Modules 1 & 2 Closing Statements - Tuesday 14th September 2021 (1/2)

Full transcript

00:00:40 uh

00:00:46 good morning everyone welcome to today's hearing today we're going to hear further closing statements in relation to modules 1 and 2 from various core participants

00:00:57 participants the first statement we're going to hear will be made by mr michael douglas queen's council on behalf of x over and i'm now going to check that mr douglas can see and hear us and we've

00:01:08 douglas can see and hear us and we've got proper communication good morning mr douglas good morning mr chairman i can hear you and see you good thank you very much and we can see and hear you so uh you're going to make a statement on

00:01:20 uh you're going to make a statement on behalf of x over is that right that's correct and uh if you're ready then we're ready to hear you thank you very much

00:01:27 very much thank you

00:01:29 thank you well again good morning mr chairman and good morning mr fan and mr ackball panel already has ix over submissions in writing those submissions are detailed fully referenced and they stand in full

00:01:41 fully referenced and they stand in full my purpose today is to develop four aspects of our analysis we will first address uh xover's position in the project and with particular reference to the

00:01:52 and with particular reference to the facade we will then deal with dr lane's written evidence tying x over to the cladding system and the rowing back from her position as evidenced in the later iterations of her report and her oral

00:02:03 iterations of her report and her oral evidence

00:02:04 evidence we want to look at these specific questions that arose in relation to cavity barriers and we will also touch on some areas that have been the subject of some debate

00:02:12 debate the impact of ryden's appointment the existing fire strategy report duties under the rro duties in connection with regulation f38 and means of escape

00:02:23 and means of escape and talk about what they actually amount to

00:02:26 to we will also deal with causation and one or two confined issues that need highlighting we will also deal but only in so far as it is necessarily were appropriate to do so

00:02:38 necessarily were appropriate to do so with what other participants have said in their written closing submissions there are great many of the points made there are in fact already addressed in our own written submissions so in that respect we will be relatively

00:02:49 so in that respect we will be relatively short

00:02:50 short so starting with xoba's place in the project

00:02:54 project through the tmo which in turn was agent for rbkc

00:02:59 for rbkc it appointed xover

00:03:01 xover it did so at studio e's recommendation in order for xover to provide input to studio e

00:03:08 studio e it was asked for studio e and on occasion max fordham that xtober communicated and at studio's e's behest the dirk sober was included or not in communications with other team

00:03:20 in communications with other team members

00:03:22 members so for example xover attended three design team meetings between september and 31st october 2012 it was not invited to the design team meeting later in november or to any of

00:03:34 meeting later in november or to any of the seven design team meetings in 2013. mr ashton accompanied studio e to a meeting with building control in november 2012 concerning risers accessed by fire

00:03:46 concerning risers accessed by fire services the new lower level and means of escape

00:03:51 of escape and he again accompanies studio e and max fordham to one further meeting with building control in september 2013 which concerned layouts on the lower floors and smoke ventilation

00:04:03 floors and smoke ventilation he had a number of discussions with mr soons in that month and again into into november 2013 again primarily in relation to lower floor layouts staircase access and smoke ventilation

00:04:15 staircase access and smoke ventilation issues

00:04:17 issues those conversations led to issues two and three of his report and also his offering that colleagues would carry out a computational fluid dynamic study for the new smoke control system though in the event kctmo max fordham chose to go

00:04:30 the event kctmo max fordham chose to go down a different route that aside exxon were not invited to any other meetings before ryden were appointed

00:04:38 appointed at the end of march 2014 nor to any that took place after ryden were appointed these points are not disputed i repeat the only meetings that xover attended or

00:04:49 the only meetings that xover attended or to which they were invited between the end of stage c on the 31st of october 2012

00:04:55 2012 and the end of the project in july 2016 with two meetings with building control in november 12 and september 13. that objectively is a very striking fact

00:05:07 that objectively is a very striking fact whilst the appointment of ryden as dnb contractors was an important event in the history of the project the facts just referred to show that in truth throughout the project even prior to ryden's appointment xover were not

00:05:20 ryden's appointment xover were not actively involved by the design team and indeed mostly left to one side in the project development of the facade so far i have referred to meetings but the same theme holds true critical

00:05:32 the same theme holds true critical information and design documents they were simply not communicated to x over who were ignored for example in the summer in the summer and autumn of 2012

00:05:43 and autumn of 2012 studio e had detailed discussions with max fordham in connection with thermal insulation performance and choice of insulating materials but

00:05:52 but even though they were discussing other fire strategy issues with exo at around the same time they sought no input on fire issues in relation to the facade through much of 2013 cladding materials

00:06:05 through much of 2013 cladding materials were discussed between kctmo studio e artelia ledbitter cep and subsequently harley the contents of those discussions were never communicated to x over nor even the fact

00:06:17 communicated to x over nor even the fact that those discussions were taking place specifications for the proposed cladding system with details of the proposed materials and and provisions with respect to compliance

00:06:28 provisions with respect to compliance including fire compliance were set out in the crucial nbs documents these were compiled entirely by studio e who never saw xover's input xover never received a copy whether in

00:06:40 xover never received a copy whether in draft or final form likewise no part of the employer's requirements for the tender of the dnb contract was ever communicated to x over nor were any details of the tender

00:06:52 nor were any details of the tender responses provided for evaluation or comment even though xover's own feed proposal had offered to assist in dealing with issues that appeared during the tender review process x over in other words was left out of

00:07:05 x over in other words was left out of the entire tender process and throughout that period we're asked only one isolated query by mr wreck which i'll touch on later then there is the crucial decision to

00:07:17 then there is the crucial decision to change the cladding materials to incorporate rayna bond pe 55 acm rainscreen panels and sell at xrs 5000. that decision made between ryden kctmo studio e and

00:07:31 made between ryden kctmo studio e and harley was not communicated to x over much less where they consulted on these matters

00:07:37 matters nor for that matter the later decision by ryden and harley to include kingspan k15

00:07:43 k15 in addition to or in substitution for celitex rs5000 this is quite contrary to what has been suggested yesterday that xover was appointed with full

00:07:54 that xover was appointed with full knowledge of the materials in parallel was the process of the full plans application for building regulation approved followed by the s1 and s2 applications all made by ryden through studio e

00:08:07 all made by ryden through studio e without x over being invited or expected to play any part indeed there were numerous occasions over the course of 2015 to 2016 where the tmo consulted ryden and ryden

00:08:20 the tmo consulted ryden and ryden consulted rbkc and other parties on fire-related matters xova were neither included in nor consulted about these meetings as

00:08:31 as barbara lane now uh category catalogues in her engineering fire engineering response of paragraphs 11-79-11-91

00:08:40 again these points are undisputed and again they are very striking this was supposed to be a coordinated design team pretender tmo assigned that

00:08:51 pretender tmo assigned that responsibility of coordination to studio e as lead consultant studio e needed therefore to consider what specialist did what they needed particularly given the gaps in their own experience and to instruct their

00:09:03 experience and to instruct their specialist consultants accordingly later ryden had overall responsibility for coordinating the project and used cdoe to coordinate the application for building regulation approval

00:09:15 building regulation approval again the position is compounded worsened after ryden's appointment because notwithstanding their duty to procure all the relevant forms of specialist expertise

00:09:26 specialist expertise their lack of any specialist expertise themselves the obvious need is a result to have somewhere post-contract team to which every one of the specialist responsibilities could be properly and clearly allocated

00:09:38 clearly allocated their obligation to complete the work in progress that comprise the employer's requirements including under their contract the advice given up to that point by xover ryden consciously and deliberately

00:09:50 ryden consciously and deliberately decided not to appoint x over or for that matter any other fire consultant as part of the design team but instead as confirmed to mr suns in or about march 2014 to rely on the

00:10:03 or about march 2014 to rely on the architect specialist cladding contractor and building control to secure compliance with the building regulations this was despite six attempts post their appointment to persuade ryden

00:10:15 post their appointment to persuade ryden to use xover or a fire consultant it was no longer possible from march 2014 onwards for xoba's formal engagement to continues had been they ceased their office to be or to be

00:10:26 ceased their office to be or to be thought of as part of the grenfell tower project team and no attempt was ever made to integrate a x over into that team all the development of the project and it is worsened yet further by the

00:10:38 and it is worsened yet further by the fact at least so far as the facade is concerned the whole question of regulatory compliance seems to have fallen between the cracks at an organizational level ryden failed to ensure that a design responsibility

00:10:50 ensure that a design responsibility matrix was established and maintained to provide the record that required certainty of responsibility for the remaining design and build activities and highlight any gaps notionally studio e accepted contractual

00:11:03 notionally studio e accepted contractual responsibility for compliance but they did so retroactively near the end of the project having hitherto apparently believed that their responsibility was only to check the contractors designs by reference to

00:11:14 contractors designs by reference to conformity with architectural intent the overall evidence showed that every one of the participants in the facade package believed that responsibility for compliance

00:11:25 compliance did not rest with them so i turned then to dr lane's evidence we have in our written submissions made a number of criticisms of dr lane's evidence i will for the most part not

00:11:37 evidence i will for the most part not repeat them now though we firmly maintain them for the reasons we've set out what i seek to do here is to develop certain important points on dr lane's criticisms and conclusions

00:11:49 on dr lane's criticisms and conclusions the three versions of dr lane's report each have over 300 pages of minute analysis and critical statements i'm going to focus on three highly significant paragraphs which were

00:12:00 significant paragraphs which were introduced in the second version first two are as follows and i'm using the final version as the reference point paragraph 9.1.34

00:12:12 paragraph 9.1.34 it is very important to acknowledge the change from zinc to acm and it is correct that a xobo would not ask for their opinion about this change as i read the evidence available

00:12:24 as i read the evidence available 9.1.41

00:12:26 9.1.41 i can stand i can understand why before 18th september 2014 it could be said that xover may not have read or proactively sought relevant information about the external wall build up upon

00:12:38 about the external wall build up upon which to base their fire strategy although it i do not consider that it was reasonable for x over not to have taken steps to understand that before then

00:12:46 then i'll come back to that comment at the end about what dr lane believes should have been done she said more about that in her oral evidence but from the rest of those two paragraphs we take these points

00:12:57 paragraphs we take these points first

00:12:58 first the decision to change materials from compliant zinc honeycomb rain screen cladding c lane 9.1.37

00:13:07 9.1.37 to the acm which was the critical reason for the spread of the fire was in itself and obviously a very important step in the exterior cladding at grenfell tower so too was the fact that that decision

00:13:19 so too was the fact that that decision was undertaken without any reference to x over or any other fire consultant conversely it is professionally understandable why at least up to 18 november september 2014 xoba was not

00:13:32 november september 2014 xoba was not aware of it had not read about and did not proactively seek information about the proposed build-up of the external wall

00:13:40 wall this is a crucial issue these are crucial concessions this was a cladding fire it happened because of the choice of materials and what dr lane concedes from conversion to onwards is that x over a were not aware

00:13:53 onwards is that x over a were not aware of the choice of brain screen and b as we shall demonstrate from her oral evidence very shortly were not obliged at the time it was chosen to look into the choice of insulation

00:14:04 the choice of insulation that brings me to the third paragraph which is this 9.1.42

00:14:10 9.1.42 but it is clear that on 18 september 2014 the

00:14:15 2014 the data sheet was sent to terry ashton and he responded to that email now that is expressed in a very guarded and selective way it is an example one could say of

00:14:27 it is an example one could say of seeking to wound but fearing to strike implying without actually saying so one that xover knew that the insulation was celetex when that is not the case

00:14:38 celetex when that is not the case and two

00:14:39 and two that mr ashton responded to or commented on the data sheet which he didn't i'll come back to those points later but what matters for present purposes is that it illustrates dr lane's focus from

00:14:51 that it illustrates dr lane's focus from her second version onwards on acm not on acm forgive me but on celetex as the main basis for criticism of x over this is confirmed in dr lane's comments

00:15:03 this is confirmed in dr lane's comments on mr ashton's responses to questions asked of him after ryan's appointment and her conclusions both of which i deal with separately later it is also necessary at this point

00:15:14 it is also necessary at this point to refer to dr lane's oral evidence at day 61 and 62 to examine what her i will call up-to-date evidence is on the actions of a reasonably competent

00:15:25 on the actions of a reasonably competent fire engineer in the period 2012-2015

00:15:31 first the stage

00:15:33 the stage sorry

00:15:36 yes following on from dr lane's evidence that contrary to what studio e expected x over ought to have analyzed the information in stage c report her evidence in the witness box was

00:15:48 evidence in the witness box was nevertheless much more limited she says this i think the minimum i would expect a fire engineer in that year that was 2012 to notice

00:15:58 to notice was some type of surface some type of insulation being applied on every story and nothing further the minimum would have been the building is being overclad on every story

00:16:09 is being overclad on every story some materials are fixed some materials are not yet fixed here are the performances as a minimum before the grenfell fire no i would not have expected them to take any further

00:16:21 have expected them to take any further step regarding satisfying themselves about products i want to be absolutely clear on that secondly

00:16:30 secondly references made to the course of action that should have been taken in the absence of much information having been made available to xover that dr lane said was to set out as an

00:16:41 that dr lane said was to set out as an absolute bare minimum the statutory guidance for insulation cavity barriers and the external surface if you're not if you're given no drawings whatsoever about the overclouding and that has happened many

00:16:52 overclouding and that has happened many times the best thing left for you to do professionally is to simply state the statutory guidance minimum requirements thirdly and in the same vein how issue 2

00:17:05 thirdly and in the same vein how issue 2 of xo's report in october 2013 should have addressed b4 if they still felt they had limited information as to the proposed changes to the exterior which refers to section 12 regarding the

00:17:17 which refers to section 12 regarding the construction of the external wall bare minimum writing down the minimum performance requirements for each of the layers so that's the bare minimum not bringing in any post grenfell levels of

00:17:28 bringing in any post grenfell levels of detail

00:17:31 then as to what should have been done in relation to materials three points question would you expect any kind of analysis of materials at this stage answer we're in 2013 now i'm not going

00:17:45 answer we're in 2013 now i'm not going to say that they should automatically have read up about celetics because i know that wasn't very common practice at the time okay that's why i'm just keeping on saying writing down the recommendation or the requirements in approved document of b

00:17:57 requirements in approved document of b is the bare minimum so just that statement is the minimum piece of professional guidance i would have written down in the far strategy and if one had noticed celetex in the stage c report it would have been an

00:18:09 stage c report it would have been an extra step at that time to explore what that meant some professionals would have done

00:18:15 done some professionals would not and in answer to a question from the chairman

00:18:20 chairman dr lane confirmed that she meant by her expression some reasonably competent professional professionals later

00:18:29 later she said that 2013 14 and 15 was a very complex time and finally i'm still not going to say the bare minimum for mr ashland to take

00:18:40 the bare minimum for mr ashland to take out the celetex brochure or get some reports i'm still not going to say that at this moment in time while dr lane gives the example of celetex their evidence is in relation to materials or products generally

00:18:53 materials or products generally and therefore applies just as much to rayna bond acm there are other examples of dr lane accepting that fire engineers did not need nor was it their normal practice to

00:19:04 need nor was it their normal practice to deal with materials version one of her report at page 251 makes the statement in line with that importantly

00:19:15 importantly nowhere in her oral report in her reports or her oral evidence does lay dr lane explicitly or even implicitly criticize mr ashton but not having noted or advised on the proposed use of acm

00:19:30 or advised on the proposed use of acm i've already referred to her statement that it's very important to note that they were not consulted about the acm change then zinc proteus hr on its own

00:19:41 change then zinc proteus hr on its own was class 0 hence complied with diagram 40 of adb 2013 for use in a building above 18 meters in height paragraph 9.1 9.1.37

00:19:54 meters in height paragraph 9.1 9.1.37 i don't want to say that i would immediately have expected terry ashton to have noticed aluminium and to have done something else that day the fact that they're referring to an email in a chain relating to the 31st of

00:20:06 email in a chain relating to the 31st of march advice mentioning acm

00:20:10 acm cassettes

00:20:14 forget the aluminium concerns these comments reveal an important limitation on dr lane's views she's not saying that a reasonably competent fire engineer ought to have made inquiries as to the material being used

00:20:26 material being used not even that had ex overseen products and materials actually mentioned in a design or specification they should have investigated them and expressed an opinion on whether or not they were compliant

00:20:38 compliant rather the supposed obligation of the reasonable professional was simply to have set out or written down the recommendations or requirements of adb2

00:20:48 adb2 or the performance requirements or even just the outline performance requirements writing down whether it means setting out the relevant provisions of adb2 or referring

00:21:00 relevant provisions of adb2 or referring to them

00:21:01 to them or identifying the relevant paragraphs in itself seems a surprisingly basic task and one which is little utility until it can be coupled with practical advice in connection with the particular

00:21:13 advice in connection with the particular proposed materials indeed until that point it risks being positively unhelpful given the acknowledged ambiguities of adb2 and its diagrams 40 and 33.

