HT-2023-000321 - [2025] EWHC 1764 (TCC)

Pharos relied upon the factual witness evidence of Mr Phil Walker, the CEO and founder of Pharos, Mr Christopher Gamble, a Technical Director of Pharos and Mr Thomas Frazer, who was contracted by Prysmian as a consultant and ‘Client Representative’ during the Embedment Works.

All three gave evidence, Mr Frazer by video-link from Australia, and were subjected to cross-examination.

Each were honest in the manner in which they gave evidence before the Court. Whilst, in the circumstances described more fully below, Mr Walker admitted to prior dishonesty in some of his communications with the authorities whilst seeking to expedite the UTV-670’s release from customs, I found no reason to doubt his evidence under oath which was generally straight forward and direct. Similarly, whilst it is likely that in one aspect of his written evidence he overstated the position with regard to the previous history of transportation of the UTV-670, in answers to questions under oath, Mr Gamble was candid, and fairly admitted difficulties and took responsibility for those difficulties appropriately. Mr Frazer’s evidence was relatively limited and impressionistic given that he gave his statement two and a half years after the events in question, and did not refer to any contemporaneous documents. His oral evidence was straight forward and he answered questions directly. As set out in more detail below, an important aspect of his evidence relating to why the MBES survey was delayed was not ‘demonstrably wrong’, as asserted by Mr Macey-Dare KC on behalf of KML in Closing Submissions. His recollection was in fact, when judged against more probative documents than those deployed in cross-examination, demonstrably correct. Although there is, later in this judgment, one particular respect in which I do not accept his characterisation of events, I consider that Mr Frazer’s recollection was broadly reliable, and uninfluenced by the fact that he had known (although had little social contact with) Mr Gamble for a long time. Mr Frazer was plainly trying, as best as he could, to assist the Court.

KML called Paul Scullion, Group Commercial and Financial Director of KML. Mr Scullion took time to think through his answers with care. I formed the view that his recollection seemed to fail at times when the question might otherwise suggest an answer unhelpful to KML’s case. As I consider below in the context of whether an express agreement preceded (and indeed ‘warranted’) the removal of certain words important to the question of the waiting on weather risk allocation, I do not consider his lack of recollection about the circumstances in which he came to sign a statement of truth to have been genuine. My overall view was that Mr Scullion’s priority was to help KML’s case rather than the Court.

KML also relied upon the witness statement of David Freeburn, a freelance contractor, but working under contact as a Site Marine Manager for KML. His evidence was critical of Pharos’s equipment and personnel. Mr Freeburn was unavailable for the trial and his evidence was tendered under a Hearsay Notice. The circumstances of Mr Freeburn’s unavailability were vague. Where it is now routine to give live evidence from pretty much wherever a witness may be located and in whichever time zone (as demonstrated by Mr Frazer, giving evidence – undoubtedly at much inconvenience to himself - from Australia where he was attending a family member’s wedding), I place little weight on the untested evidence of Mr Freeburn.

Both parties called expert evidence to deal with the technical issues and analysis of the causes of downtime during the Embedment Works. Pharos called Darren Moore, Principal Engineer at BPP Technical Services Limited. KML called Alex Scott, principal of his own marine consultancy. As Mr Moore candidly accepted, Mr Scott had more practical experience than Mr Moore. In their oral evidence, both witnesses understood their duties to the Court and gave answers seeking to assist the Court in understanding how they saw things. As explained in more detail below, Mr Moore’s detailed analysis of the causes of downtime was more granular and particularised, and therefore reliable, than the equivalent exercise by Mr Scott. However, rather than concluding that the approach of one expert was to be preferred over the other in all respects, I have accepted or rejected various aspects of both experts’ opinions, for the reasons I give below.