Chapter 23: Certification of Kingspan K15 by LABC

Local Authority Building Control

¶23.1 Local Authority Building Control (LABC) is a membership organisation created in 2005 to support all local authority building control teams in England and Wales (all of whom are members) with training, technical matters, and to provide centralised marketing and business development for members through a single network, in part through the creation of a centralised brand that is recognisable to building control users. It also aims to provide advice and assistance to members, to promote technical consistency in the interpretation of building regulations and to provide a forum for discussion between members. LABC is governed by a Board of Directors, with a Chief Executive who until 2016 line managed the Director of Technical Policy.⁹⁰⁷⁹⁰⁷ Stimpson {LABC0020158/7-11}. From October 2006 until March 2021, the Director of Technical Policy was Barry Turner.⁹⁰⁸⁹⁰⁸ Turner {LABC0002105/4} page 4, paragraph 14; Turner {Day216/4:9-16}.

LABC's certification schemes

¶23.2 By the early part of the present century the informal sharing of information between local authority building control departments about the suitability of construction products had developed into a more formal system known as the Type Approval scheme⁹⁰⁹⁹⁰⁹ Turner {LABC0011202/8} page 8, paragraph 30; {LABC0018747}. administered by LABC on behalf of its members. (In 2010 the name of the scheme was changed to the Registered Details scheme.)⁹¹⁰⁹¹⁰ Turner {LABC0011202/14} page 14, paragraph 45. The purpose of the scheme was to assess and verify the compliance of construction products or systems with the Building Regulations and Approved Documents. The categories of approvals granted under the scheme included a "Product Type Approval", which verified individual products or small components, and a "System Type Approval", a very wide category covering modular building systems as well as individual elements forming part of a larger structure.⁹¹¹⁹¹¹ {HBC00000049/10-11} paragraph 2.2. The intention was to assist individual local authority building control bodies making decisions on specific projects,⁹¹²⁹¹² Turner {LABC0011202/7} page 7, paragraph 27; Turner {Day216/24:18-25}. to promote technical consistency⁹¹³⁹¹³ Stimpson {LABC0020158/23} page 23, paragraph 25.3. and to make it easier for applicants for approval in different local authority areas to demonstrate compliance with the Building Regulations.⁹¹⁴⁹¹⁴ Turner {LABC0011202/7} page 7, paragraph 26. The Type Approval scheme was also intended to provide a means of securing long term business for and reinvestment into LABC.⁹¹⁵⁹¹⁵ {HBC00000049/26} paragraph 7.3.

¶23.3 The assessment of a product or system for the purposes of granting Type Approval was carried out by the building control department of a member local authority, sometimes referred to as the "research authority"⁹¹⁶⁹¹⁶ Stimpson {LABC0020158/24} page 24, paragraph 25.13. or "matched authority",⁹¹⁷⁹¹⁷ {HBC00000049/5}; {LABC0002281/3}. designated by LABC (if the application was made to LABC) or as a result of a direct approach by the manufacturer to a particular local authority.⁹¹⁸⁹¹⁸ Turner {LABC0011202/8-9} pages 8-9, paragraph 31; Stimpson {LABC0020158/23} page 23, paragraph 25.6; {LABC0020158/25} page 25, paragraphs 25.16 and 25.17; {LABC0011202/11} page 11, paragraph 39. However identified, it was the responsibility of that authority to undertake an objective and impartial technical assessment⁹¹⁹⁹¹⁹ Turner {LABC0011202/5-6} pages 5-6, paragraph 23; Stimpson {LABC0020158/27} page 27, paragraph 25.25. of a product or system based on information and supporting certification and test results from recognised bodies provided by the manufacturer.⁹²⁰⁹²⁰ Turner {LABC0011202/6} page 6, paragraph 25; {LABC0011202/10} page 10, paragraph 35. The intention was to reflect the investigation that a building control surveyor would otherwise need to carry out to determine compliance with the Building Regulations and Approved Documents,⁹²¹⁹²¹ Turner {Day216/25:2}-{Day216/26:13}. with the additional support of an independent second check.

104

¶23.4 LABC published various editions of a Type Approval Service Manual⁹²²⁹²² {HBC00000049/6-30}. that set out the framework, process and standards for issuing certificates under the scheme. The manual was intended to act as a guide to assist member local authorities undertaking assessments.⁹²³⁹²³ {HBC00000049/9} paragraph 1.1; Turner {Day216/71:6-10}. Although the process was based on information provided by manufacturers and therefore depended on their honesty and good faith,⁹²⁴⁹²⁴ Turner {LABC0011202/12} page 12, paragraph 42; Brennan {LABC0020135/15-16} pages 15-16, paragraphs 21.17 and 21.21; Stimpson {LABC0020158/25} page 25, paragraph 25.15; Ewing {LABC0020139/17} page 17, paragraph 21.18. the assessment of the product or system under consideration was intended to be carried out at a high level and comprehensively checked in all respects.⁹²⁵⁹²⁵ {HBC00000049/16} paragraph 3.2. With a view to maintaining the quality of the assessment, the scheme provided for a second check that might take a variety of forms, including referral to a specialist agency, consultant or independent peer review group.

¶23.5 Following a successful assessment, a certificate was issued by LABC, which was intended to represent "a singular initial Building Regulation approval in respect of a standard construction matter." As such, it was intended to confirm that the product or system complied with the Building Regulations for all uses falling within the defined scope and terms of the certificate.⁹²⁶⁹²⁶ {HBC00000049/9} paragraph 1.2. It was intended to fulfil a number of functions, including the elimination of the need for repetitive checking of compliance with the Building Regulations.⁹²⁷⁹²⁷ {HBC00000049/9} paragraph 1.2. The manual therefore contemplated that all local authorities would accept the certificate (within its terms and limits) without further checking.⁹²⁸⁹²⁸ {HBC00000049/10} paragraph 2.1.

The first certificate for K15: May 2009-May 2012

¶23.6 From 2009 onwards, Kingspan obtained a number of LABC certificates for K15.⁹²⁹⁹²⁹ System Type Approval 1 May 2009 – 1 May 2012, Registered Details RD 165 28 August 2013-28 August 2014, Registered Details August 2014 – 30 November 2014, EWW165 Certificate 9 March 2015–9 March 2016, EWWS165 Certificate 24 March 2016-30 March 2019 {LABC0019607/2-3}; Ewing {LABC0020139/22-24} pages 22-24, paragraph 27. The first was a System Approval certificate dated 1 May 2009 which remained valid until 30 April 2012.⁹³⁰⁹³⁰ {KIN00005705/1}. A document entitled "Summary of the System and the Main Issues Considered" accompanied and formed part of the certificate⁹³¹⁹³¹ {KIN00005705/3-6}. and made a number of important statements about the performance of K15 in fire. In particular, having stated that K15 had been tested in accordance with BS 8414-1, and BS 476, parts 6 and 7,⁹³²⁹³² BS 8414-2:2002 (Test method for non-loadbearing external cladding systems applied to the face of a building) {CEL00001205}; BS EN 1364-1:1999 (Fire resistance tests for non-loadbearing elements – walls) {BSI00000105}; BS 476-6:1989 (Method of test for Fire propagation for products) {BRE00005557}; BS 476-7:1997 (Surface spread of flame) {CTAR00000017}. it said that "From the results, it can be considered as a material of limited combustibility and meets the criteria for Class 0 classification for surface spread of flame".⁹³³⁹³³ {KIN00005705/4} under the heading "Requirement B – Fire Safety Considerations". On the next page it stated that "Since K15 can be considered a material of limited combustibility, it is suitable for use in all situations shown on Diagram 40 of Approved Document B Volume 2, including those parts of a building more than 18m above the ground.".⁹³⁴⁹³⁴ {KIN00005705/5} paragraph 1.