00:21:25 diagrams 40 and 33. that is something that the fire engineer can only do once they're given materials to comment on dr lee lane accepts that doctor mr ashton was under no obligation to investigate inquire and pursue that

00:21:37 investigate inquire and pursue that point

00:21:38 point in any case this supposed duty to write down the performance requirements runs up against the expert evidence in relation to the professionals who would receive that advice

00:21:49 receive that advice mr hyatt is entirely clear that an architect had no need for such advice in mr hyatt's words it was specialist fire engineer

00:22:00 specialist fire engineer should not normally be required to assist an architect in interpreting and applying the guidance of adb2 with respect to specifying the materials within and designing the arrangements for an external wall or over cladding

00:22:13 for an external wall or over cladding system is applied in an external wall entirely clear we say and we also say clearly right that is in contrast with dr lane's or evidence

00:22:24 evidence which was notably variable and indeed unsure about when the practice of checking materials developed into a professional practice or even duty was it 2013

00:22:36 was it 2013 2014

00:22:38 2014 2015 or after grenfell that confusion makes it very difficult to be sure of the ground on which rests the alleged criticism for supposed omissions on any of the particular

00:22:50 omissions on any of the particular occasions

00:22:52 occasions the opportunities which doctor as dr lane refers to them in paragraph 9.1.25

00:22:59 9.1.25 and there's another point because you'll remember what i said that i would return to dr lane's uh statement about that her views and notwithstanding that she could

00:23:10 views and notwithstanding that she could understand the point she thought that it was unreasonable for uh xover to have taken so long i would say that the practice that she describes and the duties which she

00:23:21 describes and the duties which she describes

00:23:23 describes demonstrate entirely why it would be understandable by a professional body of opinion

00:23:29 opinion they hadn't investigated proactively the materials or read up about them entirely explicable her point of view on the other hand also her view that it was unreasonable

00:23:41 also her view that it was unreasonable for them not to have seems to be to be inconsistent with the evidence she's actually given already about what the practice was despite accepting that mr ashton was not

00:23:52 despite accepting that mr ashton was not aware of the proposed use of acm nor obliged to make inquiry about acm or celetics nor obliged at that stage to comment on the proposed choice of materials generally the view in dr

00:24:03 materials generally the view in dr lane's report in its second and third versions

00:24:06 versions is first that the use of celetex nullified the compliance of the external wall assembly because it was not a product of limited combustibility and secondly that therefore regardless

00:24:18 and secondly that therefore regardless of the surface material paragraph

00:24:21 paragraph 1.3.1.4

00:24:23 1.3.1.4 of xover's fire strategy no adverse effect was quite simply always wrong that statement is not correct for two reasons

00:24:33 reasons first it ignores and not for the only time the express reservation which follows the partial quote the proposals provided to mr ashton when she was asked to base his report did not

00:24:46 she was asked to base his report did not yet include anything that had an adverse effect on external fire spread the position as he said needed to be confirmed in a later report secondly since as dr lane express

00:24:58 secondly since as dr lane express expressly accepts professional practice did not require mr ashton to check materials at that stage it was not wrong at that stage to give that opinion subject to those qualified terms so that

00:25:10 subject to those qualified terms so that it could be revisited and confirmed later as appropriate i've already mentioned that as a result of the limited view doctor lane takes of the fire engineer's duties she nowhere criticizer for a failure to comment on

00:25:23 criticizer for a failure to comment on the rain screen panels the closest dr lane comes to criticize exodus but not commenting on the suitability of the particular materials is on the basis of her implying that mr ashton knew the product was celetex

00:25:35 ashton knew the product was celetex because he was sent a data sheet identified that is wrong both factually and conceptually as we explain when we visit in more detail the email exchanges of the 18th of september 2014.

00:25:49 the 18th of september 2014. turning to first principle we seem to arrive at the point where dr lane's entire case appears to be that xover failed to set out or write down the provisions of adb

00:26:01 out or write down the provisions of adb paragraphs 12.5 to 12.9 aside from whether that really ought to have been a task for a fire consultant advising an architect and the expert architect says not as already quoted one

00:26:13 architect says not as already quoted one has to ask what difference it would have made

00:26:16 made there are problems with adb2 including diagrams 40 and 33 and their annotations which merely citing it will not cure the manufacturer's claims as we know are calculated precisely to deceive people

00:26:29 calculated precisely to deceive people into believing that their products did indeed comply with those requirements in any case the die was cast the materials were selected for cost reasons without compliance ever being

00:26:40 without compliance ever being meaningfully considered by any of those who made and implemented and oversaw those selections even before the contract was let there have been a steady and increasing pressure to use cheaper alternatives to

00:26:52 pressure to use cheaper alternatives to zinc notably acm in order to meet kctmo's budgetary challenges it started in early 2003 with the commencement of a period of value engineering initiated by ledbetter

00:27:05 engineering initiated by ledbetter or about march 2003 mr suns met cep and discussed acm in april harley came on the scene and in september 2003 had a meeting with studio

00:27:16 september 2003 had a meeting with studio e at the hayes galleria at which harley began to mention acm relying in part on there having used it in so many other projects

00:27:25 projects in october harley provided studio e with a budget spreadsheet and followed that up by a further spreadsheet indicating that the choice of rayna bond could save up to 500 000 pounds

00:27:37 up to 500 000 pounds harley further stated that from a highly selfish point of view they would prefer to use acm kctmo became involved in the specification and mr madison wanted acm

00:27:50 specification and mr madison wanted acm alternatives to be included in the nbs which they were harley had worked with ryden on high-rise projects in particular the chale gods estate at which acm was used

00:28:02 chale gods estate at which acm was used harley then used ryden then used harley to assist in their tender submission by the provision of figures and again for their secret negotiation with kctmo to reduce the tender price

00:28:14 with kctmo to reduce the tender price by 31st march 2014 it was a foregone conclusion that the cladding would be acm

00:28:20 acm motivated by cost and nothing else ryden then assisted in presentations to rbkc planning spanning supporting the change to acm harley were persuaded directly by

00:28:31 harley were persuaded directly by celetex to use celotex rs 5000 insulation studio e kc tmo ryden harley all approved the use of these materials in the summer of 2014.

00:28:43 the summer of 2014. studio e seemed to have gone along with the proposal and approved the final cladding design without getting to grips with the issue or seeking any independent advice about the suitability of the proposed materials

00:28:55 of the proposed materials not once over the 20 months period of this groundswell in favor of using acm not once did they ever inform xover about the proposal and actual selection of materials

00:29:08 in november 2013 the structural engineers curtains provided to artelia and studio e a structural specification for the exterior works it listed

00:29:19 for the exterior works it listed regulations and guidance applying to all aspects of the work is included in that list a recommendation to follow bre-135 clearly the design produced for grenfell

00:29:30 clearly the design produced for grenfell tower did not follow that advice that provides material evidence of the fact

00:29:36 fact that even if advice had been given citing regulations or sections of adb it is far from a probability that such advice would have been followed or even given adv's confusions that it would have been understood

00:29:48 have been understood we know moreover that they're considered to be scant regard for post-compliance post-contract compliance even though the facade section of the nbs required not only compliance but documentary evidence

00:29:59 only compliance but documentary evidence of compliance no such evidence was ever requested or provided

00:30:05 then turn to the individual questions put to x over in relation to cavity barriers on three occasions pre-contract i mentioned earlier that

00:30:16 pre-contract i mentioned earlier that during the pre-contract period exogenous was asked only once about anything to do with cladding that was on the 4th of november 2013 when mr wreck inquired can you please

00:30:27 when mr wreck inquired can you please confirm that the rain screen cavity barriers ought to be 60 minutes far resistance to match the computation this was a single and very narrow request to which mr ashton replied

00:30:38 request to which mr ashton replied thomas cavity barriers need only have a 30 minute fire resistance that was the sum total of the interaction the answer was correct but it is also the case that the standard for cavity

00:30:50 the case that the standard for cavity barriers under adb2 is uniform see appendix 1 line 15. in her report at page 277 dr lay made some semantic criticisms but in oral

00:31:01 some semantic criticisms but in oral evidence accepted that doctor that mr ashton had said that he could have said we then need to look at the uh post write an appointment ad hoc questions

00:31:13 write an appointment ad hoc questions there are then two queries a few months apart raising ad raised ad hoc during the writing period both on equally narrow points 18th of september 2014.

00:31:27 18th of september 2014. on the 17th of september 2014 mr ann catel jones of harley emailed studio e mr crawford with a request for information concerning the location of fire breaks

00:31:38 concerning the location of fire breaks at compartment floor level we believe that they he said horizontal fabrics will be required at every floor level on the vertical columns but not in the area of cladding between windows

00:31:51 the area of cladding between windows this is because there is no chimney effect here it's difficult to resist the inference that this was a cost-saving issue for harley however that may be the question was a narrow one it was not a broad

00:32:02 was a narrow one it was not a broad raging issue broad ranging issue about cavity barrier design or performance but a simple do we need to put horizontal cavity barriers at the floor level between the spandrels the history is

00:32:14 between the spandrels the history is then this

00:32:16 then this mr crawford forwards did the rf item mr ashton on the 18th ask the question to mr ashton do you believe the interpretation to be correct mr ashton responded saying

00:32:29 to be correct mr ashton responded saying correctly i've never seen details of what you're doing to the external wolves do you have any cross-sections or elevations mr crawford replied forwarding harley drawings which he said are fairly

00:32:41 drawings which he said are fairly limited on those drawings insulation is depicted but not identified mr ashton responded if the insulation is combustible you will need to provide a cavity barrier in order to prevent fire

00:32:53 cavity barrier in order to prevent fire from spreading from one flat to the one above and that reply was then sent back to mr ankertel jones now at this point we accept that there's scope for criticism at the time

00:33:05 scope for criticism at the time insulation could be combustible provided it was classed as limited combustibility but more to the point the cavity barriers were necessary in any event

00:33:16 barriers were necessary in any event the exchange continued mr ankadil jones responded to mr crawford dear neil thank you for your response the insulation is class zero therefore after reading the correspondence below

00:33:28 correspondence below i believe that the fire barrier in these locations will not be necessary can you confirm that this is acceptable that email was forwarded to mr ashton mr crawford asked terry is this

00:33:41 mr crawford asked terry is this interpretation correct see below that was mr ankitel jones email

00:33:46 email mr ashton in response made two points firstly he said that class zero is not necessarily non-combustible secondly that in any case you need to

00:33:57 secondly that in any case you need to prevent far spread from one flat to the one above as i stated in my earlier email

00:34:02 email so mr ashton ended up admittedly by an erratic root in the right place he did not give a textbook answer there was a slip in his working but the answer he gave to the question he was asked is

00:34:14 he gave to the question he was asked is the right one contrary to harley's suggestions gut suggestion cavity barriers were indeed needed now dr lane tries to take an entirely separate point from this exchange and to

00:34:25 separate point from this exchange and to elevate the 18th of september 2014 on the basis of this narrow query into a date of central importance what nobody mentioned at the time was

00:34:36 what nobody mentioned at the time was that mr ankertel jones emailed to mr crawford in which he described the insulation's class zero and argued that this meant there was no need for a carrying a cavity barrier had a document attached to it

00:34:47 attached to it mr crawford does not recollect reviewing the attachment and it is open to doubt that he even noticed it at the time the contents of the attachment related to celetex insulation though that was not mentioned in or

00:35:00 though that was not mentioned in or apparent from any of the emails in the chain nor from the name of the attachment neither mr ancatel jones nor mr crawford referred to an attachment or asked about it or made any mention of celetex

00:35:13 it or made any mention of celetex mr ankertel jones made a general proposition mr crawford asked if it was correct mr ashton correctly said that it was not he had no need to open any attachment not even to note that there was one his

00:35:25 not even to note that there was one his answer did not depend on the contents but only on the question it is clear though that mr dr lay now regards

00:35:34 regards now relies upon this interchange as the main thrust of her criticism of exodus conduct in connection with the external cladding

00:35:41 cladding this can be seen in several quotations from her report nine point one point twenty six the evidence that terry ashton was sent the solatex rs 5000 data sheet is

00:35:53 solatex rs 5000 data sheet is particularly relevant 9.1.38 the fact that celetex rs 5000 was not a material of limited combustibility nullified the compliance of the external

00:36:05 nullified the compliance of the external wall assembly therefore regardless of the surface materials section 3.1.4 will have no adverse effect statement was quite simply always

00:36:16 statement was quite simply always incorrect

00:36:18 9.1.42 but it is clear that on 18 september 2014

00:36:24 2014 the celetex datasheet sheet was sent to terry ashton and he responded to that email

00:36:32 9.1.43 therefore x server's reports and their email guidance fundamentally failed to consider the implications of the cladding design on the life safety of occupants of grenville tower

00:36:45 14.1.46 even when on 18 september 2014 terry ashton was directly asked to comment on concerns about cavity performance and the scent drawings he fails to communicate correctly the performance

00:36:57 communicate correctly the performance required necessary to satisfy b41 i note that mr dashan was specifically sent to dated 14.1.48 i note that mr ashton has specifically

00:37:08 i note that mr ashton has specifically sent a data sheet of celetex rs5000 insulation by email which stated that it only related to the comments details and that any changes would need to be considered by the building designer a

00:37:20 considered by the building designer a caveat that mr ashton did not raise with the design team 14.1.62

00:37:29 14.1.62 18 september was a point in time when a detailed fire strategy which xover had themselves proposed was needed and could have been successfully put together by them

00:37:41 them this is layer upon layer built on a slender foundation mr ashton was not specifically sent a data sheet it was happened to be silently attached and he was never asked about it

00:37:54 and he was never asked about it certainly he responded to an email but the question he asked answered was nothing to do with celetex or the data sheet and so neither was his answer the question was not a concern about cavity

00:38:06 question was not a concern about cavity barrier performance but simply a query about the need for cavity barriers in a particular location his answer was not a fundamental failure to consider life safety it was a correct

00:38:18 to consider life safety it was a correct response to the questions that he had been specifically asked since there was no need for mr ashland to read the unmentioned state on unmentioned attachment still less can he

00:38:30 unmentioned attachment still less can he have been under a duty to flag up the caveats within it which in any case would be on the scope of the question he was being asked the implication in almost all of the passages just quoted from dr lane's

00:38:41 passages just quoted from dr lane's report is that mr ashton knew that the product was celetex and is a leap without foundation in the evidence starting with what i described

00:38:52 starting with what i described as the seeking to wound but fearing to strike

00:38:55 strike nowhere

00:38:56 nowhere even in any of these many quotes does she actually say that mr ashton read the attachment or even actually expressly that he should

00:39:08 even actually expressly that he should have

00:39:09 have on 18 september mr ashton was proposed a narrow ad hoc question to which studio e wanted an answer he was not then or at any point thereafter asked for or expected by

00:39:21 thereafter asked for or expected by anyone to produce a further iteration of the fire strategy report nor was he given comprehensive up-to-date material on the project as a whole which he would have needed for a further

00:39:32 further full report the limited intervention was all that was requested and all that he held himself out as providing we then go to the 31st of march of 2015.

