IN THE GRENFELL TOWER INQUIRY

________________________________________________

OPENING SUBMISSIONS OF EXOVA (UK) LIMITEDPHASE 2, MODULE 1

________________________________________________

1. Introduction

1.1 Phase 1 of this Inquiry was devoted to the terrible events of 14 June 2017, a human tragedy

which continues to overshadow the ongoing investigations into why and how it occurred.

Phase 2 will look beyond those events, and seek to ascertain which factors – human,

institutional, or regulatory – may have influenced the tragedy, and to what extent. That in

turn will enable further recommendations to be made, with the hope and aim of ensuring

that no such devastating events will recur.

1.2 Phase 2 follows the Inquiry’s findings at Phase 1: in particular, that (i) the principal reason

for the rapid spread of fire up, down, and around the building was the use of ACM cladding

panels with a PE core, (ii) the PIR insulation used contributed to the rate and extent of fire

spread, (iii) the crown was primarily responsible for the spread of flame horizontally, (iv) the

columns were a principal route of downwards fire spread,1 and (v) the façade as a whole

did not comply with Building Regulations (specifically, functional requirement B4(1)).2

1.3 These submissions are structured around three questions to which those Phase 1 findings

give rise in Module 1:

(1) What was the sequence of events which led to the selection of the façade system?

(2) Who participated in those steps, and what factors were taken into account in the

relevant decisions?

(3) What was done to comply with the applicable regulations?

1.4 We take those questions in turn below, at sections 2–4 respectively. In the course of section

4, we also consider the relationship between the compliance process and the advice which

had been given by Exova.

1.5 Section 5 then considers Exova’s position in relation to the project generally, and the much

reduced role that it was allotted after 2013. Section 6 addresses at a high level (and non-

1 The foregoing points are summarised at para 2.13, and dealt with in detail at Chapter 232 This point is summarised at para 2.16, and dealt with in detail at Chapter 26

EXO00001774/1

2

exhaustively) some issues in relation to Exova that arise from certain of the witness

statements and expert reports that have been submitted for Phase 2.

1.6 Lastly, there is the broader question, arising across the modules, of what recommendations

can be made to prevent similar events occurring in future. That will be informed by the

whole of the evidence, at least from Modules 1–3, and so we propose to address it fully in

later submissions, though we indicate below a number of areas that the Inquiry may wish to

consider.

2. Decision making: the sequence of events

Initial considerations, and the move towards zinc

2.1 During Spring 2012, although Studio E indicated that it envisaged that cladding was likely,

and that potential subcontractors were being considered, no particular type of cladding

appears to have been under consideration,3 and it appears that there was not even a settled

intention to clad the building at all. In June 2012, for example, the Budget Cost Estimate

prepared by Appleyards4 contemplated the alternative possibilities either of “new cladding

including insulation … say VMZinc”, or of applying “new render including insulation”

instead.5

2.2 On 19 July 2012, though, a meeting between RBKC, Studio E, Max Fordham, and Taylor

Young, appears to have begun with the description, “it is to be a complete overclad project”.

Studio E “explained that an overclad and rainscreen system is being proposed”, and that

the options of zinc or ‘eternit particle board’ were “being investigated”. RBKC were

apparently willing to accept either, but wanted a colour other than grey.6

2.3 The possibility of using ‘eternit particle board’ appears to have fallen away,7 whereas zinc

continued to be referred to in documents prepared by Max Fordham, KCTMO, and Studio

E: and, as will be seen below, that remained the case for many months.8

2.4 On 17 August 2012, for example, Max Fordham’s Sustainability & Energy Statement

indicated that “The chosen strategy is to wrap the building in a thick layer of insulation and

3 {EXO00000474} {SEA00004117} {LBI00000017}4 During the course of the project, Appleyards was acquired by Artelia and rebranded accordingly; many of the later references in this document are therefore to Artelia5 {ART00006446_0004}6 {EXO00000923}7 We have identified only two passing references, in {SEA00007586} on 19 April 2013 and in {HAR00013446} on 18 October 20138 {MAX00000221} {SEA00000070} {SEA00007298}, albeit {HAR00015406} and {ART00002255} also suggest the contemplation of a possible change to aluminium

EXO00001774/2

3

then over-clad with a rain screen”, and indicated that the former would be “Celotex FR5000”

and the latter “Zink” (sic).9

2.5 In September 2012, those comments were made again in Max Fordham’s Stage C report.10

Likewise, in October 2012, Studio E indicated both in its Design and Access Statement11

and in its Stage C report12 that “a zinc composite rainscreen cladding is proposed to the

upper levels”. In its Stage C Budget Costs Estimate Breakdown, Appleyards once again

made provision for “new cladding including insulation … say VMZinc”13 (but not now

including the earlier option for insulated render).

2.6 In January 2013, however, RBKC’s planning department rejected a proposal from Studio E

for zinc cladding because of the colour of the panels.14 Moreover, towards the end of that

month, Studio E were reporting that “Leadbitter have indicated that the project needs

significant value engineering to be affordable”:15 and Studio E have indicated that by now

the project was “effectively … on hold” due to KCTMO and Leadbitter being unable to reach

agreement on cost.16

Appearance, cost, the expectation of zinc, and the possibility of ACM

2.7 In and around early February 2013:

(A) on the one hand, communications between KCTMO, Studio E, Max Fordham, Taylor

Young, and Appleyards described further discussions with RBKC Planning, dealing

again with questions of colour and appearance,17 though commenting “we will retain

the zinc”;18 but

(B) on the other, Appleyards were communicating with Studio E, KCTMO, and Taylor

Young in relation to the “significant cost discrepancy with Leadbitter, not least of

which is on the cladding”, commenting that “we … have to do some work with them

first to ascertain the real gap and any VE [ie value engineering] options”, noting that

“they have indicated a £300k saving to switch from zinc to aluminium”.

2.8 On 26 February 2013, Appleyards again commented to Studio E and KCTMO that “there is

currently a significant deficit between the approved cost plan/budget and the initial figures

9 {MAX00000221_0006} {MAX00000221_0007}10 {MAX000000445_0082} {MAX000000445_0083}11 {SEA00000070_00018}12 {MAX00000445_00028}13 {MAX00000445_0184}14 {TMO00837466}15 {SEA00007245_0004}16 {SEA00014273} para 48 17 {SEA00007245} {SEA00007298}18 {SEA00007298}

EXO00001774/3

4

coming back from Leadbitter – not least of which on the external façade … where we are as

much as £483k … apart”, and asked for “a radical re-think of the scope/spec”.19

2.9 Studio E replied to Appleyards the same day with a list of “obvious targets for financial

savings”, the second of which was “change zinc cladding material to something cheaper”.20

Raising the possibility that “Planning will need a sweetener to swallow this”, Studio E

suggested “perhaps copper, ceramic, terracotta or more glass at low level”: implying that,

as previously, concerns from the planning authorities would be aesthetic.

2.10 The next day, on 27 February 2013, CEP indicated to Alcoa that they were due to meet

Studio E on 4 March 2013 to discuss the cladding, and that “due to the cost of Zinc

rainscreen [Studio E] are now considering alternative materials and finishes” and that CEP

would “propose [Alcoa’s] full Reynobond range”.21 It will be recalled22 that that range

included non-combustible and fire-retarded alternatives, as well as combustible alternatives.

2.11 The first documented reference explicitly to ACM (as distinct from references simply to

aluminium) appears to be on 4 March 2013:23 in an email to Appleyards, Studio E

commented that “We have had CEP come in today to discuss the cheaper ACM cladding

option” and that “From our conversation with CEP we feel there might be scope to switch

from zinc”.24

2.12 Despite these suggestions that there needed to be cost savings, and that they might be

obtained in part through using a cheaper cladding material, Studio E’s Stage D report

submitted some several months later, in August 2013, still refers to “zinc composite

rainscreen cladding” for the upper levels, specifically “pre-patinated zinc rainscreen on

aluminium cladding rails”. Further, it included an ‘Outline Specification’ which repeated that

description, and then indicated that there would be “100m folded metal shingles on steel

substrate: Rheinzink Blue”, as well as “150mm PIR” on the spandrel panels, “100m PIR” on

the columns, and “Celotex FR5000 (100mm) to existing columns”.25

2.13 In addition to extensive discussion of visual aspects, including various potential colour

schemes, Studio E’s report also included pictures of five “Alternative cladding options which

may be considered”, one of which was captioned “aluminium cassette rainscreen,

powdercoated finish” and another “Aluminium Composite Material (ACM)”: but no

19 {ART00005971_0005}20 {ART00005971}21 {CEP000006160}22 {CEP00050819}23 {ART00005971}24 {ART00005971_0002}25 {TMO00834924_0029}

EXO00001774/4

5

commentary was then included to elaborate on these options, or what consideration they

were to be given.26

The specification of zinc, the alternative of ACM, and the over-arching requirements

