Building or any materials or components used and installed at the Building where the remediation of any defective Building design or as to any construction, materials or components relates to Works in respect of which Funding is provided pursuant to the terms of this Agreement or any litigation and/or claim relating to the specification and installation of the same on the Building (including, without limitation, any claims against insurers, any relevant contractors and/or manufacturers and/or warranty providers with any liability in relation to the Building)…”

“71. Second, Mr Morris argued that whether something causes a “building safety risk” for the purposes of section 120(5) depends on whether the risk is tolerable, having regard to the other features and characteristics of the building. The fire safety experts had opined that, when assessing the risks associated with fire safety of external walls under PAS9980, a “medium” fire risk that is considered to be “tolerable” would not be a building safety risk. Mr Morris argued for this narrow interpretation, particularly in view of the interference (by Schedule 8 to the Act) with private/property law rights in preventing or limiting recovery of service charges relating to relevant defects.”

“72. We think the better view is that any risk above “low” risk (understood as the ordinary unavoidable fire risks in residential buildings and/or in relation to PAS9980 as an assessment that fire spread would be within normal expectations) may be a building safety risk. Section 120(5) describes a risk to the safety of people arising from the spread of fire or collapse, not a risk reaching an intolerable or any other particular threshold. We do not think “collapse” indicates the risk must be of catastrophic fire spread, as was suggested. It need only be a risk to the safety of people arising from the spread of fire in a tall residential building.”

“143. The agreement between the experts, that from a purely technical perspective the remedial works for wall type 1 were not proportionate, has very significant weight. However, they acknowledged that the scope of the remedial works may have been affected by other factors. Do these justify what was done?”

“166. Ultimately, as Mr Hickey and Miss Gillies pointed out, the residents of Vista Tower had been living in unsafe conditions since they took up occupation and then throughout the earlier attempts to check/reduce the scope of the remedial works and costs (for example, changing from the CAN to PAS, considering in 2020 and 2021 whether new frames could/should be spliced into the window frames at junctions with compartment walls rather than replacing all of the frames, and seeking to avoid decanting). It seems each investigation of a different part of the building had thrown up unexpected variations, challenges or new uncertainties. The Secretary of State had selected Vista Tower to use as an example to require that remedial works be carried out for this type of high risk building without further delay, to minimise the continuing risk to residents. At this stage and in the circumstances of this case, we consider that it was reasonable to press on with the remedial works based on the CHPK report.”

“373.In view of the general and specific linking factors noted above, and the additional specific reasons noted in Schedule 1 below, we consider it just and equitable to make, and have decided to make, a RCO in the joint and several terms described below against the Respondents marked “Yes” in the last column of Schedule 1 below. In relation to these companies, the linking factors outweigh the factors against making an order. 374. There is real force in Mr Hickey’s argument that it should be for these Respondents (or the relevant members of the Frankel and/or Dreyfuss families) to ensure that sufficient funds are found, when there has been no real explanation in relation to the sources of their funds and their businesses, including those who are said to have independent investors who have not been declared at Companies House, and the publicly available (and disclosed) information is opaque. Having provided only limited information as to why they say it would not be just and equitable to make an order against them, it appears just and equitable to make them all responsible. We hope they will be able to arrange for those more closely linked to pay so that independent investors do not suffer, but in this case these Respondents must know that they are each liable for the entire sum if the others do not pay. 375. For the avoidance of doubt, we would include these Respondents whether or not R17 is also made the subject of a RCO in future. 376. We are not satisfied that it would be just and equitable to make such a RCO against those marked “No”, for the reasons explained in this decision and/or the table.”

“379.When these submissions were made, we asked about section 6 of the Interpretation Act 1978, which provides that in any Act, unless the contrary intention appears, words in the singular include the plural and words in the plural include the singular. Mr Morris warned by reference to Bennion on Statutory Interpretation (8th Ed.) [19.12] that this can give rise to uncertainty. We do not agree with his submission that the natural and ordinary meaning of the wording only allows a singular order, and this cannot be joint and several because those or similar words are not spelled out. We do not accept that a contrary intention appears from “payments” (an order against a single respondent may be more likely to require several payments in respect of different matters or times, so using the plural here makes sense), section 124(3) or the other wording of the Act. Nor do we accept that reading the Act in the way it would normally be interpreted creates uncertainty. We consider that a single RCO (or a number of RCOs in a single document) may be made against specified bodies corporate or partnerships and such order(s) may require them to make payments jointly and severally if the tribunal considers that just and equitable in a given case. 380. Further, we accept the submission from Mr Hickey that, in this case, this is the just and equitable approach. We do not accept that the Applicant should be confined to a limited share from each relevant Respondent, or should have to wait to see whether a given Respondent is solvent (or how much they can pay) before they move on to the next, even if some kind of top up machinery could be included in the wording of a RCO to accommodate this as Mr Morris suggested. It would obviously mitigate the huge impact on each Respondent, but would be impractical for an applicant. It does not seem consistent with the purpose of this jurisdiction, as noted above. We accept Mr Hickey’s submission that in this case it leaves a grave risk that assets which should be included will be missed. In any event, there are questions about the reliability of the accounts and related documents in relation to the Respondents (which again we regard simply as matters of blurred divisions between company affairs and finances and/or inadequate administration and record keeping). Even if assets are shown in the last filed accounts of a given Respondent and those accounts were accurate, it may now genuinely have none left. Those Respondents we have included appear sufficiently linked for us to consider it just and equitable to expect them to arrange between themselves what contributions should be made by each company, on the basis described above.”

“AND UPON the Tribunal being satisfied that it is just and equitable to make remediation contribution orders for the reasons set out in the decision dated 24 January 2025 (the “Decision”)”

“1. These are remediation contribution orders made pursuant to section 124 of the Building Safety Act 2022 (as amended by the Leasehold and Freehold Reform Act 2024) which apply to the Respondents whose company names are set out in the title above who are specified in these Orders (the “Specified Respondents”) and each of them jointly and severally in respect of the Building. 2. The Specified Respondents and each of them jointly and severally shall make the payments identified in these Orders to the Applicant for the purpose of meeting the costs incurred or to be incurred in remedying or otherwise in connection with relevant defects relating to the Building.”

“3. The Specified Respondents shall make payment to the Applicant, by no later than 4pm on 28 February 2025, in the sum of £1,975,905 for the purpose of meeting the costs described in paragraphs 173-180 of the Decision. 4. The Specified Respondents shall make payment to the Applicant, by no later than 4pm on 28 February 2025, in the sum of £11,275,352 for the purpose of meeting the costs described in paragraphs 181-189 of the Decision. 5. The Specified Respondents shall make payment to the Applicant, by no later than 4pm on 28 February 2025, in the sum of £10,862.08 for the purpose of meeting the costs described in paragraph 190 of the Decision. 6. Payment as required by these Orders may be remitted by bank transfer to such account as is specified by the Applicant for the purpose and should make it clear which of the Specified Respondents it is being made by.”

“(1) The First-tier Tribunal may, on the application of an interested person, make a remediation contribution order in relation to a relevant building if it considers it just and equitable to do so. (2) “Remediation contribution order”, in relation to a relevant building, means an order requiring a specified body corporate or partnership to make payments to a specified person, for the purpose of meeting costs incurred or to be incurred in remedying, or otherwise in connection with,relevant defects (or specified relevant defects) relating to the relevant building.”

