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Grenfell Tower fire litigation ‘inevitable’

Solicitor advocate calls for inquest following prime minister’s promise of a public inquiry

16 June 2017

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The Grenfell Tower fire, which has so far claimed the lives of 30 residents, will inevitably lead to litigation, including criminal and corporate manslaughter charges, and put pressure on the government to review fire safety.

Fire quickly spread through the 24-storey block in the early hours of 14 June. The tower block in West London consists of 120 homes and around 600 residents. As the death toll continues to rise, some 37 people remain in hospital, and, according to the charity Crisis, 79 households are currently in temporary accommodation.

As questions are raised over failings in the management of the block and its £8.6m refurbishment, Scotland Yard has said it is beginning a criminal inquiry. Elsewhere, Labour MP David Lammy has called for corporate manslaughter charges to be brought.

Adrian McClinton, an associate at Coffin Mew, said it was becoming increasingly clear that litigation is ‘inevitable’, with several potential actions to be considered, including, but not limited to, corporate manslaughter. However, McClinton said the latter charge is ‘notoriously difficult to successfully bring against any party’.

‘Many of the claims from the residents may be covered by insurance. However, there may have been serious failings by the management company, acting on behalf of the local authority, that may give rise to further liability in contract (to the tenants of the block) and in negligence,’ he continued.

‘As the management company was acting on behalf of the landlord, the primary liability will initially fall on the local authority. Given the amount of concern raised by the resident’s associations prior to yesterday’s fire, it may be difficult to claim that the local authority did not know about existing problems, if these turn out to be relevant.

‘Knowledge of any problems and not taking appropriate steps and/or not carrying out regular inspections may also invalidate any existing insurance held by the local authority.’

There are also question marks over the refurbishment of the block, which, McClinton advises, may also create claims in negligence against the contractors, as well as claims for contribution to compensation payments.

‘Finally, there may be prosecutions brought by the Health and Safety Executive and/or the Crown Prosecution Service against the local authority and its management company for breaches of relevant health and safety law, including regulations designed to prevent injury or death by fire such as the Housing Act 2005, Smoke and Carbon Monoxide Alarm (England) Regulations 2015, and Regulatory Reform (Fire Safety) Order 2005.

‘In terms of building regulation, the government will be feeling the pressure to order a review of “Approved Document B” which covers fire safety to show they are doing all that they can to stop this happening again.’

Inquiry versus inquest

Pilgrim Tucker, who worked with Grenfell residents for several months on their concerns regarding the block, told BBC’s Newsnight: ‘These are ordinary residents. They are not the Camerons. They can’t afford lawyers. They tried to get lawyers, but because of the legal aid cuts, they couldn’t.’

However, as reported by Legal Voice, lawyers have blamed a ‘housing law lacuna’, rather than cuts in legal aid, as the reason residents were unable to take action.

Meanwhile, the prime minister’s ordering of a full public inquiry into the fire has been met with criticism. Theresa May said there will be a ‘proper investigation’ and that if there are ‘any lessons to be learned they will be, and action will be taken’.

Announcing the inquiry, she added: ‘We need to ensure that this terrible tragedy is properly investigated. People deserve answers. The inquiry will give them.’

However, solicitor advocate Sophie Khan, director of Sophie Khan & Co, told Newsnight that an inquest should be called, not an inquiry where a minister would set the terms of reference.

‘In an inquest they lose control of what a jury verdict will do. Juries will come out with narrative verdicts which may be very difficult for the government to hear,’ she said. ‘You can’t have both, you can only have one or the other. They [residents] should really be demanding an inquest.

‘I’m very concerned as to why Ms May came out so quickly to say “public inquiry”. What is there, that she knows, that needs to be hidden?’

This argument has been countered, however, by human rights barrister Adam Wagner, who said: 'Common arguments are length of time to complete, and involvement of victims/victims' families. On length, if people want wide-ranging investigation of at wider systemic issues there is no reason inquests would be shorter than inquiry. On involvement of victims/families, anecdotal evidence of families feeling more involved with inquests, that doesn't match my experience.

