“A. …there were actually two incidents −− there were two bits of evidence which can bring to bear which suggests Ukraine would not have needed the fact of the war to perpetrate the attacks, and one was its actual attacks on the Russian gas transmission network which ran through Ukraine, I think, in April and June 2014, so there is an actual example of a Ukrainian attack on a pipeline transporting Russian gas to Europe, obviously in the absence of the February 2022 war, because it preceded it by eight years, and the second was the suggestion by Pancevski that as of 2014, the Ukrainians had an actual plan for destroying the Nord Stream pipeline which suggested, at a minimum, that they had the intention and the motive to attack it, and had actually gone so far as to develop a plan for doing so, again, in the absence of course of the February 2022 invasion. So, I mean, it is obviously a point of fact that the Ukrainians didn't attack the Nord Stream pipelines prior to 2022, but I think it’s overly simplistic to suggest that it was impossible −− sorry, you can't preclude the scenario that Ukraine might have attacked the pipelines in the absence of the February 2022 invasion because of these two bits of evidence. Q. Right, and just taking the second bit of evidence, that there might have been a plan in 2014. If there was a plan that was not executed all that time, doesn't that rather indicate that that was a contingent plan as to what one might do if the tensions did spiral to all −out war? A. We don't really know enough about it to really draw any hard and fast conclusions, and of course, really it’s just −− it's a reference made by Pancevski, and we don't have any more information than that. There was also an allusion to it actually in the podcast which came out over the weekend, and I think it’s hard to go further than the conclusion that it demonstrated intention and motivation on the part of Ukraine to destroy the pipeline obviously eight years before the February 2022 invasion, in other words, in the absence of the war as we're calling it. Q. I totally accept we don't know if this is even true. If it is true, then doesn't it demonstrate the exact opposite? It demonstrates the fact that even though the idea of attacking the pipeline had been conceived of, recorded on this hypothesis, it was not executed for eight years after that until there was a full −scale war? A. Yes, as a point of fact, that's obviously true, but it doesn't preclude the possibility that the Ukrainians might have attacked the pipeline in the absence of the February 2022 invasion. … Q. But you're suggesting it’s purely coincidental that this plan sits in somebody's drawer for eight years and then, when Russia invades it gets activated a few months later? A. I wouldn't quite put it like that. And I'm not denying that the war formed the backdrop to the attacks on the pipeline. All I want to suggest is that it’s maybe not quite as straightforward to say it’s impossible, you entirely rule out the possibility that Ukraine might have attacked the pipelines in the absence of war, given evidence of intention and motivation dating back to 2014 …. Q. …What I want to suggest to you is that Dr Donald's response is correct on this point on the attack on the other pipeline, namely that an attack: "The sabotage on an above−ground pipeline in Ukraine ... with [a] single explosive [charge] by unknown perpetrators is not a precedent for an attack on multiple locations on deep−water structures in international waters [which is] an operation of several orders of magnitude more complex." If we just stop there, you would agree that those are important distinctions between your supposed precedent and Nord Stream? A. Yes, so he's drawing attention to the differences, but there are obviously points of commonality. I mean, we don't −− as a point of fact, we don't know who carried out the attack, but I think the likelihood is it will be an actor from Ukraine since it took place on the territory of Ukraine in 2014, and I think the −− it was also an attack on a Russian pipeline transporting gas to Europe, so I'm not saying it's a perfect analogy, and of course, every attack is sui generis in its specifics, so you're not going to find a perfect analogy, but I think it speaks to the point that Ukraine was −− had demonstrated the wherewithal to attack a pipeline, a Russian pipeline transporting gas to Europe in the absence of the February 2022 invasion.”
“A. …in answer to your question about what the motives of this alleged substate actor might have been, and according to Pancevski's account, the motive was to attack the Russian economy and destroy the money flows, yes. Q. Yes, and obviously underlying that was the hope that by destroying the money flows they would make it harder for Russia to keep occupying parts of Ukraine and keep fighting the war? A. And underlying that was a desire to establish Ukraine's national sovereignty, which I think −− I think that was the ultimate goal of any Ukrainian actor involved in the war and, according to Pancevski's account, the attacks on the Nord Stream pipelines as well. Q. Yes, I see, so those are the steps. You've got the ways in which damaging the pipeline might hurt Russia including economic, the hope that that would make it harder for Russia to win the war against Ukraine, and then underlying that you say the hope that if they can expel Russia from Ukraine, they can establish Ukraine's ultimate sovereignty? A. Yes, although the war may not be critical to that analysis. Ultimately, I mean, this is the argument I put forward in my first report, is that the ultimate motivation of an actor from Ukraine was to make a reality of Ukraine's independence. That's what the war was about to the extent that Russia was opposed to Ukrainian independence and wanted to draw it back into the Russian sphere of influence… Q. …when you said the war wasn't critical to the analysis, because on what you're saying, the principal threat to Ukraine's sovereignty was the fact that Russia had invaded it. That was why it needed establishing, wasn't it? A. Sure. So what I was really drawing attention to at that point was the feeling, at least as it’s reported by Pancevski, at that point the battle is now really won, you know, I'm just trying −− I'm relating to you how Pancevski describes the motives of the perpetrators: " ... the battle is now really won, we can put down the machine guns and devote ourselves to the real business." And how I understand that is the "real business" was this sort of long−term, enduring goal of establishing Ukraine's independence, you know, which began before the war, and, as I understand this statement here, would outlive the war as well. … Q. … So I'm suggesting to you that it's inconceivable that without the war a Ukrainian would say: well, in order to establish Ukrainian sovereignty, we should just launch an attack on Russia by destroying the Nord Stream pipelines. It’s just inconceivable, isn't it? A. Not to the extent that the pipelines were one of the sources of Russian power which was constraining Ukraine from establishing its independence…the pipelines constituted leverage over Germany, leverage over Ukraine and were a constraining factor in Ukraine's ultimate goal which was to establish its independence. Q. You would be barking mad to do it, though, in circumstances where you weren't currently at war. As I think you heard Mr Stanley put it earlier to Dr Donald, you don't prod the bear, but, if the bear is already attacking you, then you'll fight it with every weapon you've got? A. Yes, I 'm sure that's right. I hesitate only to the extent that I don't think that's inconsistent with what I 'm saying now.”
“… adopted the Wood data as this is the −− these are the numbers that have been adopted throughout the whole process, including taking through to the operator for remedial actions… I have made the assumption that experts within the organisation that commissioned and carried out the work were experts in their field.”