2.14 In November 2013, Studio E prepared a draft of the National Building Specification (“NBS”),

which would become part of the Employer’s Requirements that in turn would form the basis

on which KCTMO put the project out to tender. This specified “rainscreen cladding” as

“aluminium honeycomb core structurally bonded between two lightweight zinc sheets”.27

Such cladding types have been demonstrated by testing to meet the ‘A1’ / ‘A2’ classifications

and as such could have been used as part of a system which was compliant overall with the

prevailing requirements; indeed, the Inquiry’s architectural expert, Mr Hyett, endorses the

specification.28

2.15 The draft NBS also indicated that “in addition to the cladding specified” (as described

above), tenderers would also be invited to “submit comparative supply and install costs” for

a number of alternative materials: “Reynobond Duragloss 5000” (in various different

finishes), “Alucobond” (in two variants) and “Quartz zinc composite polymer panel by VM

Zinc”.29 Separately, the draft NBS specified “thermal insulation … Celotex … FR5000”.30

2.16 Further, the draft NBS set out a number of “general requirements” in relation to rainscreen

cladding generally, which included

(A) “Compliance standards: the Centre for Window and Cladding Technology (CWCT)

‘Standard for systemised building envelopes’”;

(B) “Information to be provided during detail design … Proposals to support outstanding

applications for Building Regulations consent and relaxations”; and

(C) “Information to be provided before commencement of testing or manufacture of

rainscreen cladding system … Detailed calculations to prove compliance with

design/performance requirements”.

26 {TMO00834924}27 {SEA00000152_0078} et seq28 {PHYR0000004} para 4.2.5229 {SEA00000152_0077}30 {SEA00000152_0086}

EXO00001774/5

6

2.17 Those “design/performance requirements”, then referred again to the CWCT Standard and

stipulated “Unless specified or agreed otherwise comply with … Part 6 – Fire

performance”.31 The CWCT Standard32 in turn stipulated:

(A) at paragraph 6.1.2, that “The building envelope shall also comply with the Building

Regulations or local building code”; and

(B) at paragraph 6.2, that “The building envelope shall not be composed of materials

which readily support combustion, add significantly to the fire load and/or give off

toxic fumes if ignited”.

2.18 The “design/performance requirements” also specifically required:

(A) “fire resistance of backing wall [nb defined as including the thermal insulation] to BS

476-21 … 60 min integrity, 60 min insulation”;

(B) “internal surface spread of flame of backing wall [nb as above] to BS 476-7 Class 0”;

and

(C) “cavity fire barriers to BS 476-20 … to resist the passage of flame and smoke for not

less than 30 min integrity, 30 min insulation”.33

2.19 Evidently, Studio E had felt confident defining standards of fire performance for different

aspects of the façade system without seeking further specialist input. It did not ask Exova

to review or comment on any part of the NBS.

2.20 Two months later, in January 2014, CEP provided Harley with two quotes, which included

provision for the design, fabrication, and supply of ACM cladding: one of the comparative

costs required by the NBS.34

2.21 At the end of that month the final version of Studio E’s NBS35 again referred primarily to

“aluminium honeycomb core structurally bonded between two lightweight zinc sheets”; it

indicated again that tenderers should also “submit comparative supply and install costs” for

the various alternative options;36 and reiterated in any event (i) the general requirement to

31 {SEA00000152_0082}32 {CWCT0000009} (nb this is a 2007 draft of the standard)33 {SEA00000152_0084}34 {CEP000003232}35 {SEA00000169}36 The associated ‘design intent drawings’ contained a mixture of references to zinc and aluminium composite

EXO00001774/6

7

adhere to the CWCT Standard, including with respect to compliance and composition, and

also (ii) the design/performance requirements, including with respect to fire performance.37

The change from Zinc to ACM

2.22 In March 2014, KCTMO decided to appoint Rydon as ‘design and build’ contractor for the

project.38 The broader significance of that step is discussed further below; for the purposes

of this narrative it is enough to note that at a meeting between KCTMO, Rydon, and Artelia

on 1 April 2014 – convened to “introduce [Rydon] to the Client” – the substantive business

began with a long list of “proposed savings”, the first of which was a “potential saving” of

£376,00039 that would result from changing from zinc to aluminium panels and “using a face

fixing, rather than cassette”.40

2.23 Rydon then put that proposal forward to a ‘Grenfell Planners Group’ comprising

representatives of RBKC, KCTMO, Rydon, Studio E, and Artelia on 8 May 2014. In advance

of that meeting, an internal Rydon email commented “The basis of the meeting is to propose

the material change from ‘Zinc’ to ‘ACM – Aluminium’ cladding … so KCTMO can achieve

their maximum VE [ie value engineering] target”, and that “Reynobond ACM panels have

BBA certification – Class 0”.41 A later email from Rydon to the participants (other than

RBKC) indicated that the “goals” for the meeting included “put[ting] forward our case that

ACM is not an inferior product to Zinc”.42 Emails exchanged following the meeting indicated

that RBKC’s concerns were aesthetic.43

2.24 It appears that Harley were still looking at the possibility of Zinc, but also being guided by

cost: on 9 May 2014, an internal email refers to an apparent discussion with Reynobond:

“Zinc Patina D9120M is not currently available, but that aside, it would add circa £40k to the

cladding package. My vote would be to avoid showing this to the planners!”44

2.25 In mid-June, Rydon emailed Harley proposing that the switch from Zinc to Aluminium be

reflected in a cost reduction of between £419,000 and £577,000, depending whether the

system chosen was the cassette or the ‘face fixed’ version.45 Following further deliberations,

at the end of the month these figures were adjusted to £389,000 for the cassette system or

£552,000 for the face fixed version;46 and in mid-July Harley identified a single cost saving

37 {SEA00000169}38 {RYD00003419} {RYD00003420} {RYD00003749}39 For ease of reading this and other figures are rounded to the nearest £1,00040 {RBK00018805}41 {RYD00004142}42 {RYD00004179}43 {RYD00004696_0006} {RYD00004696_0004}44 {HAR00000955}45 {HAR00005852}46 {HAR00005854}

EXO00001774/7

8

of £454,000 for using a cassette system on the spandrels with the face fixed version on the

columns.47

2.26 At the end of July, Rydon informed CEP and Alcoa that “The bottom line is that the client

has just confirmed to planning that they are looking to proceed with the Reynobond

champagne colour … for the main body of the building and the cladding will be the ‘cassette’

fixing version … It is unlikely that the Planners will have any major issues with the above

proposals as they have wanted ‘cassette’ fixings from the start. It may be wise not to order

the champagne colour until we have 100% assurance but you can certainly start getting

things rolling. Full design can now start. Therefore as a team we need to get the design

team meetings going asap, which I will co-ordinate and sent out meeting times shortly”

(emphasis added).48 49 Subsequent design team meetings were attended by

representatives of Rydon, Studio E, Harley, Curtins, and JS Wright.

2.27 The initial grant of planning permission was conditional on the submission of detailed

drawings and samples of material for the cladding: but the reason stated for that was “[t]o

accord with the development plan by ensuring that the character and appearance of the

area are preserved and living conditions of those living near the development suitably

protected” – there was no reference to compliance with Building Regulations.50

2.28 The ‘full plans’ application which KCTMO submitted to the RBKC planning authorities on 5

August 201451 continued to indicate zinc cladding, as did the plans submitted by Studio E

on 29 September 2014.52 Neither specified a particular insulation material or manufacturer.

2.29 It appears that the documents filed with RBKC on 1 July 2014 in support of the (successful)

application for the planning condition to be discharged did indicate that ACM panels were

to be used; it is not clear whether, at this stage, consideration was given to compliance with

Building Regulations.53

3. Decision making: participation and factors

3.1 The narrative set out above is notable for what it contains, and for what it does not:

(A) Reference is made repeatedly to aesthetic concerns and – decisively, it seems – to

questions of cost. Those in themselves can be legitimate issues: there is nothing

47 {HAR00005683}48 {CEP000004383}49 {TMO00831317} {RBK00029211} {RBK00029209}50 {RBK00000053_0002}51 {RBK00026860}52 {BMER0000002}53 {SEA00011262} {SEA00011253} {SEA00011246} {SEA00002736}

EXO00001774/8

9

inherently wrong with taking attractiveness into account, nor can there be any

objection to selecting a cheaper alternative if that alternative is a proper one.

(B) However, that question – whether the contemplated cladding was compliant – is

barely touched on. Compliance with Building Regulations – and, hence, safety –

receives the briefest of treatment: simply the comment by Rydon that “Reynobond

ACM panels have BBA certification – Class 0”.54

(C) Although Studio E identified products for comparative costing as part of the tender

process, there is no indication that it considered at that stage whether those products

would satisfy the general criteria that were also set out in the Employer’s

Requirements.

