Dispute on certification for fire doors going to court?

by Readers Question

11:26 AM, 28th March 2019
About 7 months ago

Dispute on certification for fire doors going to court?

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Dispute on certification for fire doors going to court?

We are a partnership of 4 landlords and have a contract dispute with our supplier of FD30 doors. We had 3 installations done in 2013 in leasehold flats (using our freeholders’ approved supplier) but the freeholder of the blocks has recently failed them after a routine fire risk assessment. One has failed due to physical issues and the others have been failed due to lack of evidence that they are FD30.

We have job sheets showing we ordered FD30s but no other evidence. The freeholder has told us to replace the installations and listed the government guidance document they are now adhering to – which states suppliers must provide evidence.

The supplier says the installations are FD30, but refuses to provide any evidence – siting documentation was not part of the contract. We are stuck in the middle of all this so made a small claim to try to be reimbursed for the £3000 cost of the installations.

At yesterday’s hearing we were asked to file amendments and told the onus is on us to prove breach of contract. A 4 hour trial is being set for July. None of us are legally trained and we are debating whether to continue with this. We believe the supplier is using a large law firm via his insurance – as he has fitted thousands of these doors for various housing associations – as well as for small landlords like ourselves.

We would welcome readers’ advice and any similar experiences – thank you.

Julie



Comments

Ian Cognito

11:05 AM, 29th March 2019
About 7 months ago

I found this at firesafe.org.uk:
Identifying Fire Doors
Once the certification is approved, each similarly constructed door set will be identified by a label identifying the manufacturer, the date of manufacture and the designated fire rating of the door type. This identification label is usually affixed to the top edge of the door. A colour-coded plug may be inserted into the door, instead of or in addition to the label. For hospitals, fire doors display a disc at the top of each face of the door showing the designated fire performance as per Health Technical Memoranda (HTM) 58.
Identification marks can sometimes be removed or painted over during the installation or adjustment of a fire door set but, if the work has been professionally carried out under the auspices of the BWF/FIRAS Accredited Fire Door Installers Scheme, the chance of this happening can be avoided.

Paul Maguire

8:52 AM, 30th March 2019
About 7 months ago

I had a similar situation a couple of years ago. I scraped back the paint on the hinge jamb of one of the doors that hadn't had intumescent strips fitted and revealed a plastic plug inserted into the jamb. I then had a new Fire Risk Assessment done and insisted that the doors being fire-doors [in my case F60 but only F30 was required] was noted in the report. I suspect that when intumescent seals are fitted the plugs get routered out.

Alison King

11:06 AM, 30th March 2019
About 7 months ago

This is a worrying topic. I have just had fire doors fitted in an HMO. The invoice clearly states 5 x fire doors. Would that be insufficient as evidence of compliance?

John Frith

13:53 PM, 30th March 2019
About 7 months ago

OP says "The supplier says the installations are FD30, but refuses to provide any evidence – siting documentation was not part of the contract."

So tell them you'll pay reasonable costs to put the labels on. If they're willing - problem solved. If they're not, then I'd start to investigate the possibility of referring them to Trading Standards.

