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On 14 June 2017, Grenfell Tower in London was engulfed in flames and 72 residents lost their lives. The main reason for the tragedy was the use of unsafe cladding on the outside of the building. Investigations led to the discovery that many high-rise residential buildings across the UK were subject to serious safety defects. The Government encouraged developers to carry out any necessary remedial work for safety defects discovered and this was reinforced by the imposition of legal liabilities on developers by the Building Safety Act 2022 (“BSA”). It is against that background that the dispute between developers and design engineers, that this appeal is concerned with, has arisen.

Facts The claimant (BNP) engaged the defendant (B&F) to design and construct stair pressurisation works in a 30-storey office tower. These works would include removing the existing system and installing an improved system. The contract was an amended 2016 JCT Design and Build contract. Works were complicated due to the presence of asbestos in the building. An issue arose between the parties as to the extent of the asbestos removal works, and whether B&F was obligated to carry out additional surveys and the asbestos removal works  that were subsequently required, as well as additional structural works that had not initially been foreseen as part of its original scope of work. When further asbestos was discovered, the works were halted, and B&F issued a suspension and then termination notice. BNP treated this as repudiatory breach and sought declarations that B&F was not entitled to serve either the suspension or termination notices, and that in doing so, they had breached the contract. In a previous reported judgment, following trial the court granted both declarations, finding that B&F had no right to terminate the contract, and that B&F had full…

James Frampton (instructed by Andrew Rush of Archor) acted for the successful Defendant to this Part 8. There were two issues:When and on what terms had the parties entered a subcontract?Were invoices issued by the Defendant valid applications for payment?On issue 1, the Court found the Contract was agreed by an exchange of WhatsApp messages and that the parties had agreed that the Defendant was free to submit an application for payment by way of invoice at any stage during each month cycle. The Court also stated that agreement as to the duration of the works, start date and payment terms were not essential terms which precluded a concluded contract.On issue 2, the Court held that 3 of the 4 invoices were valid. One invoice was invalid because it was the second invoice issued that month. Practitioners and parties are likely to be particularly interested in the Court’s analysis of the contents of the invoices. In their factual context, including that it was a lump sum contract, the Court agreed that the first two invoices set out “the basis on which the sum is calculated” by listing the works which had been completed, even though there was no mathematical breakdown to the overall…