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England and Wales High Court (Technology and Construction Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Connect Plus (M25) Ltd v Highways England Company Ltd  EWHC 2614 (TCC) (27 October 2016)
Cite as:  EWHC 2614 (TCC)
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Rolls Building, Fetter Lane, London, EC4A 1NL
B e f o r e :
| Connect Plus (M25) Limited
|- and -
|Highways England Company Limited
(instructed by Pinsent Masons LLP) for the Claimant/Respondent
Ms Anneliese Day QC and Ms Isabel Hitching
(instructed by DLA Piper UK LLP) for the Defendant/Applicant
Hearing date: 19 October 2016
Crown Copyright ©
The Hon. Mr Justice Coulson :
"It is CP's case that:
(1) The Expert was wrong in his approach to the construction and application of the DBFO Contract and in granting declarations A and/or B set out above; and/or
(2) The parties having previously agreed and/or resolved a different approach to the DBFO Contract and/or the parties having proceeded on the basis of a convention and/or in accordance with representations made by HEC as to the proper approach to the DBFO Contract, HEC is bound by and/or estopped from departing from that previous approach."
These assertions, and the way in which CP's case is now put, are dealt with in much greater detail in the Particulars of Claim which was served on 30 September 2016.
2. THE RELEVANT FACTS AND DOCUMENTS
(a) There are 94 operative clauses, filling more than 600 pages;
(b) There are 29 substantial operative schedules;
(c) There are different provisions addressing 'Works', 'Project Facilities' and 'Operations'.
"A Critical Incident that:
(a) is neither an Exceptional Circumstances Event…nor a Major Incident; and
(b) requires or results in a partial closure of a Carriageway on the Project Road; and
(c) results in one or more of the following;
(i) A physical obstruction (other than traffic management equipment) in the Carriageway that requires removal before the affected traffic lanes can be safely opened to traffic; or
(ii) Damage or potential damage to any of the Project Facilities that will require assessment and/or remedial action before the affected traffic lanes can be safely opened to traffic; and
(iii) In respect of which the Incident Controller has requested the attendance of the DBFO Co at the scene of the Critical Incident in order to perform any of its duties under this Agreement…"
"A dispute has arisen between the parties relating to the interpretation and application of what is called the 'Critical Incident Adjustment' referred to in Schedule 25 of the Agreement. HEC through its solicitors served a Notice of Referral of a Dispute to Expert Determination on 4 January 2016 on DBFO Co."
"(a) The clear meaning of these clauses is that a Critical Incident is an incident which is declared as such by NILO on behalf of the Secretary of State for Transport (now HEC).
(b) Only NILO can declare an incident critical on behalf of the Secretary of State (now HEC).
(c) Only incidents in fact declared as critical can be inputted into the Critical Incident Adjustment, if relevant.
(d) The 'applicable emergency procedures' are those procedures from time to time in force that NILO has regard to in making declarations."
a) Question 13 went specifically to NILO's Process B1. HEC said that the November 2013 version was the only version of this document that they had. Following the issue of the Claim Form in these proceedings, it is CP's case that HEC have now provided an earlier version called F1, with very different provisions.
b) Question 18 asked HEC what they said "the applicable emergency procedures" were at the date of the DBFO contract "and/or have become since?" HEC again referred to the B1 Process document saying that this had been the applicable procedure since 2013.
"A Critical Incident as defined in the Agreement and in particular in paragraph 1 of section B part 6 of Schedule 25, and for the avoidance of doubt for the purposes of calculating the Critical Incident Adjustment, means an incident in fact declared as critical by National Information Liaison Officers in accordance with Process B1 NILO incident reporting criteria dated November 2013.
