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

The pleaded claim in respect of Clause 4 of the warranties set out at paragraph 37(4) of the Amended Defence and Counterclaim alleges that the UTV-670 was not fit for its intended purpose in that:

In its pleaded answers to Requests for Further Information, KML set out other equipment which the equipment supplied continually failed (‘by way of examples’). Reference was then made to just 3 events, on 26, 27 and 29 June relating to the anchor wires disconnecting: a hose connection failing and a hose fitting parting.

Further criticisms of the equipment were made indirectly in paragraphs 37(5) of the Amended Defence and Counterclaim, which introduced an alleged failure on the part Pharos to exercise reasonable skill and care in:

Against KML’s pleaded case, I consider the breaches pursued by KML in Closing.

The water used by the UTV-670’s jetting sword was fed into it via an 8-inch water hose which was connected to two water pumps on board the vessel. This was a “lay flat” hose, meaning that it folded down when there was no water in it, similar, as Mr Gamble put it, to an extra-large fireman’s hose. The hose used on this project came in 15m sections and needed to be connected via couplings.

There is no dispute that the couplings initially procured by Pharos to connect lengths of the lay flat hoses did not work. Although in opening a case relating to these couplings was advanced based on a combination of the urgency of operations combined with the ‘ultimate’ cause being the requirement for 200m of hoses attributable to the choice of the Suzanne A, this was effectively abandoned when Mr Gamble fairly conceded in cross-examination (as, indeed, he had already accepted at paragraph 67 of his witness statement) that irrespective of these issues, the procurement of sub-standard couplings was an error or failing on the part of Pharos.

Mr Moore attributed 36 hours and 4 minutes to ‘Lay Flat Hoses’. The majority of the relevant time related explicitly to the coupling issue. The only other entries attributable to the lay flat hoses by Mr Moore were:

In addition to the specific coupling issue, KML contends that Pharos was in breach by reason of the decision to use lay flat hoses itself, rather than flexible hoses (i.e. like large garden hoses) to supply water to the UTV-670 during very nearshore trenching operations. Although its allegations about the use of lay flat hoses per se are pleaded with somewhat greater particularly under its claim for a failure to have assessed their suitability with reasonable skill and care, the issue in dispute is clear, and no point was taken by Pharos as to the pleadings in relation to the criticism made of the decision to use lay flat hoses at all.

The reason the distance between the Suzanne A (on which the High Pressure Unit (‘HPU’) feeding the water to the UTV-670 sat) needed to be up to 200m when the UTV-670 was near shore was the inability of the Suzanne A to get closer because of its draught. Mr Gamble accepted, rightly, that this was known at the time Pharos entered into its contract with KML. Mr Macey-Dare KC is therefore correct that, in these circumstances, whilst it might be considered that the choice of vessel was itself potentially sub-optimal, as considered by Mr Moore, this is irrelevant to the analysis of fitness for purpose or whether Pharos’ choice of system was reasonably competent. Pharos undertook to provide a system which worked on the Suzanne A; if it could not do so, then it should not have entered the contract.

The allegation of lack of fitness for purpose of the lay-flat hoses in principle, leaving aside the coupling failures, rests on the fact that, unlike flexible hoses which could be kept from sinking with a pillow float system, the flat hoses necessitated a ‘taut wire’ or ‘guiding wire’ system for controlling the hose and the umbilical and ensuring it did not sink.

Mr Moore agreed that the taut wire was ‘sub-optimal’. Mr Moore also agreed that the 200m distance would have presented no significant issues for this operation with the use of flexible hoses. He contended, however, in his report that the use of a lay-flat hose was necessitated by space constraints on the vessel. Notwithstanding this, Mr Moore accepted in cross-examination that it is likely that space would not have been an issue if Pharos had required any unnecessary equipment on the deck of the Suzanne A to be removed, which they would have been entitled to insist upon. I do not therefore consider space to be a justification for the use of lay flat hoses. I note, in addition, that Mr Gamble did not consider that space was the reason behind the choice of a lay flat hose. He said it was because it was lighter when being pulled by the UTV-670 in the water. It is not obvious why this should be the case (with flexible hose supported by floats) and no further detail was given. Weight was not a consideration or justification considered by Mr Moore.

In his report, Mr Scott considered bluntly that ‘the configuration does not work’. He also concluded that the configuration resulted in most if not all the handling problems with the tool at the beach and nearshore, as set out in his Appendix 8. Notwithstanding the general unreliability of Appendix 8 for the reasons described above, I have nevertheless reviewed the document to discern the nature and extent, and impact, of the concerns Mr Scott is referring to. It is very difficult, reading Appendix 8 as generously as possible, to identify what Mr Scott is referring to save for two entries on 13 July and 10 August which appear to relate to the hose/guide wire configuration causing problems, and in respect of which he records no downtime against the latter.

The mere fact that the solution may, particularly compared with another solution, be ‘sub-optimal’ does not render the solution of itself unfit for purpose. I do not accept Mr Scott’s evidence that ‘the configuration does not work’. To the contrary, there is no reliable evidence that the system did not generally work, once the coupling issue was fixed. The entanglement issue identified by both experts appears, on the basis of Mr Moore’s analysis which I have accepted, to have been isolated and resulted in less than 3 hour’s downtime. In the context of the project as a whole, this is not an issue that demonstrates that the system was unfit for purpose, particularly as it happened near the beginning of the works, and did not happen again. The only other specific downtime attributable to lay flat hose related issues, coupling aside, is minimal. Whilst more complicated than using flexible hoses, there is no evidence that the system was necessarily slower: even with lay flat hoses and the taut wire system, speeds in excess of 250m/hour for trenching offshore were achieved (as calculated by Mr Moore in his report). In these circumstances, it is not possible to conclude that the system was not fit for purpose, or that its choice was the result of a failure to take reasonable skill and care.