(D) Those involved in the change were evidently pursuing an agenda: “put[ting] our case

that ACM is not an inferior product to Zinc”,55 though (beyond noting that “powder

coated aluminium cladding” was already in use at the nearby Academy and Leisure

Centre) the reasons for that opinion were not stated. Indeed, it now appears that,

over and above the evident client pressure for cost reductions, Harley had a

particular motivation to press for ACM: Harley’s witnesses indicate that Harley had

made an error in its earlier quotation, and hoped that the switch to ACM would allow

it to recoup some of the losses that would result.56

(E) Likewise, although it is clear from those criteria that Studio E had considered the

detailed fire performance requirements to set out in the Employer’s Requirements,

we are not aware of any evidence to show that any of the participants responsible

for implementing the Employer’s Requirements took steps (either by themselves or

through obtaining specialist advice) to verify whether those requirements were being

complied with, either in proposing the change to ACM or in designing the ACM

system.

(F) Design work, beyond the pre-tender ‘concept’ / ‘intent’ stage, began only after the

high level decision to go with aluminium rather than zinc, with a ‘design team’ then

being formed to handle that work. From later emails, it is apparent that this design

team comprises representatives of both Rydon and Harley.

54 {RYD00004142_0001}55 {ART00008792}56 {HAR00010184} para 39 {HAR00010159} para 26

EXO00001774/9

10

(G) Although the planning authorities had been closely involved in the debate over the

choice of materials, that appears to have been solely from the perspective of visual

appearance, and without regard to safety or compliance.

3.2 Further, that narrative needs to be set in context, as part of the broader evolution of the

refurbishment project:

(A) Initially, it was KCTMO’s project, supported by Studio E and a range of other external

consultants. During this phase, strong concerns were raised over costs: the cladding

system was discussed between Studio E and Artelia as a source of significant

potential costs savings.

(B) In March 2014, the project changed fundamentally, becoming a ‘design and build’

(“D&B”) project rather than following what Mr Hyett describes as “the traditional

model”.57 KCTMO now became the Employer; it handed the project over to Rydon

as the D&B Contractor. Under the structure agreed between them:

(1) KCTMO set out its specification for the Project in the range of documents which

together formed the Employer’s Requirements;58

(2) Rydon agreed to accept responsibility for all aspects of design, construction,

and compliance;59

(3) Rydon took responsibility in particular for identifying and correcting any

deficiency, inconsistency, or omission in the Employer’s Requirements;60

(4) Subject to that, Rydon was obliged to fulfil the Employer’s Requirements or, if

it wished to depart from them, to obtain KCTMO’s approval under the formal

‘Change’ process61 – in particular, it needed to follow that process to change

from zinc to ACM, and would have needed to do so (though it never sought to)

in order to relax any of the general requirements in relation to the façade.62

(5) Rydon was permitted to sub-contract parts of its work, but on the basis that it

warranted that any design work, whether carried out in-house or by a sub-

contractor or consultant, would be carried out “using all the reasonable skill

57 The earlier evidence suggests that the initial intention had been to let the project on a traditional construction contract: the switch to the “D&B” approach being prompted by the high costs which were being suggested for such a contract by Leadbitter58 {RYD00000001}59 {RYD00000001} Appendix 1, cl 2.17.1.360 {RYD00000001} Appendix 1, cl 2.14 and cl 2.17.1.161 {RYD00000001} Appendix 1, cl 2.2.2, Schedule 162 cf. paras 2.16–2.17 above

EXO00001774/10

11

and to be expected of a professionally qualified and competent design and

build contractor experienced in the carrying out of such work for projects of a

similar size scope value character and complexity”.63

(C) Although the possibility of a switch from zinc to aluminium had been mooted in high-

level terms roughly a year before Rydon’s appointment, and was foreshadowed in

the request to provide comparative costs during the tender process, that suggestion

had not been substantively progressed.

(D) On the contrary, when Rydon was appointed, it was on the basis of Employer’s

Requirements which

(1) specified zinc cladding with an aluminium honeycomb core;64 and

(2) contemplated that alternative materials might be used, but in any event

imposed further requirements which required compliance with prevailing

regulations and included specific provisions with respect to fire performance.

(E) It was only later that – evidently guided by the pressure to cut costs – Rydon

(together with Studio E and Artelia, and with support from Harley) pursued, and

obtained KCTMO’s approval (and then RBKC’s) for the change to ACM; and only

then that work on designing the cladding system commenced, under a team that

comprised Rydon, Studio E, and Harley.65

4. Compliance issues

Background

4.1 At the time of the Grenfell Tower refurbishment, there were a number of routes by which a

proposed cladding system’s compliance with Building Regulations could be established:

(A) A full-scale test of the system under BS 8414, if it satisfied the performance criteria

set out in BR135, would comply with section 12.5 of Approved Document B (“ADB”).

(B) If a system had not been tested, but sufficient relevant data were already available

from other tests, Building Control could instead accept a formal assessment that the

system would pass the same test, issued as the opinion of a suitably qualified fire

engineer.

63 {RYD00000001} Appendix 1, cl 2.17.2.164 {ART00008158}65 cf. para 2.26 above

EXO00001774/11

12

(C) Under sections 12.6–9 of ADB, a cladding system was acceptable above 18m if it

satisfied three criteria: (i) the external surfaces needed to satisfy Class 0 (a ‘national

class’, achieved by reference to criteria for certain tests under BS 476) or at least

Class B–s3,d2 (a European class); (ii) any insulation product or filler material needed

to be of limited combustibility (or, implicitly, non-combustible); and (iii) cavity barriers

needed to be installed in compliance with section 9 of ADB. Again, the appropriate

classification might be demonstrated by test evidence, or by assessments based on

sufficient test evidence.

(D) Outside the scope of ADB, an alternative solution could be devised provided that the

relevant building control authority was satisfied that there was adequate fire

engineering evidence that it satisfied the functional requirement of Building

Regulations “adequately [to] resist the spread of fire over the walls and from one

building to another, having regard to the height, use, and position of the building”.

4.2 There is no indication that any of those involved contemplated requesting either a full-scale

test of, or an assessment in respect of, the proposed system; nor that any consideration

was given to the possibility of an engineered solution. On the contrary, the requirements

set out in the NBS, and the reference to “Class 0” above, are consistent with expecting to

achieve compliance through sections 12.6–9.

4.3 Building Regulations and Approved Document B, and the basic approach that they take, are

the bread and butter of the British construction industry. Construction companies need no

specialist advice to be aware of them; nor, likewise, do those involved in designing cladding

systems need to be pointed towards the provisions relevant specifically to external fire

spread.

4.4 In drafting the NBS, Studio E devised the fire performance requirements it considered were

appropriate for the cladding system. Through that document, Rydon were made aware of

them, and Rydon in turn passed on those requirements to Harley.66 Harley in any event

was a specialist contractor with its own designers, who would be expected to be aware of

the relevant provisions of Building Regulations and ADB.

4.5 The extent to which specialist input was needed, in order to determine whether a particular

cladding system was compliant, would vary depending on the route adopted. For example,

if there was documentary evidence that a BS 8414 test had been successfully conducted,

at an accredited facility, on the exact same system, that evidence in itself would suffice. At

66 {CCL00004300_0063}

EXO00001774/12

13

the other end of the spectrum, designing a bespoke engineered solution would require

advanced fire engineering expertise.

Compliance responsibilities

Overall

4.6 In the case of Grenfell Tower, it was for Rydon, having taken over the project before any of

the relevant decisions had been made, to determine what route to follow, what level of

expertise was needed, and whether it had that capacity in-house or through any of its

existing sub-contractors. If Rydon considered that it needed further external advice then it

was free to appoint the specialists of its choice. In this case, Rydon appointed Harley (with

whom it had an established commercial relationship) as specialist sub-contractor for the

façade.

4.7 There is no statutory requirement to engage a fire consultant or fire engineer. Rydon might

have been able to determine for itself, for example, whether the panels to which the BBA

Class 0 certificate related were the same as proposed for Grenfell (they were not); whether

the insulation to be used was of limited combustibility (it was not); and whether the system

was designed with cavity barriers in accordance with section 9 of ADB (it was not).

4.8 Rydon could, alternatively, have chosen to engage a fire specialist to advise on those points.

We know that the possibility of retaining an expert was considered – indeed, Rydon told

KCTMO (at the same introductory meeting on 1 April 2014 which considered the possibility

of abandoning zinc for aluminium) that it would “contact [Exova] with the view of using them

going forward”.67

4.9 That, though, was never done,68 nor did Rydon retain any alternative fire specialists. The

minutes – referring both to the potential switch to ACM, and the possibility of seeking fire

advice – were never sent to, or discussed with, anyone at Exova. We do not know why not,

but the evidence indicates that Rydon as a general practice chose not to instruct fire

consultants.69

67 {RBK00018805}68 {RYD00018337}69 cf. para 5.40 below

EXO00001774/13

14

Advice from Exova

4.10 At the time of Rydon’s appointment, the third and final version of Exova’s outline fire strategy

report70 formed part of the Employer’s Requirements:71 which elsewhere (as noted at

paragraph 2.21 above) specified zinc rather than aluminium cladding.