“Q. Okay. Now, a dragged anchor would obviously cause a disturbance to the seabed; yes? A. Most likely, yes. Q. Yes. A. Not for certain. Q. Really? A. It might be bouncing along the seabed. Q. A dragged anchor might be bouncing? A. Well, it’s being dragged, as it −− you can see −− that sort of movement. Q. So that would leave what you might call footprints instead of a scar? A. Yes. … Q. Okay. So if there was an anchor drag, it would have left a visible scar, wouldn't it? A. Yes, there would be a scar of some kind, yes. Q. And there is no such scar? A. No. Q. Right. So we can eliminate an anchor drag as a credible cause, can't we? A. Yes.”
“A. I modelled the damage to the pipework, not the damage to the rebars. Q. Right. So it is not set out in your report what kind of object could have caused this kind of damage to the rebar and the internal covering, is it? A. No. Q. No. And you are now ad−libbing and saying that the same kind of anchor set out in your report might have caused that kind of damage; correct? A. I 'm not ad−libbing, I'm giving you my professional opinion as a mechanical engineer on an aspect that, when we looked at it, was not part of our remit. … Q. And how does a very large anchor of the size you've just said possibly get underneath the rebar and then pull it out? How could that happen? A. Well, basically, the rebar is a mesh, and it's −− the mesh is either broken from the impact or something has tangled it. One or the other parts of the rebar or the anchor picked it up on recovery. Q. The anchor is a very large object, isn't it? A. Yes. Q. And the space between the rebar and the pipe is a very small space, if there's any space at all, isn't it? A. Yes. Q. So how does the anchor get entangled with it? A. The space is about 4 inches between the rebar and the actual diameter of the pipe before the dent occurred. Q. Right. And is there any part of the anchor which is less than 4 inches? A. Well, it could −− we've looked at a number of anchors in my report. We don't know what anchor did it, but I 'm just saying that is a possibility. Q. And I'm suggesting to you −− and I think you've given the evidence you can on this −− that it's actually not a realistic possibility at all given the damage? A. I disagree with you. I 've just explained that there's at least a 4−inch gap.”
“Q. Right. So both the bands from the field weld joint and the rebar are splayed outwards from the pipe; yes? A. I agree. Q. That feature is consistent with explosive damage; correct? A. I disagree. There's no basis for what caused the rebar or the band to lift up. Q. At the moment I'm asking about consistency. That feature is consistent with explosive damage; is that correct? A. No, I disagree. There's no basis to say what caused it to lift up. Q. No, I'm not asking you at the moment to say what caused it, Mr Lumley. Please answer the question specifically. That feature is consistent with explosive damage; yes or no? A. I 'm sorry, yes, I agree with you, yes.”
“I provided all the data. I identified what I wanted to do, and analysed the results, and then made further runs on the basis of what I found from the first runs.”
“I have been assisted in the preparation of this report by Mr Graham Sellers, retired Royal Navy Lieutenant Commander, forensic engineer, with an MSc in explosives and ordnance engineering; Dr Jan Graham, senior materials and welding expert; and Mr Rodney Gilmour, senior process engineering expert, all at Manderstam International Group. I have satisfied myself as to the accuracy of their work and the opinions and conclusions in this report are all my own.”
“Q. Are you suggesting that you have expertise in explosives and ordnance engineering? A. No, I don't. Q. You don't. So it is right, isn't it, that some of this assistance has been because your expertise does not extend to all the matters in your report? A. Yes, in respect of that, yes. Q. Right. And how can her Ladyship identify the parts of the report that actually go beyond your own personal expertise? A. Mr Sellers on the explosives is appendix 5. Q. Right. So you say appendix 5, Mr Sellers? A. He did the background work for identifying the possible explosive devices. Q. Right, okay, so appendix 5 −− A. It was done in the knowledge that there was also another expert on our side who was doing the explosive work. Q. Yes. And did he write appendix 5 or did you? A. Both. He drafted it, and I reviewed it, edited it and included it.”
“2. The following clauses i. and ii. are only to apply to property on land and/or installed at the offshore location, but they shall not be construed to exclude physical loss or physical damage caused by mines, bombs, torpedoes, missiles or other weaponry remaining from previous hostilities or military exercises. i. Notwithstanding anything to the contrary contained herein, this section does not cover loss or damage directly or indirectly occasioned by, happening through, or in consequence of war (whether war be declared or not), invasion, acts of foreign enemies, hostilities, civil war, rebellion, revolution, insurrection, military or usurped power or confiscation or nationalisation or requisition or destruction of or damage to property by or under the order of any government or public or local authority except as otherwise provided in Section I of the Policy.”
“The subject−matter of this subsection A is covered whilst at Builders' Yard and at Builders' premises ...and whilst in transit between such locations.”
“SUBJECT ALWAYS TO ITS TERMS, CONDITIONS AND EXCLUSIONS this insurance covers all risks of physical loss of or physical damage to the subject matter insured during the period of the insurance.”
“…the absence of any insuring clause in Section 1 would be surprising”
“… I think you could say the parties must have agreed to treat this property as being property under construction because they were agreeing to insure all of this property, that's what they said, on policies which were designed for property under construction, even though they knew that it wasn't property under construction, and they can't then turn round and say: aha, you don't have coverage because it turns out your pipeline wasn't being constructed. That was something everyone knew from the very beginning.”
“22 In Arnold v Britton[2015] AC 1619 , the Supreme Court clarified that the words used by the parties are of primary importance so that one must be careful to avoid placing too much weight on business common sense (or purpose) at the expense of the words used; and one must be astute not to rewrite the contract so as to protect one of the parties from having entered into a bad bargain.”
“…if you asked the question did the parties intend to limit this policy to property which is under construction, the answer is obviously not, and if they seemed to have said so, that must just be a mistake in not making that clear because there's no actual debate.”
“To that extent, [the Defendants] attempt to say: well, the complete answer to this is, look, there's a reference in the clause to property under construction and this wasn't property under construction, can't take anywhere, you have to construe that on the assumption that the parties were making a contract, since that's clearly what they thought they were doing, and that would be -- involve accepting that they were treating the pipeline as covered even though they knew it wasn't under construction.”
“The first reading—that Institute Clauses effectively take precedence over Exclusion 2.i—has the virtue of giving proper effect to the scheme that the parties have actually adopted in choosing the Institute Clauses as the means of providing the primary insuring clauses in Section I. If it is correct, then where a loss comes within the cover positively granted by the Institute Clauses, Exclusion 2.i does not apply…”
“It seems to me that it must follow that, in either case, a court will be entitled to receive independent expert evidence of what “market practice” is if that is relevant background knowledge for the purposes of interpreting the terms of the contract, both explicit and implicit.”
“In this case, I think this is a weak practice, and it helped, I think, to show that in fact the assured's own policy does not adhere to, in my humble opinion of market practice, in many ways in any event.”
“The question is not what could theoretically have been negotiated but what terms have, in fact, been agreed bearing in mind that the negotiations were conducted against the background of the market practice described above.”