105

¶23.7 Those statements were fundamentally incorrect in every respect. K15 was not, and could not be considered, a material of limited combustibility and the tests to which it was said to have been subjected were not capable of establishing whether it was a material of limited combustibility.⁹³⁵⁹³⁵ {KIN00005705/4} under the heading "Requirement B – Fire Safety Considerations". Its performance in BS 476 tests did not show that it met the criteria for Class 0. Those were matters of critical importance when considering the intended use of K15, particularly on buildings over 18 metres in height. It is therefore necessary to examine how the certificate came to include statements of that kind.

¶23.8 The representatives of Kingspan involved in obtaining the certificate were Andrew Pack, Technical Services Manager,⁹³⁶⁹³⁶ Pack {KIN00008702/4} page 4, paragraph 2.8. and his line manager⁹³⁷⁹³⁷ {KIN00008752}; Heath {Day79/126:12-13}; Pack {Day86/10:9-12}. Philip Heath, who until 2010 was Technical Manager.⁹³⁸⁹³⁸ Heath {KIN00020709/4} page 4, paragraph 2.8. On 24 November 2008 Mr Pack contacted Barry Turner by telephone to discuss a Type Approval certificate for K15.⁹³⁹⁹³⁹ {LABC0002281/4}. Following that call, Mr Turner sent an email⁹⁴⁰⁹⁴⁰ {LABC0002281/3}. to LABC's Business Development Team informing them that Kingspan had asked for information about obtaining a system type approval for K15 primarily in relation to functional requirements B and C of the Building Regulations. He expressed a preliminary view that LABC could consider granting such approval on the basis that K15 had a BBA certificate and LABC could therefore add an opinion on compliance with the Building Regulations in situations to be described by Kingspan.⁹⁴¹⁹⁴¹ {LABC0002281/3}; Turner {Day216/40:6}-{Day216/42:9}.

¶23.9 Herefordshire County Council agreed to undertake the assessment of K15 and prepare any resulting certificate. The work was given to David Jones, who was a Senior Building Control Surveyor from June 2005 until November 2011 and thereafter a Building Control Team Manager until July 2014.⁹⁴²⁹⁴² Jones {HBC00000029/3-4} pages 3-4; Jones {Day101/7:8}-{Day101/8:22}; Turner {LABC0011202/8} page 8, paragraph 31. Mr Jones told us that Herefordshire was selected to undertake the assessment not for any reasons of technical expertise but due to its proximity to Kingspan's Pembridge site.⁹⁴³⁹⁴³ Jones {Day101/16:4-20}. He had never previously been involved in the Type Approval process⁹⁴⁴⁹⁴⁴ Jones {Day101/26:18-24}. and believed that the work had been delegated to him because he had a specific role in the department for marketing activity. The Type Approval scheme was viewed as a way of raising the profile of the LABC brand.⁹⁴⁵⁹⁴⁵ Jones {Day101/18:5}-{Day101/19:8}.

106

¶23.10 Mr Jones was reluctant to undertake the assessment of K15. He could see that it involved testing and certification, which he knew were not matters within his experience or within the experience of any other members of his department.⁹⁴⁶⁹⁴⁶ Jones {Day101/17:4-15}. In early 2004, Mr Jones had attended a four-day training course designed for individuals new to the Building Regulations profession. Other than this, his training was "on the job" {Day101/9-23}-{Day101/10:7}; {Day101/12:2-6}; {Day101/60:5}-{Day101/61:2}. He had not undergone any specific training on the reaction of materials to fire, the testing and certification of construction products, or on the use of materials in buildings over 18 metres in height. There were no buildings over 18 metres in height in Herefordshire, so he had not had to consider the guidance relating to them in the course of his work.⁹⁴⁷⁹⁴⁷ Jones {Day101/12:2}-{Day101/13:7}; {Day101/32:9-15}.

¶23.11 Mr Jones spoke to someone at LABC, probably Philip Harrison,⁹⁴⁸⁹⁴⁸ Jones {Day101/30:12}-{Day101/31:8}. to explain his concern about undertaking the assessment but was told that it would be fairly limited in scope and should involve an initial meeting with the client and a review of the information provided by it. He was also told that if third party certification was considered to be reliable, it could be accepted at face value and that he need not go behind it.⁹⁴⁹⁹⁴⁹ Jones {Day101/31:24}-{Day101/32:11}; {Day101/36:1-7}.

¶23.12 The reliability of third party certification was a matter for LABC rather than the assessing authority and the BBA was regarded as the leading organisation accredited by UKAS and therefore treated with a high degree of trust.⁹⁵⁰⁹⁵⁰ Jones {Day101/33:18}-{Day101/34:25}. Mr Jones specifically remembered being told during the call that he could rely on the existence of a BBA certificate for K15, which he regarded as significant.⁹⁵¹⁹⁵¹ Jones {Day101/32:15-22}. It provided him with reassurance that he was not expected to delve into complex matters of fire testing.⁹⁵²⁹⁵² Jones {Day101/32:9}-{Day101/33:9}. He explained that he was specifically told that his assessment should be based on the BBA certificate and that because the BBA would already have examined all the test information,⁹⁵³⁹⁵³ Jones {Day101/32:17-18}. he need not verify any part of its contents.⁹⁵⁴⁹⁵⁴ Jones {Day101/32:15-22}; {Day101/37:5-10}; {Day101/46:1}-{Day101/47:2}, "I just remember this BBA certificate being the key factor, that, 'No it's okay, don't worry, it's got a BBA certificate' and that was it. That was the answer really".

¶23.13 LABC did not accept Mr Jones' account of the telephone call, which it said was contrary to its practice both then and now.⁹⁵⁵⁹⁵⁵ {LABC0019740/24-25} pages 24-25, paragraph 64 (iv). However, none of its witnesses was able to tell us who had spoken to him or to provide us with any other information about the call he described. David Jones, on the other hand, was a straightforward, candid and credible witness who gave a clear and detailed account of it. We have no doubt that Mr Jones was assured by LABC that there was little to be done beyond checking the BBA certificate (which broadly reflects what a building control officer would have done) and that it was on the basis of that assurance, and the knowledge that there would be a second check,⁹⁵⁶⁹⁵⁶ Jones {Day101/183:2}-{Day101/186:5}. that he agreed to take on the task.⁹⁵⁷⁹⁵⁷ Jones {Day101/27:22}-{Day101/29:2}; {Day101/184:21}-{Day101/185:9}.

107

¶23.14 Mr Jones' evidence about what was said during the call is consistent with the terms of LABC's Service Manual in relation to BBA certificates⁹⁵⁸⁹⁵⁸ {HBC00000049/17} paragraph 3.3 under bullet points, "... the holding and submission by the customer of authoritative independent third party verification, particularly if it is from a UKAS accredited source or other method recommended in Approved Document 7, is likely to indicate an acceptable level of satisfaction for our approval purposes and eliminate the need for any additional checking within that aspect".Show full note and with Barry Turner's evidence that when carrying out the second level review⁹⁵⁹⁹⁵⁹ {LABC0008171}. he would probably not have looked beyond the BBA certificate.⁹⁶⁰⁹⁶⁰ Turner {Day216/56:11-14}; {Day216/41:18}-{Day216/42:9}; {Day216/83:13-20}. Mr Turner's internal email in November 2008 {LABC0002281/3} "…given that the product has relevant BBA certification…". That all supported Mr Jones' understanding that in practice LABC did place complete reliance on BBA certificates and expected any authority carrying out an assessment to do the same.