00:39:45 we then go to the 31st of march of 2015. in late

00:39:46 in late in late march 2015 a dispute developed between harley ryden and siderise on the one side and building control on the other side as to whether at compartment floor level adb2 required the gap

00:39:58 floor level adb2 required the gap between the fire that had a compartment floor and the external cladding to be fire stopped for 120 minutes on whether the detail was a cavity barrier 30 minutes integrity and 15 minutes

00:40:09 minutes integrity and 15 minutes insulation siderise had advised that the cavity barrier argument was correct mr hoban of rbkc had however concluded that firestopping was necessary because the detail as he said between the

00:40:21 the detail as he said between the compartment floor and the existing padding was not a cavity barrier on 31st march 2015 mr crawford shortly after strongly siding with harley and ryden's argument asked mr ashton to

00:40:33 ryden's argument asked mr ashton to comment on the dispute in describing this situation dr lane said at day 62 we now see entering the narrative here a confusion about the difference between a

00:40:45 confusion about the difference between a fire stop and a cavity barrier and we see someone who understands that fully and the primaries and we need someone here who understands that fully and the primary issue here is a lack of

00:40:56 primary issue here is a lack of understanding about the difference between a fire stop and a cavity barrier but again this is wrong there was no confusion on the part of the ryden design team who all correctly

00:41:07 the ryden design team who all correctly believed and had argued that the detail compartment law level was a cavity barrier not a fire stop the question was narrow and purely binary either the requirement was

00:41:18 purely binary either the requirement was for a fire or it is for a cavity barrier the design team all thought it was for a cavity barrier mr ashton swiftly agreed with them he was right

00:41:29 with them he was right mr hoban retracted his previous opinion the next day he did so probably on the basis of mr crawford's email there's no evidence that mr ashton's note was ever forwarded to him

00:41:40 to him no broader issue arose on the emails and no drawings accompanied the queries to draw attention to a wider issue accepting that mr ashton's answer was correct

00:41:50 correct dr lane nevertheless criticized him on other bases to other bases first mr comet ashton's comment that zinc cladding would fail in external flaming but again it is correct

00:42:03 external flaming but again it is correct as a statement of fact that the zinc panel would deform and potentially detach in that scenario indeed mr ashton's view was confirmed separately by mr pearson who explained in his oral evidence that

00:42:15 who explained in his oral evidence that this was a known and accepted risk with individual panels this evidence was given at day 19 page 178 to page 181 his evidence has not on that issue has

00:42:27 his evidence has not on that issue has not been challenged secondly mr ashton's comment in passing that this was not something that would necessarily form part of the strategy dr lane says was

00:42:38 part of the strategy dr lane says was entirely wrong in life to give at that time and remain so in his oral evidence mr ashton accepted that he was that he was wrong in the way he had expressed it and explained how he was dealing with a slightly different

00:42:50 was dealing with a slightly different point meaning simply that a biased church he would not normally include a detailed commentary on whether adb required cavity barriers or fire stops in this location in any event he answered the question

00:43:02 in any event he answered the question that was asked and dr lane's report acknowledges that he answered it correctly so nothing at all turns on that comment i now raise a separate issue about

00:43:13 i now raise a separate issue about cavity marries which has emerged in the course of module two and that is the question of the efficacy of carrot cavity barriers generally in rain screen

00:43:24 cavity barriers generally in rain screen cladding it has nowhere been suggested that studio e or harley were wrong to include cavity barriers in the design of the building at all or that exodus were wrong to advise that they should be

00:43:35 wrong to advise that they should be included all the cavity barriers actually installed were not compliant with adb so many were poorly installed and

00:43:44 and there there were and there were gaps as to where they should have been inserted rather the complaint against xover is that they did not when considering the ad hoc cladding questions in september

00:43:55 ad hoc cladding questions in september 2014 and march 2015 point out that cavity barriers were required around the windows whether they should have done so is of course bound up with exodus responses to the questions asked which we've already

00:44:07 the questions asked which we've already dealt with over and above that though there is a particular causation which is important to note

00:44:13 to note on any view xover were not responsible for designing the windows their shape size or location addicts over not had x over advised in broad terms on the requirements of adb2

00:44:25 broad terms on the requirements of adb2 it would not have needed to be much more extensive than confirming that openings including windows were to be required to be closed by cavity barriers with 30 minutes fire resistance and 15 minutes insulation

00:44:37 insulation had they been asked to review a plan draw up by harley in studio e it would have been sufficient to have an indication eg a thick or dotted line or a yellow circumference around the

00:44:48 or a yellow circumference around the windows as shown on mr hyatt's diagram at page 42 44 of his main report figure 3.16 that would have demonstrated

00:44:59 figure 3.16 that would have demonstrated the intended compliance with adb2 diagram 33. as dr lane herself acknowledges detailed drawings and specifications are for others not the fire engineer and while a

00:45:10 others not the fire engineer and while a fire engineer formulates a package of pretension and measures many other parties then take on the responsibility of the detailing of any active and passive protection measures required the construction of those measures and so

00:45:22 construction of those measures and so the quality of what is ultimately built in other words any elaboration of the design would be for others once the intention to provide cavity barriers was adequately demonstrated but the even broader question is whether

00:45:34 but the even broader question is whether given the actual complexity of the construction arrangements it would even have been possible to design a cavity barrier system that would have been effective at the very least it

00:45:45 been effective at the very least it would have been exceptionally challenging in phase one professor bisbee and dr lane concurred that the particular conditions of dr granville rendered that almost impossible

00:45:56 almost impossible professor bisbee bisbee said to be honest and i've thought about this i'm not sure how one would put a cavity barrier around walls installed in this manner it's an almost impossible question to answer because i can't

00:46:07 question to answer because i can't imagine how one would actually achieve what one is attempting to achieve by putting a cavity barrier around the window dr lane echoed that stating the voids around the window and then the

00:46:18 voids around the window and then the voids into the main chatting are very complex and interconnected question is what you are saying that is not obvious how you could have provided clarity barriers with that kind of arrangement answer

00:46:30 arrangement answer exactly in fact i've spent a lot of time trying to work out how one could in her module one evidence dr lane or in oral evidence was similarly

00:46:42 or in oral evidence was similarly cautious

00:46:44 cautious she said so i don't even want to get into if the cavity barriers had been there could something else have happened question you are clear are you that cavity barriers can be effective around

00:46:55 cavity barriers can be effective around windows even in a rain screen system answer no i've never said that and i'm not going to say that now in his phase 2 report mr hyatt offered

00:47:06 in his phase 2 report mr hyatt offered his view of how a system could be designed though he describes it as an outline it is extremely bespoke and goes much further than what would normally be described as a cavity barrier or fit

00:47:17 described as a cavity barrier or fit into what is contemplated by section 9.13

00:47:20 9.13 of adb

00:47:22 of adb having set it out mr hyatt is extremely careful not to assert that the scheme despite its complexity would be successful in containing fire stating that it would

00:47:33 containing fire stating that it would require considerable further input following dialogue with other special specialist consultants and the building control department in order to be developed into a robust scheme

00:47:44 developed into a robust scheme mr hyatt in oral evidence did consider that the complex scheme might have given time and insulation protection for some period although he could not be specific about it

00:47:53 about it the conclusion must be that it would take an exceptionally skilled article a long time to come up with such a scheme and that in any event its likely protective impact would have been at most speculative

00:48:05 most speculative also although for the reasons already stated mr art mr ashton's answers to the issues raised about the cavity barriers were correct and xover are not properly to be criticized for not going further

00:48:17 to be criticized for not going further even if they had gone further issues have arisen on the expert evidence as to a

00:48:22 a the effectiveness of character barriers as a matter of principle in rain screen systems

00:48:28 systems dealt with in the module two written closings

00:48:30 closings the protection of cavity window cavities in rain screen systems and especially in the configuration installed at grenfell tower which suggests that the escape of flames around the windows and into the cavities

00:48:43 around the windows and into the cavities could not have been prevented

00:48:46 i'd like now to move on to four other topics that have been the subject of some comment first of all exo was positioned after ryden's appointment first the impact of writing's

00:48:57 first the impact of writing's appointment in march 2014 from that point they had overall responsibility that covered the appointment of consultants and they elected not to

00:49:08 consultants and they elected not to appoint xover or any other fire consultant it included an obligation to complete outstanding points in the employer's requirements among them the statement that external fire spread was subject to confirmation in a further

00:49:20 subject to confirmation in a further report

00:49:21 report dr lane's review is that all this changed nothing merely to state that proposition begins to suggest its unreality and the facts bear that out first the starting point exoma's

00:49:33 first the starting point exoma's retainer letter recognized that the extent of any contribution that might be expected at the post-contract phase was uncertain

00:49:40 uncertain mr ashton's evidence uncontradicted was that it wasn't unusual for contractors simply to drop the fire engineer secondly the practicality mr hyatt recognized that post-novation

00:49:52 mr hyatt recognized that post-novation it would have been impracticable for exoma to provide such ongoing advice with no authority and no relationship xover was not in a position to simply muscle in and express views

00:50:05 muscle in and express views ryden controlled the project as a whole and within all the documents and designs and meetings and blows of information but a fire engineer would have needed to be part of it if it was to play a full role

00:50:16 role thirdly to knowledge and understanding of the parties at the time the tmo had appointed x over pre-contract post dmv award ryden told the tmo that it would look into the possibility of a

00:50:27 it would look into the possibility of a post-contract appointment implying a recognition by both that there wasn't one in place ryden having said that they would look into it

00:50:38 look look into it the batter being raised six at six meetings decided that they were not later in 2016 it was made clear to ms williams in the tmo that exodus strategy

00:50:49 williams in the tmo that exodus strategy was a pretender document not since updated and likewise it had been made clear many months previously building control that it had been overtaken by latest changes in the design

00:51:00 latest changes in the design when mr and mrs wilson wanted to excuse me

00:51:04 me sorry

00:51:05 sorry when miss williams wanted pharah twice her lack of no moment it was to ryden she turned not to x over

00:51:12 x over the tmo an active client involved in overseeing the project raised the issue with ryden then simply let it fall away and acquiesced in the none appointment of xover

00:51:22 of xover mr gibson and mr williams were clear that the purpose of exoma's engagement was to assist studio me apart from the existing building file strategy a separate agreement every fee

00:51:33 strategy a separate agreement every fee proposal fire strategy document and design note was addressed from x over to studio e

00:51:39 studio e there was no personal contact to speak of between xover and kctmo either before or after the appointment of writing the outline via strategy reports were read by mr suns but no notice was taken

00:51:51 read by mr suns but no notice was taken by any representative of ryden harley or kctmo

00:51:55 kctmo the fact that xover had been engaged to advise studioe explains kctmo's disinterest in the continuation of a contract with x over post ryden's appointment

00:52:06 appointment right from the start kctmo's own interest was in fire assessment reports it was their legal duty to obtain these under the rro regime and they've been using them for many years in managing

00:52:17 using them for many years in managing buildings

00:52:19 buildings fourthly the position in these proceedings the tmo acknowledges expressly in its written open submissions that x sober was part of the team pre-contract

00:52:31 team pre-contract but not post-contract though c.s stokes was

00:52:35 was they accept that it was up to ryden post-contract whether or not they wished to have

00:52:40 to have via consultant advice ryden's witnesses are clear about the parties on whom they rely not x over studio e

00:52:50 studio e know that ryden needed to engage x over if they were to remain part of the design team tmo ryden and studio e are the only parties who could conceivably have been party to an engagement with x-over and

00:53:03 party to an engagement with x-over and the fact that say a sub-contractor pulled or dropped a line to a fire consultant which had been involved on the project at an earlier stage on a matter of small detail on odd occasions spread over a two-year period can have

00:53:15 spread over a two-year period can have no bearing on x-over status whatsoever now dr lane makes two rather clumsy attempts to get around that first as well as recording some projects where she was motivated she says that on

00:53:27 where she was motivated she says that on occasion the employer chose instead to appoint her directly in either case though that required a decision here the tmo's decision was entrusted to

00:53:38 here the tmo's decision was entrusted to entrust the matter to ryden and ryden's decision was not to retain x over the fact that some of dr lane's clients may have made different decisions on some of their projects is neither here nor there

00:53:49 nor there likewise her having been appointed on other projects to review the employer's requirements to contractors or contractors proposals for employers as it happens it was envisaged in this project that consultants would be

00:54:01 project that consultants would be debated

00:54:02 debated has happened for example with studio e or reappointed on altered terms has happened with max fordham who made a an amended proposal in december 2013.

00:54:17 secondly dr lane lists everything that exoma did in the post-ryden period and tries to equate it with the work pre-writing but this is wrong two queries one about a stair event the

00:54:28 two queries one about a stair event the other about fire alarms were answered with a single sentence each three entries in dr nain's table were a single chain answered in one paragraph there were a couple of exchanges as we know in september and november 2014 in

00:54:41 know in september and november 2014 in relation to the plans for the lower levels so tying back to points that mr ashton had commented on previously the two cavity barrier queries again involved just one or two emails a piece

00:54:53 involved just one or two emails a piece after the second of those there was next to nothing else and that which was raised no new issues so we're talking about archetypally sporadic ad hoc questions

00:55:05 sporadic ad hoc questions hardly examples of ongoing involvement as part of a design team thus having already had but unlimited but a limited role pre-contract post-contract xoba were in a real and

00:55:17 post-contract xoba were in a real and definite way frozen out of the project next issue the scope of exo was duty after the write an appointment

00:55:28 write an appointment it is important to understand the implications for mr ashton's duty when as in september 2014 and march 2015 he answered an ad hoc

00:55:39 and march 2015 he answered an ad hoc question

00:55:40 question first complete responsibility for the project was vested in ryden and flowed down from there second large parts flowed for example to studio e across the whole project or

00:55:52 studio e across the whole project or hardly in relation to the facade and so on

00:55:55 on not so big silver what flowed from it from studio e to mr ashton was a handful of disparate discreet queries doubtless he was required as he accepted

00:56:06 doubtless he was required as he accepted in his evidence to take reasonable care when he answered a question in answering it

00:56:12 it but that cannot have been a duty beyond the question that had been asked to suggest otherwise is that odds with the reality of the project structure as everyone knew it to be certainly it would be neither fair nor

00:56:24 certainly it would be neither fair nor practical to suggest that he had in effect a choice between not answering the question at all or assuming responsibility for conducting a more right-winging and ranging analysis of the project the

00:56:35 ranging analysis of the project the cladding system as a whole by answering a narrower quest narrow question assuming in effect the same duties or role as a fully retained and active member of the design team

00:56:46 active member of the design team evidently nobody at the time understood x over to have been engaged any more broadly than the questions asked and for the reasons already discussed a full engagement was not something that ryden

00:56:57 engagement was not something that ryden sought

00:57:00 then the existing building fast fire strategy

00:57:04 strategy dr lane makes a significant number of points about the existing building far strategy

00:57:09 strategy the great problem with these apart from their intricate detail is that it is nowhere said with any clarity what precisely was the consequence of the emissions if indeed there was any

00:57:20 emissions if indeed there was any so for example much criticism was made of assumptions but all of them were stated clearly at the time and none of them has since been shown to have been wrong

00:57:31 have been wrong the central and broad complaint appears to have been that the report did not deal with obligations under the rrfso but that was the separate function under that order of a file risk assessment

00:57:45 that order of a file risk assessment the issues that needed attention to be drawn to at that very early stage in the process such as means of access means of escape smoke ventilation were indeed all flagged up and intelligently

00:57:58 indeed all flagged up and intelligently dealt with the smoke ventilation deficiencies and suggestions for that braiding the system were dealt with clearly at section 3.4 of the report the requirement for a fire

00:58:09 of the report the requirement for a fire lifting lift was far lifting their fighting lift was referred to and the need for investigations of one the separation of the risers ancillary accommodation entered directly of the fire fighting shafts and two the

00:58:20 fire fighting shafts and two the separation of the residential accommodation and non-residential accommodation but the central call were both clearly referred to

00:58:28 it is also worth noting that once a draft of the report was submitted the ball was in tmos court and the tmo seems to have been singularly disinterested mr anderson's evidence was that there

00:58:39 mr anderson's evidence was that there was no legal requirement for a part strategy and he did not read it his concern having been with the file risk assessment which was required it is unclear that any of his colleagues read

00:58:51 unclear that any of his colleagues read it either

00:58:54 the next term to the regulatory reform fire safety order 2005 we may return to that in module 3. the point for here is simply to correct the error in dr lane's approach

00:59:07 the error in dr lane's approach although dr lane places repeated emphasis upon the rfso in her report it is surprising how flimsy the legal basis is for the duties she alleges in her words a consideration of the rrfso is a

00:59:20 a consideration of the rrfso is a requirement of any fire safety strategy of any building to which the rrfso applies

00:59:28 applies she has

00:59:29 she has assumed that all this will form the basis of xover's scope of work and review dexover's fire strategy board report on this basis thus she says it was reasonable to

00:59:40 thus she says it was reasonable to expect that xover's report would set out any fire safety management duties on which compliance with building regulations relied and that any relevance to duties under the rfso be clearly considered and set

00:59:53 the rfso be clearly considered and set out by making final recommendations in a fire safety strategy now that on its face would cover all routine maintenance which the tmo is responsible person already knew about

01:00:06 responsible person already knew about maintenance it was already carrying out maintenance which was unaffected by the refurbishment that goes well beyond xover's fee proposal letters and well into the realm of the far-risk assessment and it is wrong

01:00:18 and it is wrong the starting point is the acknowledgement in paragraph 0.13 of adb that building regulations do not impose any requirements on the management of a building

01:00:29 building adb goes on to say that in developing a file spattered safety strategy designed for a building it may be necessary to consider the way in which it will be managed

01:00:39 managed explaining that a design which relies on an unrealistic or unsustainable management regime cannot be considered to have met the requirements of the regulations it therefore gives the

01:00:50 regulations it therefore gives the example of the design which might make a building's maintenance too difficult to be realistically managed there is nothing to suggest that this threshold is reached in the current case

01:01:01 threshold is reached in the current case essentially the management duties of the responsible person when no more odorous or unachievable after the refurbishment than they were before so dr layne has imposed into a report on compliance with

01:01:13 imposed into a report on compliance with the requirement of building regulations the subject that the guidance is quite clearly is not a requirement of the building regulations but which is covered quite separately in the far risk assessment

