Glen Water Ltd v Northern Ireland Water Ltd
| Jurisdiction | Northern Ireland |
| Judge | Keegan J |
| Judgment Date | 2017 |
| Neutral Citation | [2017] NIQB 20 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 03 February 2017 |
1
Neutral Citation: [2017] NIQB 20 Ref:
KEE10164
Judgment: approved by the Court for handing down Delivered:
3/2/2017
(subject to editorial corrections)*
2014 No 84769
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN’S BENCH DIVISION (COMMERCIAL LIST)
________
BETWEEN:
GLEN WATER LTD
Plaintiff;
and
NORTHERN IRELAND WATER LTD
Defendant.
_________
KEEGAN J
Introduction
[1] This hearing was convened to determine a preliminary point in ongoing
commercial litigation. On 20 June 2016, after contested submissions, Deeny J ruled
that the case should proceed in this way. At paragraph 7 of his judgment the issue is
defined as follows:
(a) Did the plaintiff notify the claims made in these proceedings as compensation
events in compliance with Clause 33 of the amended and restated project
agreement of 6 March 2007?
(b) If the answer is no to (a) is there any other basis on which the claims in these
proceedings could be maintained?
[2] During the proceedings before me counsel accepted that there was no other
basis upon which proceedings could be maintained if the question at (a) was
answered in the negative. This preliminary point therefore involved a net issue as to
the notification under the contract. Both parties accepted that this was a condition
precedent to recovery of compensation. The amount at issue is £4.4m.
[3] Mr Brannigan QC and Mr Atchison BL appeared for the plaintiff. Mr Dennys
QC and Mr David Dunlop BL appeared for the defendant. I am grateful to all
counsel for their oral and written submissions in this matter. I have taken into
2
account the bundles prepared for this hearing, the written and oral arguments of the
parties and the oral evidence of Mr Conlon and Mr Crozier who were the witnesses
called by the respective parties.
Factual Background
[4] I am grateful to the parties for their preparation of a statement of facts. This is
an agreed document running to 85 pages. Whilst helpful, I am not convinced that
such detail was necessary for determination of the preliminary point. I refer to the
following interchangeably in abbreviated terms throughout this judgment:
Glen Water- GW
Northern Ireland Water- NIW
Department for Regional Development in Northern Ireland, Water Service -DRD
Effective date-construction phase – ED - 6 March 2007
Service Commencement date - SCD - 31 March 2010
Post Service Commencement Date - PSCD
Compensation event-CE
Prudent operator-PO
Operation and Maintenance Contract- O&M
Veolia Water Outsourcing Limited - VWOL
An unincorporated joint venture between Laing O’Rourke Utilities Limited and
VWOL - EPC
[5] In 2003 the Department of Regional Development for Northern Ireland, Water
Service (DRD) sought to contract with a private company to undertake a project for
the upgrade of sludge treatment services in Northern Ireland. This was a substantial
project to take place over 25 years. It was called Project Omega. Glen Water the
plaintiff (GW) was selected after a bidding process. On 6 March 2007 Glen Water
entered into a PFI project agreement with the DRD. The DRD became
Northern Ireland Water (NIW) subsequent to this. NIW is a Government owned
company, created in April 2007 with statutory obligations to provide all water and
sewage services in Northern Ireland. Glen Water is a joint venture limited company,
formed in 2005.
[6] Part of Project Omega involved the upgrade of sewage services at the
Duncrue Street facility. That is the relevant part of the project for this case. This
project had two phases i.e. the construction phase and the service commencement
phase. The timeframes for these were 6 March 2007 which was the effective date for
the construction phase. The service commencement date was 31 March 2010. In
terms of the construction phase it was essentially to build a new incinerator (line 2)
and to undertake modifications to the existing incinerator (line 1) cooling system to
To continue reading
Request your trial
1 cases
-
Toal's (Mark Patrick) Application (No2)
...This consideration, of self-evidently contextual importance, was emphasised in the judgment of this court in Re Hegarty’s Application [2017] NIQB 20 at [30]. [33] Weighing all of the foregoing factors together, I am impelled to the clear conclusion that the Commissioner’s decision is vitiat......
1 firm's commentaries
-
Notices
...decision, [2015] EWCA Civ 712 This is being released in December 2017. The comments here are based on the 2016 Pre-Release Yellow Book [2017] NIQB 20 [2009] ScotCS CSOH This article is taken from Fenwick Elliott's 2017/2018 Annual Review. To read further articles go to Fenwick Elliott Annua......