'Yes, a public inquiry's terms of reference are set by government, but they can be challenged. On paying for representation – would be hugely surprised if government won't pay for the families' representation, whatever form of investigation,' Wagner added. 'So, I think Theresa May made right call in calling a public inquiry. Better suited to the kind of wide ranging investigation needed here.'

Jill Paterson, a partner at Leigh Day, also welcomed the announcement of a public inquiry but said that ensuring financial support is provided to affected residents should not be delayed until its outcome. Paterson added that a scheme to provide interim payments to affected families should be set up as soon as possible.

'In previous cases we have been involved in, insurers took the lead in resolving the claims right from the outset and responded proactively and with a high degree of sympathy and compassion for the victims, putting aside the issue of which individual bodies were responsible so far as the victims were concerned,' she said. 'This approach should now be taken in relation to the Grenfell Tower fire to ensure that those affected can begin to rebuild their lives.'

This week's tragedy is the latest a high-rise fire in the capital. In 2009, six people died when a fire broke out in Lakanal House in Southwark. The inquest which took place in 2013 heard how composite panels had been on the building. In August 2016 a fire ripped through five floors of a high-rise block in Shepherd’s Bush. The fire is believed to have been started by a faulty appliance. No one was injured but a number of families’ homes were destroyed. In 2010 a fire at Shirley Towers in Southampton resulted in the deaths of two firefighters.

Pro bono support

The Good Law Project, a non-profit organisation that uses strategic litigation to deliver a progressive society, has set up a trust in the wake of Grenfell. The trust will ensure that cash donations are distributed, in a speedy fashion, to those most in need.

All lawyers involved in setting up the trust have worked on a pro bono basis. James Kessler QC, of Old Square Tax Chambers, has drafted the trust deed. The initial trustees will be PJ Kirby QC, of Hardwicke Chambers, and Jolyon Maugham QC, of Devereux Chambers. In time, they will be replaced or supplemented by local community leaders.

'However angry we feel about the apparent inaction before the Grenfell Tower disaster, it is hard not to feel humbled by the response from various communities since,' said Maugham.'Those of us who witnessed the streets around the tower in the aftermath are truly humbled by the generous donations of clothes, food, and goods. Cash donations continue to flood in through a number of crowd-funding sites.

'Experience tells us that getting these funds in to the right hands is difficult and time consuming,' he continued. 'For this reason, we have set up the trust. We are looking to identify community leaders to become trustees and ensure the appropriate distribution of the monies raised. We also ask any individual fundraising efforts to contact us so that we can pool our resources together and ensure that no monies end up in the wrong hands. We are currently in talks with one of the major crowdfunding site and hope that more will join us.'

Asked whether Chancery Lane will coordinate offers of free legal advice for people bereaved, injured, or left destitute by the latest fire, Law Society president Robert Bourns said: ‘The legal profession is again demonstrating huge willingness to help and many are already offering free legal advice to those whose lives have been utterly devastated.

‘These people will face a different range of legal issues to those affected by terror attacks, and the number of people is also of a completely different magnitude. We are therefore taking stock, reviewing infrastructure that exists to support victims, and considering what will be needed.’

The call for free legal services for those affected by the fire follows the establishment of pro bono panels for victims of the Manchester and London Bridge terror attacks.

On the panels set up following the attacks, Bourns said: ‘Victim Support will be referring people injured or bereaved during the attack at London Bridge to the London pro bono panel and we are working with the Legal Aid Agency, a tech company, LawWorks, and the Bar so we can help people navigate the legal processes they may encounter as easily as is possible under the circumstances.

‘Since we opened the panel we’ve heard from well over a hundred solicitor firms, barristers’ chambers, as well as individual students and legal executives – all of them offering free legal advice to those in need following the attack.’

Image copyright Natalie Oxford

John van der Luit-Drummond is deputy editor of Solicitors Journal

john.vanderluit@solicitorsjournal.co.uk | @JvdLD

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