“(3) A body corporate or partnership may be specified as a person required to make paymentsonly if it is— (a) a landlord under a lease of the relevant building or any part of it, (b) a person who was such a landlord at the qualifying time, (c) a developer in relation to the relevant building, or (d) a person associated with a person within any of paragraphs (a) to (c).” (a) a landlord under a lease of the relevant building or any part of it, (b) a person who was such a landlord at the qualifying time, (c) a developer in relation to the relevant building, or (d) a person associated with a person within any of paragraphs (a) to (c).”

“(2A) The following descriptions of costs, among others, fall within subsection (2)— (a) costs incurred or to be incurred in taking relevant steps in relation to a relevant defect in the relevant building; (b) costs incurred or to be incurred in obtaining an expert report relating to the relevant building; (c) temporary accommodation costs incurred or to be incurred in connection with a decant from the relevant building (or from part of it) that took place or is to take place— (i) to avoid an imminent threat to life or of personal injury arising from a relevant defect in the building, (ii) (in the case of a decant from a dwelling) because works relating to the building created or are expected to create circumstances in which those occupying the dwelling cannot reasonably be expected to live, or (iii) for any other reason connected with relevant defects in the building, or works relating to the building, that is prescribed by regulations made by the Secretary of State.” (a) costs incurred or to be incurred in taking relevant steps in relation to a relevant defect in the relevant building; (b) costs incurred or to be incurred in obtaining an expert report relating to the relevant building; (c) temporary accommodation costs incurred or to be incurred in connection with a decant from the relevant building (or from part of it) that took place or is to take place— (i) to avoid an imminent threat to life or of personal injury arising from a relevant defect in the building, (ii) (in the case of a decant from a dwelling) because works relating to the building created or are expected to create circumstances in which those occupying the dwelling cannot reasonably be expected to live, or (iii) for any other reason connected with relevant defects in the building, or works relating to the building, that is prescribed by regulations made by the Secretary of State.”

“(4) An order may— (a) require the making of payments of a specified amount; (aa) if it does not require the making of payments of a specified amount, determine that a specified body corporate or partnership is liable for the reasonable costs of specified things done or to be done; (b) require a payment to be made at a specified time, or to be made on demand following the occurrence of a specified event.” (a) require the making of payments of a specified amount; (aa) if it does not require the making of payments of a specified amount, determine that a specified body corporate or partnership is liable for the reasonable costs of specified things done or to be done; (b) require a payment to be made at a specified time, or to be made on demand following the occurrence of a specified event.”

“(1) For the purposes of sections 122 to 124and Schedule 8, a partnership or body corporate is associated with another person in the circumstances mentioned in subsections (2) to (5). (2) Where a person’s interest in a relevant building was held on trust at the qualifying time, any partnership or body corporate which was a beneficiary of the trust at that time is to be regarded, for the purposes of the provisions mentioned in subsection (1) as they apply in relation to the relevant building, as associated with the person. (3) A partnership is associated with any person who was a partner in the partnership, other than a limited partner, at any time in the period of 5 years ending at the qualifying time (“the relevant period”). (4) A body corporate is associated with any person who was a director of the body corporate at any time in the relevant period. (5) A body corporate is associated with another body corporate if— (a) at any time in the relevant period a person was a director of both of them, or (b) at the qualifying time, one of them controlled the other or a third body corporate controlled both of them.” (a) at any time in the relevant period a person was a director of both of them, or (b) at the qualifying time, one of them controlled the other or a third body corporate controlled both of them.”

“Where by virtue of section 1 of the Defective Premises Act 1972 a person became entitled, before the commencement date [the date when Section 135 was brought into force – 28th June 2022], to bring an action against any other person, this section applies in relation to the action as if the reference in subsection (1) to 15 years were a reference to 30 years.”

“125 For all these reasons, URS’s appeal on Ground 2 is dismissed When the meaning of the words used in section 135(3) is considered in the light of their context and the purpose of the statutory provision, they should be interpreted as applying in the circumstances of this case. More specifically, they apply where, as in this case, there is a claim for damages for repair costs in the tort of negligence, or there is a claim for contribution in respect of those repair costs, and it is contended that there is a rule of law that the repair costs are irrecoverable as voluntarily incurred, or that there was no liability for the same damage, because the DPA claim was time-barred. The effect of the retrospective limitation period extends to such claims, which are dependent on the limitation period in section 1 of the DPA but are not actions brought under that section, with the consequence that there was no relevant time bar at the time that the repair costs were incurred. Section 135 does not, however, retrospectively affect any issue at trial as to the reasonableness of BDW’s actions in carrying out the remedial works as a matter of legal causation or mitigation.”

“85 The BSA is both forward and backward-looking. The forward-looking provisions include Part 2 which sets up a new Building Safety Regulator in England to oversee a new, more stringent regime for higher-risk buildings and to drive improvements in building safety and performance standards in all buildings; Part 3 which amends the Building Act 1984, reforming the process for the design and construction of higher-risk buildings, and provides for the registration of building inspectors and building control approvers with a view to improving standards across the industry; and Part 4 which creates a new regulatory regime for the management of occupied higher-risk residential buildings in England, and places duties on an “Accountable Person” (for example, the freeholder) in relation to building safety risks in their building. 86 The backward-looking provisions are set out in Part 5, which includes section 135. Part 5 makes a number of changes to the law in order to address the problem of historical building safety defects. In summary, the main changes are: (1) Section 135 which provides for a new 30-year limitation period for accrued claims under section 1 of the DPA. (2) Section 124 which provides persons with a legal or equitable interest (such as leaseholders) in medium and high-rise buildings, the Secretary of State, and other bodies, with a new right to seek remediation contribution orders from the First-tier Tribunal against the building’s developer, landlord, or associate. Such an order requires a respondent to contribute to the costs of remedying historical building safety defects if this is considered “just and equitable” (see section 124(1)). Section 124 sits within a broader suite of “leaseholder protections” at sections 116 to 124 of, and Schedule 8 to, the BSA, which provides for a range of new safeguards that ensure owners of qualifying leases in medium and high-rise buildings are protected as far as possible from the costs of remediating historical building safety defects that they played no part in creating. (3) Section 130 which provides the High Court with a power to grant “building liability orders”

“174. These are the principal features of the leaseholder protections. But they are supplemented by other provisions in the BSA. As I have already referred to, the inevitable corollary of providing protection for leaseholders was (unless Government was proposing, which it was not, that the taxpayer should pick up all the costs) that costs will be incurred (by whoever is responsible for carrying out the work, whether that be a landlord or a management company) which would otherwise have been recoverable from leaseholders through the service charge provisions in the leases, but will now not be. The BSA therefore contains provisions enabling those costs to be passed on to others. This includes section 124 under which the FTT can make remediation contribution orders where it is just and equitable to do so (see paragraph 21 ii) above), and regulations 3, 4 and 5 of the 2022 Regulations (see paragraphs 23 to 26 above). 175. Whoever ends up bearing the costs is given new rights against those ultimately responsible, namely (i) by an extended limitation period under the DPA 1972 (section 135 of the BSA) and (ii) by a new cause of action against those manufacturing or misselling cladding products (section 149). In addition the High Court is given power to make associated companies liable for breaches of the DPA 1972 (section 130): see paragraphs 21 iii) to v) above. 176. As can be seen this statutory scheme all flows from the decision to intervene in the contractual scheme of obligations by protecting leaseholders from the full extent of their contractual service charge liabilities. Once this decision had been made, it was necessary not only to define who could benefit from the leaseholder protections, but also to make provision for the level of protection they would receive; for who would pick up the costs that were no longer to be met through the service charges; and for what rights the latter would have to make claims over against others, including those ultimately responsible.”