Mr Jones' meeting with Kingspan in December 2008

¶23.15 On 5 December 2008, Mr Jones met Mr Pack and Mr Heath of Kingspan at Kingspan's offices in order to discuss the certification of K15.⁹⁶¹⁹⁶¹ {KIN00024987}; Jones {Day101/48:24}-{Day101/49:9}. They told him that Kingspan was keen to be associated with the LABC brand⁹⁶²⁹⁶² Jones {Day101/41:2-7}. and was aware that an LABC certificate could ease the passage of a product through building control.⁹⁶³⁹⁶³ Jones {Day101/42:5-18}. Mr Jones recalled in particular that they had been enthusiastic about the fire testing that Kingspan had commissioned for K15 and the BR 135 criteria⁹⁶⁴⁹⁶⁴ Jones {Day101/56:10-15}. and were keen to market its suitability for use on buildings over 18 metres in height.⁹⁶⁵⁹⁶⁵ Jones {Day101/52:20}-{Day101/53:1}; {Day101/64:2-24}; Jones {HBC00000029/20} page 20, first paragraph. They emphasised that aspect of the product as a key feature⁹⁶⁶⁹⁶⁶ Jones {Day101/57:21}-{Day101/58:3}. of what they were presenting to him.

¶23.16 Mr Heath could not recall being enthusiastic about Kingspan's fire testing⁹⁶⁷⁹⁶⁷ Heath {Day79/167:20-25}. and denied having given Mr Jones the impression that K15 was suitable for use on buildings over 18 metres in height without qualification.⁹⁶⁸⁹⁶⁸ Heath {Day79/179:7-9}. He told us that, although he had overall responsibility for obtaining the LABC certificate, Mr Pack had been the person leading the project.⁹⁶⁹⁹⁶⁹ Heath {KIN00020709/59} page 59, paragraph 8.16.

¶23.17 Mr Pack denied that he had spoken enthusiastically about Kingspan's BS 8414 test⁹⁷⁰⁹⁷⁰ Pack {Day86/122:15}-{Day86/123:11}. and denied that the suitability of K15 for use on buildings over 18 metres in height had been a matter of significance for him or Mr Heath.⁹⁷¹⁹⁷¹ Pack {Day86/126:22}-{Day86/127:25}. We found that wholly implausible, however, since the ability to sell K15 as suitable for use on buildings over 18 metres in height had been uppermost in Mr Heath's mind for some time. In reality, Mr Pack could recall little about the meeting,⁹⁷²⁹⁷² Pack {Day86/120:20}-{Day86/121:7}; {Day86/124:6-8}; {Day86/130:13-17}; {Day86/149:24}-{Day86/150:12}; {Day86/156:22-24}. describing his own role in obtaining the LABC certificate as merely administrative.⁹⁷³⁹⁷³ Pack {Day86/100:18}-{Day86/101:20}. In the light of Mr Pack's later involvement in discussions with Mr Jones about the contents of the certificate that was clearly not true.⁹⁷⁴⁹⁷⁴ {KIN00024989}; {KIN00024996}; {KIN00024997}; Pack {Day86/170:2}-{Day86/171:24}. Both Mr Pack and Mr Heath denied having claimed that K15 was or could be considered a material of limited combustibility or having given that impression.⁹⁷⁵⁹⁷⁵ Pack {Day86/148:23}-{Day86/149:9}; Heath {Day79/178:25}-{Day79/179:9}.

108

¶23.18 We preferred the evidence of David Jones about the meeting to that of Mr Pack and Mr Heath. Mr Jones was careful to say that he could not be specific about the words they had used but he told us that he could say with "some certainty" that he had left the meeting with the clear impression that because K15 behaved like a material of limited combustibility it was, or could be considered to be, a material of limited combustibility.⁹⁷⁶⁹⁷⁶ Jones {Day101/76:1-25}-{Day101/78:12-24}; Jones {HBC00000029/37} page 37, final paragraph; Jones {Day86/74:4-25}; {Day101/78:21-25}; {Day101/82:5-20}. (It is unlikely to have been a coincidence that Kingspan had been making essentially the same claim in correspondence with customers for some time.)⁹⁷⁷⁹⁷⁷ {KIN00002588/2}, "…it has been proved to perform the same as non combustible material via testing to the full scale BS 8414 test". The impression Mr Jones had formed was that different products could be used with K15 as part of an external cladding system as long as the fire performance of those products was equal to or better than that of the products used in the tests he had been told about.⁹⁷⁸⁹⁷⁸ Jones {Day101/70:10-17}; {Day101/71:3-9}. Mr Jones said he understood the parameters to be the non-combustible substrate referred to in the BBA certificate, a system of cavity barriers, and non-combustible cladding panels. That is what Mr Pack confirmed he had told Mr Jones. Pack {Day86/130:21}-{Day86/131:11}. He also left the meeting with the understanding that there was a clear business advantage to Kingspan in having a product that could be marketed for use on buildings over 18 metres in height because it was not a market that all products could enter.⁹⁷⁹⁹⁷⁹ Jones {Day101/64:21}-{Day101/65:5}. In later discussions with Mr Jones Andrew Pack proposed broadening the terms of the certificate to include a reference to K15's suitability for use with various cladding products with which it had not been tested, but he did not tell Mr Jones that K15 could only be used at height as part of a system corresponding to that tested in accordance with BS 8414 in 2005.⁹⁸⁰⁹⁸⁰ {KIN00024996}; Pack {Day86/163:12}-{Day86/169:25}.

¶23.19 Mr Jones was given two documents during the meeting,⁹⁸¹⁹⁸¹ Jones {Day101/55:9-13}. Kingspan's first BBA certificate, issued on 27 October 2008,⁹⁸²⁹⁸² BBA Certificate {BBA00000038}. and Kingspan's principal marketing literature for K15 at the time, which was dated November 2008.⁹⁸³⁹⁸³ Eighth issue "Kooltherm K15 Rainscreen Board" {KIN00009703}. We have considered the terms of the BBA certificate and the way in which it came to be obtained by Kingspan elsewhere in this report.⁹⁸⁴⁹⁸⁴ Chapter 23. In relation to fire, it stated on its front page under the heading "Key Factors Assessed" that K15 boards would not contribute to the development stages of a fire or present a smoke or toxic hazard.⁹⁸⁵⁹⁸⁵ BBA Certificate {BBA00000038/1}. It also stated that K15 was classified as Class 0⁹⁸⁶⁹⁸⁶ BBA Certificate {BBA00000038/5-6} paragraph 7.2. and that in a BS 8414-1 test it had displayed limited fire spread away from the source and had met the criteria in BRE 135.⁹⁸⁷⁹⁸⁷ BBA Certificate {BBA00000038/5} paragraph 7.1. That was misleading, since the criteria in BR 135 relate to systems rather than products.

¶23.20 In the same vein, Kingspan's 2008 promotional literature wrongly stated that K15 had met the criteria in BR 135 and was therefore acceptable for use on buildings over 18 metres in height in accordance with the Building Regulations. It stated definitively (again, wrongly) that K15 did not contribute to the spread of fire within a cladding system.⁹⁸⁸⁹⁸⁸ {KIN00009703/6}. The documents therefore reflected each other as well as the conversation that Mr Jones said had taken place when he met Mr Pack and Mr Heath.⁹⁸⁹⁹⁸⁹ Jones {Day101/66:15}-{Day101/67:4}.