Michael Mathews

4:28 AM, 31st March 2019
About 7 months ago

An FD30 fire door (30 minutes minimum fire resistance) can readily be identified by its thickness (usually 45mm vs 35mm of ordinary doors), weight and it being solid (not hollow, filled with honeycomb cardboard)
It takes very little to resist fire for 30 minutes - a stud partition with ordinary plasterboard with a skim coat will do this.
Remember that the guidance on identifying doors as FD30 or FD60 is only "guidance" and not a legal "must" - it is just one (easy) way that you can demonstrate compliance.
Remember also that civil courts decide matter "on the balance of probability" ("more likely than not" or more than 50% likely to be the case) which is a low bar to pass. If you have an invoice or whatever that states the doors are FD30 and the other side have nothing specific (ie: don't have their own fire test results to show this is not the case or can obviously show they are not FD30 - because they are falling into pieces etc), then you have proven that the doors are FD30 on the balance of probabilities / to a greater than 50% likelihood.
Unlike criminal prosecutions, for which the onus of proof is on the prosecutors and they must prove their case "beyond any reasonable doubt", in civil claims the onus falls equally on both sides, but whoever is proven wrong is likely to have to pay the costs of both sides (ie: be ordered to pay the costs of both sides by the court, if asked to do so just after the court makes its judgement on the matter).
Given you have invoices etc that state the doors are FD30 and the other side appear to have nothing (other than a lack of a label on the door, which is not a "must") it is likely that you will win and they will have to pay your costs - it can be a useful tactic to warn the other side about the risk of "adverse cost orders" (the loosing party being ordered to pay the costs).
The way you can "prove" the doors are FD30 is:
- Show them the paperwork
- Provide a witness statement from you, signed with a statement of truth, that says your supplier states they are FD30 - a witness statement signed with a statement of truth counts as "proof" and will stand as fact unless the other side have some positive evidence to contradict it (ie: a fire test they have done, expert visual evidence...)
- Inspect them yourself - if they are ~45mm thick, seem relatively heavy and solid then they are likely FD30 doors (remember that you will need an FD30 door, an FD30 door frame and intumescent strips all around the door or frame)

If they insist on a fire test being the only evidence they will accept, remind them that they will be ordered by the court to pay for this too, if and when they loose.

Remember that the Building Regulations 1991 are elegantly simple - in essence they just require you to take all reasonable measures to make sure the building is fire safe - leaving it to you to determine how to do this - and for you (as "responsible person" for the building) to prove to a court that you had done so, if ever there was a fire and you were ever prosecuted for not making sure the building was fire safe.
Cladding Grenfell tower in flammable material was, and remains always, illegal, as the result was no longer fire safe.
Approved Documents (ie "B" in the case of fire safety) are only guidance in how you may be able to make a brick and timber building fire safe. It is possible for your building to comply 100% with such Approved Documents, but still be unsafe.

Remember, that:

"MUST" = something that you must do by law
"SHOULD" = best practice to do
"MAY" = a way in which you can show you have complied with the law.

Guidance = a MAY = a way you can demonstrate you have complied with the law ie; a label on the door is just one of the ways you can prove the door is FD30 - an invoice, an email from the supplier, visual checks on the door etc are all other ways that can demonstrate "on the balance of probabilities" that the door is FD30 - which can only be the case if the door, wall, intumescent strip and wall around it comply (a chain is as strong as its weakest link)

As for reporting the supplier to Trading Standards - don't do it. The supplier is just seeking not to be sucked into pointless legal action and is not behaving badly enough to warrant such a report. Ideally they would just send you a letter confirming they are FD30, but they don't have to - and if it is evident enough they are FD30, there is not need.

You appear to be dealing with a "jobsworth". You need to respond with a firmly worded letter stating the above. Do not be shy about doing this - courts want you to resolve matters before burdening them with resolving your disputes - if you can show that you have (show them copies of your letters etc), then they will be penalised with higher adverse costs.

Julie Kirby

8:07 AM, 5th April 2019
About 6 months ago

Thank you all for your help to date

Julie Kirby

19:42 PM, 24th April 2019
About 6 months ago

We’ve been informed that the Small Claims case we are bringing hinges on whether the information contained in the Ministry of Housing, Communities & Local Government Advice Note (MHCLG/BSP/Advice Note/16/310718) is legal. This document contains many references as to the provision of paperwork, one of which is reproduced below:

Item 16 states ‘Replacement doorsets should have test evidence from a UKAS accredited test facility, or equivalent17, to ensure they meet the standards set out in the Building Regulations guidance’.

This guidance note stems from the regulations in Article 50 of the 'Regulatory Reform (Fire Safety) Order 2005' which references ‘Communities and Local Government guidance’ to assist responsible persons to fulfil their duties. Article 50 provides that the Secretary of State must ensure that such guidance, as he considers appropriate, is available to assist responsible persons in discharging their duties under the Order. Communities and Local Government has produced guidance for responsible persons in the types of premises covered by the Order.

Given that the Fire Safety Order (which is an ‘Act’) points to guidance, could anyone offer an opinion as to whether the guidance is also a legally enforceable document?

Thank you.


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