01:01:26 assessment then i turn to regulation 38. as to that regulation dr lane says it is my opinion that ixova committed themselves to providing adequate guidance on how to comply with

01:01:37 guidance on how to comply with regulation 38. in fact xover's feeds proposal did not refer to regulation 38. dr lane's proposition which relies on assertion rather than any regulatory

01:01:48 assertion rather than any regulatory provision binding or max over or any guidance saying more than that the fire strategy strategy report and drawings should be included as part of the regulation 38 information is not sound

01:02:01 regulation 38 information is not sound regulation 38 obliges the person carrying out the work in this case ryden to hand information over to the building's responsible person in this case kctmo

01:02:13 in this case kctmo xover's role was never to advise ryden on its obligations to kctmo the information must be handed over no later than the completion of the

01:02:24 over no later than the completion of the work

01:02:25 work in other words our iba stage k neither of exxon's fee proposals contain any reference to regulation 38 or any provision at all in relation be up to beyond raba stage f

01:02:37 beyond raba stage f beryl menzies explains that the relevant 2000 guidance indicates that compliance with regulation 38 involves assembling a package as built information

01:02:49 package as built information nothing even approaching material of the sort required under that regulation 38 existed at the time of any of xover's reports by stage k such information as xover had been given was far out of date

01:03:01 xover had been given was far out of date indeed in her own lengthy report on regulation 38 dr lane makes only passing reference to x over again dr lane should not be reading into a contract terms which are not there

01:03:12 a contract terms which are not there even if it were permissible to give an opinion for the reasons i have given the one she gives is wrong in any event having made the criticism in relation to regulation 38 at some

01:03:23 in relation to regulation 38 at some length

01:03:23 length dr lane's position in all evidence reduced to virtually nothing she was asked why she would consider it reasonable to have expected x-over to address regulation 38 when any handover

01:03:34 address regulation 38 when any handover was due to be at the end of the project and responded at day 61 so i think as a reputable fire engineering company they should raise the duty of others to comply with

01:03:45 the duty of others to comply with regulation 38 regardless of when that is going to happen so i'm being clear that the fire safety engineer must make other parties aware of their duty to comply with regulation 38 and when you're

01:03:57 with regulation 38 and when you're writing a feed proposal i would expect a file safety engineer to make clear that's a looming issue for them it's nothing more than that so this is a very very obvious odd obligation to tell other parties that

01:04:09 obligation to tell other parties that such a

01:04:10 such a that such a sorry that the duty that there will be a duty of which those parties are already aware sorry

01:04:23 sorry excuse me excuse me sir let me set

01:04:32 thank you thank you all right glad somebody knows how to use a

01:04:36 a used tech

01:04:37 used tech good all right carry on okay i've ready i'm ready to carry on means of escape there was some lengthy questioning on day 62 about the duty of a fire engineer to have regard to the interests of vulnerable disabled persons drawing up

01:04:48 vulnerable disabled persons drawing up fire strategies the high-rise residential buildings again this is an issue that we may come back to at module 3.

01:04:55 3. some criticism was apparently being directed at dick's over so after being taken to some of ixover's witness evidence on this issue dr elaine did accept that adb had no section which ex expressly dealt with the issue and she

01:05:08 expressly dealt with the issue and she did not suggest that there was any duty on a fire engineer other than to mention or consider the point it may very well be and we accept the law here should be different and the guidance clearer

01:05:20 guidance clearer but it is clear that on any practical analysis this is another issue that independently of the refurbishment was and is much more a metal matter for the responsible person under the rrfso

01:05:35 causation the issue of causation is notoriously difficult and i'm not going to get into a complex legal analysis but i do want to set out a common sense summary of what xover considers are from its

01:05:46 what xover considers are from its perspective important considerations on the chain on the development of an equalization argument starting point mr ashton's report was explicitly

01:05:57 mr ashton's report was explicitly caveated and so was not capable of being interpreted as an endorsement anything absent any analysis in a further report reliance the advice was not in fact

01:06:08 reliance the advice was not in fact relied on none of those involved in the selection of facade materials or the design of the science system had regard to mr ashton's report indeed it's not even clear that any of them other than mr soon had read it

01:06:21 mr soon had read it secondly responsibility mr ashton's report formed part of the employer's requirements under the dnb contract between kctno and dryden by a negotiated term of that contract

01:06:32 by a negotiated term of that contract ryden assumed responsibility for any emissions or errors deficiencies in the employer's requirement this was a stated emission ryden having been appointed in march 2014 specifically chose not to appoint

01:06:45 2014 specifically chose not to appoint xoba

01:06:46 xoba all of the departures from guidance breaches and building regulations were decided and implemented after that even if one looks back to earlier steps the considerations that took place before those decisions were made the

01:06:58 before those decisions were made the whole history leading to the selection of uncompliant materials is a narrative of steps by others without involving x over

01:07:06 over so

01:07:07 so pre-contract the consideration of alternative materials which might be substituting a compliant zinc protease range screen panels the inclusion of possible alternative patterns panels in the nbs is presented

01:07:19 patterns panels in the nbs is presented to build bidders at the time of and post contract to discover discussion of value engineering with ryden both pre and post appointment including specifically the savings which could be achieved by substituting acm

01:07:31 could be achieved by substituting acm for zinc

01:07:32 for zinc the selection of acm instead of zinc proteus rain screen panels the selection of p e chord rayna bond by harley the choice of rs 5000 made by harley and

01:07:44 the choice of rs 5000 made by harley and approved by studio e the

01:07:47 the choice of kingsburn k15 insulation made by harley and approved by studio e detailed design work incorporating those materials done by harley and approved by

01:07:58 materials done by harley and approved by studio e

01:08:02 speculation as regards what would have happened had terry's report indicated the requirement of adb as dr lynn says that it should have been

01:08:11 have been the factual evidence strongly suggests the die was cast and favorably changed to acm panels where a studio he did not look to exervice or give substantive license on the facade they did seek such advice

01:08:23 the facade they did seek such advice from curtin's their structural engineer curtin's advised to follow bs-81414br135 routes to compliance i to use a tested system that advice was ignored

01:08:34 system that advice was ignored the evidence of module 2 indicates compellingly that all of the manufacturers arconic for raider bonds celetex and kinzbad for the insulation set out to market their respective products as

01:08:46 market their respective products as compliant under the building regulations and adb for unrestricted use above 18 meters notwithstanding that they were not

01:08:54 it appears from the evidence module one that ryden and harley were both accustomed to using raiderbot acm panels and that they understood them to be compliant it also indicates that advice

01:09:05 compliant it also indicates that advice from exobar was never expected with respect to specific materials as does dr lane's evidence on the nas and analysis one particular feature i turned to now

01:09:16 one particular feature i turned to now which was the architectural crown the crown feature at grenfell tower was a highly influential in the lateral spread of the fire around the building this professor bisbee's collated photographs showed so dramatically

01:09:29 photographs showed so dramatically once the fire had reached the top of the building its spread was led by the crown the flame front at the top of the building advanced ahead of the lower levels and in doing so caused molten and

01:09:40 levels and in doing so caused molten and burning polyethylene to drop onto the cavity barriers and lower levels or projections within the columns or simply onto the face of the rain screen panels from which areas new lateral spread

01:09:52 from which areas new lateral spread fires started to ascend the design of the crown had not been addressed in the nbs specification or the employer's requirement except by the reference tbc

01:10:03 reference tbc before the appointment of ryden the design was carried out in or about mid 2015 by studio ian harley it was a feature

01:10:13 feature implemented for purely aesthetic effect no

01:10:17 no no consideration was given to the issue of fire safety no mention was ever made about it again again on this critical and critical and causative issue like

01:10:29 and critical and causative issue like xover was simply ignored

01:10:33 misdirection resulting from design disorganization a small but telling example of a failure of basic design coordination lies in the plans themselves in september 2014 the drawings which

01:10:44 in september 2014 the drawings which harley through kevin lam had created continued to indicate the exterior range queen was zinc and did not define the nature or make of the exterior insulation notwithstanding that

01:10:56 exterior insulation notwithstanding that the materials had by then been finally selected

01:11:00 selected and this was a reason why terry ashton may not have noticed after or believed after september 2014 to the think that the cladding was zinc

01:11:11 to the think that the cladding was zinc all the insulation was celatex what is more remarkable is that the plans were never altered so as fully and accurately represent the exterior materials even at the end of the project the

01:11:23 even at the end of the project the studio e harley as built drawings continued to depict the rain screen material of zinc and to leave the insulation unspecified ben bailey of harley was quite unable to

01:11:34 ben bailey of harley was quite unable to explain this

01:11:38 core participants i now turn to the written submissions of the other core participants the issues they raise where they're criticizing sober which by no means all do were foreseeable where and

01:11:50 means all do were foreseeable where and why we disagree is apparent from our own written closings many of the criticisms referred to or ally themselves with dr layne has said which we have also of course dealt with in both our written and today's oral

01:12:01 in both our written and today's oral submissions we therefore confine ourselves to a very few issues whilst dr lane at

01:12:10 at this

01:12:11 this i'm going to start with the issue of reliance whilst dr lane at significant points does not even mention the second part of the much quoted paragraph 3.14 of victor's outline fire safety strategies a number of the court

01:12:23 strategies a number of the court participants closing submissions seek to suggest

01:12:26 suggest that paragraph 3.1.4 gave rise to a false sense of security or that it was misleading this argument is wrong

01:12:35 is wrong the words used were as follows it is considered that the proposed changes will have no adverse effect on the building in relation to external file spread but this will be confirmed by an

01:12:46 spread but this will be confirmed by an analysis in a future issue of this report

01:12:49 report on its face this was perfectly clear it was voicing a provisional opinion but was subject to confirmation by analysis in a subsequent report mr soones understood it as meaning that

01:13:00 mr soones understood it as meaning that it was too soon for them to comment and that exoga would obviously need full details to be able to provide an analysis

01:13:07 analysis contemplating that the next or subsequent stage when the information became clear would be that point the use of the word confirm is very common in ordinary speech often in the

01:13:18 common in ordinary speech often in the context of arrangement such as tuesday at 8 pm looks all right but i will confirm tomorrow that does not mean i will definitely say yes otherwise it would not require confirmation but

01:13:30 would not require confirmation but simply i will confirm one way or the other

01:13:34 other in both this simple example and in the sentence in the report it is the word but

01:13:39 but which spells out the provisional nature of the statement and the fact that it cannot be relied upon until confirmed there is little evidence in any event that anyone actually read the report

01:13:50 that anyone actually read the report nobody at ryden or harley could remember doing so

01:13:53 doing so nobody at kctmo could remember to do doing do so ryden

01:13:59 ryden write ryden appeared to accept that they had significant contractual liabilities but seek to put forward two arguments first that in this inquiry the issue of legal liability is not an issue so instead the tribunal needs to look at

01:14:11 instead the tribunal needs to look at the issue of responsibility not by reference to legal liability but in the sense of deserving of blame secondly that the standard of conduct required of right and under their

01:14:22 required of right and under their contract with kctmo was the reasonable skill and care to be expected of a professional qualified and competent design and build contractor meaning that the yardstick of blame in

01:14:33 meaning that the yardstick of blame in their case appears to in fact be the same as the test for breach of contract they also rely on the fact that it was and is accepted practice the delegation of specialist tasks to subcontractors

01:14:45 of specialist tasks to subcontractors and professionals is the norm in dnb contract

01:14:49 contract these three propositions have no exculpating effect on their dealings with and in relation to x over engagement of consultants means taking reasonable care to recognize the areas

01:15:00 reasonable care to recognize the areas in which the contractor does not have the requisite skill identifying that those skills are required and ensuring that they are obtained

01:15:11 that they are obtained bryden knew they had no fire skills they were advised on several occasions by others in the design team to instruct a fire consultant and stated that they would do but never in fact did so

01:15:23 but never in fact did so this was not because of any actual consideration of the facts but because it was their pre-ordained policy not to instruct fire and consultants at all on dnb contract work

01:15:34 dnb contract work in this case they plainly primarily relied on their own and harley's experience of using rainerborn acm cladding on residential blocks in london

01:15:45 residential blocks in london thirdly having achieved tender success based on the use of acm and its associated cost savings they argued forcefully before the plan as an acm was an appropriate material to use on the exterior building and were committed to

01:15:56 exterior building and were committed to its cause

01:15:58 its cause it's committed to its youth at grenfell tower

01:16:01 tower to use ryden's approach they are to blame for ignoring their own lack of experience on fire matters in approaching the issue of delegation they are to blame for having disregarded

01:16:13 they are to blame for having disregarded the advice of other parties and studio e in relation to the engagement of the fireworks fire consultant they are to blame for following a policy which a professionally or qualified and

01:16:24 which a professionally or qualified and competent design and build contractor experience in the carrying out of work of a similar size scope value and character and complexity that the grand pal tower would not have employed they

01:16:35 pal tower would not have employed they are to blame for putting financial self-interest before all other considerations and never giving fire safety a second thought in the process

01:16:45 concluding comments now i do not say on behalf of my client that there is nothing that can be criticized what i've

01:16:53 what i've sought to demonstrate in our written submissions and to reinforce today is that it involved a series of decisions on materials and costs contemplated at the pre-contract phase without

01:17:04 the pre-contract phase without consulting a fire engineer made and implemented post-contract having pointedly decided not to engage a farc fire

01:17:14 farc fire engineer i recognize that inevitably our submissions are focused on our dealings in the case however i do wish to say that we are not so preoccupied by and immersed in our

01:17:26 so preoccupied by and immersed in our own submissions that we forget the bigger picture or why we are here we are here because 72 people are not leaving behind them a whole community scarred and grieving

01:17:38 scarred and grieving we also remember how these proceedings started with a deeply moving and fitting tribute for the deceased in a series of memorial hearings it would therefore be wrong of me to finish in any other way

01:17:50 wrong of me to finish in any other way than to express sorrow for those who are gone and profound sympathy for those they have left behind so mr chairman i believe in time

01:18:02 so mr chairman i believe in time those are my submissions and i have nothing more to add well mr douglas thank you very much you have been economical into in your time

01:18:13 have been economical into in your time and you've given us a lot to think about so we're very grateful to you thank you very much

01:18:20 at this point we'll take the morning break

01:18:23 break um

01:18:24 um the next statement is to be made by mr stephen hopman queen's council on behalf of iconic

01:18:30 of iconic he was scheduled to uh make his statement at 11 45 but i think that he if he's able to be to make it at a little earlier we'll

01:18:43 to make it at a little earlier we'll come back at 25 to 12

01:18:47 12 take the usual 15-minute break now and uh hope to see mr hoffman then more shortly thereafter thank you very much 25-12 please

01:36:37 welcome back the uh next statement is going to be made by mr hochman queen's council on behalf of arconic

01:36:44 arconic and i can see you on my screen mr hochman so i hope you can see us and that we can hear each other can you hear us

01:36:52 us yes good morning sir i can and good morning to your colleagues good morning well it's good of you to make yourself available a bit early i'm sorry that we made rather faster progress uh than we hope but thank you for

01:37:04 uh than we hope but thank you for becoming available a bit earlier if you're ready to make your closing statement then we're ready to listen thank you very much

01:37:11 much thank you

01:37:12 thank you we are very grateful for the opportunity to make this oral closing address relating to modules one and two and would like to begin by reiterating our sympathy for all

01:37:24 by reiterating our sympathy for all those affected by the grenfell fire especially those who've lost loved ones and all others who we recognize will have been affected in so many different ways

01:37:35 ways nothing that i can say will alleviate the effects of the tragedy and indeed i'm conscious that my remarks may be felt by some to have the opposite effect all i can do is to remind those

01:37:47 all i can do is to remind those listening as i have done in the past that if this inquiry is to arrive at a true and fair outcome it is absolutely essential that it should hear the perspective of every core participant

01:38:00 perspective of every core participant including those whom we represent only in that way will the inquiry have a sufficiently full and balanced picture of the material upon which its decisions

01:38:11 of the material upon which its decisions fall to be made a moment ago i used the phrase full picture and i am of course not oblivious to the concern expressed by some that our clients have failed to do their best

01:38:23 our clients have failed to do their best to provide the inquiry with the information which it seeks i do nonetheless reiterate the assurance that we have done everything that we can to provide such assistance

01:38:35 to provide such assistance notwithstanding the constraints facing us

01:38:38 us as regards documentation it is indisputable that we have provided detailed witness statements and many thousands of pages of relevant documentary material

01:38:49 documentary material above all we facilitated the attendance of the company's president mr claude schmidt who gave evidence over nearly five days earlier this year and was

01:39:00 five days earlier this year and was thanked by usa for his contribution a key constraint that faced the company which we represent was as you know the french blocking statute which expressly