109

¶23.21 Mr Jones asked for no further documents and none were offered.⁹⁹⁰⁹⁹⁰ Jones {Day101/108:20}-{Day101/109:5}. The certificate he drafted was therefore based on those two documents, (principally the BBA certificate) and the information Andrew Pack and Philip Heath had provided during his meeting with them.⁹⁹¹⁹⁹¹ Jones {HBC00000029/35-36} pages 35-36, paragraph 57(a)-(h); Jones {Day101/129:4}-{Day101/149:5}. Mr Jones had not read any of the test standards⁹⁹²⁹⁹² Jones {Day101/127:16-19}. or reports of the tests⁹⁹³⁹⁹³ Jones {Day101/59:24}-{Day101/60:3}; {Day101/125:20}-{Day101/126:6}. he listed in his summary before the certificate was issued.⁹⁹⁴⁹⁹⁴ {KIN00005705/4} under the heading "Requirement B – Fire Safety Considerations". He explained that there would have been little point in doing so because analysing those reports was outside his expertise and would have involved an entirely different exercise from the one he had understood he had been asked to carry out.⁹⁹⁵⁹⁹⁵ Jones {Day101/60:5}-{Day101/63:7}. He simply copied the list of tests from the BBA certificate.⁹⁹⁶⁹⁹⁶ Jones {Day101/126:2-6}. He thought that the statement that K15 could be considered a material of limited combustibility was simply a confirmation of something that was already known.⁹⁹⁷⁹⁹⁷ Jones {HBC00000029/37} page 37, first paragraph; Jones {Day101/149:20}-{Day101/150:18}.

¶23.22 In 2009, Mr Jones did not know that data derived from a BS 8414 test and any subsequent classification in accordance with BR 135 was valid only for the system tested⁹⁹⁸⁹⁹⁸ Jones {Day101/104:3-19}. and neither Mr Pack nor Mr Heath told him that,⁹⁹⁹⁹⁹⁹ Pack {Day86/130:21}-{Day86/131:2}; Jones {Day101/68:22}-{Day101/69:12}; Pack {Day86/73:1-6}. although they were both well aware of the fact.¹⁰⁰⁰¹⁰⁰⁰ Pack {Day86/22:15}-{Day86/23:12}; Heath {Day78/189:21}-{Day78/190:5}; {Day78/196:16}-{Day78/194:2}. Nor did he know that Class 0 was demonstrated through testing in accordance with BS 476 Parts 6 and 7, two of the tests he listed in the document accompanying the LABC certificate.¹⁰⁰¹¹⁰⁰¹ Jones {Day101/126:7-23}. His understanding at the time of the term "material of limited combustibility" was that it referred to a material that had the capacity to burn but was difficult to ignite and would not allow flame to spread easily through it.¹⁰⁰²¹⁰⁰² Jones {HBC00000029/29} page 29, paragraph (a); Jones {Day101/96:9}-{Day101/97:5}. That was consistent both with the impression he had been given by Mr Heath and Mr Pack at their meeting that K15 had a limited capacity to burn¹⁰⁰³¹⁰⁰³ Jones {Day101/77:7-23}; See also Kingspan correspondence at, for example {KIN00003685/1} "Therefore it is pigeonholed with the combustible insulations even though the char that forms 'limits the combustibility' of the product" {KIN00005388/1} first paragraph. and with what he told us had been the widely held view among building control officers that Kingspan products would char slowly and stop burning when the source of ignition was removed.¹⁰⁰⁴¹⁰⁰⁴ Jones {HBC00000029/38} page 38, first paragraph; Jones {Day101/81:13}-{Day101/83:20}.

¶23.23 David Jones accepted that when he did his research he had become aware of Appendix A to Approved Document B and had thus become aware of the meaning of the expression "limited combustibility". Nonetheless, he had decided to adopt the wording in the certificate on the basis that there could be different ways of meeting the functional requirements.¹⁰⁰⁵¹⁰⁰⁵ Jones {Day101/153:13}-{Day101/156:11}. When shown the relevant tables in Approved Document B,¹⁰⁰⁶¹⁰⁰⁶ Table A7 {CLG10000007/132}; Table A6 {CLG10000007/131}; Jones {Day101/158:1}-{Day101/161:14}. however, he agreed that if he had looked at them at the time he would not have written that K15 could be considered a material of limited combustibility.¹⁰⁰⁷¹⁰⁰⁷ Jones {Day101/162:15-20}. He told us that he now appreciated that, due to his lack of experience, some of the statements in the certificate should not have been made.¹⁰⁰⁸¹⁰⁰⁸ Jones {Day101/180:10-12}. He accepted that he had not drawn a clear enough distinction between a material of limited combustibility, which has a defined meaning, and a product which has a limited capacity to burn.¹⁰⁰⁹¹⁰⁰⁹ Jones {Day101/150:13}-{Day101/151:23}. He thought his judgement might have been affected by being given the impression that K15 had already been approved for use on buildings over 18 metres in height by virtue of meeting the criteria in BR 135.¹⁰¹⁰¹⁰¹⁰ Jones {Day101/162:6-14}. He also accepted that his approach might have been shaped by the commercial pressure on local authority building control officers to find innovative solutions that did not rigidly follow the Approved Documents in order to win business.¹⁰¹¹¹⁰¹¹ Jones {Day101/156:7-11}; Jones {HBC00000029/40} page 40; {Day101/174:4}-{Day101/176:25}.

110

¶23.24 Mr Jones understood that after he had carried out his assessment it would be checked by LABC to ensure there were no errors.¹⁰¹²¹⁰¹² Jones {Day101/111:17}-{Day101/112:21}; {Day101/173:12-15}. In fact, however, the second check, carried out in March 2009 by a Type Approval Working Group made up of individuals from various local authorities, appears to have been cursory at best. The only question raised was why a system approval was being issued rather than a product approval, K15 plainly being a product rather than a system.¹⁰¹³¹⁰¹³ {LABC0008171/2}. It appears to have gone unanswered and remained unanswered even when Barry Turner was asked about it by LABC's Technical Administrator, Sasha Cruz, in an email sent on 21 April 2009 asking if the certificate could be issued.¹⁰¹⁴¹⁰¹⁴ {LABC0008171/1}. No one noticed the fundamental errors in the summary. On 1 May 2009, Ms Cruz sent the certificate to Mr Jones to issue on behalf of LABC.¹⁰¹⁵¹⁰¹⁵ {LABC0001882/3}.

¶23.25 Barry Turner accepted that the statement that K15 could be considered a material of limited combustibility was inaccurate and misleading.¹⁰¹⁶¹⁰¹⁶ Turner {Day216/36:19}-{Day216/37:2}. He could not explain how it had come to be made, telling us that he did not participate in the review process and repeatedly asserting that he was copied into various relevant emails only "as a matter of courtesy".¹⁰¹⁷¹⁰¹⁷ Turner {Day216/51:9}; {Day216/69:13-17}; {Day217/3:8}; {Day217/12:6-10}; {Day217/23:5}; {Day217/35:17-20}; {Day217/48:6}. We agree with LABC's acknowledgment in its closing statement that Mr Turner was an unhelpful and dismissive witness.¹⁰¹⁸¹⁰¹⁸ {LABC0020161/34} page 34, paragraph 138. We were left in no doubt that he was seeking throughout to minimise his own technical role, his involvement in the certification process and his responsibility for any aspect of it.