“29. On 10 January 2022, the Government announced that it had “reset its approach to building safety with a bold new plan to protect leaseholders and make wealthy developers and companies pay to fix the cladding crisis”

“34. In paragraph 105 of their judgment in URS, Lords Hamblen and Burrows (with whom Lords Lloyd-Jones, Briggs, Sales and Richards agreed) quoted from the explanatory notes in respect of the BSA. Lords Hamblen and Burrows said in paragraph 105 that they had been “provided with the Explanatory Notes to the Bill and to the BSA which were in materially the same terms” and, in the next paragraph, that the passages they had set out “show that ensuring that those directly responsible for building safety defects are held to account was central to the BSA and various of its provisions, including specifically section 135”

“65. In R (O) v Home Secretary [2022] UKSC 3, [2023] AC 255, Lord Hodge explained that the “primary source” from which the meaning of a statute is ascertained is “the words which Parliament has chosen to enact as an expression of the purpose of the legislation” and that “[e]xternal aids to interpretation therefore must play a secondary role”: see paragraph 30. He nevertheless acknowledged in paragraph 30 that “Explanatory Notes, prepared under the authority of Parliament, may cast light on the meaning of particular statutory provisions”.”

“66. A distinction is, however, to be drawn between explanatory notes which were available when the legislation was being enacted and those which have come into existence subsequently. A passage from the judgment of Lord Sales (with whom Lords Reed, Leggatt and Stephens agreed) in R (PACCAR Inc) v Competition Appeal Tribunal [2023] UKSC 28, [2023] 1 WLR 2594 (“PACCAR”) is relevant in this context. Lord Sales said in paragraph 42: “It is legitimate to refer to Explanatory Notes which accompanied a Bill in its passage through Parliament and which, under current practice, are reproduced for ease of reference when the Act is promulgated; but external aids to interpretation such as these play a secondary role, as it is the words of the provision itself read in the context of the section as a whole and in the wider context of a group of sections of which it forms part and of the statute as a whole which are the primary means by which Parliament's meaning is to be ascertained …. Reference to the Explanatory Notes may inform the assessment of the overall purpose of the legislation and may also provide assistance to resolve any specific ambiguity in the words used in a provision in that legislation. Whether and to what extent they do so very much depends on the circumstances and the nature of the issue of interpretation which has arisen”

“69. In Chief Constable of Cumbria v Wright [2006] EWHC 3574 (Admin), [2007] 1 WLR 1407, Lloyd Jones J, with whom Keene LJ agreed, said in paragraph 17: “It is, of course, for the courts and not the executive to interpret legislation. However, in general, official statements by government departments administering an Act, or by any other authority concerned with an Act, may be taken into account as persuasive authority on the legal meaning of its provisions ….In the present case we are concerned with guidance published by the Home Office, which is the government department which had responsibility for the enactment and operation of the legislation in question. In any given case, it may be helpful for a court to refer to the guidance in the interpretation of the legislation. It may be of some persuasive authority. However, to my mind that is the limit of its influence. It does not differ in that regard from a statement by an academic author in a textbook or an article. It does not enjoy any particular legal status. There seems to me to be no satisfactory basis for the submission that it gives rise to a presumption that the views it contains are correct and should be rejected only for good reason.” 70. In my view, the position is similar where explanatory notes have been published only after a statute has already been enacted. The notes may be of persuasive authority, but they do not enjoy any particular legal status and can be compared with academic writings.” “It is, of course, for the courts and not the executive to interpret legislation. However, in general, official statements by government departments administering an Act, or by any other authority concerned with an Act, may be taken into account as persuasive authority on the legal meaning of its provisions ….In the present case we are concerned with guidance published by the Home Office, which is the government department which had responsibility for the enactment and operation of the legislation in question. In any given case, it may be helpful for a court to refer to the guidance in the interpretation of the legislation. It may be of some persuasive authority. However, to my mind that is the limit of its influence. It does not differ in that regard from a statement by an academic author in a textbook or an article. It does not enjoy any particular legal status. There seems to me to be no satisfactory basis for the submission that it gives rise to a presumption that the views it contains are correct and should be rejected only for good reason.”

“71. Bennion says this in section 24.14 about explanatory notes: “The rationale for using explanatory notes in the way discussed above appears to be that they form part of the background material available to the legislature at the time at which legislation is passed and may therefore help to inform its interpretation in the same way as other pre-enactment materials. It seems to follow that only the explanatory notes published during the Bill’s passage through the legislature can be used in this way. The explanatory notes for the Act itself post-date its enactment and therefore cannot be viewed as part of the context against which it is enacted. Those notes should be given no more weight than other post-enactment expressions of opinion by the government as to the meaning of legislation …. In other words, the weight to be given to them should depend on the cogency of any reasoning contained in them. … It should be acknowledged that, in practice, it will not always make a difference since changes between different versions of the notes are often relatively minor ….” “The rationale for using explanatory notes in the way discussed above appears to be that they form part of the background material available to the legislature at the time at which legislation is passed and may therefore help to inform its interpretation in the same way as other pre-enactment materials. It seems to follow that only the explanatory notes published during the Bill’s passage through the legislature can be used in this way. The explanatory notes for the Act itself post-date its enactment and therefore cannot be viewed as part of the context against which it is enacted. Those notes should be given no more weight than other post-enactment expressions of opinion by the government as to the meaning of legislation …. In other words, the weight to be given to them should depend on the cogency of any reasoning contained in them. … It should be acknowledged that, in practice, it will not always make a difference since changes between different versions of the notes are often relatively minor ….”

“29 The courts in conducting statutory interpretation are “seeking the meaning of the words which Parliament used”: Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613 per Lord Reid. More recently, Lord Nicholls of Birkenhead stated: “Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context.” (R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349, 396.) Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained. There is an important constitutional reason for having regard primarily to the statutory context as Lord Nicholls explained in Spath Holme, p 397: “Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament.” 30 External aids to interpretation therefore must play a secondary role. Explanatory Notes, prepared under the authority of Parliament, may cast light on the meaning of particular statutory provisions. Other sources, such as Law Commission reports, reports of Royal Commissions and advisory committees, and Government White Papers may disclose the background to a statute and assist the court to identify not only the mischief which it addresses but also the purpose of the legislation, thereby assisting a purposive interpretation of a particular statutory provision. The context disclosed by such materials is relevant to assist the court to ascertain the meaning of the statute, whether or not there is ambiguity and uncertainty, and indeed may reveal ambiguity or uncertainty: Bennion, Bailey and Norbury on Statutory Interpretation, 8th ed (2020), para 11.2. But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity. In this appeal the parties did not refer the court to external aids, other than explanatory statements in statutory instruments, and statements in Parliament which I discuss below. Sir James Eadie QC for the Secretary of State submitted that the statutory scheme contained in the 1981 Act and the 2014 Act should be read as a whole. 31 Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered. Lord Nicholls, again in Spath Holme [2001] 2 AC 349, 396, in an important passage stated: “The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the “intention of Parliament” is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House . . .Thus, when courts say that such-and-such a meaning “cannot be what Parliament intended”, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning.” “The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the “intention of Parliament” is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House . . .Thus, when courts say that such-and-such a meaning “cannot be what Parliament intended”, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning.”

