Ground Information… A Game Changer?

Van Oord UK Ltd & Anr v Allseas UK Ltd

[2015] EWHC 3074 (TCC)

In the case of Van Oord and Allseas the Claimants (OSR) made a number of disruption and prolongation claims against the defendant (AS UK) which arose on a project which included the laying of a gas export pipeline in the Shetland Islands.

The Contract provided that should OSR encounter ground conditions which differ from those described and which ‘an experienced Contractor could not reasonably have been expected to foresee following an examination of those documents and data which substantially modified the scope of work, contract price or completion date then notice should be given’.

Mr Justice Coulson referred to a judgement by Mr Justice Akenhead in which he stated:

“I am wholly satisfied that an experienced contractor at tender stage would not simply limit itself to an analysis of the geotechnical information contained in the pre-contract site investigation report and sampling exercise. In so doing not only do I accept the approach adumbrated by Mr Hall [the defendant’s geotechnical expert] in evidence but also I adopt what seems to me to be simple common sense by any contractor in this field.”

Mr Justice Akenhead therefore refused the approach that stated:

‘if the ground conditions were not expressly identified in the geotechnical information provided pre-contract, then they had a claim for unforeseen ground conditions’.

In the case of Van Oord and Allseas, the claimant presented their case based on the results of a probe survey; specifically, that the ground encountered differed from those presented in the survey.

On review, it was found that the subsurface conditions were, in the most part the same as those described in the Contract documents. The Judge stated:

“Every experienced contractor knows that ground investigations can only be 100% accurate in the precise locations in which they are carried out. It is for an experienced contractor to fill in the gaps and take an informed decision as to what the likely conditions would be overall.”

In addition to the above, the claim had already failed at the first hurdle on the basis they had failed to give proper notice under article 22.

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