¶23.26 David Ewing, who later managed LABC's Registered Details Approval scheme,¹⁰¹⁹¹⁰¹⁹ Ewing {LABC0020139/4} page 4, paragraph 7.6. also accepted that the 2009 certificate's wording in relation to K15's fire performance was technically incorrect,¹⁰²⁰¹⁰²⁰ Ewing {Day217/148:1-9}. as did LABC itself in its closing statement.¹⁰²¹¹⁰²¹ LABC Phase 2 Module 2 Closing Submissions {LABC0019740/5-6} paragraph 17; LABC Phase 2 Module 6 Closing Submissions {LABC0020161/25} paragraph 101(a)-(b).

¶23.27 To their discredit, neither Philip Heath nor Andrew Pack was prepared to accept that he had been aware in 2009 or thereafter that the wording of the certificate was inaccurate, that it would be likely to lead readers to believe that K15 was a material of limited combustibility or that many readers would understand from it that K15 had been approved for use on buildings over 18 metres in height. Both maintained that at the time they had understood that LABC had intended the wording to mean that K15 could be suitable for use in such circumstances as part of a system that had been tested in accordance with BS 8414 and had met the criteria in BR 135.¹⁰²²¹⁰²² Heath {Day79/161:5}-{Day79/164:11}; {Day79/174:1-7}; {Day79/176:21}-{Day79/177:23}; {Day79/182:6}-{Day79/183:20}; Pack {Day86/187:6}-{Day86/189:10}; {Day86/192:9}-{Day86/193:9}. However, that was impossible, given that only a limited amount of testing had been carried out, and that on a product that had become obsolete at least two years earlier. In reality, that was neither what the certificate stated nor what Mr Jones had intended.¹⁰²³¹⁰²³ Jones {HBC00000029/36} page 36; Jones {Day101/128:11-21}. Mr Heath added that on reflection he could see that the wording had been misleading.¹⁰²⁴¹⁰²⁴ Heath {Day79/176:21}-{Day79/177:23}. Mr Pack too told us that in hindsight, the wording could have been "slightly better",¹⁰²⁵¹⁰²⁵ Pack {Day86/188:25}-{Day86/189:1}. but said that Kingspan relied on LABC and on the wording chosen by Mr Jones.¹⁰²⁶¹⁰²⁶ Pack {Day86/188:15-16}; {Day86/191:21}-{Day86/192:2}.

111

¶23.28 Both Mr Pack and Mr Heath confirmed that they had understood at all times that K15 was not a material of limited combustibility.¹⁰²⁷¹⁰²⁷ Pack {Day86/21:15}-{Day86/22:7}; {Day86/187:1-5}; Heath {Day78/181:7-20}. Both were also aware that Approved Document B did not provide that combustible insulation could be considered a material of limited combustibility if used with non-combustible or limited combustibility substrates or outer cladding.¹⁰²⁸¹⁰²⁸ Pack {Day86/190:25}-{Day86/191:18}; Heath {Day79/161:5}-{Day79/162:6}. They did not need to rely on hindsight to know that the certificate was wrong in that respect and dangerously misleading. When sent a draft of the certificate and accompanying summary by Mr Jones on 27 February 2009,¹⁰²⁹¹⁰²⁹ {KIN00024990}. neither Mr Pack nor Mr Heath corrected the wording. On the contrary, Mr Heath described the document as "GOLD"¹⁰³⁰¹⁰³⁰ {KIN00024991/1}. and Mr Pack approved the draft, asking Mr Jones to proceed to issue the certificate and summary.¹⁰³¹¹⁰³¹ {KIN00024990}. In his markedly more candid evidence, Ivor Meredith,¹⁰³²¹⁰³² Meredith {KIN00022312/1} page 1, paragraph 1. told us that he and his superiors had known at the time that the wording was misleading but that it was very advantageous for Kingspan.¹⁰³³¹⁰³³ Meredith {Day76/30:14-23}. He said that Mr Heath had been thrilled with it.¹⁰³⁴¹⁰³⁴ Meredith {Day76/33:13-15}.

¶23.29 Kingspan's aim from the outset (as in the case of the BBA certificate) had been to ensure that the wording of the certificate gave as much support for the use of K15 on buildings over 18 metres in height as possible, with no regard for technical accuracy or fire safety.¹⁰³⁵¹⁰³⁵ Chapter 22. It is apparent from the triumphant tone of the emails sent by Mr Heath within Kingspan at the time¹⁰³⁶¹⁰³⁶ {KIN00005383}; {KIN00024993/1}. that his own and Mr Pack's dogged assertions that they were ignorant of the error on the face of the certificate was untruthful. It was the very wording "...can be considered as a material of limited combustibility..."¹⁰³⁷¹⁰³⁷ {KIN00005705/4-5}. that was highlighted in bold in Mr Heath's announcement to colleagues that the certificate had been obtained and for which he heartily thanked Mr Pack.¹⁰³⁸¹⁰³⁸ {KIN00005383}. That part of the certificate was also described to sales teams as the "highlight" of the document¹⁰³⁹¹⁰³⁹ {KIN00009178/5}. and led directly to Mr Heath's instruction to colleagues on 11 May 2009 that no further large-scale testing was to be carried out on K15.¹⁰⁴⁰¹⁰⁴⁰ {KIN00005382/1} "The pressure is on other component suppliers to obtain similar statements or prove their non- combustible statements". Kingspan had what it needed to maintain its position in the over 18 metre market.

112

¶23.30 Worse still, neither LABC nor Mr Jones knew that K15 had not achieved results when tested in accordance with BS 476-6 and BS 476-7 that enabled it to be classed as Class 0¹⁰⁴¹¹⁰⁴¹ Kingspan had tested to BS 476 Parts 6 and 7 the foil facer of K15 boards stapled to a non-combustible substrate {KIN00022205}; See Chapter 22. and that the sole test in accordance with BS 8414-1 that Kingspan had carried out which met the criteria in BR 135¹⁰⁴²¹⁰⁴² BRE Report {BRE00002511} Test 220876. had incorporated an obsolete form of K15 that was different from the version being produced and sold in 2009 and thereafter.¹⁰⁴³¹⁰⁴³ See Chapter 22. Those facts were concealed from LABC and from David Jones by Mr Heath, who was aware of the true position.¹⁰⁴⁴¹⁰⁴⁴ Heath {Day79/179:10}-{Day79/180:6}.

¶23.31 We accept both David Jones' description of the assurances he was given by LABC about the scope of the work he was expected to carry out and his account of what he was told by Mr Pack and Mr Heath. He acted largely on trust, but was badly let down by LABC and deliberately misled by Kingspan.¹⁰⁴⁵¹⁰⁴⁵ Jones {Day101/182:25}-{Day101/185:9}. He had expected, as had LABC,¹⁰⁴⁶¹⁰⁴⁶ Brennan {LABC0020135/26} page 26, paragraph 39.1. that Kingspan would draw attention to any errors or inaccuracies in the draft documents because it would not wish to risk reputational damage from knowingly marketing K15 on the basis of false information.¹⁰⁴⁷¹⁰⁴⁷ Jones {Day101/171:15-21}. In fact, however, the documents which Kingspan provided¹⁰⁴⁸¹⁰⁴⁸ BBA Certificate {BBA00000038}; Eighth issue "Kooltherm K15 Rainscreen Board" {KIN00009703}. in support of its application and the statements made in the course of the meeting between Mr Jones, Mr Heath and Mr Pack were intended to mislead.¹⁰⁴⁹¹⁰⁴⁹ Jones {Day101/183:2-18}. The document Mr Jones issued was, nonetheless, an LABC approval certificate and it remains the case that LABC's second level of checks, on which he had also relied,¹⁰⁵⁰¹⁰⁵⁰ Jones {Day101/113:4-14}; {Day101/173:2-15}; {Day101/184:21}-{Day101/185:9}. were woefully inadequate.

