O’Farrell J yesterday handed down judgment in Connect Plus (M25) Limited v Highways England Company Ltd [2018] EWHC 140 (TCC)
The parties were in dispute as to (a) who could declare Critical Incidents for the purposes of the payment mechanism under the contract for the design, build, finance and operation of the M25 and (b) by what criteria the declaration should be made. The contract was entered into in 2009 for a 30 year term. It has a value of £6.2bn. Anneliese Day QC, leading Isabel Hitching appeared for Highways England Company Ltd.
The court held that on a true construction of the DBFO Contract, the declaration of a Critical Incident is a matter for the Secretary of State (or someone acting on behalf of the Secretary of State), based on objective criteria by reference to the list of deemed Critical Incidents in the NMM and other events falling within the general definition of Critical Incidents in paragraph 7.3.2 of the NMM.
The court rejected the Claimant’s arguments that the parties had varied those contractual terms, or that Highways England Company Ltd was estopped from relying on its terms. The court also rejected the Claimant’s argument that the dispute had already been determined.