01:39:11 french blocking statute which expressly prohibits the release to a foreign judicial authority of almost all the information which the inquiry legitimately requested to assist the inquiry in overcoming this

01:39:23 to assist the inquiry in overcoming this problem

01:39:24 problem we engaged with it from the outset in order to try to find a solution we proposed and the inquiry agreed that as regards documentation this could be achieved by the provision by us to the

01:39:37 achieved by the provision by us to the metropolitan police service of relevant written information within the framework of a european investigation a process which did not involve the contravention of the french blocking

01:39:49 contravention of the french blocking statute

01:39:50 statute the transfer of all this information to the inquiry then took place routinely pursuant to the memorandum memorandum of understanding between the mps and the

01:40:01 understanding between the mps and the inquiry

01:40:03 inquiry the fact that after taking their own separate advice certain witnesses have not felt able to attend for oral questioning is emphatically not something which can be laid at our door

01:40:15 something which can be laid at our door and indeed we've been assured the counsel to the inquiry if and when he makes a closing statement will make no reference to and certainly no criticism of the decision of those witnesses not

01:40:28 of the decision of those witnesses not to attend

01:40:30 to attend so we hope that the inquiry will treat these submissions like those of other core participants as being made in good faith and as being made with the intent as i've mentioned of enabling the

01:40:42 as i've mentioned of enabling the inquiry to do justice to all concerned in case anyone has any doubt as to the applicability to these proceedings of the french blocking statute and the

01:40:53 the french blocking statute and the risks involved in a contravention of that legal provision we have now provided the inquiry with an independent confirmatory opinion by a

01:41:04 independent confirmatory opinion by a distinguished french legal expert we hope that this may be made available to core participants on relativity and we know that the panel has had the opportunity to peruse

01:41:16 opportunity to peruse this we submit should lay to rest any lingering suggestion that the company has somehow taken inappropriate advantage

01:41:25 advantage of this legal provision in order to defeat its own obligations towards the enquiry

01:41:32 enquiry turning now to the substance of my oral submissions i want to begin if i may by making

01:41:39 making some broad general points which will underpin the more detailed arguments which will follow

01:41:48 my first general point concerns the scope of the inquiry itself the evidence of the the evidence and the arguments have of course ranged far and wide but at the end of the day and as

01:42:00 wide but at the end of the day and as it's clear from its terms of reference this inquiry is concerned with the causes of the fire at grenfell tower that fire was a specific and utterly tragic historical event and we're

01:42:13 tragic historical event and we're confident that the inquiry will wish to limit itself in its findings to an analysis of those causes a recognition of the terms of reference enables one to make two further points

01:42:25 enables one to make two further points about the scope of the enquiry first

01:42:29 first the terms of reference do not extend so as to permit a wide-ranging and unlimited review of the history of particular businesses and less relevant to decisions made in connection with the

01:42:42 to decisions made in connection with the events leading up to the fun still less than the terms of reference allow a wide-ranging and unlimited review of the use of particular products with regard to their combustibility for

01:42:54 with regard to their combustibility for otherwise

01:42:56 otherwise in any event and this is a point which i shall return the evidence does not permit the making of findings on such a broad basis there is however a further point which

01:43:08 there is however a further point which arises from the terms of reference their effect is to mandate the inquiry to consider the causes of a particular event the inquiry is of course precluded by

01:43:20 the inquiry is of course precluded by the inquiries act from making any determination of civil or criminal liability

01:43:26 liability though clearly that does not preclude the making of findings of fact pertaining to the responsibility of particular human or legal persons our submission however is and it's a

01:43:37 our submission however is and it's a point that we made in our original opening address to you the findings in relation to responsibility have to be made on the basis of the facts as known at the time

01:43:49 basis of the facts as known at the time and on the basis of the standards as they were reasonably believed to apply findings in relation to responsibility should not be made on the basis of knowledge or standards applicable today

01:44:03 knowledge or standards applicable today after the event and after much subsequent public and private scrutiny again this is a matter to which i shall return

01:44:13 return the next broad point to which i now turn is that the company which we represent manufactured and supplied a number of different products but these products were universally sold

01:44:25 but these products were universally sold in

01:44:26 in unfabricated forms although general guidance was given as to possible methods of fabrication the company could not and did not dictate methods of fabrication let alone

01:44:39 methods of fabrication let alone guarantee the performance of its product in any particular fabricated form furthermore it's an obvious and fundamental fact that the product being manufactured in the form of a flat panel

01:44:51 manufactured in the form of a flat panel would have no use or purpose on its own at any rate in connection with architectural use it was and was known to be inevitable that the product would be used in

01:45:03 that the product would be used in combination with other materials and that such combination of materials would be fitting together in accordance with a specified design clearly the company had no control over

01:45:16 clearly the company had no control over the choice of the other materials let alone the arrangements for the fitting together of those materials in combination perhaps the most crucial distinction

01:45:27 perhaps the most crucial distinction which the inquiry as we respectfully submit must acknowledge is the distinction between a product such as this company supply and the facade system within which in

01:45:40 and the facade system within which in architectural use the product was deployed

01:45:43 deployed again this is a point to which i will return

01:45:48 return as regards the supply for grenfell tower the sale in france of the raw panels was to cp

01:45:55 to cp who in turn brought the panels into the uk and was under a duty of care when ordering the product to assess it and ensure that it was suitable for the purpose for which as they were aware the

01:46:07 purpose for which as they were aware the product was intended to be used as a pointed fabricator cep was then responsible for cutting and fabricating the panels in accordance with the design

01:46:18 the panels in accordance with the design principles set out by the architect studio e and then providing such fabricated panels to those responsible for their installation namely ryden and harlow

01:46:29 harlow as i shall explain at least half of the panels were fabricated in a wholly unorthodox manner that was clearly distinct from any fabrication used for

01:46:40 distinct from any fabrication used for the purpose of testing and was distinct from any method of fabrication contemplated by this company the next broad point that i want to make

01:46:51 the next broad point that i want to make is that the manufacture and supply of acmpe

01:46:55 acmpe was at all material times lawful both in france where the product used for rental time was in fact sold and in the uk i shall develop this point briefly in

01:47:08 i shall develop this point briefly in the course of this all closing though the legal analysis underpinning the submission is sat out more fully in our written closing the next general point

01:47:19 the next general point follows logically from everything that i have said so far decisions as to the choice and use of a particular product in a facade system

01:47:30 particular product in a facade system decisions as to the design of that system and in particular the assessment of the combustibility and safety of the facade system had to be a matter for those concerned

01:47:43 had to be a matter for those concerned in the design and construction of the facade

01:47:47 facade in relation to this point we submit that the inquiry will wish to take great care in its approach the fact that the refurbished facade at renfrew town

01:47:58 renfrew town including combustible panels did not in itself mean that the construction failed to comply with the relevant regulatory regime or that the facade system as a whole was

01:48:10 that the facade system as a whole was unsafe

01:48:11 unsafe it is our firm submission that acmpe was capable of being used in a safe and compliant manner just as combustible facades have been a feature of building

01:48:23 facades have been a feature of building design throughout the ages indeed we would submit that the inquiry is not empowered by its terms of reference nor equipped by the evidence

01:48:34 reference nor equipped by the evidence provided to it to conclude that acmp could never be used in a safe and compliant manner such a finding would involve a wide-ranging review of a huge volume

01:48:47 a wide-ranging review of a huge volume of international material which the inquiry has not undertaken and could not undertake

01:48:54 undertake moreover

01:48:55 moreover there are hundreds of examples of buildings which had been planned in acnp and had received regulatory approval both in this jurisdiction and elsewhere

01:49:07 both in this jurisdiction and elsewhere the inquiry would have no basis for concluding that in all these cases fundamental mistakes or misunderstandings occurred in the past

01:49:18 misunderstandings occurred in the past it follows as a matter of inexorable logic

01:49:21 logic but the tragic outcome of the grenfell tower 5

01:49:25 tower 5 results

01:49:26 results not from the use of acfpe but from the way in which it was used in other words it's used in combination with a wide range of other combustible

01:49:39 with a wide range of other combustible materials especially those surrounding the windows which ought to have delayed the escape into the facade system of a small internal fire in a particular flat

01:49:51 small internal fire in a particular flat long enough to allow the fire brigade to extinguish it it follows again inaccurately from the foregoing that the responsibility for

01:50:02 foregoing that the responsibility for the fire and for its effects lay with those who decide on the choice of materials and the design and implementation of their relationship with one another

01:50:14 with one another it also lies with all those who ought to have been concerned with fire safety and fire precautions in the building as a whole

01:50:23 whole and with the methods of firefighting deployed

01:50:26 deployed it is far too easy but also

01:50:29 but also wrong and deeply unfair to try to pin the blade on the manufacturer of a particular material which at the time and i stress at the time was engaged in

01:50:41 and i stress at the time was engaged in a lawful process of merchandising of a product

01:50:45 product which cannot be demonstrated to have been regarded at the time as necessarily inappropriate or unusable i want to make two further broad general

01:50:57 i want to make two further broad general points before moving to more specific submissions the first concerns the bba certificate the

01:51:06 the the wording of which was of course the responsibility of the bba

01:51:14 there was much debate in the evidence as to whether a particular proposition within the certificate was misleading and as we have done in our written submissions i'll be addressing you in

01:51:25 submissions i'll be addressing you in detail on this in due course for now

01:51:29 for now let me submit that taken as a whole the bba certificate which related to the acm pe panels in other words to the product

01:51:39 product and not to the wider system in which they were used was not misleading secondly and in any event from 2014

01:51:50 secondly and in any event from 2014 the company took steps to advise customers as to potential issues with regard to acn particularly in certain fabrications and at the same time results of testing

01:52:03 and at the same time results of testing in particular systems were exhibited on the website of the testing body the cstb to put the matter at its very lowest it was therefore at least open to anyone

01:52:16 it was therefore at least open to anyone involved in the construction of the new facade system at grenfell town to seek and ascertain any relevant information about the far performance of the product supply

01:52:29 performance of the product supply whether by interrogating the manufacturer or by checking with the cstb

01:52:35 cstb the true facts are that those concerned probably paid no attention to the bbas or if they did they wrongly treated the reference to class zero as a

01:52:48 the reference to class zero as a guarantee of regulatory compliance on the contrary it is clear that a holistic fire assessment was absolutely necessary in this case and

01:53:00 absolutely necessary in this case and that such an assessment had it been undertaken would have led to the rejection of the design

01:53:06 design not least

01:53:07 not least because the combustible insulation did not comply with paragraph 12.7 of approved document b we believe that the insulation covered

01:53:18 that the insulation covered approximately two-thirds of the facade compared with only one-third which was covered by rainerbot panels in any sort of convention fabrication

01:53:30 of convention fabrication i now want to make some more detailed submissions about the legal context in which the company supplied its product to customers it is we submit indisputable that it was

01:53:41 it is we submit indisputable that it was lawful for the company to place its products on the market in france and we have not heard any suggestion maintained to the country the product used in the grenfell tower

01:53:53 the product used in the grenfell tower refurbishment was in fact sold in france and under eu law it followed that the product could also be lawfully supplied in any eu jurisdiction under that description

01:54:05 description that is because the provisions of the eu treaties on the free movement of goods have been interpreted by the court of justice as requiring member states to allow products lawfully placed on the

01:54:17 allow products lawfully placed on the market in one member state also to be placed on the market in another subject only to limited powers of intervention in order to satisfy imperative public

01:54:28 in order to satisfy imperative public policy requirements including those related to public safety as regards supply in france the use of the project products in a construction

01:54:39 the project products in a construction project would of course require compliance with relevant french construction law as i mentioned earlier eu law allows member states certain

01:54:50 eu law allows member states certain powers of intervention to satisfy imperative public policy requirements including those relating to public safety

01:55:00 safety where as is the case here there is an absence of harmonizing rules at european level

01:55:06 level then it's for each member state to decide on its intended level of protection of human health and life in england and wales this has been done

01:55:17 in england and wales this has been done through the enactment of building legislation this does not regulate the supply of products

01:55:24 products rather it regulates the way in which products are used in building work and it imposes duties on those who carry out the building work the legislation of course includes the

01:55:36 the legislation of course includes the building act 1984 and the building regulations 2010. it's worth stressing that the requirement in the 2010 regulations at b4

01:55:47 in the 2010 regulations at b4 named

01:55:48 named that the external walls of the building shall adequately resist the spread of fire over the walls must we suggest mean adequately to achieve the statutory

01:56:00 adequately to achieve the statutory objectives in other words adequately to ensure a reasonable standard of health and safety in all the circumstances and to ensure that as necessary

01:56:11 and to ensure that as necessary occupants can either stay put as a result of effective compartmentation or if this is not possible can exit or be evacuated safely in the

01:56:22 can exit or be evacuated safely in the event of fire it is moreover clear that matters such as effective compartmentation a necessary precondition of the efficacy

01:56:33 a necessary precondition of the efficacy of a stable policy the presence of fire detection systems fire alarms means of escape and other factors are eleven relevant when assessing adequacy

01:56:45 assessing adequacy approved document b at paragraph 0.33 in the general introduction lists a wide variety of measures which might be utilized in order to secure

01:56:58 might be utilized in order to secure compliance with the statutory requirements these include such matters as automatic detection and warning systems means of escape

01:57:09 means of escape measures for smoke control the adequacy of the structure to resist the spread of fire one but not the only factor measures for fire extinguishment and staff training

01:57:21 staff training it can be seen that the approach of the regulations is a holistic one and that no absolute obligations were imposed

01:57:30 imposed as to the type of product that could be used in the construction of a facade system

01:57:36 system certainly there was no absolute prohibition at the time on the use of combustible materials we submit it follows logic

01:57:47 we submit it follows logic from what i've said and was undoubtedly the case that there was no legal obligation on a supplier to give a warning that acmpe was

01:57:58 to give a warning that acmpe was combustible moreover it is obvious and a matter of common knowledge the polyethylene a plastic is combustible and

01:58:09 and the following statement appears in a standard textbook on product liability and safety which states as follows the need for a warning may depend on

01:58:20 the need for a warning may depend on whether a danger is hidden as opposed to being either obvious or a matter of common knowledge there is no need to warn an adult the petrol is explosive and pork is dangerous when it's in raw

01:58:33 and pork is dangerous when it's in raw when a danger is of this type all relevant duties will be discharged by supplying a sound product into the hands of a person who could be expected to deal with it safely

01:58:46 to deal with it safely in any event moving on from what i've said already those involved in the construction project

01:58:54 project not only the fabricator as purchaser but others concerned we're in the events which happened on notice of the need to check and confirm

01:59:06 notice of the need to check and confirm that the use of the products was appropriate by means of a fire safety assessment by a qualified fire engineer i refer for example

01:59:17 i refer for example i'll be saying more about this a few minutes i refer for example to section 6.5 of the bba certificate itself to the effect that in relation to

01:59:28 to the effect that in relation to resistance to fire the performance of a wall incorporating a product had to be subject to testing and moreover as i've already mentioned

01:59:40 and moreover as i've already mentioned the company took steps from 2014 on to provide additional relevant information and i'd add at this point that miss that as mr

01:59:51 that miss that as mr seaworld pointed out yesterday those concerns with the design and choice of materials who opted for acnpe were on any view obligated to ensure

02:00:03 were on any view obligated to ensure that the design and choice of materials would ensure adequate compartmentation within the building those involved in the construction

02:00:15 those involved in the construction project are no doubt entitled to ask the inquiry to apply the legal regime as it existed at the material time by the same token an overseas

02:00:27 by the same token an overseas manufacturer is entitled to make exactly the same request and to rely on the fact the regulatory regime in this jurisdiction will be conscientiously applied by those to whom it does a plus

02:00:41 applied by those to whom it does a plus an overseas manufacturer who sells the product in the jurisdiction of manufacturing cannot be expected to second-guess the national regime

02:00:52 the national regime in another jurisdiction moreover as we have repeatedly pointed out and irrespective of the many criticisms of the then regime which have been and can be made

02:01:04 regime which have been and can be made it's indisputable that on any view that grenfell tower proposes in specifying combustible insulation rather than insulation of limited combustibility where in direct

02:01:16 combustibility where in direct contravention of the linear route to compliance in the then regime as contained in adb paragraph 12.7 and a recognition of this departure from

02:01:28 and a recognition of this departure from compliance by the design and construction professionals would itself if acknowledged have led necessarily to a holistic fire assessment and to a complete revisiting

02:01:42 assessment and to a complete revisiting of the use of the combination of materials which was in fact used on the other hand it is we suggest absolutely clear that paragraph 12.7 had

02:01:55 absolutely clear that paragraph 12.7 had no application to the acm panels this being the clear and we would contend indisputable evidence of dr lane further mr sakula's report states that he would