4.11 Exova’s report, dated 7 November 2013, did not deal expressly with cladding – at that stage,

a cladding system had not been chosen and so none formed part of the documents identified

in Exova’s report as the basis for its advice. There was nothing that Exova could have said,

in those circumstances, other than to identify the relevant provisions of Building Regulations

and Approved Document B: points which went without saying. (It was not normal practice

for Exova’s fire strategy reports simply to cut and paste provisions from ADB, and such a

practice would have served no purpose).

4.12 Instead, the report indicated that “It [was] considered that the proposed changes will have

no adverse effect on the building in relation to external fire spread” (which, on the details of

which had been made available to Exova at that point, was correct) “but this will be

confirmed by an analysis in a future issue of this report”.72 At the time the intention appears

to have been to use a system comprised of zinc panels with aluminium honeycomb

insulation: but no detailed specification or design had been set. Even if the material supplied

to Exova for the preparation of its report had explicitly indicated as much, Exova’s report

could properly have made the same comment.

4.13 In those circumstances, so far as Rydon was concerned:

(A) it could not have imagined that the report supported the cladding system eventually

chosen, because (i) that system was not chosen until many months later, (ii) the

report in any case made clear that the position in relation to external fire spread

required, and was subject to, further analysis;

(B) indeed, the project had changed in numerous other ways, such that (as Beryl

Menzies’ expert report73 notes) the last version of Exova’s report on the

refurbishment did not reflect the plans which were submitted to RBKC Planning on

the ‘full plans’ application;

70 {EXO00001762}71 {RYD00000001} Part 6, Schedule of Contract Information72 {EXO00001762} para 3.1.473 {BMER0000001} paras 37–39

EXO00001774/14

15

(C) it had no right in any event to rely on those reports, since they were issued on the

basis that they could not be relied on other than by their addressee, and they were

not addressed to Rydon; and

(D) there is nothing to suggest that it expected that Exova would provide it with a further

report, and it would have had no basis to expect that, since:

(1) it never asked Exova to prepare such a report;

(2) it never supplied Exova with the material that it would have needed to do so;

and

(3) it had no contractual relationship that entitled it to expect anything from Exova.

4.14 On the contrary, it was incumbent on Rydon itself to take forward the further analysis that

was needed, since:

(A) the report formed part of the Employer’s Requirements, responsibility for which had

passed to Rydon; 74

(B) not only was Rydon’s obligation to comply with those Requirements the basis of its

appointment, Rydon had agreed to identify and correct any omission in the

Requirements;75 and

(C) in any event, Rydon was obliged to ensure compliance with Building Regulations.

4.15 So far as KCTMO was concerned:

(A) it was involved in the decision to change from zinc to ACM, and also in other

decisions following Rydon’s appointment which made significant changes to the

proposed configuration of the lower four floors: it will have known, therefore, that the

advice Exova gave prior to Rydon’s appointment had been overtaken by subsequent

events; and

(B) in any case the D&B contract made clear that it now looked to Rydon in relation to

compliance issues across the whole scope of the refurbishment project.

74 {RYD00000001} Part 6, Schedule of Contract Information75 {RYD00000001} Appendix 1, cl 2.14 and cl 2.17.1.1

EXO00001774/15

16

Other participants

4.16 Studio E’s contract with KCTMO76 had indicated that it would serve as ‘Lead Consultant’,

‘Lead Designer’, and ‘Architect as Designer’ throughout RIBA Stages A–L, and that its

functions in those capacities would include:

(A) “Advising on the need for and the scope of services by consultants, specialists [and

others]”;

(B) “Co-ordinating design of all construction elements, including work by consultants [or]

specialists”; and

(C) “Providing designs, specifications, advice and information concerning the design for

which the designer is responsible … Determining materials, elements and

components … Preparing drawings … specifications … and production and tender

information … Giving due regard to the guidelines contained in … ‘Good practice in

selection of construction materials’”.

4.17 Subsequently, Studio E was retained instead by Rydon, on different terms, to provide a list

of specific “architectural services”.77 The impact of this change in Studio E’s position is

discussed in more detail at paragraph 5.34 below.

4.18 Artelia’s contract, dated 23 June 2014,78 identified the ‘Professional Team’ as comprising

Studio E, Curtins, and Max Fordham: it contained no reference to Exova. It also indicated

that Artelia was a ‘designer’ for the purposes of the CDM Regulations, albeit was “not

responsible for the design of the Project”.

4.19 Similarly, Max Fordham’s contract, also dated 23 June 2014,79 identified the other

Consultants “appointed … to provide professional services in respect of other aspects of the

Project” as Studio E, Curtins, and Artelia. Under that contract, Max Fordham remained

engaged by KCTMO, as it had been previously, but with a reduced scope.80

5. Exova’s position

5.1 A number of conclusions can clearly be drawn from the points above. Exova’s work

preceded the critical decisions in relation to the cladding system; so too did the preparation

of contractual documents which ought to have precluded those decisions; responsibility for

76 Set out in a letter dated 11 November 2013 {SEA00009821} and its enclosures77 {RYD00094228}78 {ART00009144_0034} cl 1.179 {MAX00001687}80 {MAX00017296} para 36

EXO00001774/16

17

those decisions was accepted by Rydon. Reliance may have been placed on others, in

making those decisions, but not on Exova: it was not asked for advice in support of those

decisions nor, having been cut out of the relevant loop, was it in a position to give such

advice nor even to warn.

5.2 In those circumstances, having already identified that the fundamental failing lay in the

cladding system, it would be quite wrong for a participant that (as we explain further below)

was side-lined at the time now to be put front and centre. We respectfully suggest that the

Inquiry’s focus in Module 1 will properly be directed principally at parties other than Exova.

5.3 Nonetheless, we take the opportunity of this statement to outline our position on the role

that Exova had, and the steps that it took to fulfil that role. The nature and extent of Exova’s

role derives from a combination of (i) the contractual terms under which Exova was

appointed, (ii) the general law in relation to professional advisers, and (iii) any applicable

regulatory or statutory duties. We take these in turn below, before turning to discuss the

fundamental changes which followed the award of the D&B contract to Rydon.

Contractual terms

5.4 Exova was appointed by KCTMO under two separate instructions: one in relation to the

existing building’s fire strategy, and one for fire strategy in relation to the proposed

refurbishment. The relevant terms are set out in two fee proposal letters81 which were

addressed to Studio E and accepted by KCTMO.82

5.5 For the existing fire strategy, Exova’s task was to assess the design of the building against

relevant design codes. Exova indicated that it would carry out a site visit to survey the

architecture and fire safety systems, and compile a fire safety strategy report which would

consider means of escape, fire safety systems, any smoke ventilation provided, and access

and facilities for the fire service. A number of points are worth noting:

(A) The proposed site visit was explicitly not intended to be a “detailed appraisal … of

the structural fire protection … or … fire compartmentation”: the letter provided that,

if such a survey was called, this could be instructed separately.

(B) It was assumed that “a suitable and sufficient” fire risk assessment had already been

carried out, and would be made available to Exova.83

81 {ART00000062} {EXO00001752}82 {EXO00000549}83 {EXO00001600} {EXO00001593}

EXO00001774/17

18

5.6 For the refurbishment fire strategy, Exova agreed:

(A) To produce a “preliminary fire strategy report” during RIBA Stage C, “summaris[ing]

the main fire safety issues for the project”, which would “assist early design

development”: “more detailed issues would not be covered at this stage of the work.”

(B) That this work “would be further developed” during RIBA Stage D/E, with a fire

strategy report considering “means of escape; assessment of the fire safety systems

requirements; recommendations regarding any smoke ventilation requirements;

determination of any external fire spread issues that they may be and the impact this

may have on the architectural design; recommendations of compartmentation and

structural fire protection standards; and assessment of the access and facilities for

the fire service”.

(C) At RIBA Stage F, to “assist the design team and appointed contractor … in

addressing the fire safety issues that appeared during the tender review phase”,

“troubleshoot strategic fire safety issues that are identified by the contractors”,

“discuss the contractors’ issues and the proposal solutions”, and “provide an updated

revision of the fire safety strategy documentation to reflect any agreed changes …

following any related design development and consultation with the approvals body”.

5.7 Thus, it was envisaged that, after Stage D/E, Exova would be concerned with issues which

(i) had arisen during the tender review (a process that Exova itself was not part of), or (ii)

were raised by the contractor. In effect, it was for others to seek Exova’s advice, identifying

the issues on which its input was sought. Even at the earlier stages, Exova was not

operating in isolation: the work that it would be able or expected to do was necessarily

governed in large part by (for example) the extent to which others asked Exova to review

particular material, the respects in which that material gave rise to issues that warranted

consideration at that stage, and the degree to which specific questions were raised.

5.8 Similarly, the parties agreed fixed fees in respect of Exova’s work on the existing fire

strategy, and the refurbishment fire strategy at Stages C and D/E. For Stage F, by contrast,

the fee letter acknowledged “the difficulty in determining the extent of work required”, and

so provided for any work to be charged at hourly rates, with the possibility of agreeing a

fixed fee “if the scope of work was further defined”. In the event, Exova charged below the

agreed level for Stage D/E.

