DBE Energy Ltd v Biogas Products Ltd [2020] EWHC 401 (TCC)

Mathias Cheung acted for DBE Energy Limited in a Pre-Trial Review (PTR) application relating to a trial set down within the Shorter Trials Scheme. In these proceedings, the Claimant, DBE Energy Ltd, claims that Biogas Products Ltd was negligent and/or in breach of contract by dint of the catastrophic failure of the digester tank heaters upon pressure testing and the pasteuriser tanks upon first operation.

In relation to the pasteuriser tanks, DBE claims the direct costs of temporary replacement tanks (to progress the commissioning works) and permanent replacement tanks, together with loss of profit over the delay period which was caused, firstly, by an inability to commission the other elements of the system and, secondly, by having to get temporary tanks installed and commissioned for use.

DBE’s PTR application sought to expunge substantial parts of Biogas’ technical expert report, which DBE considered to be outwith the scope of the pleaded issues and therefore inadmissible at trial. The application was considered at a three-hour PTR hearing.

Mr Justice Waksman started by making two important preliminary observations which would be of interest to practitioners generally:

(i) The court has to be astute in ensuring that trials set down within the Shorter Trials Scheme serve their purpose as being a proportionate and speedy way of dealing with disputes.

(ii) Lists of issues and issues for experts have to be read in context, the immediate context being the statements of case. The fact that one party puts the other to proof as to causation or loss does not give a party or its expert a carte blanche to introduce, at any stage, hitherto unseen and reasonably unseen arguments going to the question of causation.

On that footing, much of Biogas’ expert report on unpleaded issues going to causation and loss was ruled as inadmissible based on the five impugned categories of unpleaded issues objected to by DBE. It is noteworthy that one of those unpleaded issues (namely criticisms of DBE’s project management system) was also considered to be outside the expert’s discipline, in circumstances where there was no such pleaded case on failure to mitigate or contributory negligence.

Therefore Mr Justice Waksman expunged the majority of the impugned parts of Biogas’ expert report, and allowed DBE to adduce supplemental factual and/or expert evidence on one new matter arising from the expert report relating to the issue of mitigation, which Biogas was allowed to rely on only to the limited extent of that a proposed remedial solution could have led to beneficial savings in time which in turn would have affected the damages claim.

The substantive trial of the matter took place on 25 to 27 February 2020, and judgment is due to be handed down within 6 weeks of the end of the trial.

Mathias Cheung (instructed by Reynolds Porter Chamberlain LLP) appeared on behalf of the Claimant, DBE Energy Ltd.

To read the full judgment click here.