02:02:07 mr sakula's report states that he would consider

02:02:08 consider that paragraph 12.7 was intended to refer to gap fillers such as expanding foam fillers he does not think that it was intended to refer to the core of an

02:02:19 was intended to refer to the core of an acf panel which he has never heard referred to as filler he also thinks the reasonably competent contractor or product manufacturer would have had a similar view documentation

02:02:33 have had a similar view documentation disclosed in the context of module 6 shows that in the immediate aftermath of the file

02:02:39 the file government representatives encouraged by colleague tom were proposing to claim that the use of the acm panels were non-compliant was non-compliant by

02:02:51 non-compliant was non-compliant by reason of paragraph 12.7 if that were the case then subsequent legislation banning the use of combustible panels generally would hardly have been necessary

02:03:04 some of the evidence before the inquiry relates to examples of cases in which fires occurred in buildings clad with what was or may have been

02:03:15 clad with what was or may have been combustible the extent to which such fires were or be or became matters of public knowledge is unclear many of the witnesses called before the

02:03:27 many of the witnesses called before the inquiry claimed not to be aware of these fires though some admitted that they were

02:03:33 were once again this evidence needs to be approached with considerable caution the inquiry will we submit with respect have to ask itself the question what is

02:03:44 have to ask itself the question what is the evidential relevance of this type of evidence

02:03:48 evidence on any view is such a fire involved combustible and if a witness was aware of that then that would demonstrate that the relevant

02:03:59 that would demonstrate that the relevant individual knew or ought to have known of the risk of such a fire occurring in other buildings however that inference does not take the inquiry very far

02:04:10 inquiry very far because as we submit anyone acquiring acm pe panels would be aware of their combustibility a perusal of the bba certificate for

02:04:22 a perusal of the bba certificate for example

02:04:23 example including its express reference to the fire retardant alternative would have made this clear it would however have been wrong to assume

02:04:33 assume that the presence of combustible trading would in itself result in a failure to achieve adequate resistance to the spread of fire in other words to lead to

02:04:44 spread of fire in other words to lead to a significant adverse risk to human health and safety professor torreira pointed out in his phase one report that in the cases he mentions

02:04:55 mentions where buildings had experienced large external fires there were no significant injuries let alone fatalities given the wider construction features and fire

02:05:07 wider construction features and fire protection features involved in those buildings

02:05:11 buildings this is further evidence that the product

02:05:14 product was capable of being used safely even in high-rise residential applications if the appropriate cladding system was designed and adequate safety precautions

02:05:27 designed and adequate safety precautions incorporated into the building works against this background it's understandable that suppliers of acmpe around the world

02:05:38 acmpe around the world continue to market the product as indeed did others within the uk who had a significantly greater market share than this company as regards reynabond pe at the time that

02:05:51 as regards reynabond pe at the time that this product was sold for use of one component of the planning system at grenfell tower there was no awareness of any fires involving that project product

02:06:02 any fires involving that project product that had resulted in the loss of life or significant injury moreover

02:06:08 moreover as i've already stressed the same problem had been used and had obtained regulatory approval for its use on hundreds of other buildings

02:06:19 its use on hundreds of other buildings the key

02:06:20 the key to an understanding of this picture lies in the distinction which i drew early on in this address between the product itself and the way in which the product

02:06:31 itself and the way in which the product was used in other words the system in those cases where significant fires occurred particularly if they led to any loss of life

02:06:42 life it may be possible to infer that there were defects in the system which prejudiced health and safety but one simply cannot infer from this that the product itself was unsafe let

02:06:54 that the product itself was unsafe let alone that it could not achieve compliance in a particular regulatory regime

02:07:01 regime on the contrary the only possible inference is that whether in this jurisdiction or abroad compliance systems were repeatedly designed by qualified architects and repeatedly

02:07:14 by qualified architects and repeatedly achieved regulatory approval by presumably competent building control officers

02:07:20 officers the inquiry cannot on the evidence conclude that acmpe albeit

02:07:26 albeit like many other historic and contemporary building components being combusted

02:07:32 combusted was incapable of being used in such a way as to resist adequately the spread of fire

02:07:39 of fire taking into account the various and wide-ranging factors which i have listed above

02:07:46 above the panel may take the view that this analysis is consistent with a very interesting exchange which occurred last week

02:07:55 last week during the evidence of dr lane on day 170 when you sir highlighted the fact that significant elements of the original external facade at grenfell

02:08:06 original external facade at grenfell tower were comprised of non-combustible materials

02:08:10 materials dr lane in her phase one report had identified these materials as including sliding windows and non-combust combustible infill panels which did not promote the spread

02:08:23 panels which did not promote the spread of fire over the external facade although of course after refurbishment the facade included the white alley glaze infill panels that were highly

02:08:34 glaze infill panels that were highly combustible and the windows and the alley blades panels as it happens covered an area at least equal to the area covered by the acf panels

02:08:46 by the acf panels you were i think in that evidentiary exchange making the point that one could not in any event regard the external facade as

02:08:57 regard the external facade as contributed to the concept of compartmentation dr lane responded to the effect that that was correct and that as regards the external facade

02:09:09 external facade the aim should have been under the regime at the time not to promote substantial spread of flame to multiple other compartments from this one can draw the inevitable

02:09:21 from this one can draw the inevitable conclusion that those concerned with fire safety at the material time whether as expert fire assessors or in local authority building control must have taken the view in many instances that

02:09:35 taken the view in many instances that combustible acfpd even though combustibles would not in the context of the particular building design and configuration promote fire spread

02:09:47 promote fire spread to multiple other compartments moreover to reinforce what i've been saying

02:09:54 saying in general terms there is in fact ample positive evidence of the potential safe and compliant use of acnp

02:10:04 of acnp mr sakula himself has confirmed in his report

02:10:08 report paragraph 17 10 to 12 that the use of acmpe was not precluded by the regulatory regime at the time and it is indeed possible that the

02:10:19 and it is indeed possible that the building incorporating acnpe but designed to be in compliance with the regime and including all appropriate features such as cavity barriers and

02:10:30 features such as cavity barriers and non-combusting insulation would have been in compliance this is shown for example by the evidence as to the taclofar

02:10:41 by the evidence as to the taclofar the cladding system on the building at tablet can comprise rayna bond acmpe cladding in rivet fabrication and rockwood insulation which is

02:10:52 and rockwood insulation which is non-combustible the fire did not spread across the outside

02:10:59 outside because the because of the overall cladding system used the precise features in the cladding system and construction of the building most notably the firebreaks contain the

02:11:11 most notably the firebreaks contain the fire to a small area another perhaps even more relevant example

02:11:17 example is the fire in 2010 at sudbury house was a 24-storey tower clad in acmpe fabricated as cassettes

02:11:28 fabricated as cassettes with mineral wool insulation which cep had confirmed was contained like the fire at that house there have also been

02:11:39 there have also been a number of fires in residential tower blocks outside the uk in which there have been no cavities including those where fire spread was more rapid than it was at grenfell

02:11:50 more rapid than it was at grenfell professor torreira notes in his report that a comparison with other international events shows that the upward flame spread for the grenfell tower is among the slowest

02:12:02 tower is among the slowest an example we think is the torch in dubai which was clad in acm pe though not

02:12:08 not this company's product this would suggest that there was something other than the type of cladding which differentiates the buildings

02:12:18 buildings for example the robustness of compartmentation and that it is such other factors which led to the vastly differing outcomes of the fire

02:12:28 the fire in all the circumstances we suggest that the emphasis placed by others on the awareness of various individuals within this country of the combustible

02:12:39 within this country of the combustible nature of brainerd pe is misplaced those within the company were entitled at the time to take a view which was clearly taken by hundreds of

02:12:51 which was clearly taken by hundreds of building control officers up and down this country namely that the combustibility of the product was only one among many factors to be evaluated

02:13:02 to be evaluated in assessing fire safety and that if the systems and arrangements within the building as a whole were adequate to resist the spread of fire then regulatory compliance and

02:13:14 then regulatory compliance and appropriate health and safety requirements would be achieved and fulfilled

02:13:21 fulfilled and if there are those who suggest that the company should have gone further than giving warnings and should have withdrawn its acnp products from the uk

02:13:33 withdrawn its acnp products from the uk architectural market as indeed it did following the grenfell tower fire we say that that would have been unreasonable in the light of the potential

02:13:44 in the light of the potential safe and compliant use of acnpe and in the light of the uk construction regime

02:13:52 regime being an overseas regime so far as the company was concerned moreover

02:13:59 moreover given the relatively small share given the relatively small share of the reynabond acm pe product in the uk market

02:14:09 market that would simply have meant that unless the regulatory position in the uk was changed

02:14:15 changed so as to ban or restrict its use construction professionals wishing to use acmpe

02:14:22 use acmpe in their construction projects would have obtained it from one or another of the many other manufacturers who at that time were supplying similar products onto the uk

02:14:34 supplying similar products onto the uk market

02:14:37 finally on this aspect

02:14:44 we have noted that other core participants have made reference to a range of more recent product testing

02:14:52 testing in which as they suggest the use of acmpe gave rise to less than favorable results

02:14:59 results we reserve our position on these references and lesson until any of this third-party testing is embraced and relied upon by the enquiry experts for the present we confine ourselves to

02:15:11 for the present we confine ourselves to the observation that the fact that particular results are obtained when a product is used in a particular configuration cannot by definition prove that it would

02:15:22 cannot by definition prove that it would be impossible for the product to be used in a compliant manner it's precisely for that reason that one of the four routes to compliance involves a holistic fire engineering

02:15:34 involves a holistic fire engineering assessment of the particular project design under consideration furthermore we must obviously reserve our position as to the long-awaited outcome of the experimentation work

02:15:46 outcome of the experimentation work which the inquiry itself has been arranging and upon which key conclusions in the phase one report were acknowledged in part to depend we would encourage the inquiry if it can

02:15:59 we would encourage the inquiry if it can to provide another progress report on this work and to make the results available as soon as possible for scrutiny by core participants

02:16:10 i want to turn please to deal in greater detail with the bba's defeat and its terms of effect and

02:16:21 and this certificate and the dealings between the company the bba have assumed of course considerable significance it's not a legal requirement to hold a

02:16:33 it's not a legal requirement to hold a bba certificate which is seen as a marketing tool to assist sales it was paid for by the company and as part of that paper the company was entitled to rely upon the expertise and

02:16:46 entitled to rely upon the expertise and judgment of the bda when granting the certificate in the terms it felt were most appropriate the

02:16:54 the certificate was of course drafted by the bba

02:16:58 bba but we submit that if its contents had been properly considered and understood the certificate itself would or should have ensured that those

02:17:09 would or should have ensured that those involved in the works to the time were appropriately direct as to the use of the company's products not only did the certificate itself show

02:17:20 not only did the certificate itself show clearly

02:17:21 clearly that the company could supply a fire retardant as well as a polyethylene product but in relation to the latter it contained accurate and precise

02:17:32 it contained accurate and precise information as well as clearly defined limitations as to the scope it provided correct information as to the fire performance

02:17:43 as to the fire performance of which a panel would be capable depending on the cladding system in which it was used but made crystal clear that the performance of that system would depend on further specific testing

02:17:56 would depend on further specific testing moreover as i've mentioned no one reading the bba study could possibly have thought it appropriately to incorporate acmp in the cladding system without

02:18:08 in the cladding system without conducting a holistic fire engineering assessment we respectfully reject the suggestion that the company deliberately arranged

02:18:20 that the company deliberately arranged for the certificate to apply to an individual panel rather than to a panel as subsequently fabricated by another business for incorporation into a cladding system in a particular

02:18:32 cladding system in a particular configuration since the company would have no involvement in the design of the system nor in the fabrication of the panel it was natural and logical that the

02:18:44 it was natural and logical that the certificate should apply as it did to the panel itself

02:18:52 now before i deal in a little bit of further detail with the bb-8 um i have to

02:19:03 establish and remind the inquiry of some key points relating to methods of fire testing

02:19:10 testing testing under bs 476 parts six and seven is of course testing in relation to an unfabricated sample of the product

02:19:21 to an unfabricated sample of the product which is what the company manufactures and supplies that

02:19:26 that form of testing which may lead to a finding of national class zero does not involve a test of the fire performance of a fabricated product

02:19:39 performance of a fabricated product incorporated into a particular wall assembly

02:19:43 assembly nc 0 is

02:19:45 nc 0 is or at any rate has generally if strictly speaking inaccurately been understood as being

02:19:51 being a classification in relation only to the surface of an unfabricated product an nc 0 classification can as we can see from other bva

02:20:04 as we can see from other bva certificates evidenced by the inquiry can be achieved alongside different en classifications now as to en classifications european

02:20:16 now as to en classifications european classifications in broad terms the en13823 test in particular is a test of the panels in a particular mocked up system

02:20:28 mocked up system the system in which the panels are assembled may vary from one test to another

02:20:34 another not just in terms of the method of fixing for example cassette but also in terms of the substrate used the size of the cavity and the particular arrangement of the

02:20:46 and the particular arrangement of the panels and the size of the joints in other words the size of the gap between the panels so if for example an enb classification is achieved

02:20:58 an enb classification is achieved it shows that the product the panel is capable of achieving an enb in a particular system when fabricating in a particular way

02:21:10 in a particular way but given the nature of en testing a classification such as enp cannot be it cannot be treated as achievable in all circumstances

02:21:22 achievable in all circumstances this point has been made very strongly by council to the inquiry himself in questioning other manufacturers and moreover in questioning mr schmidt the president of

02:21:34 questioning mr schmidt the president of the company uh council positively asserted that there are a number of variables when one is conducting a test under the european system

02:21:45 european system for example the shape of the product the mounting the substrate the size of the air gap between the reverse of the rain screen and the substrate

02:21:55 substrate it follows that any reference to a particular european class whether in diagram 40

02:22:04 of adb or in the bba century or otherwise

02:22:08 otherwise could and should have been treated only as a reference to the class which the product was capable of achieving no other proposition

02:22:19 no other proposition can logically be acceptable moreover because the en13823 test relates to the testing of a product fabricated in a particular way

02:22:32 product fabricated in a particular way in a mock-up system which may vary from one test to another it follows that two or more pn classification reports can coexist in relation to the same product at the same

02:22:44 relation to the same product at the same time

02:22:46 time and of course it follows from all of the above as the bba certificate itself suggests

02:22:54 suggests that the time to assess the potential use of the product product in a particular context must must be at the point of system assembly

02:23:05 assembly and by applying one of the routes to compliance now let me apply these uh general propositions to the testing of reynabond pe

02:23:18 the testing of reynabond pe we know that in 2005 and in 2011 panels of the product configured in a particular mock-up system achieved enb

02:23:30 particular mock-up system achieved enb as i've explained this shows that the product was capable of achieving an enb although other and subsequent en testing involving the product

02:23:42 involving the product in which the particular mock-up system would have vary did not achieve enb this is not inconsistent with the fact that in 2005 and in 2011

02:23:54 that in 2005 and in 2011 an enb classification was achieved and the obvious conclusion is that the product was capable of achieving emv

02:24:05 achieving emv the variable was not the product it was the system into which it was incorporated

02:24:12 this point is illustrated by the submissions of the written submissions of a number of core participants and by the questions put to

02:24:23 participants and by the questions put to mr schmidt by your council which have referred to variations in the width of the cavity between the cladding panels at any substrate

02:24:34 substrate in the presentation by dr lay on day 68 she helpfully referred to a conclusion in a 1994 report to the effect

02:24:45 in a 1994 report to the effect that a reduction in the width of a cavity

02:24:48 cavity will reduce the surface spread of flame over cap overtaken material this would appear inconsistent with the suggestion which others have managed

02:24:59 suggestion which others have managed that in the testing process the width of the cavity was originally increased artificially in order to improve the outcome

02:25:08 outcome in any event it is right to know that variations of this kind are inherent in a process whereby the tested system will vary from test to test

02:25:19 system will vary from test to test the width of the cavity may be only one of the differences between the testing system

02:25:25 system as i've already said the system in which the panels are assembled may also vary in terms of matters such as the method of fabrication and fixing

02:25:37 as the method of fabrication and fixing the substrate used the particular arrangement of the panels and the size of the joints

02:25:46 in other words the gap between the panels

02:25:49 panels the fact that these factors may vary from one test to another is a feature of the en testing process what is important is that the cstb

02:26:00 what is important is that the cstb the recognized testing body in france nonetheless confirmed and published on the website including that published on its website the relevant

02:26:11 published on its website the relevant classifications including those showing that in a given system an enb result could be achieved as well as others less failure

02:26:25 now i want to go on if i may to provide an analysis of the bba certificate including its purpose and scope and the limitations of the representations which it can take

02:26:38 it can take insofar as behavior in relation to fire is concerned the bba statistically could not and did not go further than to certify as to the surface of an