“142. As I have said the exercise we are engaged in is one of statutory construction. The general principles applicable to such an exercise have been authoritatively laid down in a series of cases in the House of Lords and Supreme Court and I think can be considered as well settled. 143. A convenient recent summary can be found in the judgment of Lord Sales in PACCAR at paragraphs 40-41. At paragraph 40 he said (by reference to R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349 (“Spath Holme”) at 396 per Lord Nicholls) that the basic task was clear: the Court was required to identify the meaning borne by the words in question in the particular context. 144. At paragraph 41 he referred to the numerous authoritative statements in modern case law which emphasise the central importance in interpreting any legislation of identifying its purpose, referring to R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687 at paragraph 8 per Lord Bingham (“the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment”) and Bloomsbury International Ltd v Department for Environment, Food and Rural Affairs [2011] UKSC 25, [2011] 1 WLR 1546 at paragraph 10 per Lord Mance (“in matters of statutory construction, the statutory purpose and the general scheme by which it is to be put into effect are of central importance”). Lord Sales summarised the position as follows: “The purpose and scheme of an Act of Parliament provide the basic frame of orientation for the use of the language employed in it.”

“40 The basic task for the court in interpreting a statutory provision is clear. As Lord Nicholls put it in Spath Holme [2001] 2 AC 349, 396, “Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context.” 41 As was pointed out by this court in Rossendale Borough Council v Hurstwood Properties (A) Ltd [2022] AC 690, para 10 (Lord Briggs and Lord Leggatt JJSC), there are numerous authoritative statements in modern case law which emphasise the central importance in interpreting any legislation of identifying its purpose. The examples given there are R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687 and Bloomsbury International Ltd v Department for Environment, Food and Rural Affairs [2011] 1 WLR 1546. In the first, Lord Bingham of Cornhill said (para 8): “Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.”

“In matters of statutory construction, the statutory purpose and the general scheme by which it is to be put into effect are of central importance . . . In this area as in the area of contractual construction, “the notion of words having a natural meaning” is not always very helpful (Charter Reinsurance Co Ltd v Fagan [1997] AC 313, 391C, per Lord Hoffmann), and certainly not as a starting point, before identifying the legislative purpose and scheme.”

“In matters of statutory construction, the statutory purpose and the general scheme by which it is to be put into effect are of central importance . . . In this area as in the area of contractual construction, “the notion of words having a natural meaning” is not always very helpful (Charter Reinsurance Co Ltd v Fagan [1997] AC 313, 391C, per Lord Hoffmann), and certainly not as a starting point, before identifying the legislative purpose and scheme.”

“146. Part 5 (sections 116 to 160), which is headed “Other provisions about safety, standards etc”, contains provisions dealing with a variety of matters. Some of these are also forward-looking. But others, including those with which we are concerned, are intended to address the historic problems associated with existing safety defects in buildings. This was not something included in the review led by Dame Judith, as that had not been tasked with considering how remedial work on existing stock should be carried out or how it should be paid for. 147. The first group of sections in Part 5 (originally sections 116 to 125, although section 125 has now been repealed) are grouped together under the heading “Remediation of certain defects”

“148.There was no dispute between the parties as to the general purpose of the remediation provisions. Mr Allison himself identified the broad purposes as fourfold: i) To ensure that historic safety defects were remediated. ii) To protect leaseholders. iii) To ensure that those responsible for the defects were held liable. iv) To restore stability to the lending market.” i) To ensure that historic safety defects were remediated. ii) To protect leaseholders. iii) To ensure that those responsible for the defects were held liable. iv) To restore stability to the lending market.”

“23. Before coming to the facts, it is worth standing back from the detail and considering the legislative scheme of these provisions. In my judgment in Adriatic I attempted to identify a number of features that can be discerned from the remediation provisions taken as a whole (see paragraphs [164] to [175]). As there set out in more detail, they can be summarised as follows: (1) If the person responsible for the defect retains an interest in the building (as at the relevant date, 14 February 2022), they will be likely to have to bear the costs of remedying it (paragraph 2 of schedule 8, and regulation 3 of the 2022 Regulations). (2) If the lessee has more than a very small portfolio of properties, they get no further protection (this is the effect of confining the other protections to those with qualifying leases); conversely if the landlord is part of a well-resourced corporate group they meet the “contribution condition” and cannot pass on costs to protected lessees at all (paragraph 3 of schedule 8). In other words those who are more likely to be able to afford to pay are required to do so. (3) Next there are certain categories of costs (cladding remediation under paragraph 8 of schedule 8, and legal and other professional costs under paragraph 9 of schedule 8) which protected lessees do not have to contribute towards at all. (4) In other cases remediation costs can in principle be passed on to protected lessees, but subject to a cap on their liability (or a complete exemption from liability) depending on the value of their flats (paragraphs 4 to 6 of schedule 8). (5) The inevitable corollary of relieving lessees of their contractual service charge liabilities is that (unless Government was proposing, which it was not, that the taxpayer would pick up all the costs) costs will be incurred by whoever is doing the work (whether landlord or management company) that would otherwise have been met by the lessees through their service charges but will now not be. The BSA therefore contains provisions enabling those costs to be passed on to others. This includes section 124 under which the FTT can make RCOs where it is just and equitable to do so, and regulations 3, 4 and 5 of the 2022 Regulations. (6) Whoever ends up bearing the costs is given new rights against those ultimately responsible, namely (i) by an extended limitation period under the DPA 1972 (section 135 of the BSA) and (ii) by a new cause of action against those manufacturing or mis-selling cladding products (section 149). In addition the High Court is given power to make associated companies liable for breaches of the DPA 1972 (section 130).” (1) If the person responsible for the defect retains an interest in the building (as at the relevant date, 14 February 2022), they will be likely to have to bear the costs of remedying it (paragraph 2 of schedule 8, and regulation 3 of the 2022 Regulations). (2) If the lessee has more than a very small portfolio of properties, they get no further protection (this is the effect of confining the other protections to those with qualifying leases); conversely if the landlord is part of a well-resourced corporate group they meet the “contribution condition” and cannot pass on costs to protected lessees at all (paragraph 3 of schedule 8). In other words those who are more likely to be able to afford to pay are required to do so. (3) Next there are certain categories of costs (cladding remediation under paragraph 8 of schedule 8, and legal and other professional costs under paragraph 9 of schedule 8) which protected lessees do not have to contribute towards at all. (4) In other cases remediation costs can in principle be passed on to protected lessees, but subject to a cap on their liability (or a complete exemption from liability) depending on the value of their flats (paragraphs 4 to 6 of schedule 8). (5) The inevitable corollary of relieving lessees of their contractual service charge liabilities is that (unless Government was proposing, which it was not, that the taxpayer would pick up all the costs) costs will be incurred by whoever is doing the work (whether landlord or management company) that would otherwise have been met by the lessees through their service charges but will now not be. The BSA therefore contains provisions enabling those costs to be passed on to others. This includes section 124 under which the FTT can make RCOs where it is just and equitable to do so, and regulations 3, 4 and 5 of the 2022 Regulations. (6) Whoever ends up bearing the costs is given new rights against those ultimately responsible, namely (i) by an extended limitation period under the DPA 1972 (section 135 of the BSA) and (ii) by a new cause of action against those manufacturing or mis-selling cladding products (section 149). In addition the High Court is given power to make associated companies liable for breaches of the DPA 1972 (section 130).”