5.9 Moreover, the approach set out in the fee letters was based on an assumption that “our

work would be carried out only once and would be based on an agreed set of building

layouts”, with “any further work … subject to an additional fee proposal”. That allowed for

EXO00001774/18

19

issues and possible solutions to be discussed between the various participants during Stage

F, but without the need to provide a full updated report unless and until a final set of plans

was agreed – by its nature, that approach would be less labour-intensive (and hence less

costly) than producing iterative updates, all but the last of which would be rendered obsolete.

5.10 In the event, Exova was never sent an agreed set of building layouts or asked for a Stage

F report, and it did not charge any fees in relation to Stage F.

The general law

5.11 Exova’s position was subject to the familiar legal principles that apply to all professional

retainers. In particular:

(A) Under the express terms of its contract, Exova was to exercise reasonable care in

providing its services;84

(B) It is trite law that (i) that such a standard of care permitted it to give advice that was

properly open to a competent professional in the relevant circumstance, and (ii)

where different professionals might take a different approach – might even reach a

different view – that in itself does not mean that either is negligent: and indeed

Exova’s standard terms gave it discretion as to the methods by which it provided its

services and reports.85

5.12 In addition, Exova’s standard terms (to which KCTMO agreed) provided that reports would

be prepared on the basis that there was no responsibility other than to the customer, in this

case KCTMO.86

5.13 Though the Inquiry is not responsible for making findings of legal liability, and so need not

consider matters through the lens of a legal cause of action, it is nonetheless relevant to

consider causation, not least because the Inquiry’s concern at Phase 2 is precisely with

identifying the decisions and other factors that led to the fire.

Regulatory duties

5.14 There is no regulatory duty to have a fire consultant at all.87 That raises the question of

whether, in relation to the project, Exova was nonetheless subject to duties under the

regulations in connection with fire safety and/or construction: principally (i) regulation 38 of

84 {ART00000062} cl 7.6 {EXO00001752} cl.7.685 {ART00000062} cl.5.4 {EXO00001752} cl.5.486 {ART00000062} cl.7.6.1 {EXO00001752} cl.7.6.187 Indeed, the Inquiry may want to consider whether there should be such a duty, in relation to projects sufficiently large or complex to call for it, and/or a defined process by which building control authorities can ascertain whether the need for specialist fire analysis has been considered and, to the extent necessary, addressed.

EXO00001774/19

20

the Building Regulations 2010; (ii) the Regulatory Reform (Fire Safety) Order 2005, or

“RRFSO”; or (iii) the Construction (Design & Management) Regulations, or “CDM”.88

Building Regulations

5.15 Regulation 38 imposed a duty on a person carrying out building works which were subject

to Part B of Schedule 1 to the Building Regulations, to provide certain information to

KCTMO, as the ‘responsible person’ for the building. That comprised “information relating

to the design and construction of the building, and the services, fittings and equipment

provided in or in connection with the building … which will assist [KCTMO] to operate and

maintain the building … with reasonable safety.”

5.16 Plainly, Exova was not a person carrying out building works. In any event, there was no

such information in Exova’s possession which was not also in Rydon’s possession. Indeed,

because (i) by the time the project completed, even the lower four floors no longer reflected

the plans on which Exova's reports had been based,89 and (ii) Exova was not responsible

for the selection of materials (for the cladding or for any other purpose) or the detailed design

(of the cladding or any other system), the information Exova had would have been outdated,

and either incorrect or at best inadequate for the purposes of reg.38.

5.17 Further, the obligation under reg.38 is to provide the relevant information “not later than the

completion of the work”: a point reached long after Exova’s last report (and long after Stage

F, the latest RIBA Stage which Exova’s engagement provided for).

5.18 Unsurprisingly, in the circumstances, none of the project participants ever requested

information from Exova for the purposes of compliance with reg.38, nor is there any

indication that any of them expected Exova to provide such information, or regarded that as

part of Exova’s remit.

RRFSO

5.19 The RRFSO applies to non-residential premises: and thus to the ‘common areas’ of Grenfell

Tower, but not the individual apartments it contained. There has been some debate as to

whether it is capable of extending to the façade: Beryl Menzies’ report indicates that it does

not.90

88 The 2015 Regulations came into effect on 6 April 2015, but with transitional provisions such that the CDM co-ordinator under the 2007 Regulations, Artelia, remained in place until 6 October 2015, when it was superseded by KCTMO as principal designer under the 2015 Regulations. This post-dated any relevant advice from Exova. For ease of understanding, this statement therefore deals only with the position under the 2007 Regulations.89 {BMER0000001} paras 37–3990 {BMER0000001_0027} para 84. The scope of the RRFSO is again any area which the Inquiry may want to consider.

EXO00001774/20

21

5.20 The RRFSO imposes duties principally on the ‘responsible person’, which for Grenfell Tower

was again KCTMO, and requires the ‘responsible person’ to nominate ‘competent persons’

to discharge certain of the functions required to be performed under the RRFSO.

5.21 Exova’s fee proposal for the existing fire strategy indicated that it would assess the building’s

design against relevant design codes, including the RRFSO. Exova’s fee proposal for the

refurbishment indicated that at Stage D/E the fire strategy would be “developed to comply

with the relevant statutory requirements”: primarily the Building Regulations but also the

RRFSO and the London Building Acts (Amendment) Act 1939 though, in the event, the latter

was repealed, as was reflected in Exova's report on the refurbishment.91

5.22 Most provisions of the RRFSO are cast in broad terms: for example, requiring the

responsible person to “take such general fire precautions as may reasonably be required in

the circumstances of the case to ensure that the premises are safe.” As such, it forms part

of the conceptual background to fire strategy analysis: whereas Approved Document B, for

example, sets out much more detailed recommendations.

5.23 Some provisions of the RRFSO (for instance, the requirement to keep exit routes clear) are

more detailed: but these largely concern the operation of the building, rather than its basic

design. In practice, therefore, at the stage in the project at which Exova prepared its fire

strategy reports – a point at which the concern was with the basic layout of the floors, and

the adequacy of the fire prevention measures in those areas – following the guidance in

Approved Document B will also have dealt, so far as possible, with the corresponding

provisions of the RRFSO.

CDM

5.24 The CDM’s main concern is generally understood to be the safety of construction work itself.

The broad structure of the CDM begins with the ‘client’ (in this case, KCTMO), then the

‘principal contractor’ (here, Rydon), and a ‘CDM co-ordinator’ (Artelia). Provision is then

made in relation to other ‘designers’ and ‘contractors’, including ‘additional duties’ in each

category where (as was the case here) the project is ‘notifiable’.92

5.25 A ‘designer’ is defined as “any person … who … prepares or modifies a design, or arranges

for or instructs a person under [their] control to do so, relating to a structure or to a product

… intended for a particular structure”; and ‘design’ for these purposes “includes drawings,

91 {EXO00001762_0005} para 2.392 The role of “CDM co-ordinator” was superseded under the 2007 Regulations by that of “principal designer” under the 2015 Regulations. KCTMO itself had that role with effect from 6 October 2015. Likewise, the duties of designers were articulated differently under the 2015 Regulations, which took effect from 6 April 2015. Since both dates fell after any relevant advice from Exova, this statement deals only with the position under the 2007 Regulations.

EXO00001774/21

22

design details, specification[s] and bill[s] of quantities (including specification of articles or

substances) relating to a structure, and calculations prepared for the purpose of a design”.

5.26 Exova’s fire strategy reports were prepared in part on the basis of designs provided to it by

Studio E. Those reports represented advice which could assist Studio E, or other

participants, in modifying those designs, or preparing further designs. From time to time,

Exova gave further advice by commenting directly on the content of such designs. Exova

itself, however, did not prepare or modify designs, whether in relation to the building

generally, or the cladding specifically.

5.27 Even if Exova were to be considered a ‘designer’ for CDM purposes, its primary duty would

have been, “in preparing or modifying a design”, “so far as reasonably practicable”, to “avoid

foreseeable risks to the health and safety of any person … liable to be affected by such

construction work”. So far as the cladding system was concerned, Exova was at no point

involved in “preparing or modifying a design”. As such, that duty could never have arisen in

relation to the cladding system. Certainly, it was not responsible for the design decisions in

relation to the selection of materials, and it was from those decisions that the risks arose.

5.28 Exova would also, if it were a ‘designer’, have had an ‘additional duty’ to “provide with [its]

design sufficient information about aspects of the design of the structure or its construction

or maintenance as will adequately assist the CDM co-ordinator to comply with [its] duties

under [the CDM] Regulations”. The fact that it would be all but impossible to apply that

provision meaningfully to Exova’s advice in itself provides further indication that Exova was

not a ‘designer’ for CDM purposes; and it is also to be noted that, at the time of the project,

neither Artelia nor any other participant appears to have regarded Exova as having been a

‘designer’ for CDM purposes, or as having other CDM duties.