“The principle of noscitur a sociis is, however, one which only operates if there can be said to be a common characteristic of the surrounding words, and it is a principle which must in any event give way if the particular words, or other features of the contract so dictate.”
“Notwithstanding anything to the contrary contained herein, this section does not cover loss or damage directly or indirectly occasioned by, happening through, or in consequence of war (whether war be declared or not), invasion, acts of foreign enemies, hostilities, civil war, rebellion, revolution, insurrection, military or usurped power or confiscation or nationalisation or requisition or destruction of or damage to property by or under the order of any government or public or local authority except as otherwise provided in Section I of the Policy.”
“9. DELIBERATE DAMAGE Subject to the terms, conditions and Limits of Liability of this Policy, all Sections of this insurance cover physical loss of or physical damage to the property insured or liability or cost or expense (as applicable to each respective Section or Sub-section) directly caused by any act or order of any governmental or regulatory authority acting under the powers vested in them to prevent or mitigate pollution hazard, or threat thereof, resulting directly from damages to the property insured for which the Insurers are liable under this Policy. Coverage provided by the above paragraph shall also extend to cover any other loss, damage, liability, cost or expense caused or inflicted by order of any governmental or regulatory body or agency.”
“Three points are clear. First, General Condition 9 is regarded as providing coverage (‘all Sections of this insurance cover’; ‘Coverage provided by the above paragraph’). Second, that cover is then extended by the second part (‘…shall also extend to …’). Third, it is extended to ‘any’ other damage that is caused or inflicted by order of any governmental body (etc.), without limitation.”
“…any other loss, damage, liability, cost or expense caused or inflicted by order of any governmental or regulatory body or agency”
“Plainly, there must be some limit on the application of the clause, for the chain of causation recedes infinitely into the past. The draftsman must have intended to stop somewhere: and that place must be the point at which an event ceases to be a cause of the loss and becomes merely an item of history. The draftsman has not explained how that point is to be identified nor indeed do I believe that words can be found to do so. It is eventually a matter of instinct- but an instinct guided by the fact that this is a policy which …expressly insures against violent acts. In essence, the task is to assess whether the particular act of violence simply takes place against the background of a "warlike" state of affairs, or whether it has itself (even if in a rather remote way) a warlike aspect of its own.”
“In essence, the task is to assess whether the particular act of violence simply takes place against the background of a "warlike" state of affairs, or whether it has itself (even if in a rather remote way) a warlike aspect of its own.”
“The war had placed the soldier in a ‘position of special danger’; it was on this basis that the indirect cause wording applied.”
“But a line must be drawn somewhere. For instance, the birth of Captain Ewing, even though it may be said to have led in the chain of causation to his being in the position in which he was killed, could not be considered as causing his death; and if on the facts it was possible to hold, in accordance with the principles I have enunciated, that the clause was not applicable, I should have been able to find that his representatives had a claim. But I am unable to hold that any principle excludes, upon these facts, a possible finding by the arbitrator that war was the indirect cause of this accident. If war had merely placed Captain Ewing in a position not specially exposed to any danger, and in that position a particular incident not connected with war caused his death, I think that most probably in that case the matter would not come within the condition. For instance, suppose that, in connection with the war, the assured had gone to a military camp not in any way specially exposed to lightning, but where lightning had struck and killed him, I should be disposed to think that the war was so remote from the death that in that case it could not be said that the death was indirectly caused by the war. If, however, the war had placed the assured in a position specially exposed to danger, as for instance in a place where he was specially exposed to being struck by lightning—if such a place can be conceived—and he was there struck and killed by lightning, it appears to me to be a question of fact, not of construction, whether the death was indirectly caused by war. In the present case the arbitrator has found, as a fact, that the assured's death was indirectly traceable to war; and it is clear upon the facts that he was placed in a position of special danger— namely, he had to be about the railway line performing his military duties at night with the lights turned down, in consequence of war, and while doing his military duties in that position of special danger he was killed by reason of the special danger which prevails at that particular place and to which he was exposed by reason of his military duties. In those circumstances I am unable to hold that the arbitrator could not reasonably find, as a matter of fact, that the death was indirectly caused by war.”
“It will be noted that these clauses go further than merely excluding those losses proximately caused by war risks, but also prevent recovery where war has “directly or indirectly” caused the loss. Consequently, the ordinary rules as to proximate cause do not apply, and the only question for the court is whether or not a war risk has in any way contributed to the loss. The position may be illustrated by American Tobacco Co. v Guardian Assurance Co. The assured had insured tobacco warehouses in Smyrna under a fire policy, issued by the defendants, that excluded “loss or damage directly or indirectly proximately or remotely occasioned or contributed to by or in connection with or in consequence of … invasion [and other war risks] … or incendiarism directly connected therewith”
“The loss or damage of which the plaintiffs complain was proximately or remotely contributed to by or in connection with or in consequence of events or causes which determined the proclamation or maintenance of martial law or state of siege” and further that the events or causes which determined the proclamation or maintenance of martial law were: “…the re-occupation of Smyrna by the Turks under the circumstances which I have indicated including all the ill feeling, all the resentment, the fact of the population of Smyrna being what it was, the Armenian quarter being what it was, the houses being what they were, and so forth.”
“Now taking all those things together they seem to me to give abundant ground for holding that the fire which ultimately by the coalescence of these numerous fires becomes one big fire beyond the control of the fire brigade and sweeps the town of Smyrna nearly to the quay and destroys the property of the plaintiffs, was contributed to by the state of disorder and war and racial hostilities and rioting and outrage which are found in the first four days after the occupation of Smyrna by the Turks.”
“perceived motives may be relevant to the analysis, and so too may the fact that the War created the opportunity for the Sabotage, but they will be secondary to what in fact caused the damage”
“While Winicofsky was not a case dealing with indirect causation, its conclusions are instructive: Bray J rejected the insurer’s arguments and distinguished between the air raid as the surrounding circumstance or occasion; and the burglary as the actual operative cause of the loss. Although the air raid created conditions that made burglary easier, the loss itself was caused by ordinary criminal conduct rather than by hostilities.”
“70. That said, it seems to me that the undeniable sense of these words is to emphasise that the causative effect of the relevant insolvency need not be as strong or efficient so as to constitute a proximate cause. I come to this conclusion for two principal reasons. First, the Insolvency Exclusion does not limit itself to a single causative link, e.g. ‘caused by’ (which is usually construed as requiring a proximate cause) or ‘arising out of’ (which has been variously construed as requiring a proximate cause or some lesser causative connection). Instead, the Insolvency Exclusion uses two differently expressed causative links, namely ‘arising out of’ and ‘relating … to’. Indeed the latter descriptive link may be construed in some instances as requiring a mere connection or relation, by way of a common causal history, but that is not suggested in this case. If the intention had been to import a requirement of a proximate cause, the Insolvency Exclusion would not have used both of these expressions. 71. Second, the use of the words ‘directly or indirectly’ plainly indicates thatthe causative link may be more remote than a proximate cause. There has been a sound effect of the specified excluded peril downwards from a proximate cause. In Coxe v Employers’ Liability Assurance Corp Ltd[1916] 2 KB 629 , Scrutton J said: ‘the words which I find it impossible to escape from are “directly or indirectly.”
