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

KML contend that the condition of various items of equipment ancillary to the UTV-670 placed Pharos in breach of warranty. The pleading identifies (i) sensor issues; (ii) repeated failure to maintain pressure; (iii) inability to maintain traction; (iv) hose failures; and (v) HPU failures.

It is clear on the evidence that the amount of downtime caused by technical failures were caused by the sub-standard quality of some of the ancillary equipment, identified in particular by Mr Scott in his report. Mr Moore identified 113 hours downtime in respect of 166 hours of trenching work, with categories of failure including each of the above complaints. Some downtime due to maintenance and repair would be anticipated. According to Pharos’ own information, each system (and the UTV-670 with its associated equipment would be a ‘system’) would require 4 hours out of every 24 hours up to a maximum of 24 hours. Mr Moore’s analysis showed that the UTV-670 carried out 166 hours of actual trenching time. Assuming these were continuous (in reality they were not) this would suggest somewhere around the maximum 24 hours’ downtime might be anticipated. Against this, 113 hours’ downtime – around 5 times higher - is plainly excessive and substantiates KML’s case, supported by Mr Scott, that parts of the ancillary kit were not in accordance with the contractually warranted standard. Whilst Mr Frazer accepted that the number of technical failures experienced were ‘probably a little higher than average’, I consider this materially understates the position. I also reject Mr Moore’s conclusion- largely based upon what he considers was a reasonable response to the various operational failures encountered by Pharos - that the 113 hours should form part of what might be considered ‘reasonable’. Mr Moore’s conclusion misses the point: even if Pharos’ team responded reasonably, the failures should not have been happening in the first place, and were caused by sub-standard ancillary equipment.

I therefore consider that the excessive downtime, irrespective of the manner in which the various failures were attended to by Pharos’ personnel, to be Pharos’ responsibility. I also accept that some of the sub-standard aspects of the UTV-670 equipment (and, in particular, the TMS and the Hose Spooler) would have led, as Mr Moore accepted in principle, to a general degradation in the progress of the Embedment Works: in other words, they slowed operations down even if they did not cause specifically attributable downtime. This degradation must be accounted for in any assessment of what a reasonable time for the works was.

One other area of particular criticism from Mr Scott was the deck layout. This was not pleaded, and, even if sub-optimal, no case was advanced as to how the deck layout of itself caused downtime or slowed operations. Nevertheless, my assessment of a reasonable time for completing the works is based upon an assumed competent deck layout, as suggested by Mr Scott in his evidence.

Although Mr Scott supported a pleaded case that Pharos’ staff were insufficiently qualified, this allegation was not explored to any great degree (either in the context of breach or causation). To the extent necessary, I prefer the evidence of Mr Frazer, Mr Gamble and supported by Mr Moore that the manner in which the various difficulties were responded to was reasonable. That said, my assessment of a reasonable time obviously assumes that the works are being carried out by reasonably competent and properly qualified personnel.

Finally, in light of the submissions made by Mr Macey-Dare KC, I add that I was not particularly assisted by KML’s allegations around Pharos’s disclosure. KML did not pursue any applications for specific disclosure and there is no suggestion that Pharos’s disclosure was in breach of any Court Order. It is not appropriate to draw any particular inference against Pharos. Even if it were, however, it would not add to the analysis above in which I have concluded that the system was, in certain respects, sub-standard in any event.