02:26:50 certify as to the surface of an unfabricated panel the bba proceeded on the basis but once the panel achieved an enb rating

02:26:59 rating in one testing scenario that meant that the panel should be able to achieve an nc zero rating on testing for surface spring on flame

02:27:12 spring on flame moreover the certificate contained a range of cabinets as to the fire performance of a fabricating panel in a particular cladding system

02:27:23 particular cladding system in these circumstances it was unnecessary and indeed irrelevant to provide additional fire information additional information

02:27:34 additional information as to the fire performance achieved by panels in a spec in specified fabrication small systems such information was immaterial to the purpose and scope of the certificate as

02:27:46 purpose and scope of the certificate as worded by the bba and should have been understood by those who perused it now let me descend a little further into the detail of the wording which i'm sure

02:27:58 the detail of the wording which i'm sure everyone recalls the first page of the certificate expressly describes the panels as aluminium policy polyethylene component and states that a panel may be

02:28:11 component and states that a panel may be regarded as having a class zero set surface

02:28:15 surface following this it refers the reader to section six

02:28:24 sections six one states that when a sample

02:28:27 sample of a standard that is uh a p e

02:28:31 uh a p e grey green product was subjected to an e n test it achieved a b classification that product was therefore capable of achieving an enb classification

02:28:45 achieving an enb classification as i've explained this did not mean that an enb classification would be achievable in all circumstances and irrespective of the method of fabrication and the other features of

02:28:57 fabrication and the other features of the carbon system section 6-2 then deals separately with the testing of a fire retardant section 6-3 then states that both

02:29:08 section 6-3 then states that both products that is fr and pe

02:29:11 fr and pe may be regarded as having a class 0 surface in relation to approved document p

02:29:20 the assertion in section 6-3 of the certificate that the product may be regarded as having a class zero surface in relation to adb

02:29:31 in relation to adb is plainly a reference to paragraph 12.6 of guidance and diagrams hence the certificate was simply setting out

02:29:41 out that since the product was capable of achieving the requisite european clubs it could also be treated for the purposes of compliance with guidance as

02:29:52 purposes of compliance with guidance as achieving the requisite national clubs if the uk regulatory regime had not in diagram 40 offered the option of equating european class b with ensign

02:30:05 of equating european class b with ensign zero

02:30:06 zero the bba

02:30:07 the bba could not have been in the form it took that is in claiming that the product could be regarded as achieving ncm0 for the purposes of adb

02:30:18 achieving ncm0 for the purposes of adb paragraph 12.6 by an amendment in 2002 however references were included in adb to european test standards in order to

02:30:29 european test standards in order to facilitate

02:30:35 now we recognize that the inquiry will in due course investigate and apply upon the wisdom of providing for the two compliance mechanisms in diagram 40

02:30:49 compliance mechanisms in diagram 40 which played a critical part in the decision making of the bbf on any view there can be no criticism of this company

02:30:58 company for the decision of the bvf which claims to have expertise regarding uk building regulations to interpret and apply diagram 40 as it did

02:31:11 diagram 40 as it did we would also stress that at the time that the product was sold to cep for use on grenfell a valid enb classification report existed which showed that the product

02:31:22 existed which showed that the product had achieved an env classification we acknowledge that as council and other core participants have observed under european testing

02:31:34 under european testing some fabricated versions of the product failed to achieve a big classification however for the reasons i've set out this was not inconsistent with the nc 0

02:31:46 this was not inconsistent with the nc 0 certification in the bba certificate this being a certification relating to the surface of the product for which in a particular system and

02:31:57 for which in a particular system and when fabricating in a particular way had been shown capable of achieving a b classification information as to the fire performance other fabrications and as i've explained

02:32:10 other fabrications and as i've explained above there could have been and that crenshaw tower itself were a large number of alternative fabrications and systems

02:32:19 systems would have been immaterial to the scope and purpose of this then we come to section 6.5 which has been much under emphasized in

02:32:31 which has been much under emphasized in the course of the hearings section 6.5 of the certificate states that for resistance to fire the performance of a wall incorporating the product

02:32:42 product is not covered by the certificate the vba certificate section 6.5 also states that the performance of a wall incorporating the product can only be

02:32:54 incorporating the product can only be determined by further tests section 6.5 recently is a provision of great importance and was clearly so regarded at the time by those concerned

02:33:07 regarded at the time by those concerned whilst there is of course a difference between reaction to fire and resistance to fire

02:33:13 to fire it's clear that requirement b4 of the building regulations was crucially concerned to ensure that the external walls of the building had adequate resistance to the spread of

02:33:26 had adequate resistance to the spread of fire

02:33:27 fire and section 6.5 in relation to this issue

02:33:32 issue makes explicit the requirement for further tests

02:33:38 from this their flow a number of important consequences first

02:33:44 first bearing in mind that the certificate was to certify only the surface of an individual pack it was entirely logical and appropriate to include caveat contained in section

02:33:57 to include caveat contained in section 6.5

02:33:58 6.5 that the performance of a wall system the product could only be determined by further tests secondly

02:34:07 secondly given the incorporation of 6.5 it was in fact entirely unnecessary to include caveats within the certificate relating to the

02:34:19 within the certificate relating to the method of fabrication council for the inquiry suggested to bba witnesses that it ought to have been made explicit but the test result in section 6.5

02:34:30 section 6.5 was achieved by a sample of the product in rivet fabrication or more generally it should have been made explicit that this did not necessarily apply to all forms of

02:34:41 necessarily apply to all forms of fabrication and we note in passing that bda statistics relating to other acmpe products did not have such references either

02:34:51 either but it can be seen that section 6.5 has precisely the effect

02:34:58 effect which comes to the inquiry he's looking for

02:35:01 for indeed it expresses his caveats even more broadly

02:35:09 thirdly section 6.5 clearly shows that section 6.1 cannot be read as meaning

02:35:16 meaning that a sample of the product will achieve a

02:35:20 achieve a a b classification in any and every system

02:35:26 mean that a sample of product will achieve a b classification in any and every system if that were the case then further testing would be unnecessary

02:35:38 testing would be unnecessary it follows that in interpreting the certificate as a whole and in particular section 6 as i hope the suggestion that the reference in section 6 1 to a b classification

02:35:52 section 6 1 to a b classification the suggestion that the reference in section 6.1 to a b classification was misleading is both incorrect and unfair

02:36:04 then the certificate at section 6.6 goes on to state that cavity barriers should be incorporated and section 6.6 also states that particular attention should be paid to

02:36:16 particular attention should be paid to preventing the spread of fire within a building reaching the planning system through windows and door openings what more appetite warning could there be

02:36:28 could there be it follows that the bba certificate is cautiously working the reference to class 0 is expressly related

02:36:37 related to the surface of product and the certificate as a whole limits itself to specific examples of the product

02:36:45 product moreover clear advice is given that the fire resistance of a cladding system incorporating the product is not covered by the certificate but must be subject

02:36:57 by the certificate but must be subject to further testing it's also worth noting that the caveats and limitations in the certificate are consistent with the relevant guidance contained in approved document b

02:37:10 contained in approved document b which i do briefly um appendix a paragraph 16 provided that any reference in relation to the surface spread of flame could be

02:37:21 to the surface spread of flame could be should be carefully checked and it went on to say small differences in detail

02:37:27 in detail such as thickness substrate colour form fixings fixings adhesive etcetera may significantly affect the rating these are

02:37:38 these are caveats equivalent to that which is expressly contained section 6.5

02:37:49 section 6.5 now considerable stress has been laid upon the provision in the contractual arrangements between the company and the vba under which the company agreed to inform the bba as to any change in the

02:38:02 the bba as to any change in the composition of the product or any change in other details affecting the validity of creativity we submit

02:38:11 we submit that these complaints lack substance firstly because of because the composition of the product never changed other than an immaterial change to the color of the core which would have been evident to the bba

02:38:23 which would have been evident to the bba on their visit to the factory and secondly because given the analysis set out i've set up

02:38:34 in the submissions and especially given the scope and purpose of the certificate in certifying as to the surface of an individual panel it follows that systing system testing

02:38:47 it follows that systing system testing of which the bba may have been unaware could not have affected and did not on a correct interpretation affect the validity of the certificate

02:39:01 moreover mr gregory on the on behalf of the bda itself

02:39:07 itself gave some important detailed evidence as to how the bba certificate came into existence

02:39:13 existence it was clear beyond doubt from his evidence that although the certificate was produced at the request of the company

02:39:21 company it was the bba which decided

02:39:27 on the information which they would need in order to compile certificates and it was the bva which decided on its context those involved in the process on behalf

02:39:38 those involved in the process on behalf of the bba included not only mr gregoria but also brian haynes now sadly deceased mr gregorian made clear that mr haynes

02:39:49 mr gregorian made clear that mr haynes was experienced in the assessment of the far performance of a product to be certified

02:39:55 certified moreover he had close links with the bre and in particular with their expert fire professional with sarah cola in the case of the certificate for this

02:40:07 in the case of the certificate for this company mr haynes expressly referred the matter to ms cola this was primarily for the purpose of confirming the correctness of the certification with regard to the back

02:40:19 certification with regard to the back face of the panels but in order to enable miss colwell to do that she was provided with the fire classification reports which the bba had in their presentation

02:40:31 in their presentation it follows that miss kowal herself must have been aware that the classification report obtained for pe in rivet format was being relied upon by

02:40:42 rivet format was being relied upon by the bba

02:40:44 the bba unfortunately no evidence has been abused

02:40:46 abused in module two from this colonel herself but it seems reasonable to infer that she was aware that the bba were proposing to issue a certificate

02:40:57 proposing to issue a certificate certifying that an individual panel could be regarded as achieving a class zero surface and that she expressed no adverse view in that regard

02:41:08 that regard in particular it seems reasonable to infer that she did not advise mr haynes that it was inappropriate to rely on the classification report

02:41:19 on the classification report limited as it was to a particular mode of fixing

02:41:23 of fixing or that the vba should seek fire testing results for other fixing modes it would have been open to the bba knowing from the text of the certificate itself that there were other methods of

02:41:35 itself that there were other methods of fabrication and fixing to ask for tests relating to other methods the bba clearly took the view but the method of fabrication should not have affected

02:41:47 fabrication should not have affected the external flame spread characteristics with which a class zero rating is concerned as regards the purpose and scope

02:41:58 as regards the purpose and scope on this issue mr gregorian's evidence was very clear and deep that the purpose of this was to provide an assessment of an individual panel

02:42:09 individual panel and not to provide an assessment of the performance of the panel in fabricated form or in the context of the many variable planning systems mr gregorian made it explicit the bba

02:42:22 mr gregorian made it explicit the bba were not intended to make any representations as to the performance of the product in fabricated form or in a cladding system as a whole such representations as mr gregorian

02:42:35 such representations as mr gregorian repeatedly stressed would have been irrelevant to the scope and purpose of the situation it must therefore follow as a matter of indisputable logic but although in a particular fabrication

02:42:47 but although in a particular fabrication or cladding system the far performance of a panel could vary the certificate was confirming the level of performance which could be achieved by an individual unfabricated

02:43:00 achieved by an individual unfabricated panel

02:43:01 panel any reading of the statistic which treated the certificate has confirmed that in any and every mode of fabrication or in any or every cladding system a

02:43:12 or in any or every cladding system a given level of fire performance would be attainment would clearly be a serious misreading and would attach to the certificate far more weight than it was intended to bear

02:43:24 more weight than it was intended to bear at the relevant time in relation to the vba certificate mr sakula is of the view that members of the cladding contractors staff with technical or design responsibility

02:43:37 technical or design responsibility should have read the statement in detail a reasonably competent planning contractor would have ensured that somebody with technical or design responsibility had read the bbh digit in

02:43:49 responsibility had read the bbh digit in detail to ensure that the product was appropriate for its intended use on a project and that would involve reading the whole certificate in its entirety and not just any summary on the

02:44:02 entirety and not just any summary on the front

02:44:03 front here

02:44:04 here although the front page may have given the impression the product had a class zero rating without qualification on turning to section six it was apparent

02:44:15 turning to section six it was apparent that this contained vital information about the details and limitations of the fire testing carried out mr sakula considered that a reasonably

02:44:26 mr sakula considered that a reasonably competent cladding contractor should have read section six in full and had they done so they would have been alerted to the fact that the bba certificate was very specific in its

02:44:37 certificate was very specific in its scope he also said that the cladding contractor should have had dialogue with the manufacturer to find out what background information there was to the certificate such as underlying source

02:44:49 certificate such as underlying source tests and test data such inquiries made at any time after february 2014 would have highlighted relevant issues in relation

02:45:00 relevant issues in relation to the cassette fabrication as regards the awareness of a reasonably competent cutting contractor as to the nature of the pe core mr sakula said that by reason of the

02:45:13 mr sakula said that by reason of the known fires involving the use of such material it ought to have been understood that the material was quite easily ignited and combustible and in the oral evidence for example mr

02:45:24 and in the oral evidence for example mr ray bailey he confirmed that following the chalcock's fire the taplin fire he learned

02:45:31 learned that acn would burn since the certificate related to the reaction to fire of the surface of the unfabricated product and the

02:45:42 of the unfabricated product and the potential spread of fire across that surface

02:45:45 surface the statements in the city would not or at least should not have changed in the light of further fire performance information relating to the surface following the

02:45:56 relating to the surface following the issue of activity unless there was evidence that the fire performance of the surface of the unfabricated product had changed which it had not

02:46:07 it had not and as i previously argued

02:46:17 and could demonstrate only that the product was capable of achieving an en result

02:46:24 result as part of that system consequently further en test results would not have impacted upon the classification referred to in the vba certificate

02:46:35 certificate we therefore submit that less favorable test outcomes than a system involving cassette fabrication did not detract from the fact that the product had achieved and was capable of

02:46:47 product had achieved and was capable of achieving the energy and therefore the nc 0 classification referred to certificate remained appropriate

02:46:59 uh so in moving on as i now do to discuss briefly the evidence of mr claude schmidt perhaps i can reassure you and your colleagues that um i'm on track to finish

02:47:11 um i'm on track to finish um by my allotted deadline of 115 and i hope that

02:47:16 hope that that is

02:47:17 that is appropriate so i thought since you started 10 minutes early you might finish 10 minutes early mr uh

02:47:24 uh hockman

02:47:26 hockman i'm sorry i can't promise to be able to do that all right i'll do apologies

02:47:32 apologies it's now necessary um to provide a summary of and commentary upon the content of the oral evidence of mr schmidt insofar as it bears upon the issues that i've been discussing he was

02:47:44 issues that i've been discussing he was of course being asked questions in english and responding french mr schmidt was subjected to a series of leading questions based on the premise that contrary to the case made in these

02:47:56 that contrary to the case made in these submissions the reference to enb in section six one of the bbh certificate was misleading those questions were put in a manner which has later became clear contained

02:48:08 which has later became clear contained in the english version a crucial ambiguity

02:48:13 ambiguity however irrespective of the manner in which the questions were put they were in any event

02:48:20 based on a false premise that reference to specified fabrications or systems was material to the scope and purpose of a certificate which identified the fire performance

02:48:32 which identified the fire performance which had been and therefore could be achieved by an individual the company's case as foreshadowed in its opening system in its opening statement to the enquiry on the 5th of

02:48:44 statement to the enquiry on the 5th of november 2020 and as supported by mr gregor

02:48:49 gregor is that such reference was immaterial and that no conclusion adverse to the country should therefore be drawn from the answers to such questions the following summary of the oral

02:49:00 the following summary of the oral evidence of mr schmidt illustrates a false premise on which the question is based and underpins the submission which is made on the company's behalf that extreme caution is required in dealing

02:49:13 extreme caution is required in dealing with his oral evidence time does not permit me to repeat the fully detailed review review which is found in our written closing

02:49:22 closing on day 91 mr schmidt was asked to agree that the bba certificate presented both the rivet and cassette fixed variants of raynabon 55 pe as class b

02:49:34 raynabon 55 pe as class b it was also put to him that this was a false statement so far as concerns the cassette fix there regrettable these propositions as we

02:49:45 regrettable these propositions as we respectfully submit were themselves false as mr gregorian emphasized and as he's clear from the certificate in particular from section six one the certificate related to an individual

02:49:58 the certificate related to an individual panel

02:49:59 panel and not to what council described as either the river or the cassette fix variant

02:50:04 variant of course the company does not supply a route or a cassette fixed variant it supplies unfabricated panels in response to these questions mr

02:50:15 in response to these questions mr schmidt began by saying that he was in doubt about the question and that previously said that one wasn't going to be referring to cassette or rivet

02:50:26 be referring to cassette or rivet mr schmidt was then asked whether iconic accepted responsibility for the sale of reynold 55 pe to the uk market on a false basis as to european fire