“I asked Mr Singla whether it was sufficient for the insolvency to be a mere cause or whether it needed to be a significant or strong cause, albeit not so significant or strong as to amount to a proximate cause. I had in mind the construction adopted in Beazley Underwriting Ltd v Travelers Companies Inc[2011] EWHC 1520 (Comm) ; [2012] Ll Rep IR 78, at paragraphs 128-130, by Christopher Clarke J, who said that ‘I am prepared to accept that “arising out of” … does not dictate a proximate cause test and that a somewhat weaker causal connection is allowed … That does not, however, determine what degree of causal connection is required … In my judgment a relatively strong degree of causal connection is required’. Mr Singla submitted that the insolvency needed to be a mere cause, but it was insufficient if the insolvency was merely the historical context or background (relying on Cooke J’s construction in ARC Capital Partners Ltd v Brit UW Ltd[2016] EWHC 141 (Comm) ; [2016] Ll Rep IR 253, at paragraph 27). It may be a matter of semantics, but, like Scrutton J, I think that a line must be drawn somewhere (see also Mustill J’s comments in Spinney’s (1948) Ltd v Royal Insurance Co Ltd [1980] 1 Ll Rep 406, 441). I consider that for the Insolvency Exclusion to apply, it must be specifically accountable as a cause of the claim, liability or loss: in this sense,it must be significant; it must stand out as a contributing factor, at least, to the claim, liability or loss.”
“There are only three potential perpetrators: an actor from Russia, an actor from the US or an actor from Ukraine. If another state was involved, it played a subordinate role to one of these three actors and would not have perpetrated the attack(s) on its own. If the US were involved in support of another actor, then it would only have lent its assistance to a state, namely Ukraine. It is very unlikely the attack(s) was/were perpetrated by Germany or the ‘Baltic Five’. It is possible that the attack(s) was/were carried out by, or involved, sub-state actors from Ukraine (but there is nothing to suggest the involvement of sub-state actors from any other country). It is very unlikely that the attack(s) was/were perpetrated by a private company. Neither expert has identified any other possible perpetrator.”
“…was a likely perpetrator if the operation were initiated over February to April; a less likely perpetrator between May and the end of August; and a less likely perpetrator in September.”
“is the most likely potential perpetrator if the sabotage operation were initiated after 20 July.”
“…Its relative likelihood as perpetrator would depend upon when the plan to sabotage the Pipelines was initiated and the dates on which the various phases of such a plan were executed. It would therefore be a more likely perpetrator if the plan were initiated over February to April, and a less likely perpetrator if it were initiated in the period from May until 26 September.”
“...an actor from Ukraine is the most likely of the potential perpetrators under discussion, relative to the others, due to Ukraine's multiple motives for wanting to attack the Pipelines and the significant circumstantial evidence pointing towards Ukrainian involvement in the Attacks, although I cannot say that this is more likely than not.” … Russia is the least likely of the potential perpetrators under discussion, relative to the others. The demise of the Pipelines was contrary to Russia’s fundamental geopolitical interests and there is significant circumstantial evidence pointing away from Russian involvement.”
“The Andromeda theory, elaborated by Pancevski, involves a strange mixture of the sophisticated and the naïve. On the one hand, it posits Ukrainian military involvement and considerable sophistication. On the other hand it requires great clumsiness, with (it must be supposed) numerous witnesses to suspicious activities, and experts leaving a boat replete with forensic evidence of explosive handling.”
“…the geopolitics experts evidently understand the War as a geopolitical event: a thing done by Russia that shifted political alliances and (states’) policies. But the (insurance) Policies do not, it is submitted, conceive ‘war’ in this way. Where Exclusion 2.i refers to ‘war’ and ‘invasion’, its focus is not on politics, but on actual events. That is clear from the terms of the clause as a whole, and from Spinney’s case: Mustill J considered the meaning of ‘war’ and ‘hostilities’: whether an armed conflict can fit the definition of ‘war’ will generally involve consideration of two questions: ‘(1) Can it be said that the conflict was between opposing "sides"?’ and ‘(2) What were the objectives of the "sides", and how did they set about pursuing them?’ The term ‘hostilities’ was said to ‘refer[] to acts or operations of war committed by belligerents; it presupposes an existing state of war’ Neither of these is an abstract concept.”
“war (whether war be declared or not), invasion, acts of foreign enemies, hostilities, civil war, rebellion, revolution, insurrection, military or usurped power…”
“In this skeleton, the term ‘War’ is used since it is common ground that the events from24 February 2022 satisfy the definition of ‘war’ under the Policies.”
“As regards civil commotions the position is in my opinion quite plain. I would if necessary have been prepared to hold that the events at the two shops and the Centre were themselves part of a continuous state of civil commotion. But there is no need to go as far as this. The plaintiffs have to face the assertion that the turbulence and collapse of public order attendant upon the civil commotion permitted and indeed even encouraged the acts of looting and vandalism of which the incidents at Spinney's were examples. Unless rebutted, this would in my view be sufficient to establish that the loss was occasioned indirectly (if not directly) by, through or in consequence of the civil commotion. This assertion appears to me justified on the facts, so far as they are known; but in any event I cannot see any basis upon which Spinney's could begin to rebut it.”
“…in 2022 Ukraine believed it was fighting for its survival; and a state facing extinction will take actions it would previously have ruled out. In this argument, Ukraine might in theory launch attacks on the economic or strategic interests of its allies (in this case, Germany), as well as its enemies, if this would further its own ends…”
“…assuming an actor from Ukraine was the perpetrator, Russia’s full-scale invasion of February 2022 and the subsequent state of open warfare between Ukraine and Russia are best understood as a catalytic factor in the motive for an actor from Ukraine to attack the Pipelines, rather than the underlying cause of the Attacks…Certainly, the post-February 2022 environment presented an opportunity for a Ukrainian attack on the Pipelines but the motives – and allegedly the plans – to do so dated back long before February 2022. …The cause of the Attacks, assuming a Ukrainian actor was the perpetrator, was Ukraine’s long-standing animus towards Russia, plus its economic interest in preserving its long-standing gas transit revenues, in the context of their decades-old geopolitical struggle and the post-February 2022 environment which presented an opportunity for an actor from Ukraine to perpetrate the Attacks.”
