Increasingly, as construction lawyers, we are going to be spending our time dealing with issues of cladding. More particularly, ACP, or aluminium composite panels. And yet more particularly, where the meat in the aluminium sandwich is polyethylene, or at least 30% polyethylene.

So. Here’s the thing. As we discovered from the fate of HMS Sheffield in Falklands war, aluminium (which is the bread in these sorts of sandwiches) can catch fire if it gets hot enough. Furthermore, polyethylene is flammable at lower temperatures. It hardly ever happens, but if you get a really fierce fire going, ACP with a polyethylene core can, and very occasionally will, catch fire.

Let’s explore the “hardly ever happens” thing. My friend the barrister Liana Chan was giving the talk this week on the topic, and in chatting to her before this, I remarked that you are about a thousand times more likely to get struck by lightning than to get killed or injured by ACP cladding. She tells me that she passed on this observation (attributed to me) in her talk.

The “1,000 times more likely” was of course a figure of speech, rather than an exact calculation. If you start doing exact calculations and, in terms of the population of the world, it is a considerable underestimate. I calculate that over the past 30 years, when this sort of cladding has been in fairly widespread use, an average of about 3.2 people a year have been killed by it.[1] By contrast, some 24k people a year are killed by lightning. And so the average citizen of the world is something like 13,000 times more likely to be killed by lightning than by ACP cladding. You may say, with some justification, that Continue reading →

I see that Laina Chan and JW Carter[1] have joined the chorus of criticism of the highly unsatisfactory decision of the High Court of Australia in Mann v Paterson.

In Mann v Paterson Constructions Pty Ltd – New Law for Quantum Meruit Claims in Building Contracts (2020) 36 BCL 4, like many commentators, they have assumed that a quantum meruit in these circumstances has to be the restitutionary variety as though that were the only game in town.  But as the Supreme Court in the UK recently noted there are now two “fundamentally different” categories of quantum meruit: restitutionary quantum meruit (also referred to as unjust enrichment) on the one hand and contractual quantum meruit on the other:

it is important to bear in mind that although the term “quantum meruit” is used both in the context of contract and in the context of unjust enrichment, the basis on which a quantum meruit award is made differs according to which context is relevant.[2]

Contractual quantum meruit is often unjustifiably overlooked, and any quantum meruit ingredient of an innocent party’s entitlements following a owner’s repudiation of a construction contract[3] sits much more naturally as a contractual quantum meruit than a restitutionary quantum meruit. And it is worth bearing in mind that Continue reading →