[2024] EWHC 1435 (TCC)

Changes in Circumstances

The following shall be the circumstances referred to in Schedule 12 paragraph 1.1:

…..

A breach of this Agreement by the Agency or any agent, employee, contractor or other person for whom the Agency is responsible;

A Change proposed by the Agency;

…..

material increase or decrease in Storm Events, or a Sea Level Rise different from the Assumed Sea Level Rise, each as determined in accordance with Schedule 12 paragraph 4;

Failure by a Statutory Undertaker to carry out works or provide services;

Any failure or shortage of power, fuel or transport;

….

Any official or unofficial strike, lock out, go slow or other dispute generally affecting the dredging and construction industry or a significant sector of it;

Notwithstanding any other provisions of this Schedule 12, the only relief that may be permitted to PFIC in the circumstances specified in Schedule 12, paragraph 1.2(n) – (s) shall be an extension of time for the performance of its obligations pursuant to this Agreement.

Procedure

Subject to Schedule 12 paragraph 1.3 and paragraph 5, either party may notify (a “Notice”) the other of the occurrence of any event specified in Schedule 12 paragraph 1.2 or of any other circumstance which such party wishes to be regarded as a circumstance to be treated as though it were a circumstance specified in Schedule 12 paragraph 1.2 (a “Proposal”). The Notice shall be given as soon as reasonably practical and in any event within 7 days of the occurrence of any circumstances giving rise to the need for the Notice to be given.

Where the Applicant is PFIC, the Notice shall provide reasonable details of the following):

the reasons for the Notice and the date from which the Proposal is likely to impact upon or will impact upon the Project;

the impact, where relevant, of the Proposal on the Development Programme and a programme and method statement for any proposed works including a method for certifying completion of any such works;

(save in relation to events under paragraph 1.2(n) to (s) where this is not relevant) an assessment as to whether a Relevant Cost or Relevant Saving is likely to be involved together with an estimate of any such Relevant Cost or Relevant Saving stated as an adjustment to the current Monthly Charges and as a single lump sum in final settlement together with a breakdown of how that estimate has been calculated and a reconciliation with the Financial Model;

any other impact the Proposals may have on the Project or PFIC’s ability to provide the Flood Defence Services in accordance with this Agreement together with PFIC’s proposals as to how to deal with the same;

any amendment to this Agreement and/or any other Project Agreement required as a result of the Proposal;

mitigation measures being undertaken in accordance with Schedule 12 paragraph 3.5.