“… in 2022, Russia's resistance to those efforts primarily took the form of the full-scale invasion in which it sought to −− Dr Less replied: “A. Yes, I agree, that's uncontroversial, yes, I'll agree with that.”
“For Ukraine, severing the Pipelines would sever Russia’s hold over Germany and the EU; it was engaged in a war for survival, so might be willing to attack the economic or strategic interests of an ally; and it had been engaged in a deniable campaign of sabotage against Russia since 24 February… In all cases Ukraine’s motives would have been informed by and intimately connected with the war for survival initiated by Russia’s invasion of24 February 2022 .”
“Q. And if Ukraine or Ukrainians blew up the pipelines in September 2022, then that was part of their overall war effort, wasn't it?”
“…Although in colloquial terms, as Dr Less agreed, it might be part of the ‘overall war effort’ … this point does not help the Court. During wartime many actions carried out by patriotic nationals of the relevant state are in keeping with that state’s overall war effort, but it stretches concepts of causation too thin to regard that as a useful indication of causation.”
“In what sense would destroying the pipeline have been part of the war effort? If it wouldn't have achieved anything in the war, if it wasn't going to achieve a propaganda victory, if it wasn't going to advance Ukraine's military interests, if it wasn't going to lead to a quicker victory for Ukraine, in what sense is it really part of the war effort in anything other than the most journalistic sense possible?”
“Perhaps what's underlying all of that as well as some of what I've been talking about already, is actually money, it's the fact that Russia earns money from gas being transported through Nord Stream, which helps it to fund its war effort. … the background is sanctions attempting to cut off money, and that kind of thing. So money is all underlying that.”
“The European Union’s effort to slap a limit on the price of Russian pipeline gas drew a furious response from the Kremlin on Wednesday. “We will not supply anything at all if it is contrary to our interests," Russian President Vladimir Putin said. "No gas, no oil, no coal, no fuel oil, nothing." Putin’s rage was directed at the EU, where European Commission President Ursula von der Leyen on Wednesday again called for a cap on the price of Russian gas, and at a recent G7 call to set limits on the price of Russia’s oil exports. Both measures are aimed at undermining the Kremlin's financial ability to wage war in Ukraine. “We must cut Russia’s revenues which Putin uses to finance this atrocious war against Ukraine,” von der Leyen said as part of a broader speech about ideas for the EU to rein in soaring energy prices that threaten the Continent's political and economic stability — a situation the Commission president blamed on both Russia and climate change…”. [emphasis added] “Roots in Ukraine’s much longer-term struggle for independence”
“Q. Most outbreaks of violence between states have causes in animosity that can be traced back decades, centuries, even millennia in one or two cases, don't they? A. Yes, as a general statement, that is true. Q. Yes, it’s the nature of international conflict, isn't it? A. Yes, they have political roots…”
“A. …When I think about animus, I'm thinking about the fundamental difference between Russia and Ukraine geopolitically, the question of Ukraine's ultimate orientation and its independence from Russia, and when I 'm thinking about motives, I'm thinking more specifically about issues such −− the issues created by the existence of the Nord Stream pipelines, leverage over Germany, Russian leverage over Ukraine, etc. Q. Yes. So you've got these background motives that were there anyway, some motives were there without the invasion, that's your point? A. Yes, most of them, most of them I'm suggesting. Q. Yes, but even in those circumstances an invasion that then precipitatesa full −scale war can be a triggering cause for the violence that follows, even if some of that violence is something that the other party might have wanted to do anyway? A. Yes, and I've acknowledged that point in slightly different words in my report when I talk about war being a contributing factor in the scenario of which I think we're talking about that Ukraine carried out the attacks.”
“A. Essentially, I'm taking issue with Dr Donald's idea that in February 2022 everything changed, and he then draws the inference from that which is that the attacks were a direct consequence of everything that changed in February 2022. I see events playing out in a continuum, going back, you know, quite a long way into history, if you really want to, and what I see is that the February 2022 invasion galvanised an underlying −− a set of underlying trends, in particular international relations, relations between Russia and Ukraine obviously, between the US and Russia, between Russia and Germany, but I also think −− I also use this word " catalytic " in the sense that it gives greater salience and urgency to the various motives which I think explain the attack on the pipelines which we've discussed at some length already. Q. Essentially it brings forward the attack from some unknown possible future date when it may or may not happen to 2022. A. Broadly I accept that but with the emphasis on the existence of these underlying factors which explain −− ultimately explain why I think the attacks took place.”
“While the ‘animus’ between Ukraine and Russia referred to by Dr Less did indeed have a long history, it is not credible to argue that the most traumatic episode in Ukrainian-Russian relations – namely the unprovoked invasion of 24 February, which threatened the eradication of the Ukrainian state and national identity, and which had killed between 22,000 and 87,000 civilians in Mariupol alone by May 2022 – did not materially change how Ukraine saw Russia, and what it was prepared to do to defend itself.”
“there was nothing specific in the war or its conduct that accentuated it or caused it to be particularly prominent or to present any kind of special danger in September 2022, not least because at that time, Nord Stream 2, which forms part of course of the same attacks, was not certificated and was not likely to be certificated and Nord Stream 1 was not being used because Russia had decided not to use it, and not being used because Germany had made other arrangements for obtaining gas.”
“Q. In what sense was the Nord Stream pipeline lying unused under the Baltic and with the gas supply controlled anyway by Russia of any benefit to others? A. It was of benefit to Germany in the plans that Germany had established as a result of the Zeitenwende. So Germany planned to still retain gas supply via Nord Stream until 2024 and was still obtaining supply from Nord Stream up until the point at which Russia chose to close off the supply. So, therefore, if Russia were inclined to turn the taps on again, then Germany would continue to derive benefit from Nord Stream until 2024.”
“Following Russia’s full-scale invasion of Ukraine in February 2022, Ukraine then began a campaign of sabotage against Russia, involving attacks on infrastructure, industrial assets and military assets, allegedly attempted to sabotage a section of the TurkStream gas pipeline and possibly planned an attack on the Druzhba oil pipeline. The Attacks, if perpetrated by an actor from Ukraine, would fit into this track record of alleged sabotage attacks as an expression of their animus against Russia outside the confines of the theatre of war.”
“…Ukraine was furious with Russia for its invasion and subsequent substantial destruction of the country, which played upon the longstanding animus between the two, and was likely to have wanted revenge. In this respect, destruction of the Pipelines was an obvious means to achieve this - a massive Russian prestige project which symbolised Russian power over Germany and Europe, on which Russia had spent billions of dollars, but which was potentially vulnerable to attack by a smaller opponent.”