“24. As I said in Adriatic, this statutory scheme all flows from the decision to intervene in the contractual scheme of obligations by protecting leaseholders from the full extent of their contractual service charge liabilities. Once this decision had been made, it was necessary not only to define who could benefit from the leaseholder protections, but also to make provision for the level of protection they would receive; for who would pick up the costs that were no longer to be met through the service charges; and for what rights the latter would have to make claims over against others, including those ultimately responsible.”

“43 Having said all that, we accept that the interpretation we take renders RROs less effective than they perhaps could be if they were to be made available against superior landlords. But in our view that development would undermine the clear definition of an RRO, as set out in section 40(2) of the 2016 Act, and would therefore require new legislation. In other words, if this is thought to be a problem any reform would be a matter for Parliament and cannot be achieved through a distorted interpretation of the relevant provisions in the 2016 Act.”

“(1) A rent repayment order made against more than one landlord must provide for the landlords to be jointly and severally liable for the amount due under the order. (2) If a rent repayment order (“the original order”) has been made in respect of rent under a tenancy and another rent repayment order (“the new order”) is made in respect of rent under the same tenancy, the new order may not require payment to be made in respect of any period in respect of which the original order required payment to be made.”

“(2) A “building liability order” is an order providing that any relevant liability (or any relevant liability of a specified description) of a body corporate (“the original body”) relating to a specified building is also— (a) a liability of a specified body corporate, or (b) a joint and several liability of two or more specified bodies corporate. (3) In this section “relevant liability” means a liability (whether arising before or after commencement) that is incurred— (a) under the Defective Premises Act 1972 or section 38 of the Building Act 1984, or (b) as a result of a building safety risk. (4) A body corporate may be specified only if it is, or has at any time in the relevant period been, associated with the original body. (5) A building liability order— (a) may be made in respect of a liability of a body corporate that has been dissolved (including where dissolution occurred before commencement); (b) continues to have effect even if the body corporate is dissolved after the making of the order.” (a) a liability of a specified body corporate, or (b) a joint and several liability of two or more specified bodies corporate. (a) under the Defective Premises Act 1972 or section 38 of the Building Act 1984, or (b) as a result of a building safety risk. (a) may be made in respect of a liability of a body corporate that has been dissolved (including where dissolution occurred before commencement); (b) continues to have effect even if the body corporate is dissolved after the making of the order.”

“6 Gender and number. In any Act, unless the contrary intention appears,— (a) words importing the masculine gender include the feminine; (b) words importing the feminine gender include the masculine; (c) words in the singular include the plural and words in the plural include the singular.”

“(2) A rent repayment order is an order requiring the landlord under a tenancy of housing in England to - (a) repay an amount of rent paid by a tenant, or (b) pay a local housing authority an amount in respect of a relevant award of universal credit paid (to any person) in respect of rent under the tenancy.”

“350. We agree the developer is a key target, at the top of the hierarchy of liability (or waterfall). We are therefore in no doubt that a RCO should be made against R1 in view of the nature of their residential conversion works and the relevant defects in this building. We would say that even if it were not for the negative factors noted above, such as the untrue warranty in the sale contract, failure to deal with those fire safety defects which were identified in 2017/2018 and failure to ensure the sprinkler system was commissioned. However, it appears R1 has little or no remaining assets and may soon be subject to administrative strike off for failure to file documents. In the sale contract, R1 gave an indemnity, but that does not mean that associates must be treated as if they had given indemnities or share any blame with R1.”

“380. Further, we accept the submission from Mr Hickey that, in this case, this is the just and equitable approach. We do not accept that the Applicant should be confined to a limited share from each relevant Respondent, or should have to wait to see whether a given Respondent is solvent (or how much they can pay) before they move on to the next, even if some kind of top up machinery could be included in the wording of a RCO to accommodate this as Mr Morris suggested. It would obviously mitigate the huge impact on each Respondent, but would be impractical for an applicant. It does not seem consistent with the purpose of this jurisdiction, as noted above. We accept Mr Hickey’s submission that in this case it leaves a grave risk that assets which should be included will be missed. In any event, there are questions about the reliability of the accounts and related documents in relation to the Respondents (which again we regard simply as matters of blurred divisions between company affairs and finances and/or inadequate administration and record keeping). Even if assets are shown in the last filed accounts of a given Respondent and those accounts were accurate, it may now genuinely have none left. Those Respondents we have included appear sufficiently linked for us to consider it just and equitable to expect them to arrange between themselves what contributions should be made by each company, on the basis described above.”

“If regard is being had to the substance and tenor of the provisions in section 185 (1) their Lordships think that there is great force in the submission that whereas there are many policy considerations making it appropriate that if an offer which a company has made has proved acceptable to nine-tenths or more of those to whom the offer was addressed the company should be given powers of acquisition, there may not be equal policy considerations making it appropriate to give the powers to a group of companies acting jointly. It would seem unlikely that the legislature would solely depend upon the provisions of the Interpretation Act if there was an intention to legislate with such important consequences as to give powers of compulsory acquisition not to a single acquiring company but to a group of companies. The Interpretation Act is a drafting convenience. It is not to be expected that it would be used so as to change the character of legislation. Acquisition of shares by two or more companies is not merely the plural of acquisition by one. It is quite a different kind of acquisition with different consequences. It would presuppose a different legislative policy.”