¶23.32 Mr Jones could not remember whether he had looked at LABC's Type Approval Service Manual,¹⁰⁵¹¹⁰⁵¹ Jones {HBC00000051/4} page 4, paragraph 14; Jones {Day101/166:20}-{Day101/167:10}. but if he did, it is unlikely that he found it to be of great assistance. Although it called for a thorough and comprehensive assessment at a high level, it also said that certificates from authoritative independent third parties, particularly those accredited by UKAS such as the BBA, were likely to indicate an acceptable level of satisfaction.¹⁰⁵²¹⁰⁵² {HBC00000049/17} paragraph 3.3. In the event, Mr Jones did accept the BBA certificate as sufficient evidence of the statements it contained, but he had been told that that was all that was required of him and the truth is that he was neither competent nor qualified to do more.¹⁰⁵³¹⁰⁵³ Jones {Day101/39:11}-{Day101/40:5}. It is unlikely that he would have agreed to undertake the work if he had been expected to do otherwise.¹⁰⁵⁴¹⁰⁵⁴ Jones {Day101/106:19}-{Day101/107:21}; {Day101/196:2-5}.

¶23.33 Although only Kingspan knew it (because it had largely drafted the text),¹⁰⁵⁵¹⁰⁵⁵ See Chapter 22. the 2008 BBA certificate on which David Jones relied so heavily had also been issued without proper checks having been made and was riddled with fundamental errors and misleading language. To that extent there was, therefore, a fatal flaw in LABC's Type Approval scheme. As a result, Kingspan's initial misleading of the BBA¹⁰⁵⁶¹⁰⁵⁶ See Chapter 22. combined with the failure of the BBA itself to investigate the properties of K15 with sufficient rigour led to the publication of misleading claims about K15 that were repeated and given additional credibility by the LABC certificate.

113

Concerns raised about the LABC Type Approval for K15

¶23.34 The terms of the LABC certificate appear to have caused immediate concern at BRE¹⁰⁵⁷¹⁰⁵⁷ {BRE00003314}. about "misuse of data" and the broad claims that K15 was suitable for all kinds of applications in all sorts of situations,¹⁰⁵⁸¹⁰⁵⁸ Colwell {Day233/36:8}-{Day233/38:18}. though it appears that no one there mentioned those concerns to Kingspan.¹⁰⁵⁹¹⁰⁵⁹ Colwell {Day233/39:2-25}; Smith {Day238/64:17}-{Day238/67:20}. The inclusion in the certificate of misleading statements was brought to LABC's attention by Larry Cody, then a director of Rockwool,¹⁰⁶⁰¹⁰⁶⁰ Turner {LABC0011202/25} page 25, paragraph 76. Rockwool manufactured non-combustible mineral wool insulation products. who wrote to Barry Turner in September¹⁰⁶¹¹⁰⁶¹ {LABC0000924}. and again in October 2009¹⁰⁶²¹⁰⁶² {LABC0000853}. complaining that LABC had stated that K15 could be considered as a material of limited combustibility and pointing to life safety considerations.¹⁰⁶³¹⁰⁶³ {LABC0000853}. Mr Turner did not respond until 23 February 2010,¹⁰⁶⁴¹⁰⁶⁴ {LABC0019632/4}. following a further letter from Mr Cody on 1 February 2010 asking about LABC's complaints policy and Mr Turner's failure to answer his previous letter.¹⁰⁶⁵¹⁰⁶⁵ {LABC0010318}.

¶23.35 When he did respond to Mr Cody, Mr Turner wrote that he did not consider it a matter for discussion with a competitor, despite the fact that he had already corresponded with Kingspan about the matter.¹⁰⁶⁶¹⁰⁶⁶ {LABC0019617}. In the same response, he comprehensively defended the terms of LABC's claims, telling Mr Cody that the research authority that had undertaken the assessment of K15 had been satisfied that it met the relevant criteria.¹⁰⁶⁷¹⁰⁶⁷ {LABC0019618/1}; Turner {Day216/98:10-17}. He did so, he told us, without even checking the terms of the certificate or engaging with the substance of the complaint.¹⁰⁶⁸¹⁰⁶⁸ Turner {Day216/83:4}-{Day216/84:18}; {Day216/98:18}-{Day216/99:15}. Bizarrely, he told Mr Cody in a further email that LABC neither accepted nor denied claims made by Kingspan about what the certificate stated.¹⁰⁶⁹¹⁰⁶⁹ {LABC0019632/2}. Mr Turner was unable to explain why he had said that, suggesting only that he might have been trying to protect LABC's involvement.¹⁰⁷⁰¹⁰⁷⁰ Turner {Day216/102:14}-{Day216/103:2}.

¶23.36 Mr Turner's complete failure to investigate Mr Cody's complaint was irresponsible. Although he said that if he had understood the public safety implications he would have dealt with the matter differently,¹⁰⁷¹¹⁰⁷¹ Turner {Day216/101:4-13}. it is difficult to see how he can have failed to appreciate them, given the clear terms of Mr Cody's letters. We note that Mr Turner's immediate dismissal of the reasoned complaint as nothing but gripes from a rival manufacturer in which LABC should not become a referee¹⁰⁷²¹⁰⁷² Turner {Day216/83:13-20}. was in marked contrast to the tone of his emails¹⁰⁷³¹⁰⁷³ {LABC0019617}; Turner {Day216/93:15}-{Day216/95:15}. to John Garbutt, Kingspan's Marketing Director.¹⁰⁷⁴¹⁰⁷⁴ Garbutt {KIN00024388/1} page 1, paragraph 1.2.

¶23.37 Mr Turner had no satisfactory explanation to offer for LABC's failure to follow its own complaints procedure, claiming that he had been unaware that Mr Cody had mentioned a formal complaint,¹⁰⁷⁵¹⁰⁷⁵ Turner {Day216/90:22}-{Day216/91:16}. despite having been copied into the email correspondence in which he had done so.¹⁰⁷⁶¹⁰⁷⁶ {LABC0010318}. Mr Turner also claimed not to have been aware that a formal complaint procedure existed within LABC.¹⁰⁷⁷¹⁰⁷⁷ Turner {Day216/90:2-4}. As LABC accepted in its closing statement, Mr Cody's concerns were reasonable and Mr Turner's response was inexcusable.¹⁰⁷⁸¹⁰⁷⁸ LABC Phase 2 Module 6 Closing Submissions {LABC0020161/30} paragraphs 117-118. That was an important early opportunity to correct the fundamental error that had been made. It might not have been missed if Mr Turner had followed LABC's complaints process¹⁰⁷⁹¹⁰⁷⁹ {HBC00000049/30} paragraph 8.2. when the matter was raised by Mr Cody.¹⁰⁸⁰¹⁰⁸⁰ {LABC0010318/2}.