“…Russia’s full-scale invasion of February 2022 and the subsequent state of open warfare between Ukraine and Russia are best understood as a catalytic factor in the motive for an actor from Ukraine to attack the Pipelines, rather than the underlying cause of the Attacks …Certainly, the post-February 2022 environment presented an opportunity for a Ukrainian attack on the Pipelines but the motives – and allegedly the plans – to do so dated back long before February 2022. …The cause of the Attacks, assuming a Ukrainian actor was the perpetrator, was Ukraine’s long-standing animus towards Russia, plus its economic interest in preserving its long-standing gas transit revenues, in the context of their decades-old geopolitical struggle and the post-February 2022 environment which presented an opportunity for an actor from Ukraine to perpetrate the Attacks.”
“My view is that there is a significant connection between the attack and the war, and it is difficult to conceive of the sabotage having been undertaken without the invasion of24 February 2022 . The situation after24 February 2022 was therefore in my opinion fundamentally different from the situation before it. Before the invasion states might have considered destroying the Pipelines but ultimately dismissed the idea, for fear that sabotage would escalate a crisis that they were trying to contain. Afterwards, however, the context had changed. Europe was in the midst of its largest war since 1945, and – as I have already noted – states were rethinking their attitudes towards the Pipelines. Sabotage would therefore have become a conceivable act. …If Ukraine was responsible for the sabotage; and if those motives existed during the 11 years of the Pipelines’ operation before24 February 2022 ; why did Kyiv not attack the Pipelines over that time – particularly as it was engaged in open hostilities with Russia for over seven and a half of those 11 years. The principal reason is that Russia would have seen it as an escalatory act, particularly during the period of open hostilities (i.e. from April 2014 to February 2022), when Ukraine was trying to avoid giving Russia an excuse to escalate.”
“...in 2022 Ukraine believed it was fighting for its survival; and a state facing extinction will take actions it would previously have ruled out. In this argument, Ukraine might in theory launch attacks on the economic or strategic interests of its allies (in this case, Germany), as well as its enemies, if this would further its own ends...”
“In my view the events of 30 August-7 September 2022 gave President Putin a motive to attack the Pipelines. On 30 August Gazprom announced it would suspend gas shipments through Nord Stream 1 on 31 August for three days, supposedly for maintenance reasons. At this point the pipeline was operating at about 20% capacity. On 2 September the G7 confirmed their joint intention to impose a price cap on Russian oil to curb Moscow's hydrocarbons revenues. Later on 2 September Gazprom announced that it was shutting down Nord Stream 1 'indefinitely', supposedly due to a leak at Gazprom's Portovaya compressor station in Russia. This was then followed, later on 2 September, by EU Commission President Ursula von der Leyen suggesting that ' it is now time for a price cap on Russian pipeline gas to Europe'; however this was not yet a formal proposal. On 7 September Putin declared that'We will not supply anything at all if it is contrary to our interests. No gas, no oil, no coal, no fuel oil, nothing.' If the West went ahead with capping Russian oil and gas prices, it would 'freeze, freeze'. (The so-called 'heating season' in Germany - when gas consumption would rise markedly due to the onset of colder weather-would generally begin in mid-September.) Later that day-after Putin made his statement-von der Leyen formally proposed the gas price cap. The Pipelines were sabotaged on 26 September.”
“5. 108…The swiftness of Gazprom's response to the G7 price cap announcement on 2 September, and then Putin's own response on 7 September, also suggest that the Kremlin was reacting to both the G7 move and von der Leyen's support for a price cap, while his 7 September 'freeze, freeze' threat indicates that he intended to use any leverage he still possessed. This leverage could take the form of continuing to turn the supply of gas on or off at will - even if this had so far failed to change German or wider EU policy. Alternatively, the leverage could reflect a concept called uravnilovka … or 'levelling', which features in Russian decision-making. In essence it means that if one can no longer benefit from something one should destroy it to deny any benefit to others - even if doing so will inflict more damage on one than would be the case if one did nothing. In the case of Nord Stream, this would entail destroying the Pipelines to deny Germany (and the EU) the possibility of obtaining any Russian gas for good; to create one last price spike in Europe's natural gas market; and to make Europe 'freeze, freeze' as the 'heating season' began.”
“Q. So that effectively it would be Russia sending a very strong message to Germany that it meant business and, is this right, punishing Germany for its change of direction so far as Russia and Ukraine were concerned? A. Yes, that is implicit in the third component of the end of paragraph [5.108], the three components being, as you outlined, denying Germany in the EU the possibility of obtaining any Russian gas for good; the second element being to create one last price spike; and the third element the punitive, the implicitly punitive element, of making Europe "freeze, freeze".”
“Q. In what sense was the Nord Stream pipeline lying unused under the Baltic and with the gas supply controlled anyway by Russia of any benefit to others? A. It was of benefit to Germany in the plans that Germany had established as a result of the Zeitenwende. So Germany planned to still retain gas supply via Nord Stream until 2024 and was still obtaining supply from Nord Stream up until the point at which Russia chose to close off the supply. So, therefore, if Russia were inclined to turn the taps on again, then Germany would continue to derive benefit from Nord Stream until 2024. Q. But why can't Germany −− Russia, as you put it, just decide not to turn the taps on again? Why go any further and cause any damage to the pipeline itself? A. To punish Germany and to demonstrate perhaps a certain degree of seriousness. Q. Right. Can I then turn −− just assuming that to have been the case and if the purpose was to punish Germany −− A. And the European Union, I add. Q. And the European Union? A. Yes.”
“The answer [to the causal route by which the war led Russia to destroy the Nord Stream pipelines] seems to be there would have been two motivations to it, this is what Dr Donald says. One of them is that it would have been convenient for Russia to try to cause some kind of spike in the gas price immediately before winter, and that would have been aimed in particular at Germany and at German opposition to Russia and I suppose perhaps more generally at Europe, and it would have been a continuation in diplomatic terms of what Russia had been doing all the way through 2021 during which it had been waging, if you recall, the thing which was described as the gas war, which of course is not a war for the purposes of this insurance policy, whatever people call it. "War" means military fighting; it doesn't mean diplomatic jockeying.”
“If Russia perpetrated the Attacks, it may have been motivated by the goal of raising the price of gas, thereby causing hardship for the Europeans, and coercing them into withdrawing their support for Ukraine…Most recently, the majority state-owned Gazprom's suspension of gas supplies via Nord Stream 1 in August 2022 had raised the price of gas to an historic high and eroded German public support for the government’s policy towards Russia and Ukraine, including its suspension of Nord Stream 2. Destroying the Pipelines might have made this pressure permanent in what would have amounted to an extreme version of this strategy of manipulating energy supplies for political ends. In this respect, Russia was open about its goal of using the Pipelines to put pressure on the Europeans to change policy through August and September 2022…”. [emphasis added] “No direct or indirect advantage to Russia’s position in the War”
“Russia’s motive would have been informed by and intimately connected with the war initiated by its invasion of Ukraine on24 February 2022 . The progress of this war, and the geopolitical and political developments linked to it, transformed the geopolitical and business context for the Pipelines.”
“Q. As I understand it, but tell me if this is wrong, what you're saying is really that the connection was that the war had led to the realignment of Germany's interests or Germany's solidarity with other European and Western countries, so the US and the UK and so forth? A. Yes. Q. That had led to attempts on the part of Russia to use the pipelines as leverage to stop that from happening? A. Yes. Q. But those had been unsuccessful? A. Yes. Q. And it's the recognition that those had been unsuccessful that forms the backdrop to the Russian decision that the pipelines no longer serve that useful strategic purpose? A. Yes.”
“The most one can say that it does is what my learned friend said this morning, is that it was the war which had changed Germany's stance towards Russia…”
“If Russia perpetrated the Attacks, it may have been motivated by the goal of raising the price of gas, thereby causing hardship for the Europeans, and coercing them into withdrawing their support for Ukraine”
“Q…it was likely, wasn't it, as a result of the gas war which had been happening in the preceding years that even before the invasion of Ukraine, the need for Germany to reduce its dependence on Russian gas must have been blindingly obvious? A. I think that cuts both ways, my Lady. On the one hand, if one is inclined to view the leverage that Russia exercised through gas as being bad for Germany, bad for Europe, then reducing that dependence would be a key objective. If, on the other hand, one's principal concern is the economy of Germany and minimal inflation, cheap energy for industry and so on, then one might actually feel that one needed to maintain supplies of Russian gas but perhaps in a context of increasing unhappiness with Russia, be a little more careful politically about how one achieved that, and, in my view, the invasion in essence crystallised thinking in Germany behind needing to end the relationship entirely.People who might have been equivocal before suddenly saw the logic of ending it completely, and that is the Zeitenwende that happened over that weekend after the invasion.”
“The objective of such a move [ i.e. sabotage by Russia] would be political: to manipulate international opinion. In one sense, in the context of War, any sort of political action of this sort would, of course, be affected by it, and would in that sense be a ‘contributing factor’. But it would have no direct or indirect military purpose; it would not be intended to affect events on the battlefield in any concrete way; and it would not be caused by the War save in the extremely diluted sense that the War formed the backdrop to all Russo–German political relationships in 2022.”
“...if one asks the question what part would the war have played in that decision [by Russia to destroy the Pipelines], the answer is none at all, except insofar as the attempts to use the Nord Stream pipeline in the course of 2022 had been unsuccessful. So the most you would say is the war had caused Russia to want to put pressure on Germany which was not a belligerent.”
“… [Attempts to use the Pipelines as leverage in 2022] hadn't been successful, Germany had changed its gas supplies, so now Russia thinks the gas is no longer useful. It is an incredibly far-removed causal connection. Now one could not say it wasn't a contributing factor in that sense, but the war was a contributing factor to all international relations within Europe from 2022 onwards and one could say the same thing, therefore, about anything that Russia did vis-a-vis Germany, or Germany did vis-a-vis Russia during that period. If one asks oneself the question whether for the person buying an insurance policy which contains a war exclusion, anyone would think that that was actually a diplomatic relations exclusion, the answer is no.”
“Why go any further and cause any damage to the pipeline itself?”
“A. To punish Germany and to demonstrate perhaps a certain degree of seriousness. Q. … A. And the European Union, I add.”
“Q. …Do you agree with Dr Donald that before24 February 2022 , Russia had no motive to attack the pipelines? A. Yes, I think as a general statement I'll accept that, yes. Q. Is that similar to saying you agree with it? A. Well, what I mean is that in my report I identified some possible reasons why Russia might have attacked the pipelines, for example, to try to intimidate the Europeans into changing their position in relation to the war, to signal to the Europeans that their critical infrastructure was at risk, and I think those reasons apply more after February 2022 than beforehand. Q. Yes. So you agree that before then Russia had no motive to attack the pipelines? A. Sorry, had no motive? Q. No motive before 24 February? A. Yes, I'll basically accept that.”
“5.3 It is important to note that states are perfectly capable of taking geopolitical decisions which objective geopolitical analysis would suggest would do damage to them or their interests that would outweigh any possible benefits.”
“It's not the ongoing war even which is the reason why the US acts. It's the fact that it was reluctant to act in circumstances where doing so might have provoked an invasion from Russia, and now that Russia has invaded, that potential for provoking invasion has completely disappeared. There's no longer any reason to do that. In other words, the result, if one asks what part the war is playing in this, it's not the ongoing war at all; it's the fact of the invasion for a start. It's highly indirect. What it has done is alter the international diplomatic position to a point where the US is no longer going to stay its hand simply because Russia might invade because Russia has already invaded. And in our submission to describe that as the indirect consequence of a war, when it's an attack which is not carried out by one of the belligerents, it's carried out by somebody who is not involved in the war, who doesn't have, and it's not suggested by any of the experts that it would have had, even on the US side, any intention of influencing the course of the war, is going too far, and that's the reason why we draw the analogy which we accept is one only in fact; it's not one in law, because, Winicofsky was a proximate cause case, to Winicofsky, but it does at least tell you this: we are definitely not in the realm of proximate cause, we're in the realm of indirect cause and the indirection is extremely indirect on this occasion.”
“…it is common ground that the events from24 February 2022 satisfy the definition of ‘war’ under the Policies.”
“The significant connection between the attack and the war, and the difficulty in conceiving of the sabotage having been undertaken without the invasion of24 February 2022 , also applies in my opinion to the two other likely suspects identified by Dr Less and me, namely Russia and the United States”
“In effect, in my opinion neither Ukraine nor a sub-state actor from Ukraine would have chosen to sabotage the Pipelines during the 11 years of operation before24 February 2022 , because doing so might have provoked a significant Russian military escalation. Once the invasion had started, neither Kyiv nor a Ukrainian sub-state group would have felt this concern; the invasion was the escalation they had hoped to avoid… The significant connection between the attack and the war, and the difficulty in conceiving of the sabotage having been undertaken without the invasion of24 February 2022 , also applies in my opinion to the two other likely suspects identified by Dr Less and me, namely Russia and the United States (see the Joint Expert Memorandum, Item 7)… I consider that the United States had a clear and abiding strategic interest in there being an end to the supply of Russian gas to Europe, and had been opposed to the Pipelines since their inception; that opposition grew as NS 2 neared completion (Donald 1, paragraph 5.85). However, in my opinion, like Ukraine, it would not have chosen to sabotage the Pipelines before24 February 2022 , because such a move would have been seen as escalatory by Russia, and the US wanted to deter Russia, not provoke it (Donald 1, paragraph 5.88). However, after the invasion, and as with other liberal democracies (see paragraphs 3.3 and 3.4 above), the US perceived a clear threat to its national security and the rules-based order it supported, with the Pipelines being a tool in the hands of the state posing that threat. Managing that threat must therefore involve the Pipelines. For the US, therefore, the invasion would have caused sabotage of the Pipelines to be a conceivable act (see Joint Expert Memorandum, Item 29).”
