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

Mr Alyah gave evidence as to the available remedial options. At paragraph 198 he set out that the options he had considered were as follows:

Mr Alyah accepted in cross-examination that he had not, at least generally, looked at the commercial or cost implications of each option. For a technical expert, that was not an inappropriate approach, but of course it means that his evidence only plays a part in the overall analysis of whether it was reasonable for SEPD to adopt the solution it did.

As to the first option, Mr Alyah accepted that he had not considered the replacement of all joints in each circuit (the option which was, at least at one point, that preferred by SEPD). There is some force in the submission by Mr Zvesper that, insofar as this was a criticism, it is misguided in circumstances where Modus had not (other than in the most oblique way) pleaded that this is the option which ought to have been adopted in order to mitigate SEPD’s losses. In any event, Mr Alyah’s evidence was that he did not consider this solution appropriate: when a joint is replaced two joints are introduced, with a cable link in between, and whenever that is done the risk of another failure is increased. The introduction of double the number of joints was also a disadvantage identified contemporaneously on a number of occasions and by different people. It was justifiably a legitimate concern, which, if implemented, would leave SEPD to maintain two circuits in which the number of ‘weak points’ (i.e. the joints) had doubled from that which they had been entitled to under the Adoption Agreement. Furthermore, joint replacement did not resolve any potential damage to cables from water ingress at defective joints, or where sheath repairs had (away from the joints) been inadequate. I am of the clear view that, objectively, joint replacement was materially inferior a solution to replacement of the circuits. This conclusion is not negated by the evidence which shows that at times this was the solution which SEPD appeared to want to adopt. To the extent relevant to the objective test, that position evolved and it was, in any event, not a universally agreed position within SEPD.

In relation to the second option, which is the equivalent of or at least close to Options 4 or 5 referred to above, Mr Alyah’s view was that this was, though possible, very risky to both the cables and operative working on the replacement. He explained that this option would require excavating the existing trench while the cables were in place, while ensuring that the cables and ducts were protected while the trench was excavated. During the excavation process, the risk of damage to the cables would be considerable and there was also a high risk to the operatives carrying out the replacement of the cables while the other circuit remained energised. Mr Alyah pointed out in his report that this would require special preventative and mitigation measures, which would add to the time needed and the cost of the replacement. In cross-examination, he reiterated that the scheme was possible and that he considered that the risks were significant which could be mitigated ‘to a certain extent’. He gave an example of a case in the United States where a 15,000kV cable caused severe injury to an operative who was working close to a joint which failed, and continued ‘and when you’re dealing with 33kV, you’ve really got to be very, very careful’. I consider that it was objectively reasonable to reject a solution which required operatives to work in very close proximity to a live circuit particularly in circumstances where the integrity of the insulation of the circuit was known to be deficient.

As a variant on the replacement option, Mr Alyah accepted that he had not considered the option of replacing both cables in the same original trench, albeit in circumstances where to minimise risks the circuits would not be live for the duration of the works. (effectively Option 2 as referred to above). It was not put to Mr Alyah that it was, technically, an equally efficacious solution. Modus led no expert evidence on which it could advance the case that it had no technical advantages over a full replacement. Mr Zvesper points out that there were contemporaneous concerns that this would require the re-use of existing ductwork installed by Modus which may be defective, and to contemporaneous concerns raised about the continuity of the duct system. In addition to concerns raised within SEPD, the Durkin report also pointed out potential problems with the ducting, and concluded that that it was necessary to investigate the duct installation before it could be relied upon. These would be reasons to conclude that, as a technical solution, it was not as efficacious as complete replacement, even in circumstances where, as I have found above, it is likely that this was SEPD’s ‘preferred method’ according to the Remedial Agreement. However, technical issues aside, the further disadvantage to this solution was that it required the existing circuits to be out of action. In circumstances where it was reasonable to keep the existing circuits live, this was not a viable solution.

In relation to the complete replacement option, it was Mr Alyah’s view that due to the numerous defects in the cable joints and the wide-spread presence of defects within many joint samples as well as on site, he believed that the risk of multiple failures in the circuit made it reasonable for SEPD to replace the defective circuits in their entirety to ensure uninterruptable and reliable connection of power between the PV power station and the substation. It is clear that this was a technical evaluation, and not one which considered either the influence in fact of SSF on the decision making process or a cost-benefit analysis. The limitation of this view is not a criticism of Mr Alyah, a technical expert.

The circuits continued to be contractually non-compliant, in that they were achieving low, out of specification sheath test results after the replacement of the ten joints. I have already found that it was reasonable to assume that the type of defects which had been identified in the joints were prevalent. The EA Report’s recommendation was, whilst not definitive, clearly technically supportive of the conclusion that replacement of the circuits should be considered because of the potential safety risks to personnel and the likely continuing degradation of the cable. (It did not extend to a recommendation as to how the circuits should be replaced.) Whilst Mr Smith says that the EA Report was not in fact relied upon, this is not correct. It is right that the immediate response to the report was not to implement the suggested solution, but the position evolved and the existence of this independent party’s contemporaneous views was plainly relied upon, and justifiably so, by SEPD in the ultimate decision. Only replacing the circuits put SEPD back in the position it would have been but for the breach, namely with two properly installed circuits which complied in all material respects with the specification and which minimised to the greatest extent possible future intervention by way of further fault finding, remedial work or indeed later replacement.

I have no doubt based upon the expert evidence, therefore, that replacing both circuits (as opposed to a solution in which only some or all of the joints were replaced) was a technical remedial solution in the face of the breaches of the Adoption Agreement established that was reasonably justified. I therefore reject the principal thrust of the Defence which is that it was not reasonably necessary to carry out a whole circuit replacement.

Causation, Reasonableness, Mitigation and Remoteness