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

Mr Moore has taken his data from the Pharos Daily Progress Reports. He states that he has also used information available to him from the KML produced DPRs and in the descriptions of the works produced in the Marine Warranty Surveyor report. Fundamentally, however, Mr Moore has sought to identify when the UTV-670 was not, as a matter of fact, operational due to the Susanne-A either being stood down in the port of Hvide Sande or when it had moved to sheltered waters close to the burial site due to bad weather.

By contrast, Mr Scott’s analysis was based upon a more theoretical approach which compared the weather working limits as set out in the Method Statement with the weather data taken from KML’s DPRs. At least from the beginning of July onwards, the weather data recorded within KML’s DPRs was forecast data.

It is unsurprising that there are some differences, therefore, between the results. Mr Moore’s analysis has sought to identify when there was actually downtime due to waiting on weather; Mr Scott’s approach sought to identify when a forecast exceeded a weather limit, irrespective of what actually happened. Mr Moore’s approach is plainly the more appropriate one for considering when downtime occurred because of waiting on weather. Mr Scott’s approach takes no account of the fact that the Master of the Suzanne A would have taken decisions either to stop, or to carry on, work which may not have coincided precisely with a record of what had been forecast to have happened at any particular time. It is what actually happened that is relevant.

Mr Moore’s analysis attributed 633 hours to weather downtime between the actual commencement of the works, on 23/24 June 2022 to their conclusion on 17 August. He logged 465 hours in July and 167 hours in August. As he describes, the primary contributors to these hours were a period of unfavourable weather across July 2022, which was interspersed with part favourable weather conditions on 13, 14, 18, 19 and 29 to 31 July, where offshore operations continued, and unfavourable conditions from 1 to 8 August 2022.

For the reasons I have set out above, the risk for waiting on weather remained with KML. However, plainly that risk only eventuated for the period during which Pharos should reasonably have been carrying out the work. In other words, if (for example) the works ought reasonably to have been completed by the end of July (taking into account the weather and any other matters appropriate which were not Pharos’ risk), then the weather conditions in August 2022 are irrelevant and do not form any basis for a claim for payment from Pharos.