02:50:39 false basis as to european fire classification once again this question was itself put on an incorrect basis mr schmidt's response was that the information that was on the bba statistic was not false

02:50:52 was on the bba statistic was not false but that it did not mention the different reactions to fire depending on whether the system was rivet or cassette the company's case is that on a correct

02:51:03 the company's case is that on a correct interpretation of the scope and purpose of this activity it was unnecessary for that reference to be made it's now necessary for me to explain why many of the questions put to mr schmidt

02:51:16 many of the questions put to mr schmidt contained a crucial ambiguity on day 94

02:51:20 on day 94 council acknowledged that there was something that needs to be corrected he acknowledged that the company's lawyers had stated that the english word misleading in his questions had been

02:51:31 misleading in his questions had been wrongly translated into french it had been translated using the word which means incorrect or erroneous the company's lawyers had in fact

02:51:42 the company's lawyers had in fact suggested in an email to the solicitor that the word misleading should be translated so as to show that the word carries the meaning in english descent

02:51:54 carries the meaning in english descent instead of adopting this suggestion council told mr schmidt that the question would be translated as wrong such as to lead a person into error

02:52:04 error a number of examples were then put forward from the earlier question and mr schmidt was invited to confirm that in those cases he would agree to the use of the word misleading

02:52:16 the use of the word misleading in the sense of wrong such as to lead a person into error

02:52:21 error in response mr schmidt made a number of comments first he stated that it wasn't done consciously because there was a doubt with regard to the fire certificate 5b

02:52:34 the fire certificate 5b then he stated his belief that the failure to mention test 5b was not deliberate but that there had been a misunderstanding or bad understanding with regard to the results of that test

02:52:47 with regard to the results of that test in summary therefore we would point out that mr schmidt was not involved in the creation and issue of the media activity nor was he or is he an expert in fire

02:52:58 nor was he or is he an expert in fire risk assessment he did initially agree with questions put to him in leading forms suggesting that the reference to the env result in section 6.1 was misleading but these

02:53:11 section 6.1 was misleading but these questions were as we submit based on an incorrect inter interpretation of the bba certificate in any event

02:53:22 the evidence would later revisited as a result of an ambiguity the process of translation we pointed out that the word misleading in english can imply

02:53:33 in english can imply deliberately deceptive comment whereas the interpreters have translated the words meaning incorrect or wrong leading to error in later question council made clear

02:53:46 in later question council made clear that he had intended to advance the latter interpretation and mr schmidt made clear that it was on this basis that he would say he stressed that he had not intended to

02:53:58 he stressed that he had not intended to accept that the company had acted deliberately to mislead and he pointed out the various caveats in this

02:54:08 we therefore submit that in accepting that as we all now know the enb result was incorrect and inapplicable to the cassette fabrication mr schmidt was doing no more than

02:54:21 mr schmidt was doing no more than accepting the obvious the inquiry would not be entitled to infer that the reliance on the enb result came about through any form of deceptive conduct or that read as a

02:54:33 deceptive conduct or that read as a whole the certificate was misleading at the time the certificate was intended by all concern to relate to a panel in unfabricated form

02:54:44 unfabricated form and it was therefore entirely legitimate to provide as an example a test showing the result of which the product was capable in a given system with the proviso that the

02:54:55 given system with the proviso that the performance of the product in a cladding system would be dependent on further testing

02:55:00 testing and it's worth noting that the certificate itself on its final page stresses that that it relates only to the product or system name on the

02:55:11 to the product or system name on the front page and that it has to be read as a whole

02:55:15 a whole now i come on to deal with

02:55:19 with the

02:55:19 the written evidence of mr claude verma who um

02:55:25 who um described

02:55:26 described um

02:55:27 um the circumstances in which he provided to the vba classification report 5a and sought confirmation from them

02:55:38 confirmation from them that this information was acceptable for their purposes to which they responded in the affirmative he has confirmed in his witness statement that he did not provide the

02:55:50 statement that he did not provide the sole incomplete report for the cassette variant because it was a single sample test report not a valid classification report

02:56:00 report and that at the time he considered that the sole cassette test result was a road result on the basis of his understanding of the time that the cassette would perform better than rivet

02:56:13 cassette would perform better than rivet when considering the spread of flame from an external source to the cladding on the building the cassette he thought may reasonably have been considered to be more

02:56:24 have been considered to be more resistant to ignition than the riveted version

02:56:27 version mr verla has further confirmed in his witness statement that he did not have sufficient knowledge about the uk regulatory regime to understand how the dba

02:56:39 to understand how the dba who reached its conclusion on nc 0 that he was aware that it would be drafted by the vba and be reviewed by regulatory authorities and technical assessors

02:56:51 authorities and technical assessors in assessing whether his failure to disclose to the bba or otherwise the outcome of the 2005 cassette testing represented an intention on his part to hide what he

02:57:03 an intention on his part to hide what he knew to be an adverse result the inquiry will wish to attach strong weight to the following matters first on a proper interpretation of the bba certificate the disclosure of such

02:57:16 certificate the disclosure of such information was immaterial to the scope and purpose of the certificate because the testing related to products with

02:57:25 with a different surface stroke color and fabrication secondly the cassette testing was carried out by the cstb uh which was the principle if not the

02:57:37 uh which was the principle if not the only testing house available in france and with which not only the company but the bba and doubtless others had a close working relationship the cstb

02:57:48 the cstb carried out market surveillance on the merck science site from 2008 until until 2014 on behalf of the bba

02:57:58 the bba and had direct knowledge of the classifications that the company obtained from time to time as ms amaro stated in important oral evidence the

02:58:09 stated in important oral evidence the arrangements between the bba and the cstb were such that she would have expected the cstb to disclose any adverse testing relating to acnpe

02:58:22 any adverse testing relating to acnpe it's therefore unlikely extreme that mr verla could have believed that this information would have remained secret third the outcome of the testing as

02:58:33 third the outcome of the testing as described by the cstb as not usable although it was suggested that the result gave an idea of the behavior of the product in fire we submit that given mr verla's general

02:58:46 we submit that given mr verla's general experience it was not unreasonable for him to consider at the time this result relating to the performance of the cassette fabrication in a particular system to be atypical

02:59:05 it is clear however that by 2011 at the latest mr verlo was addressing the 2005 road result

02:59:15 result relating to the cassette fabrication and was engaging in relation to it with the cstb

02:59:25 and i go on to stress uh the following important points which we need detailing in uh

02:59:34 in uh much more extensive than our written close

02:59:38 close um

02:59:39 um mr schmidt and mr verla have acknowledged a growing awareness of the risk that acmp in general unless deployed in the context of an

02:59:50 deployed in the context of an appropriate fire risk assessment could contribute to the spread of fire and that this awareness led them to take a number of precautionary steps

03:00:01 a number of precautionary steps those precautionary steps taken by the company included the following

03:00:06 following first

03:00:07 first arranging to modify references to acmp in its market so as to eliminate any claim that a panel could achieve enb

03:00:19 enb reducing as far as possible the price of acn fr

03:00:25 acn fr from early in 2014 giving a voluntary instruction to both internal and external staff as to the disclosure of information concerning acmp

03:00:37 concerning acmp particularly cassette fabrication the 2011 enb results are really still being technically valid until 2016 and encouraging sales staff to focus their

03:00:49 encouraging sales staff to focus their efforts on the sale of acm fr the marketing material at the time of the supply of acnp for rental tar was therefore not misleading

03:01:02 therefore not misleading and in any event there is no evidence that the marketing material was taken into account by the supply chain if anyone in the supply chain relied on outdated marketing material that was not

03:01:13 outdated marketing material that was not something over which the company had control

03:01:17 control moreover anyone in the supply chain could have been aware of the existence of and the possibility of utilizing a fire retardant product

03:01:28 fire retardant product those involved had originally specified zcm zinc instead of aluminium fr panels there are examples of the company supply

03:01:40 there are examples of the company supply of the company specifically providing the class zero test report in relation to the fr product thereby alerting customers not only to the existence of

03:01:51 customers not only to the existence of that product but to its class zero fabrication to its class zero certification no reliance can or should be placed upon the assertions of those in the supply

03:02:03 the assertions of those in the supply chain who claimed to be unaware of the availability of acmfr in circumstances where there was a perceived need to reduce cost their decision to prefer

03:02:15 decision to prefer acmp was probably cost related in any event and this is important there is certainly no evidence in the case of the grenfell track in the case

03:02:26 case of the grenfell track in the case of the rental transaction that anyone on the part of the company pressed or pushed for acmpe to be preferred as distinct from acm fr

03:02:43 in general um

03:02:46 um the evidence shows that customers with whom the issues were discussed were told about the ene classification result as well as that result being available

03:02:58 result being available on the website of the cstb several of the company's fabricator clients such as simcoe and taylor maxwell were made aware of this information

03:03:09 information unfortunately it seems this did not apply to cep at least not by direct communication on behalf of the company though the information was just as available to them

03:03:21 available to them as it was to others during the evidence of deborah french on day 88 council to the inquiry expressly acknowledged that information as to the ene classification was sent on to

03:03:34 ene classification was sent on to customers and it was suggested that deborah french alone appears to have failed to do this it's unrealistic however to suggest that uk sales representatives should

03:03:46 that uk sales representatives should have advised on the uk regulatory regime relating to cladding systems not least because they would not have the detailed information about other products and systems within which

03:03:58 products and systems within which the acmp

03:04:00 the acmp wouldn't use they were however aware that any relevant technical requests from customers could be sent to the company's technical team for review and would have facilitated this

03:04:15 now i want to say a few words if i may about the way in which the acm was used on grenfell town

03:04:25 and of course the company did provide um

03:04:30 um guidance as to the way in which it might be used

03:04:33 be used but that information as to the methods of fabrication doesn't seem to have been consulted at all by those involved in the grenfell tower refurbishment

03:04:45 tower refurbishment project

03:04:47 as a result there were numerous departures from this information which have been fully detailed by barbara lane in her phase one report

03:04:58 one report in april 2018 section eight on the tower itself only two-thirds of the external surface comprised acmp and all that at least 50 percent was

03:05:11 and all that at least 50 percent was comprised of fabric panels fabricated in a fashion which can only be described as wholly unorthodox and as i've mentioned an equivalent area of the facade

03:05:22 an equivalent area of the facade comprised the alley blades panels and windows

03:05:26 windows as mr hyatt pointed out the acmpe used on the columns of the crown of the town was fabricated in a way which was peculiar to renfrew town and which could

03:05:37 peculiar to renfrew town and which could not have been anticipated by the company in a construction project of any kind in relation to the more orthodox 50 even that was utilized within the

03:05:49 even that was utilized within the context of an irregular building construction in that there were numerous departures from regulatory guidance including matters such as the absence of cavity barriers around the window opens

03:06:02 cavity barriers around the window opens these deficiencies were not something which the company could have been expecting to anticipate taking into account the various considerations i've set out above it's clear that no more than a

03:06:15 above it's clear that no more than a third of the external surface of the tower was planned in acm panels fabricated in anything resembling an orthodox manner and of these an unknown

03:06:26 orthodox manner and of these an unknown proportion fell away in the early stages of the fire

03:06:30 fire many of the acn panels were fabricated in a way which the company could not possibly have foreseen moreover the acm panels were utilized throughout in a wholly unorthodox

03:06:42 throughout in a wholly unorthodox and irregular cladding system for which the company bore no responsibility that cladding system comprised a very large number of acm panels in an

03:06:53 a very large number of acm panels in an unorthodox fabrication and a range of other combustible materials such as the alliglades panels and a whole range of other combustible pythons and comprise extra thick insulation

03:07:07 and comprise extra thick insulation which as already mentioned covered the majority of the tower

03:07:16 it's a remarkable feature of the evidence within phase two but hardly any of the witnesses were prepared to acknowledge an awareness of the combustible nature of the core of the

03:07:27 combustible nature of the core of the panel

03:07:28 panel though some admitted to an awareness that it was plastic and some but fewer admitted that the call was therefore combustible the inquiry may take the view but those

03:07:39 the inquiry may take the view but those who profess ignorance of these matters do so

03:07:42 do so with their own interests to protect mr sakula has emphasized that a responsible specifier would have taken into account the combustible nature of acnp when selecting the combination of

03:07:55 acnp when selecting the combination of materials to use on the external facade he confirmed the recent reasonably competent cladding contractor would have

03:08:06 competent cladding contractor would have known that the various types of insulation used were combustible he confirmed that a reasonably competent cladding contractor ought to be aware

03:08:17 cladding contractor ought to be aware of the

03:08:19 of the combustibility of acmp cladding and he highlighted the fact that a reasonably competent contractor would have checked with the manufacturer or the supplier to confirm whether an fr

03:08:32 the supplier to confirm whether an fr core should be used

03:08:38 and he said

03:08:41 said and we agreed that he would have expected

03:08:44 expected a design and build contract in relation to renfrewtown to consider the appointment of a facade engineer or consultant he observed the relation to design both

03:08:57 he observed the relation to design both studio e and hub had designed responsibilities moreover

03:09:04 moreover the inquiry may take the view that irrespective of the precise state of knowledge of individual witnesses there is a more fundamental point since no one concerned with the choice

03:09:16 since no one concerned with the choice or use of the acnpe could have been unaware of the existence of the poor it would follow that anyone responsible for the choice for the use of it had the option to check the

03:09:28 option to check the combustibility of the core whether by asking the manufacturer directly which the evidence shows to have occurred on other projects or by some other means such as looking at test results

03:09:40 such as looking at test results available on the website of testing and regulatory products and none of those responsible for the refurbishment can escape their share of responsibility by claiming ignorance

03:09:52 responsibility by claiming ignorance for that

03:09:53 for that information

03:09:56 finally we respectfully remind the inquiry that it's already clear that the kind of tragedy which occurred at grenfell

03:10:04 grenfell could only have occurred as a result of a unique combination of factors including the combination and configuration of the materials used in the refurbishment

03:10:15 the refurbishment the failure of compartmentation and other internal systems and undue reliance on the stay put policy among others we attempted to assist the inquiry as to

03:10:26 we attempted to assist the inquiry as to the interaction between many of these factors in the schedule forming part of our written closing at the conclusion of phase one

03:10:34 phase one more recent evidence as to the lack of maintenance and fire protection and lack of maintenance of fire protection systems can now be seen to have contributed to smoke spread and

03:10:46 contributed to smoke spread and inhibited the fire and fire fighting ability of the lfb this extraordinary range of factors should we submit be regarded as ultimately responsible for the tragedy

03:10:58 ultimately responsible for the tragedy to a far greater extent than the role played by any individual product according

03:11:04 according it's respectfully submitted that the conclusion of the inquiries phase one report that the presence of the acm rain screen plan in the external wall was the

03:11:15 screen plan in the external wall was the principal reason why the fire spread so quickly

03:11:18 quickly can now be placed in a far wider and we respectfully submit more accurate context

03:11:24 context we would add this final observation may well be that the inquiry will ultimately conclude that there were significant deficiencies in the regulatory regime before and

03:11:37 in the regulatory regime before and during the refurbishment of dreadful time

03:11:40 time it may well be furthermore but the inquiry will conclude that those who carried out refurbishment failed either properly or at all to apply that regulatory regime to the

03:11:51 apply that regulatory regime to the construction work which they had agreed to undertake it would as we suggest be wrong and unfair for the inquiry to pin the blame for this tragedy

03:12:03 pin the blame for this tragedy upon the manufacturer of cladding panels which were known to be combustible and which were nonetheless treated by all those concerned as being usable in

03:12:14 those concerned as being usable in conformity with the regime thank you

03:12:19 thank you thank you very much mr hoffman mr military i think you want to um yes mr chairman thank you very briefly on the subject of the uh fbs the french blocking statute i just want to

03:12:30 blocking statute i just want to say two things very briefly first millennial friend mr hochman queen's council has not quite accurately stated what the inquiry told our colleagues solicitors

03:12:41 solicitors what was said in correspondence was and i quote council to the inquiry does not intend to refer in any closing statement he may make to the reasons why the iconic employees did not give

03:12:54 the iconic employees did not give evidence close quote and no more than that

03:12:57 that it was certainly not a reversal from any previously publicly stated position second mr chairman we certainly the inquiry team do not necessarily accept the conclusions of

03:13:10 necessarily accept the conclusions of our colleagues proffered french law experts report it is right to say only that the question about the application of the french blocking statute to this inquiry is controversial as a matter of

03:13:21 inquiry is controversial as a matter of french law and the panel we hope will consider that question in due course when reflecting on the evidence as a whole

03:13:29 whole that's what i wish to say thank you thank you very much well uh it is now 1 15. mr talkman thank you for your statement we are now going to break for some lunch

03:13:41 break for some lunch and we'll resume at 2 15 when we shall hear from mr craig all

03:13:46 all good thank you very much

03:14:04 you