“27. It in the circumstances, the Applicant avers that it would be just and equitable for the Respondents to be subject to a Remediation Contribution Order on the following basis: 27.1 Remediation Contribution Orders are a new legal remedy that requires developers to pay for the cost of remediation 3[the footnote refers to paragraph 1011 of the Explanatory Notes]. 27.2 Edgewater [R1] acted as the developer in respect of the Conversion Works [the Development] that were carried out and made a substantial profit as a result of the subsequent sales of the leasehold interests in the Building. 27.3 However, those Conversion Works were not compliant with the applicable Building Regulations and good and normal building practices at the time. This is clearly evidenced by the enclosed Reports. 27.4 As a result, there are significant building safety risks to the leaseholders in relation to the spread of fire. Accordingly, the Conversion Works have caused a number of relevant defects to arise as defined under the Act. 27.5 On this basis, Edgewater is responsible for the Conversion Works that caused the relevant defects at the Building, and has gained a substantial profit from the same. It should therefore be required to meet the costs of the remedial works. 28. Edgewater has previously indicated in the Remediation Order Proceedings that it does not have the funds to meet the costs of remediation. Edgewater’s approach fails to consider the scope and purpose of the Remediation Contribution Order. 28.1 The Explanatory Notes to the Act note at paragraph 977 that “section 124 also gives the First-tier Tribunal the ability to require developer and their associated companies to make payments. It is also common practice for developers to use special purpose vehicles which are wound up after the completion of the development. The associated persons provision similarly allows the assets of the wider group structure to be accessed”. 28.2 It further states at paragraph 1013 that “remediation contribution orders can also be made against persons associated with the developer; this will include, for example parent companies where developments have been run through special purpose vehicles which are thinly capitalised or have since been wound up”. 28.3 Whilst Edgewater itself has limited assets as indicated by its last set of accounts filed at Companies House, it is part of a wider corporate structure which includes the Associated Parties [R2-R96].” 27.1 Remediation Contribution Orders are a new legal remedy that requires developers to pay for the cost of remediation 3[the footnote refers to paragraph 1011 of the Explanatory Notes]. 27.2 Edgewater [R1] acted as the developer in respect of the Conversion Works [the Development] that were carried out and made a substantial profit as a result of the subsequent sales of the leasehold interests in the Building. 27.3 However, those Conversion Works were not compliant with the applicable Building Regulations and good and normal building practices at the time. This is clearly evidenced by the enclosed Reports. 27.4 As a result, there are significant building safety risks to the leaseholders in relation to the spread of fire. Accordingly, the Conversion Works have caused a number of relevant defects to arise as defined under the Act. 27.5 On this basis, Edgewater is responsible for the Conversion Works that caused the relevant defects at the Building, and has gained a substantial profit from the same. It should therefore be required to meet the costs of the remedial works. 28.1 The Explanatory Notes to the Act note at paragraph 977 that “section 124 also gives the First-tier Tribunal the ability to require developer and their associated companies to make payments. It is also common practice for developers to use special purpose vehicles which are wound up after the completion of the development. The associated persons provision similarly allows the assets of the wider group structure to be accessed”. 28.2 It further states at paragraph 1013 that “remediation contribution orders can also be made against persons associated with the developer; this will include, for example parent companies where developments have been run through special purpose vehicles which are thinly capitalised or have since been wound up”. 28.3 Whilst Edgewater itself has limited assets as indicated by its last set of accounts filed at Companies House, it is part of a wider corporate structure which includes the Associated Parties [R2-R96].”

“266 If, as we are provisionally minded, it is just and equitable to make an order against SVDP, it would also be just and equitable to make an order against Get Living, on which SVDP depends for financial support. As we have explained, section 124 permits applications for remediation contribution orders to be made against developers and those associated with developers. The obvious purpose behind the association provisions is to ensure that where a development has been carried out by a thinly capitalized or insolvent development company, a wealthy parent company or other wealthy entity which is caught by the association provisions cannot evade responsibility for meeting the cost of remedying the relevant defects by hiding behind the separate personality of the development company. It seems to us that the situation of SVDP, with its relatively precarious financial position and its dependence for financial support upon Get Living, its wealthy parent, constitutes precisely the sort of circumstances at which these association provisions are targeted. We say this notwithstanding that we have declined to decide whether Get Living is associated with SVDP, as a limited partnership, for the purposes of section 121. It is common ground that Get Living is caught by the association provisions in section 124, by virtue of its association with the freeholder and each of the landlords in the relevant chain of title. Get Living is also the ultimate parent company of the corporate partners which comprise the limited partnership. In relation to the question of what is just and equitable, and in the context of the point we make in this paragraph, technical questions as to precisely how Get Living is caught by the association provisions in section 124 seem to us to be of little weight.”

“It is just and equitable to make a joint and several order against these respondents because there would be, in this situation, in these circumstances, no other fair and equitable way of addressing each of these 96 respondents. There is no other mechanism that really helps you to allocate between the respondents what that should be. It allows them to work out between themselves how to fill the pot, and it won't work injustice on them because they collectively can put their heads together to find the money wherever it may be found.”

“My intention was the wisdom of a mother in dealing with children who will not own up to something is to say "I don't care how you deal with it between yourselves, you are going to have to work it out between yourselves". That is why I say that this order, on a joint and several basis against a number of respondents who are all associated, should be able to work out between themselves -- because they know where the money is and have the ability to arrange it so that they can pay -- should pay.”

“357. We are not persuaded that there is an automatic presumption that any associate must be made liable unless they can show good reasons why they should not have to pay, particularly where they are associated only by common directorship. We agree that some circumstances will suggest additional linking factors (which may be short of linkage with the development or evidence of abuse) and those may call for an explanation and/or evidence of countervailing factors. Ultimately, these cases will be very fact-sensitive and this is a matter for our discretion.”

“360. For the following reasons, we consider that whether (loosely, as in the explanatory notes to the Act) called a group, or wider corporate structure, or something else, almost all of the remaining Respondents have links in addition to association by common directorship during the specified period which are sufficient to call for an explanation and/or evidence of countervailing factors. It does not follow that a RCO should be made against every such Respondent. However, since the parties have pleaded and given their evidence by reference to whether this was a wider corporate or group structure, we take that as a relevant consideration. We give this sensible scope; we do not accept that only ultimate beneficial ownership by a single person would be sufficient. We mean that some or all of the same relevant beneficial owners are involved (with or without others) and/or there are other factors of similar significance to indicate a wider corporate structure or connection such that a very substantial RCO may be just and equitable.”

“373. In view of the general and specific linking factors noted above, and the additional specific reasons noted in Schedule 1 below, we consider it just and equitable to make, and have decided to make, a RCO in the joint and several terms described below against the Respondents marked “Yes” in the last column of Schedule 1 below. In relation to these companies, the linking factors outweigh the factors against making an order.”

“369. Fourth, the Respondents are likely to be linked by financial or other dealings and their records are opaque and/or do not appear reliable (although again we see this as a matter of poor and disorganised practice, not dishonesty). Mr Hickey argued that the disclosed documents and Companies House records showed a complex and interconnected web of relationships and interdependencies. The relationships are obviously complex and part of the community connections which may be based on trust and which we may not fully understand, not least because little has been explained about them. In any event, as was suggested, it appears many of the relevant Respondents were not actually run as carefully separated SPVs but as part of a fluid, disorganised and blurred network or structure, controlled by Jack Frankel and/or Jacob Dreyfuss. This (or they, or those working for them) probably had a tendency to take from whichever company had money when it was needed by another (as a loan or otherwise) and at least sometimes repaid it, at least in part.”

“We are not persuaded that there is an automatic presumption that any associate must be made liable unless they can show good reasons why they should not have to pay, particularly where they are associated only by common directorship.”

“71. Second, Mr Morris argued that whether something causes a “building safety risk” for the purposes of section 120(5) depends on whether the risk is tolerable, having regard to the other features and characteristics of the building. The fire safety experts had opined that, when assessing the risks associated with fire safety of external walls under PAS9980, a “medium” fire risk that is considered to be “tolerable” would not be a building safety risk. Mr Morris argued for this narrow interpretation, particularly in view of the interference (by Schedule 8 to the Act) with private/property law rights in preventing or limiting recovery of service charges relating to relevant defects.”