5.29 By contrast, CDM duties undoubtedly rested with Rydon (as principal contractor), Artelia (as

CDM co-ordinator), and both Studio E and Harley (as designers), as well as KCTMO (as

client). Further, each of them had, in relation to their own duties under the CDM

Regulations, general duties to co-operate and co-ordinate their activities with others

involved in the project. Other than with regard to a small number of narrow questions, none

of the parties above sought any input from Exova in relation to the cladding system.

The performance of Exova’s role

Exova’s perspective

5.30 Through several different and practical routes, Exova provided advice which assisted the

design team, and in particular Studio E, in working towards a fire strategy for the

EXO00001774/22

23

refurbishment project. In addition to the fire strategy report for the existing building, and a

design note and three issues of an outline fire strategy report for the refurbishment, Exova

contributed frequently in other ways:

(A) Until Rydon’s appointment, Exova advised Studio E consistently on plans and fire

strategy drawings, marking them up or commenting on them by way of guidance, or

discussing issues over the telephone. Exova will produce a schedule separately of

the occasions on which they performed such services. These led to fire strategy

drawings which could be used as a basis for discussions with RBKC Building Control

on Building Regulations compliance.

(B) Exova also entered into email correspondence about fire safety requirements and

responded to queries raised on such requirements.

(C) Prior to November 2013 (by which point the tender process which led to Rydon’s

appointment was under way), Exova attended design team meetings as and when

requested to do so.

(D) Exova provided guidance to Max Fordham on Building Regulations issues in

connection with the smoke ventilation on the lower floors. It also offered to provide

Computational Fluid Dynamics (“CFD”) modelling as a means of demonstrating that

the proposed alterations to the smoke ventilation system would satisfy the ‘non-

worsening’ requirement under Building Regulations, though that offer was not taken

up. Max Fordham and the other contractors involved in the smoke ventilation system

had their own M&E design experience (which Exova did not) and accordingly took

the main role in relation to the new smoke ventilation system.

(E) Exova entered into dialogue with RBKC Building Control in relation to Building

Regulation compliance when asked to do so.

(F) Topics covered by Exova’s advice outside its reports included, by way of example,

the requirements in relation to:

(1) Fire ratings of internal surfaces;93

(2) Lobbies and their ventilation;94

(3) Fire stopping in connection with pipes passing between compartments;95

(4) The need for and ratings of fire alarms;96

93 {EXO00001406}94 {EXO00000604}95 {SEA00012655}96 {MAX00006095}

EXO00001774/23

24

(5) The fire resistance of cavity barriers in a façade system;97

(6) Smoke ventilation issues including extraction standards;98 and

(7) The use of the staircase in the event of fire by both residential and commercial

users of the Tower.99

5.31 Conversely, Exova was not invited to attend design team meetings after November 2013,

and, once Rydon was appointed and chose not to engage Exova (or any other fire engineer),

Exova was not:

(A) Involved in the tender process, including the preparation of the documents which

went on to form the basis on which contractors were subsequently appointed;

(B) Included in the design team responsible for the cladding system, or invited to any of

that team’s meetings.

(C) Involved in any discussions about the type, style, appearance, or composition of the

proposed cladding, even though discussions on these topics went on for many

months between Studio E, Rydon, and Harley: on the contrary, the only input Exova

had, as discussed in greater detail below, was on narrow questions relating to the

standards of fire performance required from cavity barriers.

(D) Informed of the decisions that were made in relation to the proposed insulation and

cladding materials, or asked to comment or advise on the proposed insulation and

cladding materials.

(E) Asked to update its Fire Strategy Report to include advice on the cladding system

and its component materials, nor to update it in light of the (unrelated) changes made

in relation to the lower four floors.

(F) Involved in any discussions with Building Control about cladding (other than

indirectly in connection with the fire stopping/cavity barrier issue discussed at

paragraphs 6.15 above).

(G) Consulted on the proposed changes to the ‘crown’, involved in the design of those

changes, or shown any drawings of them.

5.32 It is also worth noting that it was clear from the outset that KCTMO would retain a contractor

to take control of the project. What model would be adopted was not settled initially, though

97 {RYD00018179}98 {EXO00000617}99 {EXO00001573}

EXO00001774/24

25

it became clear relatively early on that the ‘D&B’ approach would be chosen, as is a common

approach for local authorities.

5.33 Such a change in the nature of the project meant that there would most likely be alterations

in the relationships among members of the design team, and also raised the strong

possibilities (a) that their respective roles and terms of engagement would alter, and (b) that

the project itself would change substantially.

5.34 That is exactly what happened. Some participants found themselves remaining actively

involved but with reduced roles. Studio E, for example, became sub-contractors to Rydon,

rather than lead designers to KCTMO, and in their new role took the view that their altered

role was now to ensure that Rydon’s work adhered to the “design intent” set out previously.

Max Fordham, meanwhile, were not instructed by Rydon (who instead engaged JS Wright)

and instead remained under contract to KCTMO, but in a much-diminished supervisory role.

Others, such as Exova, were not retained by Rydon, and so had no contractual role in the

design team that Rydon chose and led.

5.35 These changes show that the roles of the consultants, however they may have been

articulated previously, remained fluid and evolving: and, in practice, were conditional on the

outcome of a future tendering process, and decisions taken by the contractor then

appointed.

5.36 In those circumstances, Dr Lane’s thesis that the scope of Exova’s responsibilities was to

be set by Exova itself, and was to remain fixed and permanent, is plainly wrong. The

participants accepted in practice the possibility that, as and when KCTMO selected a

contractor, their roles and responsibilities were subject to change and might indeed end

altogether. Exova, not having been appointed by Rydon, had no right to perform tasks which

Rydon neither sought nor were under any obligation to receive.

5.37 Indeed, it is strongly arguable that, upon entering into a Design & Build contract with Rydon,

under which Rydon was entitled and able to choose its design team and which consultants

to call on (or not call on) in pursuit of the project, KCTMO effectively put an end to Exova’s

continuing obligations. In any event, as explained at paragraph 5.7 above, Exova’s scope

was essentially reactive beyond Stage D/E, and whilst it is clear now that a rather undefined

expectation seems to have existed among some of the participants who remained actively

involved in the project, that Exova would co-operate with reasonable ad hoc requests for

assistance, matters went no further than that, as the following paragraphs make clear.

5.38 Following Rydon’s appointment, Exova was asked only for comments on discrete and

limited issues: and, of these, the only issues which related to the exterior of the Tower

EXO00001774/25

26

related to the need for cavity barriers between windows, the fire resistance requirements for

cavity barriers, and a difference of opinion between Siderise and Building Control as to the

need for fire stops rather than cavity barriers.

5.39 These communications took place in November 2013, September 2014, and March 2015,

and are considered in more detail at paragraphs 6.13 et seq below. They did not relate to

the choice of materials, and so far as is known Building Control never raised any issue in

that regard with Rydon, Studio E, or Harley.

The impact of the D&B model

5.40 The choice by Rydon not to novate Exova’s contract with KCTMO, and not to appoint Exova

or any other fire consultant, was deliberate:

(A) Bruce Sounes (Studio E) states that “Post Contract” (meaning, after Rydon had been

selected as principal D&B contractor) Studio E had direct interaction with a number

of entities. “Exova, however, was an exception. To the best of my knowledge Rydon

did not take over Exova’s appointment from KCTMO Post-Contract. However, we

approached Exova on behalf of Rydon on a number of occasions … for discrete

advice … To the best of my knowledge there were no other fire consultants involved

in the Project”.100

(B) Mr Sounes states: “Around this time [24 March 2014, [ie around a week before the

‘introductory’ meeting referred to at paragraph 2.22 above] I asked Simon Lawrence

whether Rydon would extend Exova’s appointment or appoint another fire

consultant. Simon said that Rydon typically did not engage fire consultants on the

basis that the strategy was established by the client’s team and, as contractor, it was

responsible for executing it. He regarded it as Building Control’s responsibility to

raise any concerns and satisfy themselves with the details of the submission”.101

(C) Neil Crawford (Studio E) acknowledges that both he and Simon Lawrence (Rydon)

were aware that Exova had not been retained by Rydon, or by Studio E – Mr

Crawford appears to have considered that Exova “possibl[y] … remained appointed

by KCTMO”, and notes that Exova had not objected to answering queries that were

raised with it,102 but does not indicate that he understood Exova to have retained any

particular responsibilities.

100 {SEA00014273} paras 36 and 37101 {SEA00014273} para 372102 {SEA00014275} para 188

EXO00001774/26

27

(D) On the contrary, Mr Crawford records Mr Lawrence as having said, in relation to

Exova, “So if you are getting some free advice then great otherwise we will need to

look at this”,103 implying in effect that those who remained involved in the project

knew that a proper arrangement was not in place but were content for matters to

remain that way.

