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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> BP Gas Marketing Ltd v Centrica Storage Ltd  EWHC 732 (TCC) (07 April 2009)
Cite as:  EWHC 732 (TCC)
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Strand, London, WC2A 2LL
B e f o r e :
| BP GAS MARKETING LIMITED
|- and -
|CENTRICA STORAGE LIMITED
David Mildon QC (instructed by Allen and Overy) for the Respondent
Hearing dates: 1 April 2009
Crown Copyright ©
Mr. Justice Teare :
i) CSL's internal investigation report relating to the fire on 16 February 2006 which occurred on the Rough 3/B offshore gas platform at the Rough Gas Storage Facility (including all appendices, schedules and attachments and all notes of interviews/statements of relevant personnel).
ii) Interim and final forensic reports of Health and Safety Laboratories detailing what caused the failure of the heat exchanger (including all appendices, schedules and attachments and all notes of interviews/statements of relevant personnel), and their terms of reference.
iii) Appendices to HSE Investigation Report relating to the fire on 16 February 2006.
iv) Letter from HSE to CSL detailing their findings and recommendations following their investigation into the incident.
v) Mr Boy's report of the interviews with operating staff referred to in the HSE Investigation Report (summary of statements).
vi) Mr Bankes' report concerning the process conditions prior to the incident referred to in the HSE Investigation Report.
vii) Mr Sharma's mechanical report referred to in the HSE Investigation Report.
viii) Documentation relating to CSL's position that Mr Sharma's conclusions that the design of the heat exchanger was not in compliance with best practice are incorrect.
ix) The Process and Instrument Diagrams ("P&IDs") for the "train" of which the heat exchanger was part.
x) Original design specification, manufacturer's recommendations and design review of the heat exchanger which suffered a catastrophic failure resulting in a fire and explosion.
xi) Criticality review of pressure systems carried out by ABB in 2004 (including all appendices, schedules and attachments and the terms of reference).
xii) Internal CSL documents relating to ABB's recommendations and actions.
xiii) CSL's written scheme of examination for the periodic examination of installed pressure systems.
xiv) The IMS inspection procedure referred to in the HSE Investigation Report.
xv) The CSL inspection procedure referred to in the HSE Investigation Report (if different).
i) dispose fairly of the anticipated proceedings;
ii) assist the dispute to be resolved without proceedings; or
iii) save costs.
The likely issues
"For the purposes of this Agreement, subject to Clause 18.2, 'Force Majeure' means any event or circumstance, or any combination of events and/or circumstances, the occurrence of which is beyond the reasonable control of, and could not have been avoided by steps which might reasonably be expected to have been taken by, a Party (the "Affected Party") and which causes or results in the failure of the Affected Party to perform or its delay in performing any of its obligations owed to the other Party (the "Other party") under this Agreement, including:
……….(iv) explosion, fault or failure or plant, equipment or other installation which the Affected Party could not prevent or overcome by the exercise of the degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced operator engaged in the same kind of undertaking under the same or similar circumstances."
(i) What caused the catastrophic failure of the heat exchanger?
(ii) Was the heat exchanger suitable for the use to which it was put?
(iii) Did the heat exchanger originally comply with relevant design codes?
(iv) Assuming issue (3) is answered in the affirmative, what consideration did CSL give to the design given the evolution of design codes over time?
(v) Was there any change of use in relation to the heat exchanger and if so what was it and what consideration did CSL give to its suitability for such a change of use?
(vi) Given the inherent potential for corrosion in the heat exchanger's design and the process environment to which it was subjected, what consideration did CSL give to the potential for corrosion and the potential for failure of the heat exchanger?
(vii) What maintenance and inspection regimes were in place at CSL in relation to this heat exchanger?
(viii) What maintenance and inspection in fact took place in relation to the heat exchanger?
CPR 31.16(3)(c) Standard Disclosure
CPR 31.16(d) Desirability of an order for pre-action disclosure
Disposing fairly of the proceedings
Assisting the dispute to be resolved without proceedings
"It cannot be right to think that, wherever proceedings are likely between the parties to such an application and there is a real prospect of one of the purposes under paragraph (3)(d) being met, an order for disclosure should be made of documents which would in due course fall within standard disclosure. Otherwise an order for pre-action disclosure would be made in almost every dispute of any seriousness, irrespective of its context and detail. Whereas outside obvious examples such as medical records or their equivalent (as indicated by pre-action protocols) in certain other kinds of disputes, by and large the concept of disclosure being ordered at other than the normal time is presented as something differing from the normal, at any rate where the parties at the pre-action stage have been acting reasonably."
"25. ……IT projects and construction projects typically generate extensive documentation. In many TCC cases, disclosure is a labour-intensive exercise and a major head of costs. Therefore, disclosure before the proper time is not something which should be lightly ordered. On the other hand, the court encourages the early and candid exchange of information in the hope that this will promote settlement before excessive costs are incurred. Alternatively, it is hoped that the parties may at least narrow the issues between them. This is part of the philosophy which underlies the Pre-action Protocol for Construction and Engineering Disputes……..
29. Christopher Clarke J observed in First Gulf Bank that to require pre-action disclosure is an order which, even if not exceptional, is unusual. I agree with that observation. Given the level of co-operation between opposing parties, which is a normal feature of TCC litigation, I would not expect an order for pre-action disclosure to be appropriate in most cases which come before this court."