HT-2022-000090 - [2025] EWHC 723 (TCC)

Introduction

The Claimant, Southern Electric Power Distribution PLC (“SEPD”) brings a claim against the Defendant, OCU Modus Limited, formerly known as Modus Utilities Limited (‘Modus’), for the cost of replacing two 7.2km 33kV ducted underground cable circuits connecting a photovoltaic solar (‘PV’) farm at Wroughton Airfield to SEPD’s existing substation. SEPD alleges that the works were carried out defectively, and claims the cost of interim repairs (£188,909.96, which is not disputed) together with the cost of the entire replacement of the two circuits, via a methodology which involved maintaining the use of the existing circuits during the course of the replacement works along a different route to the original. Modus disputes the nature and extent of the defects, and contend that either no further remedial works were required over and above the interim repairs, or that any such remedial works should have been limited to the replacement of some or all of the joints. In submissions on behalf of Modus, Mr Smith, counsel for Modus, encapsulates the central issue colloquially as whether SEPD should be compensated for implementing a Rolls Royce solution to a Ford Escort problem.

During the progression of the case to trial, Modus failed to comply with numerous orders. On 31 January 2025, relief from sanctions was refused by Waksman J. Modus therefore called no factual or expert evidence. During the trial Mr Smith cross-examined within the confines allowed in circumstances where a party has no positive case supported by evidence. Although on the pleadings, an issue had been raised as to whether the contract upon which SEPD relies had been procured by duress (not, on any view, duress by SEPD, it should be noted), this point fell away. The only issues, therefore, upon which there remained a live dispute were the extent of defects and the reasonableness of the remedial solution adopted by SEPD. Modus accepted that if the costs of complete replacement by the methodology in fact adopted are recoverable in principle, the value of the claim is £2,642,237.71, made up of the cost of the interim repairs and £2,453,327.75 for the permanent repairs.

The Court heard from Mr Aaron Phillipps, a Connections Manager in the Major Connections Team for Scottish and Southern Electricity Networks (‘SSEN’), which is a trading name of Scottish and Southern Energy Power Distribution Networks, of which SEPD is a part; and Mr Stuart Dickson, also of SSEN. For consistency, I generally use the term ‘SEPD’ below where, in the witness evidence or documentation, ‘SSEN’ or ‘SSE’ was sometimes used, in circumstances where neither side sought to identify any meaningful distinction in the context of this case. Much of the factual chronology set out below is taken from the evidence of Mr Phillipps and Mr Dickson, in respect of which large parts were unchallenged. I formed the clear view that both witnesses were demonstrably honest and sought to assist the Court, giving answers irrespective of whether their evidence particularly supported SEPD’s case or otherwise. The Court also heard from Mr Mamoon Alyah, the engineering expert called on behalf of SEPD. I deal with his evidence at Section E below.