114

Later LABC Registered Details certificates for K15

¶23.38 Although Kingspan's Type Approval certificate for K15 lapsed in May 2012, it was not renewed until 28 August 2013.¹⁰⁸¹¹⁰⁸¹ {KIN00009546}. The assessment for the second certificate was also carried out by Herefordshire Building Control, on that occasion by Senior Building Control Surveyor Colin Davies¹⁰⁸²¹⁰⁸² Jones {HBC00000029/47} page 47, final paragraph. under the supervision of David Jones.¹⁰⁸³¹⁰⁸³ Jones {Day101/186:24}-{Day216/187:15}; {LABC0000893}. The certificate stated in the accompanying Drawings and Documents List, which was drawn up in its final form by LABC,¹⁰⁸⁴¹⁰⁸⁴ Jones {HBC00000029/48} page 48; that K15 was suitable for use with a variety of outer claddings¹⁰⁸⁵¹⁰⁸⁵ {KIN00009547/2} Appendix A, paragraph 1. and, wholly incorrectly, that K15 could be used on buildings with stories more than 18 metres above ground level provided it was used in combination with suitably non-combustible substrates and ancillary components.¹⁰⁸⁶¹⁰⁸⁶ {KIN00009547/2} Appendix A, paragraph 3. It listed as the supporting documents on which it was based¹⁰⁸⁷¹⁰⁸⁷ {KIN00009547/1}. the Type Approval Summary of May 2009,¹⁰⁸⁸¹⁰⁸⁸ {KIN00005705/3-6}. the BBA Certificate of October 2008¹⁰⁸⁹¹⁰⁸⁹ {BBA00000038}. and a Kingspan marketing brochure for K15 dated March 2011.¹⁰⁹⁰¹⁰⁹⁰ Ninth Issue {KIN00003545}. The Drawings and Documents List included two diagrams, one showing K15 used on a steel frame system and the other K15 used with a terracotta rainscreen.¹⁰⁹¹¹⁰⁹¹ {KIN00009547/3}. In August 2013, neither of the systems illustrated nor any similar systems had been tested in accordance with BS 8414. It remained the case that the only system incorporating any form of K15 that had been tested in accordance with BS 8414 and had met the criteria in BR 135 was the one that had been tested in May 2005 using a different formulation of K15.¹⁰⁹²¹⁰⁹² See Chapter 22.

¶23.39 On 1 August 2013 Gareth Mills, a Senior Technical Adviser at Kingspan,¹⁰⁹³¹⁰⁹³ Mills {Day77/4:7-10}; {Day77/7:23}-{Day77/8:2}. had provided those diagrams to LABC's Technical Co-ordinator, Cathal Brennan,¹⁰⁹⁴¹⁰⁹⁴ Brennan {LABC0020135/2-3} pages 2-3, paragraph 7.2. together with a description of the uses for which K15 was suitable to which we have referred.¹⁰⁹⁵¹⁰⁹⁵ {LABC0000954}. Both the diagrams and the text were incorporated into the final document after the peer review process, which had taken place in June 2013.¹⁰⁹⁶¹⁰⁹⁶ {LABC0005132}; {LABC0000925}. At that stage the review group had been provided with an amended Type Approval Summary drafted by Mr Davies that had again stated that K15 could be considered a material of limited combustibility.¹⁰⁹⁷¹⁰⁹⁷ {LABC0000894/3}. Again, no member of the review group had noticed the mistake. David Ewing accepted that peer reviewers should have noticed that there was no test evidence to substantiate that claim.¹⁰⁹⁸¹⁰⁹⁸ Ewing {Day217/119:5-20}; {Day217/120:5-8}.

115

¶23.40 Before agreeing to Mr Mills' proposed amendments, Mr Brennan asked David Ewing and David Jones for their opinions.¹⁰⁹⁹¹⁰⁹⁹ {LABC0002502/1}. Mr Ewing did not respond, leaving the matter to Mr Jones.¹¹⁰⁰¹¹⁰⁰ Ewing {Day217/165:6-16}. He told Mr Brennan that he saw no problem with the amendments and that he could not see anything in them that was not backed up by the technical data underpinning the certificate.¹¹⁰¹¹¹⁰¹ {LABC0000936}. As Mr Jones accepted, that was wrong. It involved a simple perpetuation of the previous error, compounded by the fact that the amendments had not been subjected to the peer review process.¹¹⁰²¹¹⁰² Brennan {LABC0020135/29} page 29, paragraph 45.1. Mr Ewing said that it had not been considered necessary to subject the proposed amendments to the peer review process¹¹⁰³¹¹⁰³ Ewing {Day217/166:5-11}. but accepted, in hindsight, that the statement that K15 was suitable for use on buildings over 18 metres in height was significant and ought to have been reviewed.¹¹⁰⁴¹¹⁰⁴ Ewing {Day217/166:17-24}.

¶23.41 Mr Ewing accepted that the statements made in the 2013 certificate and its accompanying documents had not been substantiated,¹¹⁰⁵¹¹⁰⁵ Ewing {Day217/172:3-9}. that the two diagrams ought not to have been included, since there was no test evidence to support the use of K15 in the manner shown,¹¹⁰⁶¹¹⁰⁶ Ewing {Day217/172:16}-{Day217/173:3}. and that the wording wrongly implied approval of the use of K15 on buildings over 18 metres in height in general.¹¹⁰⁷¹¹⁰⁷ Ewing {Day217/173:5-16}. He said that each of the peer reviewers should have examined the BBA certificate or the relevant technical information to see whether it supported the statements made in the certificate but accepted that they would not have been expected to go behind them and check the test results.¹¹⁰⁸¹¹⁰⁸ Ewing {Day217/156:3}-{Day217/157:5}. The Registered Details process,¹¹⁰⁹¹¹⁰⁹ As with the Type Approval scheme, a Registered Details certificate was intended to be recognised by all local authority building control departments across England and Wales {HBC00000023/3}; Ewing {Day217/124:4-23}. The same principles applied as had applied to the Type Approval scheme, Turner {Day216/32:22}. according to the Registered Details Manual,¹¹¹⁰¹¹¹⁰ {HBC00000023}. relied just as heavily (if not more so) on the existence and accuracy of BBA certificates¹¹¹¹¹¹¹¹ {HBC00000023/19} third paragraph "... a BBA certificate does provide absolute assurance and materials should not then be interrogated further". {LABC0002402/1} "Most of these already have BBA certification which should greatly reduce you (sic) checking time". and was therefore as flawed as the Type Approval Scheme before it. However, Mr Ewing accepted that the statements made in the 2013 certificate went beyond those made in the 2008 BBA certificate.¹¹¹²¹¹¹² Ewing {Day217/177:15-20}. The same was true of the statements made in the 2009 certificate.

¶23.42 On 2 July 2014 Brian Martin of DCLG sent NHBC what he described as a "friendly warning" about the use of K15 on buildings over 18 metres in height,¹¹¹³¹¹¹³ {LABC0000882/3}. which Steven Evans of NHBC passed on to Barry Turner on 11 July 2014.¹¹¹⁴¹¹¹⁴ {LABC0000882/1}. Mr Ewing understood that the revised BBA certificate for K15 was more restricted than the previous version and that LABC needed to take steps to ensure that its own certificate was consistent with the testing undertaken by Kingspan.¹¹¹⁵¹¹¹⁵ Ewing {Day217/181:22}-{Day217/182:7}. That was not done, but by August 2014, therefore, it had become clear to LABC that people were worried by the fact that Kingspan's test evidence did not appear to substantiate the claims being made about the suitability of K15 for use at height.¹¹¹⁶¹¹¹⁶ {LABC0000882/3} first paragraph "... it is just the fact that the testing carried out to date does not bear this out". Mr Ewing was aware that there was a risk to buildings on which K15 had been used but had not realised that it might be significant.¹¹¹⁷¹¹¹⁷ Ewing {Day217/183:3-22}.

116

¶23.43 LABC did not take any steps to correct the false impression created by the previous certificate and never asked itself whether as a result of that certificate there might be a number of tall buildings containing combustible cladding.¹¹¹⁸¹¹¹⁸ Ewing {Day217/190:3-9}. Although Mr Ewing knew that the Registered Details certificate would need to be amended following the discovery that Kingspan did not have test evidence to support the use of K15 at height, it does not appear to have occurred to him that people might have relied on the previous LABC certificate to approve its use in those situations.¹¹¹⁹¹¹¹⁹ Ewing {Day217/187:4-10}. In our view LABC should at least have drawn its members' attention to the almost complete absence of test data supporting the use of K15 on buildings over 18 metres in height.