“72. We think the better view is that any risk above “low” risk (understood as the ordinary unavoidable fire risks in residential buildings and/or in relation to PAS9980 as an assessment that fire spread would be within normal expectations) may be a building safety risk. Section 120(5) describes a risk to the safety of people arising from the spread of fire or collapse, not a risk reaching an intolerable or any other particular threshold. We do not think “collapse” indicates the risk must be of catastrophic fire spread, as was suggested. It need only be a risk to the safety of people arising from the spread of fire in a tall residential building.”

“a risk to the safety of people in or about the building arising from- (a) the spread of fire, or (b) the collapse of the building or part of it;”

“(2) “Relevant defect”, in relation to a building, means a defect as regards the building that— (a) arises as a result of anything done (or not done), or anything used (or not used), in connection with relevant works, and (b) causes a building safety risk.” (a) arises as a result of anything done (or not done), or anything used (or not used), in connection with relevant works, and (b) causes a building safety risk.”

“957 The leaseholder protections deal only with historical building safety defects; they are backward-looking only. They are a one-off intervention designed to deal with the current serious problems with historical building safety defects in medium- and high-rise buildings. The protections afforded only apply to defects created in the 30-year period prior to commencement of the provision, so in practice between mid-1992 and mid-2022. A 30-year period has been chosen as evidence shows that this period captures all buildings affected by the relevant safety issues. It aligns with changes this Act makes to the limitation period under section 1 of the Defective Premises Act 1972 (to which see section 135) and the relevant limitation period under the new cause of action relating to cladding products (sections 150 and 151). The Government has also agreed with major residential property developers that they will remediate buildings they had a role in developing or refurbishing in the past 30 years. 958 Subsections (2) and (5) define what is meant by a “relevant defect” and set out that for a defect to be a relevant defect, it must give rise to a building safety risk. A “building safety risk” is one that puts people’s safety at risk due to either the risk of the spread of fire or structural collapse of a building.”

“166. Ultimately, as Mr Hickey and Miss Gillies pointed out, the residents of Vista Tower had been living in unsafe conditions since they took up occupation and then throughout the earlier attempts to check/reduce the scope of the remedial works and costs (for example, changing from the CAN to PAS, considering in 2020 and 2021 whether new frames could/should be spliced into the window frames at junctions with compartment walls rather than replacing all of the frames, and seeking to avoid decanting). It seems each investigation of a different part of the building had thrown up unexpected variations, challenges or new uncertainties. The Secretary of State had selected Vista Tower to use as an example to require that remedial works be carried out for this type of high risk building without further delay, to minimise the continuing risk to residents. At this stage and in the circumstances of this case, we consider that it was reasonable to press on with the remedial works based on the CHPK report.”

“114. Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The best known of these cases are: Biogen Inc v Medeva plc [1977] RPC1; Piglowska v Piglowski [1999] 1 WLR 1360; Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23 [2007] 1 WLR 1325; Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 [2013] 1 WLR 1911 and most recently and comprehensively McGraddie v McGraddie [2013] UKSC 58 [2013] 1 WLR 2477. These are all decisions either of the House of Lords or of the Supreme Court. The reasons for this approach are many. They include i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed. ii) The trial is not a dress rehearsal. It is the first and last night of the show. iii) Duplication of the trial judge’s role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case. iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence). vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.” i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed. ii) The trial is not a dress rehearsal. It is the first and last night of the show. iii) Duplication of the trial judge’s role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case. iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence). vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.”

“However, a tribunal may arrive at a finding of fact in a way which discloses an error of law. That is clear from Edwards v Bairstow [1956] AC 14 in which Viscount Simonds referred to making a finding, without any evidence or upon a view of the facts which could not be supported, as involving an error of law: see at page 29. In the same case, Lord Radcliffe, at page 36, regarded cases where there was no evidence to support a finding or where the evidence contradicted the finding or where the only reasonable conclusion contradicted the finding, as cases involving errors of law. The LLPs rely on this reasoning for their challenges to the FTT’s findings of fact set out in their grounds of appeal. As Lord Diplock observed in his speech in Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374, at 410F - 411A, a better term for this ground for challenging a decision might be “irrationality”.”

“It is right, in my judgment, to strike two cautionary notes at this stage. There is a well-recognised need for caution in permitting challenges to findings of fact on the ground that they raise this kind of question of law. That is well seen in arbitration cases and in many others. It is all too easy for a so-called question of law to become no more than a disguised attack on findings of fact which must be accepted by the courts. As this case demonstrates, it is all too easy for the appeals procedure to the High Court to be misused in this way. Secondly, the nature of the factual inquiry which an appellate court can and does undertake in a proper case is essentially different from the decision-making process which is undertaken by the tribunal of fact. The question is not, has the party upon whom rests the burden of proof established on the balance of probabilities the facts upon which he relies, but, was there evidence before the tribunal which was sufficient to support the finding which it made? In other words, was the finding one which the tribunal was entitled to make? Clearly, if there was no evidence, or the evidence was to the contrary effect, the tribunal was not so entitled.”

“... for a question of law to arise in the circumstances, the appellant must first identify the finding which is challenged; secondly, show that it is significant in relation to the conclusion; thirdly, identify the evidence, if any, which was relevant to that finding; and fourthly, show that that finding, on the basis of that evidence, was one which the tribunal was not entitled to make. “What is not permitted, in my view, is a roving selection of evidence coupled with a general assertion that the tribunal’s conclusion was against the weight of the evidence and was therefore wrong. A failure to appreciate what is the correct approach accounts for much of the time and expense that was occasioned by this appeal to the High Court.”

“There are numerous authoritative statements of the precise meaning of the concept that a finding of fact involves an error of law when it is based upon non-existent or inadequate evidence. They were very recently summarised by Christopher Clarke J in Red 12 Trading Ltd v HMRC [2009] EWHC 2563 (Ch) at paragraphs 113-120. The question is not whether the finding was right or wrong, whether it was against the weight of the evidence, or whether the appeal court would itself have come to a different view. An error of law may be disclosed by a finding based upon no evidence at all, a finding which, on the evidence, is not capable of being rationally or reasonably justified, a finding which is contradicted by all the evidence, or an inference which is not capable of being reasonably drawn from the findings of primary fact.”

“1.2. CHPK Fire Engineering (CHPKFE) has been commissioned by Grey GR Limited Partnership (Grey, the client) to carry out scenario modelling assessments of the external wall for the Vista Tower, Southgate, Stevenage, SG1 1AR (the building). 1.3. CHPKFE have carried out these assessments based on the information provided in the FE01225/05 FRAEW report for Vista Tower on the 13th of October 2022 and six scenarios where some of the materials in Wall Type 1 and 2 are assumed to be altered to non-combustible materials. 1.4. This technical note will consider the following six scenarios from applying the PAS9980 perspective that will be explored to understand each scenario risk rating.”

“Scenario 4 – The wall build-up of Wall Type 1 in Figure 4 in this Technical Note is considered to remain unchanged but the window-sill should provide full fire stopping to encapsulate the combustible insulation PIR. Fire risk assessment according to PAS990 methodology shows that the risk of external fire for this scenario spread is LOW.”

