Citation: EWHC 3061 (TCC); 133 Con. L.R. 155; [2010] All ER (D) 15 (Dec)
Nature of case: RWE issued Part 8 proceedings, seeking the court’s determination on several issues that had arisen in the construction of a power plant. Alstom had initiated several claims relating to the conditions on site, namely the amount of water on site, particularly as it affected the excavations required for a seawater treatment plant. Alstom alleged that this water came from groundwater, and from several other sources. The issues for determination were: 1. whether, under the contract, Alstom was entitled to, and/or was RWE obliged physically to permit, discharge water from the Sea Water Treatment Plant excavations via the existing outfall structure(s) on site; 2. whether the "presumed physical ground conditions" in the contract provided that inflow of water into the excavations would be "little more than seepage"; and, 3. whether, if the inflow of water into the excavations were to be significantly more than seepage, that would operate as an "error in the presumed physical conditions" under the contract, and whether "water" for this purpose meant ground water only. Having regard to the contract documents, Akenhead J answered the first question in the negative. On the second question, the judge held that inflowing ground water, in whatever quantities or of whatever type, which affected the stability of the excavation or which could not be controlled using sump pumping was not within the presumed physical ground condition. Finally, any inflow of water that amounted to significantly more than seepage would only amount to an error in the presumed physical conditions where that water was ground water, being the only type of water referred to in the clause.
