The motivation for this two-part article arose from an observation overheard in a meeting when a consultant working for a social-housing provider questioned the need for BS 9251 to be specified for a sprinkler installation in a block of flats. His argument was that since BS 9251 had the subtitle ‘Code of Practice’ it did not need to be complied with as it was not a standard!

Of course, this neatly begs the question as to the extent to which any standard has to be complied with. Standards such as BS 9251 and BS EN 12845 are intended to be an aid to the specifier/end user and the contractor undertaking work. They allow a shorthand approach to specification and by their nature remove detailed technical issues from pre-contract discussions. They also generate confidence in the comprehensiveness of tender submissions making the award of contracts less fraught with uncertainty.

Recent civil litigation resulting from the destruction of a very large warehouse in an arson fire has provided observers with a slightly different view on how the provision of sprinklers is viewed by the law. In the absence of any specific mandatory requirement for this protection, most previous litigation has resulted in judgements which have said that while sprinklers are a good idea and useful, their provision is optional.

Ignoring standards – the consequences

This most interesting recent judgement involves not only compliance with British Standards in respect of the physical security of premises but also goes further than before in distinguishing the difference between the ‘advice’ offered in Approved Document B from requirements for ‘mandatory protection’ against fire.

In 2Entertain Video Limited and others v Sony DADC Europe Limited ([2020] EWHC 972 (TCC), Mrs Justice O’Farrell DBE ruled that the claimants were reasonably entitled to assume that their property, stored in premises operated by Sony DADC Europe Limited was safe and secure. In her judgement in respect of the security issues, the Judge ruled that Sony should and could have complied with the recommendations contained in the relevant British Standard BS 8220 Part 3.¹ Sony’s defence revolved around an assertion that this was not a well-known document. In her Judgement, Mrs Justice O’Farrell said: ‘It is no defence for Sony to suggest that it was unaware of BS 8220. That British Standard represented the acceptable standards and practice for the security of storage, industrial and distribution premises. It was incumbent on Sony, as the provider of logistics services and operator of a distribution facility, to ensure that it was cognisant of the appropriate guidelines.’

In the matter of whether the warehouse was provided with adequate fire protection, the defendants claimed that as the building complied with the Regulatory Reform (Fire Safety) Order 2005 it did not need to be fitted with sprinklers and had received Building Regulations approval. Sony had relied on advice from an Approved Inspector (AI) who had said that sprinklers were not legally required and that based on the size and height of the warehouse, the AI did not believe that these would be effective.

The situation was further complicated by the fact that the original building, which had a floor area of 15,853m² was subsequently fitted with a mezzanine and ‘galleries ‘which took the total floor area to 24,011m² or 23,974m². In a joint statement, the two architectural experts agreed that a ‘gallery’ became a ‘storey’ when this was extended to over half the area of the space into which it projected.

So, the Judge accepted arguments by the two fire consultants that it would not have been feasible to comply with the requirement in Approved Document B to provide compartmentation as a means of reducing compartment size. She ruled that, at the time of the fire: ‘The Building Regulations and ADB in force at the time of the 2009 internal changes to the warehouse indicated that compartmentation and/or sprinklers were required to inhibit the spread of any internal fire. No compartmentation or sprinkler system was installed and there was no fire engineering assessment to justify the omission.’

She also accepted the arguments that a sprinkler system would have been effective: ‘It is likely that the installation of a sprinkler system in the warehouse, including sprinklers within the racks, would have suppressed the fire at an early stage and significantly limited the damage. The likelihood is that most of the claimants’ goods and the warehouse would not have been destroyed.’

Rejecting an argument by the defendant that the arson attack was unforeseeable and amounted to force majeure, the Judge concluded that: ‘For the reasons set out above, adequate security measures that could have been taken by Sony probably would have deterred or delayed the attack on the warehouse and prevented the youths from gaining entry. Reasonable fire precautions, namely, the installation of sprinklers, probably would have suppressed the fire and significantly reduced any damage to the warehouse and its stock. Therefore, the fire and resulting loss did not amount to circumstances beyond the reasonable control of Sony and it is not open to Sony to rely on clause 14.1 as a defence.’

This case is a powerful argument that ignoring or falling to comply with consensus standards is a dangerous way to run a business!

Supporting standards for sprinklers

The UK sprinkler industry can be very proud of its record as one of the pioneers of developing and supporting design, installation and maintenance standards for fire-protection systems. The UK’s first standard for the design of automatic sprinkler systems dates from 1885 and the first consensus standard (the FOC Rules) published by the Fire Offices’ Committee date from 1892.

This had the effect of ensuring that virtually all sprinkler systems being installed in the UK had to follow this standard. The FOC Rules, in various incarnations, reigned supreme until 1986 – even over-riding two attempts by the British Standards Institution to publish its own sprinkler standard in 1952 and 1979. The fact that a significant majority of sprinkler systems being installed in the UK up until 1986 (when the FOC was closed) was at the behest of the insurers meant that in effect, no one used the second BSi document, BS 5306 Part 2.

The Loss Prevention Council took over responsibility for the FOC Rules in 1986 and came to an understanding with the BSi over the production of a national sprinkler standard. However, this was deemed insufficient to meet insurers needs so the revised BS 5306-2 was published with a set of additional requirements in a series of Technical Bulletins (TBs) – both documents in one binder under the LPC Rules title. The current UK sprinkler standard is BS EN 12845: 2019 with some minor revisions in 2019 and this still forms a key part of the LPC Rules. For BSi to licence another party is an exceptional step and indicates the extent to which the FOC Rules had a hold on the sprinkler industry.

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References

1 BS 8220-3:2004 Guide for security of buildings against crime. Storage, industrial and distribution premises