[2024] EWHC 1435 (TCC)

Fecha: 12-Jun-2024

Heading

Neutral Citation Number: [2024] EWHC 1435 (TCC)

Claim No. HT-2024-000004

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

TECHNOLOGY AND CONSTRUCTION COURT (KBD)

Royal Courts of Justice, Rolls Building

Fetter Lane, London, EC4A 1NL

Date: 12 June 2024

Before:

SIMON LOFTHOUSE KC SITTING AS A DEPUTY JUDGE OF THE HIGH COURT

B E T W E E N :

PEVENSEY COASTAL DEFENCE LIMITED

Claimant

– and –

ENVIRONMENT AGENCY

Defendant

________________________

APPROVED JUDGMENT

________________________

This judgment was handed down by the court remotely by circulation to the parties’ representatives by email and released to The National Archives. The date and time for hand-down is deemed to be 12 June 2024 at 10.30am

Introduction

These are Part 8 proceedings brought by the Claimant (“PCDL”) against the Environment Agency (“the Agency”). The proceedings seek determination of a point of construction in a PFI contract dated 5 May 2000 (“the Agreement”). Under the Agreement PCDL (referred to in the Agreement by the abbreviation, PFIC) provides services to deliver sea defences at Pevensey Bay, Eastbourne, Sussex. The Agreement was for a period of 25 years. It commenced on 1 June 2000 and expires on 1 June 2025.

The Agreement was amended by a Change Agreement dated 8 April 2020. Amongst other matters, this amends Schedule 12 to the Agreement. Reference to the Agreement in this judgment are to the Agreement as amended by the Change Agreement.

The issue for determination in the proceedings (“the Issue”) has been defined in slightly different terms by the parties as follows:

PCDL:

On a proper construction of the FDSA does Schedule 12 permit PCDL to claim for Relevant Cost on a retrospective basis in respect of the circumstances in paragraph 1.2(g)?

The Agency:

If there was a material increase in the frequency of storm events in the second decade of the FDSA compared with the first decade, does Schedule 12 of the FDSA permit PCDL to claim, after the end of the second decade, an additional payment in respect of Flood Defence Services and/or Service Requirements which PCDL performed in the second decade of the FDSA?

PCDL answer their proposed issue “Yes”, the Agency answer their proposed issue “No”. In reality, there is no material difference between the issues.

Regardless of the absence of material difference, the parties were unable to agree on the wording. In those circumstances the Court will decide. As I indicated in argument, I will adopt the formulation advanced by the Agency as more precisely reflecting the case advanced by PCDL.

The 2 witness statements before me introduce the dispute and exhibit relevant documentation. I do not need to refer to them further.

The Agreement

I set out below some of the terms of the Agreement to which reference has been made: