Rwe Npower Renewables Ltd v J N Bentley Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Akenhead |
| Judgment Date | 22 April 2013 |
| Neutral Citation | [2013] EWHC 978 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-13-54 |
| Date | 22 April 2013 |
[2013] EWHC 978 (TCC)
Mr Justice Akenhead
Case No: HT-13-54
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Fiona Parkin QC and Simon Crawshaw (instructed by Kirsty Hession) for the Claimant
Marion Smith (instructed by Freeth Cartwright LLP) for the Defendant
Hearing date: 11 April 2013
1. By a written contract dated 22 March 2010 (“the Contract”), RWE Npower Renewables Ltd (“RWE”) engaged J N Bentley Ltd (“JNB”) to carry out civil engineering work in relation to the Black Rock Hydro Scheme in the North of Scotland. This scheme was located in the catchment of the River Glass, adjacent to the Black Rock gorge, close to Evanton, north of Inverness and Dingwall. Water was to be extracted from the River Glass through an intake weir which would then feed into a (“penstock”) pipeline approximately 3.5 km long; the pipeline was to lead to a powerhouse where the turbines and other equipment (the “Hydro Plant”) was to be located. Energy was to be extracted from the water flow converting into electricity which was then to be delivered to the local grid, with the water being returned through a tailrace back into the river; this was to generate a nominal 3400 kW. JNB was to be involved in providing amongst other things the powerhouse buildings structure, an overhead crane for the powerhouse, all the penstock pipelines and the tailrace. JNB was not to provide the Hydro Plant (which was to be provided by Andritz Hydro GmbH (“Andritz”) or the grid and grid connection related equipment which was to be provided and installed by SSE (formerly Scottish and Southern Energy).
2. The parties have fallen out in relation to various delays which have occurred in the completion of the project. A major issue between them which has been referred to adjudication relates to the proposed imposition of liquidated damages for an allegedly culpable failure on the part of JNB to complete Section 2 of the work on time, relating to the completion of the penstock pipeline. There are said to be discrepancies or ambiguities between different parts of the different contract documents and issues are raised as to the precedence of the contractual documents in resolving any such discrepancies or ambiguities.
The Contract
3. The Contract is dated 22 March 2010 but it is not clear whether it was actually signed on that date. JNB and others were invited to tender in about November 2009 for the civil engineering works and they were provided with a number of documents including “Works Information” in two Sections, General and Technical, to the latter of which were appended contract drawings and specifications and “Site Information” to which was appended various documents such as site investigation and a geological assessment together with hydrological information. Another document, entitled “Contract Data Part 2”, was to be filled in by the tenderer. The NEC 3 Engineering and Construction Contract conditions (June 2005 with amendments June 2006) were to be applicable. Draft Bills of Quantities were provided to be filled in by the tenderers.
4. The Contract itself is in short form with JNB covenanting with RWE to carry out the works in accordance with the contract and RWE agreeing to pay JNB the contract price of £4,026,100.03. Clause 2 however is of importance:
“The following documents are deemed to form and be read and construed as part of this Agreement in the following order of precedence:
• Contract Data part one (other than Option Z)
• the additional conditions of contract (Option Z)
• the conditions of contract (main Option B of NEC3 Engineering and Construction Contract June 2005 (with amendments June 2006)
• Post tender clarifications 1–25
• Works Information
• Site Information
• Contract Data part two
• Contractor's offer (including returnable schedules) dated 14 December 2009”
Most of these documents, in particular Contract Data Parts 1 and 2, are necessary to enable the NEC3 conditions to work in practice. For instance, they will identify the starting and completion dates, the date of payment, liquidated damages, retention amounts and the like. Clause 11.1 of the NEC3 conditions explains that the “terms identified in the Contract Data are in italics and defined terms have capital initials”.
5. I will refer to these documents in their “order of precedence”. First, the Contract Data Part 1 starts in Paragraph 1 by identifying that:
“The Conditions of Contract are the core clauses for main Option B, dispute resolution Option W and secondary Options X5, X7…of the NEC3 Engineering and Construction Contract June 2005 (with amendments June 2006).”
Paragraph 1 identified amongst other things that the “Works Information” was in “Part 2 of this document”, the “Site Information” was in “Part 3 of this document” and that the law of the contract was the law of England and Wales.
6. Paragraph 3 of Contract Data part 1 deals with time, identifying that the “starting” and “access” dates were 22 March 2010 and requiring JNB to “submit a first programme for acceptance within 2 weeks of” 22 March 2010. There then follows:
“The key dates and conditions to be met are
| condition to be met | key date |
| …3. Completion of pipeline testing 24 November 2010 | 4. Powerhouse wind and weather tight 9 December 2010 |
| 5. Completion of intake | 22 November 2010” |
7. There was later set out in the same document provisions relating to sectional completion and liquidated damages:
“Option X5
• The completion date for each section of the works is
| section | description | completion date |
| 1 | Completion of the powerhouse, including Installation of the overhead crane, sufficient to allow installation of the SSE switchgear. The powerhouse is secure, wind and watertight | 14 February 2011 |
| 2 | Completion, including testing, of the intake, penstock pipeline and tailrace and the powerhouse (including building services), to allow Hydro Plant to be installed | 27 May 2011 |
| 3. | Completion of all work not included in sections 1 and 2 | 4 October 2011 |
Option X7
• Delay damages for each section of the works are
| section | description | amount per day |
| 1 | Completion of the powerhouse, including Installation of the overhead crane, sufficient to allow installation of the SSE switchgear. The powerhouse is secure, wind and watertight | £1,000.00 |
| 2 | Completion, including testing, or the intake, penstock pipeline and tailrace and the powerhouse (including building services), to allow Hydro Plant to be installed | £2,544.00 |
| 3. | Completion of or work not included in sections 1 and 2” | £600.00 |
8. Third in the order of precedence were the NEC3 Conditions themselves. It needs to be borne in mind that much of the language of these conditions is in the present tense, although that factor does not seem to impact upon contractual interpretation in this case. Relevant clauses were:
(a) The definition clause:
“11.1 In these conditions of contract, terms identified in the Contract Data are in italics and defined terms have capital initials…
11.2 (2) Completion is when the Contractor has
• done all the work which the Works Information states he is to do by the Completion Date and…
If the work which the Contractor is to do by the Completion Date is not stated in the Works Information, Completion is when the Contractor has done all the work necessary for the Employer to use the works and for Others to do their work…
(4) The Contract Date is the date when this contract came into existence…
(9) A Key Date is the date by which work is to meet the Condition stated. The Key Date is the key date stated in the Contract Data and the Condition is the condition stated in the Contract Data unless later changed in accordance with this contract…
(10) Others are people or organisations who are not the Employer, the Project Manager, the Supervisor, the Adjudicator, the Contractor or any employee, Contractor or Supplier of the Contractor…
(19) Works information is information which either
• specifies and describes the works or
• states any constraints on how the Contractor Provides the Works
and is either
• In the documents which the Contract Data states it is in or
• In an instruction given in accordance with this contract.”
(b) Clause 17.1 addresses ambiguities and inconsistencies:
“The Project Manager or the Contractor notifies the other as soon as either becomes aware of an ambiguity or inconsistency in or between the documents which are part of this contract. The Project Manager gives an instruction resolving the ambiguity or inconsistency.”
(c) Clauses 18 and 19 deal with illegality, impossibility and acts of prevention:
“18.1 The Contractor notifies the Project Manager as soon as he considers that the Works Information requires him to do anything which is illegal or impossible. If the Project Manager agrees, he gives an instruction to change the Works Information appropriately.
19.1 If an event occurs which
• stops the Contractor completing the works or
• stops the Contractor completing the Works by the date shown on the Accepted Programme
and which
• neither Party could prevent and
• an experienced contractor would have judged at the Contract Date to have such a small chance of occurring that it would have been unreasonable for him to have allowed for it,
the Project Manager gives an instruction to the Contract stating how he is to deal with the event.”
(d) Clause 20.1 requires the Contractor to provide “the Works in accordance with the Works Information”. Clause 25.3 states in relation to Key Dates:
“If the Project Manager decides that the work does not meet the Condition stated for a Key Date by the date stated and, as a result, the Employer incurs...
To continue reading
Request your trial
-
Surrey County Council v Suez Recyling and Recovery Surrey Ltd
...thereby effectively, but not completely, emasculating it. [41] An example given by Akenhead J in RWE Npower Renewables v Bentley [2013] EWHC 978 (TCC), and relied upon by the Lender, is where one part of the contract required a building to be painted black and another part stated it should......
-
Alexander (as representative of the “Property118 Action Group”) v West Bromwich Mortgage Company Ltd
..."almost entirely" of any effect, thereby effectively, but not completely, emasculating it. 41 An example given by Akenhead J in RWE Npower Renewables v Bentley [2013] EWHC 978 (TCC), and relied upon by the Lender, is where one part of the contract required a building to be painted black and......
-
Mark Robert Alexander (as representative of the "Property 118 Action Group") v West Bromwich Mortgage Company Ltd
...inconsistency where two clauses cannot sensibly be read together. 16 Further guidance has been given by Akenhead J. in RWE Npower Renewables Limited v JN Bentley Limited [2013] EWHC (TCC) at paragraph 24: "What one can not and should not do is to carry out an initial contractual constructio......
-
Septo Trading Inc. v Tintrade Ltd
...effectively, but not completely, emasculating it. 41. An example given by Akenhead J in RWE Npower Renewables v JN Bentley Ltd [2013] EWHC 978 (TCC), and relied upon by the Lender, is where one part of the contract required a building to be painted black and another part stated it should b......
-
Summary of principles from recent NEC cases
...when the employer was seeking to recover alleged overpayments made under an NEC3 ECC. RWE Npower Renewables Ltd v J N Bentley Ltd [2013] EWHC 978 (TCC) NEC3 Engineering and Construction Contract Courts will look at the whole contract and its documents to determine objectively what a reasona......
-
Working Out Order Of Precedence Of Documents
...RWE Npower Renewables Limited v JN Bentley Limited [2013] EWHC 978 (TCC) Where a contract consists of a number of documents, the first step is to consider all the documents together and only after that has been done consider any priority clause to deal with This case involved a construction......
-
Interpreting Ambiguities In Contract Documents
...Facts In the case of RWE Npower Renewables Ltd v JN Bentley Ltd, [2013] EWHC 978 (TCC), JN Bentley Limited ('Bentley') was engaged by RWE Npower Renewables Limited ('RWE') to carry out civil engineering works at a hydro electric project in northern Scotland. Bentley's works included the con......
-
Contract terms
...Atkins Ltd v Secretary of State for Transport [2013] BLR 193 at 197 [9], per Akenhead J; RWE Npower Renewables Ltd v JN Bentley Ltd [2013] EWHC 978 (TCC) at [8], per Akenhead J (airmed [2014] EWCa Civ 150). 53 See Chan, Chan and Cliford, “new engineering contracts (nECs) in practice – empir......
-
Table of cases
...Ltd (2010) 133 Con LR 155 II.8.47 ccclxxv TaBLE OF CaSES rWE Npower renewables Ltd v J N Bentley Ltd [2014] EWCa Civ 150, airming [2013] EWHC 978 (TCC) I.3.13, I.3.182 RW Health Partnership Pty Ltd v Lendlease Building Contractors Pty Ltd [2019] VSC 353 III.23.43 RW Miller & Co Pty Ltd v Kr......