B In circumstances where a 'deemed Critical Incident' of any type set out in appendix D to the M25 DBFO Co Service Provider Contingency Plan (Version 4.2 dated October 2015) occurs neither shall such incident thereby be treated as declared as a Critical Incident for the purpose of the definition of a Critical Incident set out in paragraph 1 of section B at part 6 of Schedule 25 (whether or not it is further declared as such) nor shall the SOS or HEC be or have been required to procure that NILO or anyone else acting on behalf of the SOS or HEC must declare such incidents as Critical Incidents."
3. THE APPLICABLE LEGAL PRINCIPLES
(a) Parties who sign detailed and specific dispute resolution provisions should usually be held to them because they are as much a part of the contract as any other provision: see The Channel Tunnel Group  AC 334 at 352;
(b) If one party brings court proceedings which the other contracting party claims is not in accordance with the dispute resolution provisions, and therefore in breach of them, the court has the inherent jurisdiction to stay the proceedings: see Channel Tunnel Group at page 352;
(c) Although the power to grant a stay is discretionary, there will be a strong presumption in favour of the grant of the stay to enforce agreed dispute resolution procedure provisions: see Channel Tunnel Group at page 352-353; or, to put the same point another way, the persuasive burden is on the party resisting the stay to demonstrate why the stay should not be granted: see Cott UK Limited v Barber Limited  3 All ER 540 at pages 546-548 and DGT Steel and Cladding v Cubitt Building and Interiors  BLR 371;
(d) This general approach has been applied to dispute resolution provisions involving expert determination (see Cott) and in disputes involving adjudication (see Cape Durasteel Ltd v Rosser & Russell Building Services Ltd 46 Con LR 75).
"There is an analogy here, albeit an imperfect one, with the rules developed by the common law to prevent successive litigation over the same matter: see the discussion about Henderson v Henderson (1843) 3 Hare 100 on abuse of process and cause of action and issue estoppel by Lord Bingham of Cornhill in Johnson v Gore Wood & Co (a firm)  2 AC 1, 30H-31G."
In other words, the common law has regularly used the test of 'the same or substantially the same' to deal with what can and what cannot be raised in subsequent court proceedings, following an earlier decision involving the same parties and the same general subject matter.
4 THE APPLICATION TO STRIKE OUT
5. ARE THE ISSUES AT PARAGRAPH 10 OF THE CLAIM FORM MATTERS WHICH WERE COMPRISED IN THE DISPUTE DETERMINED BY THE EXPERT?
(a) The Network Management Manual ("NMM") was a standard which was incorporated into and applied to this contract. Ms Day rightly pointed out that the standard had been amended for the purposes of this contract. The relevant section read as follows:"Critical IncidentsCritical Incidents are unforeseen events that seriously impact upon the Highways Agency and its ability to deliver its 'safe roads, reliable journeys, informed travellers' objective. Importantly, the police, other emergency services or local authorities may not consider these types of incident as important as the Highways Agency.Critical Incidents also include incidents of which Ministers wish to be informed.It should be noted that critical incidents might be, or become, major incidents.Only category 1 or 2 responders [emergency services, the Highways Agency etc] may declare if a Critical Incident has occurred. If the DBFO Co believes that a Critical Incident has or may become a Major Incident then it shall notify the police and Department's nominee immediately.The following are deemed to be critical incidents:[There are then 15 deemed Critical Incidents]."
(b) A part of the NMM was a template for a Contingency Plan. CP were obliged to produce a Contingency Plan pursuant to the DBFO contract.
(c) CP produced a Contingency Plan in accordance with the template which therefore incorporated the deemed list of Critical Incidents noted above.
"The DBFO Co shall, without prejudice to the requirement to report accidents and Incidents in accordance with paragraphs 1.3 and 1.4 of Part 4 of Schedule 18, immediately report to the Department's Nominee each accident or Incident deemed to be a "Critical Incident" (as referred to in the NMM), distinguishing between Critical Incidents that impact on the payment mechanism…and those that do not."
On the face of it, this provision adds at least some weight to the contention that the deemed list in the NMM/Contingency Plan was an important element of the declaration process.