¶23.44 Similarly, LABC failed to take any action in response to an email sent on 16 July 2014 by Clive Everett of Europa Façade Consultants in which he asked how the Registered Details certificate for K15 could state that it was suitable for use on buildings over 18 metres in height with a steel frame if it had not been part of a system tested in accordance with BS 8414-2.¹¹²⁰¹¹²⁰ {LABC0000835}. Mr Ewing acknowledged that the question was similar to others LABC had heard about through NHBC.¹¹²¹¹¹²¹ Ewing {Day217/192:25}-{Day217/193:5}. Mr Ewing did not respond to Mr Everett's email.¹¹²²¹¹²² Everett {CEV00000001/13} page 13, paragraph 51. He said that he had wanted to wait until he knew what steps LABC was going to take, but that it had then been overlooked.¹¹²³¹¹²³ Ewing {Day217/193:12-22}.

¶23.45 LABC had no evidence that any system incorporating K15 had been tested in accordance with BS 8414-2 because there was none. On 6 August 2014, Doug Basen, LABC's Head of Technical, Practice and Communications¹¹²⁴¹¹²⁴ Basen {LABC0020141/5} page 15, paragraphs 7.1-7.2. sent Mr Ewing an email drawing his attention to a message that he had sent to Mr Turner in which he had said that he had spoken to Mr Evans at NHBC who did not believe that Kingspan would be able to prove that K15 was acceptable across a range of construction types. Mr Basen expressed his fear that there might be many buildings incorporating K15 which did not meet the very restrictive requirement of a masonry substrate. In response, Mr Ewing said that he had been told by Kingspan at a meeting on 25 July 2014 that "testing to BS 8414 had been undertaken in line with the requirements of BR 135 for materials of limited combustibility" but that LABC had not yet been provided with the test results. Mr Ewing also told Mr Basen that he was in the course of providing Kingspan with a quotation for certificates for up to 30 other Kingspan products and that he was keen to get its custom.¹¹²⁵¹¹²⁵ {LABC0002690}.

¶23.46 In spite of the continuing absence of relevant test evidence, LABC's existing Registered Details certificate for K15 was extended throughout the autumn of 2014.¹¹²⁶¹¹²⁶ {LABC0002679}; {LABC0002700}; {LABC0002701}; {LABC0001843}; {NHB00000798}. Mr Ewing said that although that might now appear to have been foolhardy, at the time he had genuinely believed that Kingspan was seeking to co-operate with LABC by producing the relevant reports.¹¹²⁷¹¹²⁷ Ewing {Day218/5:8-23}. He had had no reason to think that Kingspan was being anything other than honest.¹¹²⁸¹¹²⁸ Ewing {Day218/6:4-7}. Mr Ewing accepted that there was a clear failure on his part to notice the inaccuracies in the certificate.¹¹²⁹¹¹²⁹ Ewing {Day218/7:1-15}. He could not explain why LABC had issued a certificate approving the use of a product in a configuration for which there was no supporting test evidence.¹¹³⁰¹¹³⁰ Ewing {Day218/10:9-17}. He accepted that by extending the certificate in that way LABC had been treating Kingspan preferentially.¹¹³¹¹¹³¹ Ewing {Day218/50:11-17}.

117

¶23.47 Although from 2015 the Registered Details Certificates did not include the statement that K15 could be considered a material of limited combustibility,¹¹³²¹¹³² EWW165 Certificate 9 March 2015-9 March 2016 {LABC0000855}; EWWS165 Certificate 24 March 2016-30 March 2019 {LABC0000971}. Mr Turner was well wide of the mark when on 16 February 2015 he congratulated Mr Ewing on having scrutinised the application thoroughly.¹¹³³¹¹³³ {LABC0005823/1}. The certificate issued on 9 March 2015 stated that K15 had been tested to comply with BR 135 for use in rain screen applications above 18 metres in height¹¹³⁴¹¹³⁴ {LABC0000855/1}. as did the certificate issued on 24 March 2016.¹¹³⁵¹¹³⁵ {LABC0000971/1}. That statement, which Mr Turner himself had drafted,¹¹³⁶¹¹³⁶ {LABC0000863/1}; Turner {Day217/26:1}-{Day217/27:7}. was another serious misrepresentation of the position. BS 8414 was a system test, not a product test and therefore no single component of a system tested in accordance with that method could "comply" with the criteria in BR 135. In the light of the messages that had been flying around over the previous year or so, LABC should have been well aware of that. Mr Turner said that it was unlikely that he had read BR 135 before drafting that wording.¹¹³⁷¹¹³⁷ Turner {Day217/28:19}-{Day217/29:14}. In any event, by March 2015, much of the damage had been done given that the certificate had been in circulation since 2009.

¶23.48 Although we accept that many of the various internal LABC emails relating to competitive pricing, bonuses and a desire to establish and maintain strong links with Kingspan¹¹³⁸¹¹³⁸ {LABC0002402/1}; {LABC0002021/1}; {LABC0008243/1}; {LABC0002686/1}; {LABC0008505/1}; {LABC0008506}; {LABC0002827}; {LABC0002819}. contain comments that may have been made purely in jest,¹¹³⁹¹¹³⁹ Taylor {LABC0020153/60} page 60, paragraph 47.23; Ewing {Day218/22:6}-{Day218/23:15}. they make it clear that raising the profile of the LABC brand was very much in the minds of various employees throughout the certification of K15. In December 2014, Mr Brennan expressed concern about losing Kingspan's business as a result of the delay in issuing a certificate¹¹⁴⁰¹¹⁴⁰ {LABC0002819}; {LABC0002827}. after Ivor Meredith¹¹⁴¹¹¹⁴¹ Ball {KIN00020704/3} page 3, paragraph 2.5. Technical Projects Leader from May 2014 onwards. of Kingspan had warned him that it might be difficult to obtain approval for the business if it were not issued soon.¹¹⁴²¹¹⁴² {LABC0002819}. Mr Ewing said that LABC had not responded to what he saw as a threat, but accepted that it reflected well on LABC to be asked to certify Kingspan's products.¹¹⁴³¹¹⁴³ Ewing {Day218/17:5-19}. There was evidence from another LABC employee, Martin Taylor,¹¹⁴⁴¹¹⁴⁴ Taylor {LABC0020153/5} page 5, paragraph 12.1. Registered Details Manager from April 2011 to September 2012 and Technical Development Business Director from May 2015. that there was some internal pressure to increase the number of registrations.¹¹⁴⁵¹¹⁴⁵ Taylor {LABC0020153/60} page 60, paragraph 47.23.

118

¶23.49 By January 2015, Cathal Brennan had come to regard with scepticism some of Kingspan's promises about repeat business and the certification of other Kingspan products.¹¹⁴⁶¹¹⁴⁶ {LABC0002852/6-7}. He was under the impression that Kingspan was trying to use the prospect of a larger order to persuade LABC to accept its proposed wording in the re-issued certificate for K15.¹¹⁴⁷¹¹⁴⁷ Brennan {LABC0020135/48} page 48, paragraph 93.1. He regarded that as typical behaviour on the part of Kingspan.¹¹⁴⁸¹¹⁴⁸ Brennan {LABC0020135/31} page 31, paragraph 50.2; Stimpson {LABC0020158/61} page 61, paragraph 101.2.

119