“Scenario 4 – The wall build-up of Wall Type 1 in Figure 10 of the FE01225/05 FRAEW report is considered to remain unchanged but the window-sill should provide full fire stopping to encapsulate the combustible insulation in the wall build-up. Figure 4 shows the sketch of Wall Type 1 in detail. Effective cavity barriers/fire stoppings are considered to be in place for Wall Types 1 and 2 according to the current version of Approved Document B. If Effective fire stops or cavity closers (in case of the presence of a cavity), this configuration can be considered as a double leaf masonry since both outer and inner leaves have 75mm or higher thickness. The risk of external fire spread in a double leaf wall is normally low if there are cavity closers around the opening and the façade edges.”

“• The purpose of the scenario modelling was to further refine the outline scope of works at Vista to help focus the ongoing design process. The modelling indicates that the works can be undertaken from outside the building, more substantial works within the flats should be avoidable and therefore decanting of residents should also be avoidable. It must be noted though that some screening will still need to be provided within the flats, to provide protection when the glazing systems are removed.”

“The below remedial works are recommended: - Remove the opaque panels and combustible insulation in Wall Type 2 and replace them with non-combustible materials in line with the current version of ADB. - Remove the PIR insulation in Wall Types 1-C and 1-E and replace them with non-combustible materials in line with the current version of ADB. - Install vertical cavity barriers at the vertical compartmentations according to the current version of ADB. - Install cavity barriers around the window openings according to the current version of ADB. - Install effective firestops around the vent ducts and openings according to the current version of ADB. The open-sided car park should be closed until the external walls highlighted here are fully remediated to avoid potential fire spread from the car park to the external walls. Periodic Fire Risk Assessments should be carried out and the finding of this FRAEW should be considered. If any changes in the fire safety of the building are done, this report should be reviewed immediately.”

“155. The modelling exercises gave different configurations from that shown in most of wall type 1 (with the cavity completely full in scenario 4 and an empty cavity in scenarios 5 and 6; scenarios 1-3 describe different types of wall type 2). The exercises, particularly scenario 4, had been criticised by other fire engineers (Design Engine in January 2023, as noted below). In any event, these modelling exercises were carried out to inform the PAS9980 assessment, which apparently took them into account but decided on a more cautious approach. ADI had for the previously planned remediation scheme produced drawings showing differing wall types, but a variety had been described in the CHPK PAS9980 report and many earlier reports. ADI themselves fell away when it emerged they did not have the requisite insurance cover for work of this high-risk type. The reference in the PAS9980 report to a “shared inner leaf” did not call for the report to be challenged either, because it should be read in context. Mr Ferguson confirmed that in his view the inner leaf of most of the wall was shared - the concrete and foam insulation below and the UPVC/insulation above could reasonably be described as a shared inner leaf.”

“158. It appears the only fire engineering advice the Applicant had seen criticising the CHPK reports criticised them for not being cautious enough. Design Engine (as fire engineer for ADI) had reviewed the CHPK reports in January 2023 [E/5.2/115]. They queried scenario 4 from the modelling exercise, indicating that to provide a fire barrier the cavity in wall type 1 would need to be over fixed with a stainless steel plate or the “PIR” insulation would need to be partially removed and replaced with a compressed, rated mineral wool fire barrier. They warned that the condition of the concrete façade panels may have corroded or become unstable over time and advised consideration of the structure of the existing concrete panels and inner leaf blockwork. In relation to wall type 2, they also warned that correct installation and design of vertical compartment walls may require breaking the ribbon windows at compartment wall positions. They also criticised various assumptions which they said were made in the CHPK report and were “optimistic”.”

“1 The removal of combustible materials to Wall Types 1C & 2 do not change the previously raised concerns of Design Engine report DES-XX-DR-Y-R-0001 RevP02 a. Technical Note FE01225/00 Scenario 4 Page 7 states that this wall build up is acceptable if the window cill provides as effective fire barrier. This may be achieved by; i. Over fixing the cavity with stainless steel plate ii. Partial removal of the PIR insulation and the fitting of a compressed, rated mineral wool fire barrier such as Siderise RV120/120” “3 The effects on the structure and retained inner leaf blockwork and external concrete façade panels to remove combustible materials needs careful consideration – this review must also include a review of the condition of the façade panels as these may have corroded/become unstable over time. a. This is not covered by the Technical Note but there may be a scenario where inner leaf blockwork has to be broken out to provide an effective party wall as stated in 2.a)iii)” a. Technical Note FE01225/00 Scenario 4 Page 7 states that this wall build up is acceptable if the window cill provides as effective fire barrier. This may be achieved by; i. Over fixing the cavity with stainless steel plate ii. Partial removal of the PIR insulation and the fitting of a compressed, rated mineral wool fire barrier such as Siderise RV120/120” a. This is not covered by the Technical Note but there may be a scenario where inner leaf blockwork has to be broken out to provide an effective party wall as stated in 2.a)iii)”

“162. It is obvious that the remedial works team were all proceeding on the basis that the foam insulation had to be removed, as advised by the PAS9980 report. In view of the significant time pressure that existed, we are not persuaded that it was unreasonable to fail to press pause and attempt to go back to the drawing board to ask CHPK whether a way could be found to leave the combustible insulation in place. Lancer Scott were required to produce their design for the remedial works in September 2023, the end of their pre-contract services period. The directions given in the RO proceedings required the Applicant to produce their full proposed specification of the remedial works at the same time. As expected, they did so using the design produced by Lancer Scott. Again, this appears largely to have been driven by the requirements of the BSF and the Secretary of State, who promptly agreed the specification of remedial works which had been produced by Lancer Scott and grant funding for those works.”

“143. The agreement between the experts, that from a purely technical perspective the remedial works for wall type 1 were not proportionate, has very significant weight. However, they acknowledged that the scope of the remedial works may have been affected by other factors. Do these justify what was done?”

“144. As noted above, from 2020 the Applicant had engaged experts and procured proposals for a remediation scheme based on the CAN, which would have required removal of all combustible material. In 2022 they switched to a new approach based on the (then new) PAS9980, because this might reduce the scope of work and/or enable them to secure BSF funding for all works advised. The PAS9980 report from CHPK advised that the presence of the combustible insulation in wall type 1 was a “high” risk and it needed to be removed. In these proceedings, the experts agreed that advice was too cautious (or “conservative”, as they put it). But was it reasonable to rely on it as the basis for the design of the remedial works and not to revisit it later to attempt to reduce the scope of the works?”

“154. Particularly in 2022 and 2023, when the PAS9980 standard was new, it does not seem unreasonable for CHPK to have taken a cautious approach. In any event, it was reasonable for the Applicant to rely on the advice in their report without attempting to conduct their own analysis of the reasoning in it. Ms Leigh accepted that CHPK were reputable advisers and a sensible choice, as were the other professional advisors the Applicant had appointed.”

“126. However, the experts agreed that the scope of the remedial works may have been affected by other considerations, such as requests by building control or other statutory bodies, a lack of sufficient information about the as-built construction and pressure from stakeholders to adopt cautious or rapid resolutions, but the relevance of such matters was for the tribunal. They all agreed that, if removal of the combustible foam insulation in wall type 1 was required to remedy the building safety risk, the scope of the remedial works was reasonable.”

“359. We recognise that, as Mr Warwick argued, the association provisions in section 121 could include very remote associates. He gave examples, such as a director of the lessee-owned freeholder of the building they live in who is also a director of completely different bodies. However, this is not a case where the wide association provisions have caught many completely unrelated companies who are operated by others and merely happened to have the wrong director at the wrong time.”