(E) Likewise, David Hughes (Rydon) states that his understanding was that Terry Ashton

“would answer any queries relating to the original fire safety strategy report”.104

(F) Simon Lawrence (Rydon) lists the parties “connected to the project” and does not

refer to Exova.105

(G) The Inquiry’s architectural expert, Mr Hyett, comments: “I understand that although

Rydon chose not to appoint Exova under their Design and Build contract (during

which time Studio E were novated to Rydon) Exova’s appointment was maintained

and that they remained available to provide advice to Studio E on an ‘as and when

needed’ basis as evidenced for example in the email exchange between Studio E

and Exova requesting advice with respect to the confusion relating to terminology in

connection with cavity barriers and fire stopping”.106 107

5.41 Mr Hyett makes a number of observations in relation to the implications of the design and

build model generally. With regard specifically to the D&B structure at Grenfell, we note

also the following:

(A) The structure entailed Rydon accepting a broader overall scope of responsibility than

it was able to fulfil, and then selecting and relying on others to fulfil much of that

scope (notable in particular is Rydon’s acknowledgement that it had in fact no in-

house design capability at all), but without agreement as to the extent to which it

would sub-contract or the identity or qualifications of sub-contractors.

(B) As described above, the project’s transfer had an unavoidable practical impact on

KCTMO in that it ceased to be in a practical position to give instructions, seek advice,

or request or receive reports, and those (such as Studio E) with whom Exova had

dealt in the past were now working for Rydon, who had chosen not to retain Exova.

(C) Whereas Exova’s engagement terms contemplated that, at Stage F, it would “assist

the design team in addressing the fire safety issues that appeared during the tender

103 {SEA00014275} para 197104 {RYD00094213} para 70105 {RYD00094220} para 30 106 {PHYR0000007} para 3.1.10 107 {EXO00001294}

EXO00001774/27

28

process”, “troubleshoot fire safety issues that are identified by the contractors”, and

“discuss the contractors’ issues and the proposed solutions”, in practice the lead

contractor did not engage or look to Exova for such support, and its subcontractors

only sporadically contacted Exova and to a very limited extent on discrete issues.

5.42 The upshot is clear. The Employer’s Requirements included a range of provisions that ought

to have ensured compliance with Building Regulations, even in the event of a change from

zinc to aluminium. However, once (i) KCTMO had handed responsibility for drafting the

Employer’s Requirements to Studio E, and for implementing them to Rydon, and (ii) in

relation to the cladding, Rydon had in turn handed it to Harley, none of them appear to have

considered the compliance position of the products that were eventually selected for the

cladding system, and the design of that system: whether they in fact complied with the

Employer’s Requirements, or with Building Regulations / ADB. The necessary implication

of the Inquiry’s findings at Phase 1 is that they did not.

5.43 We are also unaware of any evidence to suggest that steps were taken to fulfil with the

various provisions in the Employer’s Requirements which required information and

calculations to be submitted to demonstrate that the façade system met the various

applicable requirements.108

6. Phase 2 evidence: initial comments

Dr Barbara Lane

6.1 Dr Lane has indicated that she intends to provide a number of reports for the purposes of

Phase 2. As at the date of this statement, she has issued one report, which deals specifically

with Exova. We say respectfully but firmly that the approach Dr Lane has taken, and the

conclusions she has reached, are misjudged, not least for the following reasons:

(A) Dr Lane looks at Exova’s position as if it can be divorced from its broader context.

In particular, she neglects to consider:

(1) the understandably limited requirements or expectations of KCTMO at the

early stages of the project;

(2) the fact that Exova was substantially excluded from the project after the third

issue of its report on the refurbishment, in November 2013 – that position being

cemented, from early 2014 onwards, by the fundamental shift to the D&B

108 {SEA00000169_0069} para 235

EXO00001774/28

29

model and the D&B contractor’s conscious decision not to retain a fire

consultant;

(3) the fact that every critical decision in relation to the cladding system was taken

after that date and without Exova’s involvement.

In the context of a catastrophic fire that resulted from the selection, design,

installation, and approval of an unlawful cladding system, we respectfully submit that

the Inquiry should bear carefully in mind the different roles of the various participants:

Exova, for instance, was responsible for none of the above steps, or the decisions

which led to them, and it at no point endorsed the system in question.

(B) Likewise, Dr Lane sets out a forensic review of Exova’s various reports but again

fails to set it in context. For example, she comments at great length on matters that

she says were not addressed in Exova’s reports, but fails to explain:

(1) whether there was information available to Exova on which it could have

commented; or

(2) whether Exova needed to comment, at the stage in question; or

(3) whether any consequence flowed from Exova not having commented.

Such an exercise is not helpful to the Inquiry’s task of ascertaining the steps that led

to the tragedy of Grenfell Tower: a tragedy which was nothing to do with Exova’s

reports.

(C) Dr Lane not only neglects to consider the range of different approaches that different

fire consultants might legitimately take, she reviews Exova’s conduct against a

guidance document which sets out one such view and which she acknowledges had

not been published at the time.

6.2 Further, Dr Lane’s insinuation that Exova had knowledge of the materials being used in the

cladding system is unfounded:

(A) Reference is made to various documents that existed between September 2012 and

November 2013. Even setting aside the absence of evidence that material

specifying a cladding system was actually available to, or accessed by, Exova, the

whole of that timeframe predates the decision (in which Exova was not involved) to

change from zinc to ACM.

EXO00001774/29

30

(B) The various questions put to Exova subsequently were not in relation to proposed

materials, but rather to the requirements of Building Regulations in terms of cavity

barriers, fire stope, or performance standards.109

6.3 Lastly, and crucially, Dr Lane appears to suggest that Exova’s report ought to have set out

“the required performance to comply with B4”. However:

(A) The audience for Exova’s advice at the point of issue comprised expert architects

who evidently ought to have been familiar with the requirements of Building

Regulations and the guidance contained in the Approved Documents: and who

evidently considered that they had sufficient expertise to set out detailed provisions

in the Employer’s Requirements without seeking further specialist input.

(B) Those who might have referred to Exova’s advice later were an experienced D&B

contractor, Rydon, and a specialist cladding contractor, Harley, neither of whom will

have needed simply to be pointed to Building Regulations. If all that Exova was

required to do for this audience was to remind or repeat the performance

requirements set out in the Building Regulations, of which they were individually and

collectively well aware, then such a requirement was redundant.

(C) In any event, the contractual specification of the works, which Rydon agreed to and

then sub-contracted to Harley, set out a range of requirements: and Rydon and

Harley were obliged not only to fulfil those specifications, but to provide documentary

evidence to show that they had done so adequately.110

(D) Conversely, if any of those parties had wanted or expected more of Exova – and

none of them, at the time, gave any indication that they did – then they would have

needed to provide more detailed information on which Exova could have advised.

That was never done.

109 As explained at para 6.14(D) below, Harley at one stage suggested that cavity barriers would not be needed on the basis that the intended insulation was ‘Class 0’, and attached a product data sheet to that email, but Mr Ashton replied in effect that that classification was not relevant and that cavity barriers would still be required.110 {SEA00000169_0069}

EXO00001774/30

31

Cavity barriers

The effectiveness of cavity barriers

6.4 The reports of Mr Hyett and Dr Lane focus in considerable detail on points in relation to

cavity barriers. There are essentially two issues:

(A) The cavity between the (insulated) concrete wall of the building, and the rainscreen

cladding panels – where cavity barriers were to be located, and what level of

resistance they required;

(B) The cavity around the window openings, and the lack of further barriers there.

6.5 These questions have already been the subject of clear evidence during Phase 1. In relation

to the cavity between the wall and the rainscreen:

(A) Prof Torero explained that the combustible nature of the rainscreen destroyed the

purpose of a cavity barrier: “A cavity barrier is a system that is designed to close a

duct when you expect that your propagation is within the duct. If you put combustible

materials outside the cavity barrier, the cavity barrier actually has no meaning,

because effectively the burning can happen around the cavity barrier … So in this

particular type of scenario the fundamental principle behind why we put cavity

barriers in is inappropriate because we have combustibles at both ends. So it is not

blocking any path pf propagation … It is the same thing. If the aluminium panels

warp, deform or fall off then the whole concept of a cavity barrier doesn’t apply”.111

(B) Prof Bisby said much the same: “Quite quickly, the rainscreen cassettes are

deforming or gone or burning and you no longer have a cavity, which defeats the

purpose of having a cavity barrier”.112

(C) Dr Lane did likewise: “A cavity barrier cannot stop a flame in a cavity if the wall itself

is burning….the wall itself is burning and so the cavity barrier cannot seal the cavity

because there is in a way no cavity because the wall is burning … I think it makes

no difference whatsoever where the cavity barriers at Grenfell Tower were because

they were put in a rainscreen cladding system formed of a polymeric core”.113

6.6 The consensus, in other words, was that the positioning of the cavity barriers was academic:

they would have been unable in any event to resist the spread of fire, whether vertical or

111 [Transcript Day 77 p.138/25 to 140/15]112 [Transcript Day 78 p. 90/3-5]113 [Transcript Day 79 p.144/3-145/1]

EXO00001774/31

32

lateral. It follows that the cavity barriers cannot be regarded as a separate cause of fire

spread.

6.7 In relation to the cavity around the windows:

(A) Prof Torero explained that the purpose of the cavity barriers was not understood as

being to protect a fire’s exit path from the building;114

(B) Prof Bisby commented, “I can’t imagine how one would actually achieve what one is

attempting to achieve by putting a cavity barrier round a window”;115 and

(C) Dr Lane agreed that it was “not obvious” how one “could have provided cavity

barriers”, given the “complex … interconnection of all the cavities”.116

6.8 Again, therefore, the thrust of the (unchallenged) evidence from Phase 1 appears to be that

such cavity barriers could not and would not have impeded the spread of the fire.

6.9 Mr Hyett in his Phase 2 expert report has put forward a bespoke design which he believes

would have been effective. The Inquiry may wish to explore that during oral evidence.

6.10 Exova was not an expert cladding designer; it was not asked, and could not have been

expected, to design a bespoke cavity barrier system. In terms of the advice that it was able

to give, it was not asked, nor did it have the detailed design material it would have needed,

to do more than advise on the relevant guidance as set out in ADB: and on the basis of the

Phase 1 evidence, following that guidance would still not have resulted in an effective

system.

6.11 As for a bespoke cavity barrier system that a specialist cladding contractor could

(hypothetically) have designed, any fire input would have required advanced analysis of the

sort that would have required a separate instruction.

Advice in relation to cavity barriers

6.12 Exova was asked questions in relation to cavity barriers on three occasions, and we deal

with these in turn below.

114 [Transcript Day 77 p.144/18 to 145/18]115 [Transcript Day 78 p.106/9-17]116 [Transcript Day 79 p. 56/16-56/24]

EXO00001774/32

33

6.13 November 2013:

(A) On 1 November 2013, Tomas Rek (Studio E) asked Terry Ashton (Exova) to “confirm

that the rainscreen cavity fire barriers are to be 60min FR”.117 Mr Ashton replied on

4 November 2013 indicating that those cavity barriers “need only have a 30 minute

standard of fire resistance”.118

(B) That was consistent with the guidance in Approved Document B. Mr Ashton could

have been more precise, and said explicitly that the 30 minute requirement applied

both to integrity and insulation: but it appears that Studio E understood that that was

the case, since the NBS that Studio E prepared called for cavity barriers “to resist

the passage of flame and smoke for not less than 30 min integrity, 30 min insulation”.

6.14 September 2014:

(A) On 18 September 2014, Neil Crawford (Studio E) forwarded on to Exova119 a

Request for Further Information which had been received from Harley.120 The RFI

sought confirmation as to “the required extent of the horizontal firebreaks within the

cladding areas”, commenting that “We believe that they will be required at every floor

level on the vertical columns, but not in the area of cladding between windows. This

is because there is no ‘chimney’ effect here, and therefore the cladding will not add

to the spread of fire”.

(B) The NBS which Studio E had prepared, and to which Harley and others were

working, contained both specific requirements in connection with cavity barriers, and

a general requirement to clarify with Building Regulations. The natural inference is

that Harley were applying their minds to those requirements, and had identified this

question (but not, so far as we are aware, any others) on which they considered

further guidance was needed.

(C) Mr Ashton responded later the same day, noting that he had “never seen details of

what you’re doing to the external walls”, and commenting that “if the insulation in the

cavities behind the rainscreen cladding is combustible you will need to provide cavity

barrier as shown on your drawing (number 1279 (06) 120) in order to prevent fire

from spreading from one flat to the one above even if there isn’t a continuous cavity

from the top to the bottom of the building”.121 That drawing indicated cavity barriers

117 {EXO00000587}118 {EXO00000586}119 {HAR00003638}120 {HAR00012091}121 {EXO00001430_0003}

EXO00001774/33

34

both horizontally, at floor/ceiling level, and vertically, between apartments (and

hence between windows). It is important also to note that Approved Document B at

that time did not insist on non-combustible insulation. Section 12.5 permitted

systems which met the performance criteria in BR135 based on BS 8414 test data:

such tests are conducted on systems as a whole, rather than individual components,

and so that route did not exclude systems which were able to satisfy those criteria

despite including combustible insulation. The alternative route under sections 12.6–

9 allowed insulation which was of limited combustibility, rather than non-combustible.

(D) Mr Anketell-Jones (Harley) then commented122 that ”The insulation is class 0”, and

on that basis suggested that no fire barrier was necessary. Mr Ashton, though,

responded123 that “A material which has a Class 0 rating is not necessarily non-

combustible although the reverse is invariably true. Some Class 0 products will burn

when exposed to a fully developed fire. In any case, you need to prevent fire spread

from [one] flat to the flat above as I stated in my earlier email”. In other words, Mr

Ashton made clear that the classification of the insulation product would not relieve

the obligation to install cavity barriers as he had indicated previously.

(E) Mr Ashton’s advice could have gone further (a) in clarifying that the requirement with

respect to insulation material was that it be of ‘limited combustibility’ as distinct from

‘Class 0’, and (b) in noting that ADB indicated that there ought as a general

requirement to be cavity barriers around the window openings, although that was not

the context in which the particular design issue about the cladding cavity barriers

was raised with him. That said, the overall position in relation to cavity barriers,

based on the experts’ Phase 1 evidence, does not suggest that such barriers would

have been effective to resist the egress or spread of fire.

6.15 March 2015:

(A) On 3 March 2015, Mr Crawford (Studio E) informed Mr Ashton124 that horizontal and

vertical “fire breaks” had been added around each apartment, and asked whether it

was suitable for these breaks to provide 90 minutes integrity and 30 minutes

insulation. It does not appear that Mr Ashton responded to this email. That said, as

noted above, the requirement of Approved Document B in relation to cavity barriers

was in fact 30 minutes, as Mr Ashton had confirmed to Studio E, and that applied

both to insulation and integrity, as Studio E had reflected in the NBS.

122 {EXO00001430_0001}123 {EXO00001430_0001}124 {EXO00001315}

EXO00001774/34

35

(B) There was in any case a further detailed exchange later in the month. On 30 March

2015, John Hoban of RBKC Building Control emailed Rydon, Studio E, and Harley125

indicating his view that the cavity barriers which ADB indicated should be installed,

level with the floors / ceilings of the building, were in fact required to be fire stops,

with the same level of fire resistance as the main structure of the building. On 31

March 2015, Mr Crawford replied,126 “we are all miffed as to why this detail is not a

cavity barrier in this location”: the “all” presumably referring to Rydon, Studio E, and

Harley as well as Siderise. The same day, he forwarded that email on to Mr

Ashton,127 asking for his view.

(C) Mr Ashton commented128 that he believed that a cavity barrier was all that was

required. He added, “it is difficult to see how a fire stop would stay in place in the

event of a fire where external flaming occurred as this would cause the zinc cladding

to fail”: essentially the same point as was made, at Phase 1, by Profs Bisby and

Torero and Dr Lane, that a cavity barrier is redundant once fire has impinged on the

outside wall such that there is no cavity.

(D) Subsequently, Mr Hoban accepted that the applicable requirement was for a cavity

barrier rather than a fire stop.

(E) Dr Lane considers that Mr Ashton was wrong to have taken the view that the detailed

point in question “isn’t something that would necessarily form part of a fire safety

strategy for a building”: but in any event he answered the question, and as to the

substance of his advice, that a cavity barrier rather than a fire stop was required, Dr

Lane states that she agrees.129 Mr Hyett likewise describes Mr Hoban’s original

position as “a complete misinterpretation” and “erroneous”.130

7. Conclusion

7.1 We know that the Phase 2 hearings will be difficult and emotional for all those affected by

the fire. No-one who lived there, no-one connected with those who lived there, deserved to

suffer the dreadful effects of the fire and its aftermath.

7.2 Grenfell was a human tragedy that need not have happened. It is likely that it was the

consequence of a range or combination of possible factors including human error,

inadequate regulations, confusing guidance and long-standing habits. It is not appropriate

125 {HAR00003949}126 {EXO00001294}127 {EXO00001294}128 {EXO00000715}129 {BLARP20000003_0212} {Table 9.1}130 {PHYR0000004_0148} paras 4.4.118–119

EXO00001774/35

36

to forecast at this stage what precise conclusions will be drawn. It is appropriate, though,

to suggest that all participants must assist the Inquiry in coming to accurate and reliable

conclusions.

7.3 Phase 2 will require an investigation every bit as rigorous as was followed at Phase 1. The

Grenfell community are entitled to know how and why decisions evolved which led to such

unintended yet avoidable consequences: and the public at large will rightly look for

recommendations to protect the future safety of those living in residential buildings

throughout the country. Lastly, noting with humility the unique role that those directly

affected by the fire have played in this process, we sincerely hope that its next phase will

achieve some measure of closure for them

MICHAEL DOUGLAS Q.C.

4 Pump Court

Temple

SIMMONS & SIMMONS LLP

Solicitors for Exova (UK) Limited

EXO00001774/36