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

In closing, Mr Zvesper advanced the submission that Modus’ Defence does not explicitly plead a failure to mitigate or a break in the chain of causation and contended that a number of the submissions advanced by Modus are not open to them.

As stated in McGregor on Damages 22^nd Edn at [52-62], although not stated in terms, CPR r16.5(2) requires a defendant to plead any positive case they may wish to run on causation, mitigation or quantification of damage. In Geest Plc v Lansquot [2002] 1 W.L.R. 3111 at [16], a clinical negligence claim, the Privy Council held that, if a defendant intended to argue that a claimant had failed to act reasonably to mitigate her damages, notice of such intention should have been clearly given. This was described by Lord Bingham as being, ‘appropriate particulars sufficient to alert the Plaintiff to the nature of the company’s case, enable the Plaintiff to direct her evidence to the real areas of dispute…’.

Mr Smith, who did not settle the Defence, does not dispute that Modus does not expressly plead a failure to mitigate or a break in the chain of causation, nor plead any positive case as to the cost of such alternatives as are now being advanced as the technical solution(s) which should have been adopted, but were not.

At paragraph 17 of the Defence, SEPD is put to proof of the reasonableness of the costs claimed. The paragraph alleges a failure on the part of the Particulars of Claim to have provided any information on various issues which could go to the reasonableness of the decision to replace the works in the method ultimately adopted. This point was reiterated in closing submissions by Mr Smith. This is a fair criticism. The Particulars of Claim, which were not settled by Mr Zvesper, falls short in identifying the real facts, as they have become clear in evidence, which lay behind SEPD’s decision making, which evolved over time to the ultimate decision to replace both circuits in new trenching along a new route, with a financial contribution from a third party in order to keep the existing circuit live. As set out above, it is for the claimant to prove causation, and if it relies upon a decision which it says was reasonable, it is for the claimant to prove its reasonableness. It was for SEPD to plead the facts upon which it relies to prove that reasonableness, and it has not. Mr Smith does not contend Modus has been prejudiced by this, and does not say that it is not open to SEPD to put the case it has in closing; however, he fairly raises this as at least some context through which the inadequacies in his own pleaded case might be viewed.

Returning to the Defence, putting the Claimant to proof of reasonableness is not the same as advancing a positive case on a failure to mitigate, although there may be an overlap in the evidence which will be deployed by a claimant to (a) prove reasonableness and (b) rebut an allegation of failure to mitigate. In putting SEPD to proof, Modus raised particular issues which SEPD was required to prove the reasonableness of. The first is the need to replace the circuits at all. At 17.6 of the Defence, Modus also queried the decision to install new ducting. Whilst a little oblique, the latter does put sufficiently into issue, at least in general terms, not just the reasonableness of the technical solution (i.e. replacement of circuits) but the reasonableness of the methodology (i.e. new trench, new route). Whilst somewhat general, it is plain that SEPD understood that as part of the issue of reasonableness enquiry, the decision not to route any replacement in the existing ducting (i.e. Option 2) was being questioned. It is no doubt for this reason that SEPD led evidence on the point, both from their factual witnesses and expert witness. Whilst the same point could and should have been pleaded as a failure to mitigate or a break in the chain of causation to permit the positive assertion, advanced by Mr Smith, that it was unreasonable to act in the way SEPD did, I accept Mr Smith’s argument that in reality SEPD has not been prejudiced in having to meet the case that it was unreasonable to replace the circuits, nor to do so other than by way of in-line replacement.

Mr Zvesper’s more focussed pleading point was that Modus’ Defence does not identify the specific solution which, in closing, Mr Smith advanced as the course of conduct which SEPD should have adopted – namely complete joint replacement – as an equally efficacious but cheaper alternative, nor advance a positive case on the quantification of this solution so as to identify that sum it accepted would be reasonable to have incurred, should its primary case that no sum was due failed. In response to this, Mr Smith pointed to paragraph 44 of the Defence in which reference is made to an ‘agreed solution’, without further elaboration. It is argued that it could reasonably be discerned that this was a reference to the January 2017 meeting in which SEPD indicated that it would carry out complete joint replacement. To say this is a rather oblique reference to the case now run by Modus is generous. The Defence did not properly plead joint replacement as the alternative solution which ought to have been adopted pursuant to the duty to mitigate. As a result of this, the evidence as to the cost of that alternative is thin. Had it been properly pleaded, SEPD would no doubt have considered calling evidence on the proper quantification of that alternative scheme, either as part of the liability case (in rebutting the suggestion that it was unreasonable not to adopt the solution) or the quantum case. SEPD has not had the opportunity to engage in the case in that way, and I accept that it is thereby prejudiced. For reasons that are apparent in light of the remainder of this judgment, the point is academic, but had it not been I would have been persuaded that it was not open to Modus to advance the positive failure to mitigate case it has advanced during this trial. The issue of complete joint replacement is not, however, irrelevant. Its potential as a solution remains the context in which the Court must determine whether SEPD has satisfied the burden of proof of reasonableness. For completeness, I would add that even if I am wrong in this analysis as to the scope of the pleaded case, I would, for the reasons given elsewhere in this judgment, have rejected the contention that not carrying out complete joint replacement was a failure to mitigate on the part of SEPD.

Finally, I note that I asked Mr Zvesper during Opening Submission whether his case was binary in that SEPD either proved that it was reasonable to replace the cable, in which case SEPD recovered because quantum was not in dispute, or SEPD does not recover. Mr Zvesper agreed that there was no alternative pleaded. However, as both Counsel agreed in closing, my question, at the outset of the case, was overly simplistic. That is because even in circumstances where SEPD has proven that it was reasonable to replace the cable entirely, there remains the question of what the reasonable cost of doing so was, when SEPD have been put to strict proof of doing so. To the extent that I determine that the actual cost is not reasonable, providing there is other evidence upon which I can rationally conclude what a reasonable sum would be, it is plainly open to the Court to award such a sum, even if it differs from the amount claimed, rather than conclude that the answer is ‘nil’.