PBS Energo AS v Bester Generacion UK Ltd & Anor [2020] EWHC 223 (TCC) (07 February 2020)

PBS Energo AS v Bester Generacion UK Ltd & Anor [2020] EWHC 223 (TCC) (07 February 2020)

On true construction of the contract, responsibility for site conditions, including subsurface conditions, was allocated to PBS. PBS was not entitled to terminate the contract for the reasons advanced. Bester's termination was not valid either, as the grounds relied upon did not satisfy the contractual requirements. Neither party lawfully terminated the contract; damages are determined accordingly.

Citation
[2020] EWHC 223 (TCC)
Parties
Claimant: PBS ENERGO A. S; First Defendant: BESTER GENERACION UK LTD; Second Defendant: BESTER GENERACION S. L. U; Part 20 Defendant: PRVNI BRNENSKA STROJIRNA VELKÁ BÍTEŠ A. S
Jurisdiction
England and Wales
Judgment Date
07 February 2020
Procedural Posture
Construction Contract Dispute / Final Judgment After Trial
Outcome
Neither party lawfully terminated the contract; claims for damages are determined based on contractual allocation of risk and quantum findings.
Legal Topics
Termination of Contract, Allocation of Risk, Extension of Time, Liquidated Damages, Rectification, Quantum of Damages
Construction Law Contract Law Termination of Contract Allocation of Risk Extension of Time Liquidated Damages Rectification Quantum of Damages

Case Brief

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Parties

PBS ENERGO A. S

Claimant

BESTER GENERACION UK LTD

First Defendant

BESTER GENERACION S. L. U

Second Defendant

PRVNI BRNENSKA STROJIRNA VELKÁ BÍTEŠ A. S

Part 20 Defendant

Procedural Posture

Construction Contract Dispute / Final Judgment After Trial

Legal Issues

  1. 1 Whether PBS lawfully terminated the contract with Bester
  2. 2 Whether Bester lawfully terminated the contract with PBS
  3. 3 Allocation of risk for ground conditions and permits

Ratio Decidendi

On true construction of the contract, responsibility for site conditions, including subsurface conditions, was allocated to PBS. PBS was not entitled to terminate the contract for the reasons advanced. Bester's termination was not valid either, as the grounds relied upon did not satisfy the contractual requirements. Neither party lawfully terminated the contract; damages are determined accordingly.

Court Disposition

Neither party lawfully terminated the contract; claims for damages are determined based on contractual allocation of risk and quantum findings.

Orders

  • PBS's claim for damages is dismissed except as allowed for quantum items proven.
  • Bester's counterclaim is dismissed except as allowed for quantum items proven.