“… it’s really the fact that Russia has now acted removes what would have previously have been a restraint on the US action because whereas previously there would have been concern about escalating the position in Europe, that would have been reduced by the fact that Russia had invaded?”
“Q. [In the joint memorandum] …you're talking about the US, and you say: “Consistent with this, its policy prior to February 2022 had been to block Nord Stream 2 by means of sanctions rather than violence ... " And your reference to February 2022 is a reference to the date of the Russian invasion of Ukraine; correct? A. Yes. Q. So if it turns out that the US did attack the pipelines in September 2022, that would have been consequent upon a change of policy that arose in consequence of the Russian invasion? A. Yes, in short that's what I was saying, but I'll add one other detail to that, which is that if you go with Seymour Hersh's argument that it was the Americans that did it, he suggested that the decision was made in November 2021. Q. But even if some original decision was made in November 2021, the real decision to proceed would have been made well after February 2022, wouldn't it? A. Well, to be accurate, there's no evidence for that, but it is possible.”
“…what has changed as a result of the invasion is that Russia is threatening the whole global order. So the idea of old strategic rivalries and upsetnesses over the Cold War and the period after the Cold War, the idea of all of that just gets punted into the long grass. If the United States did this, it wasn't about some longstanding angst. If the United States did this, it was because Russia was threatening the whole established global order on which global order rested, global peace rested, and the United States' ability to influence the world as a whole and have that order maintained depended upon the system that Russia was deliberately destroying through its invasion.”
“Q. … In 2022, Russia's resistance to Ukraine's efforts that you refer to primarily took the form of an all-out war in which Russia was seeking to conquer Ukraine? A. Ukraine's efforts to establish its independence? Q. What you refer to is " ... Ukraine's efforts to move Ukraine into the American sphere of influence ... " … Q. And what I'm suggesting to you is that in 2022, Russia's resistance to those efforts primarily took the form of the full-scale invasion in which it sought to – A. Yes, I agree, that's uncontroversial, yes, I'll agree with that. Q. Yes, right. So that motivation is essentially threatening Russia about the consequences if it continues the war; yes? A. That's the idea, yes.”
“Q. Yes, right. So that motivation is essentially threatening Russia about the consequences if it continues the war; yes? A. That's the idea, yes.”
“…my view is that the economic motives buttress the geopolitical motives, but the economic motives in isolation don't explain, couldn't explain, an American attack on the pipelines.”
“Q. …And the concern about political leverage, would you accept that that would have been increased by the fact of the invasion and the war going on? A. Yes, I 've said in my report that I think the war was a catalytic factor which drove forward various underlying trends, and that is one of them.”
“Plainly, there must be some limit on the application of the clause, for the chain of causation recedes infinitely into the past. The draftsman must have intended to stop somewhere: and that place must be the point at which an event ceases to be a cause of the loss and becomes merely an item of history.”
“It is agreed that there were connections between the attack and the war and that the war was at least a contributing factor to the attack(s).”
“…there is a significant connection between the attack and the war, and it is difficult to conceive of the sabotage having been undertaken without the invasion of24 February 2022 . The situation after24 February 2022 was therefore in my opinion fundamentally different from the situation before it. Before the invasion states might have considered destroying the Pipelines but ultimately dismissed the idea, for fear that sabotage would escalate a crisis that they were trying to contain. Afterwards, however, the context had changed. Europe was in the midst of its largest war since 1945, and – as I have already noted – states were rethinking their attitudes towards the Pipelines. Sabotage would therefore have become a conceivable act.”
“Understanding what states do or might do may very well be informed by experts, but actually unravelling the causal connection between one event -- the explosions -- and another event -- the war -- is something which requires a holistic approach to all of the evidence against the background of the contract and what it means rather than simply a decision as to -- which is handed over to experts, as it were, to decide whether there is causation. In other words, it is more than just a question of geopolitics what the causal relationship, if any, was between the sabotage and the war. It's a question ultimately for [the Court], a holistic question, on the evidence as a whole and not simply an expert question.”
“Q. Having considered that geopolitical question, questions about what the causal connection between any two events was, is one which is a matter of logic and common sense; do you disagree with that? A. And knowledge, so not exclusively logic and common sense; also knowledge. Q. In what sense does one know about causes? I just want to understand what you're saying. A. One knows not so much about causes but of the −− one knows about the information that might cause something to happen. Q. Right. And having communicated one's knowledge of that information to someone else such as to [the Court], the conclusion about what the causal relationship is I think I'm suggesting to you, one that is not itself a geopolitical question. Are you disagreeing with me about that? A. No, I think that's correct.”
“If the Sabotage was perpetrated by Russia or the United States, there seems little doubt that it was a directly government-ordered act.”
“in three of the possible four sub-cases, [the Court] can be satisfied that if the sabotage was done it must have been done by or under the order of the government and indeed by order of the government, and that would be -- if it was Russia, if it was the US, the experts agree; if it was Ukraine and it was done by a state actor, that must also be true.”
“…there does not appear to be any account that anyone has produced, although it is theoretically possible, of this being done without at least some involvement or knowledge by somebody within the chain of command, although not necessarily the government itself. So if one was looking for "by order of a government" there might be an issue, but if one was looking for "by order of a government agency" there probably wouldn't be.”
“…The words in question have to be construed in the context of the Government Perils clause, which I think it is fair to say is a broad provision concerned with deprivation of rights of property and/or possession, and is not concerned with technicalities; hence the different ways in which there may be deprivation of such rights are widely drawn. Furthermore, some of those ways are likely to involve a form of order by the government, but others may not. By way of example, ‘seizure’ and ‘detention’ are concerned with the practicalities of what has happened, not with formalities as to whether the dispossession was under an order. The words ‘by or under the order of any government’ fall to be construed in light of this.”
“566. Moreover, under the WR Camp’s interpretation, the word ‘by’ would be effectively redundant, because a peril having occurred under the order of a government is not meaningfully different from a peril having occurred by the order of a government. I consider that the better interpretation is that ‘by’ serves the purpose of capturing cases in which the government brings about deprivation of property, in one of the ways specified in the clause, by direct agency; while ‘under the order of’ the government refers to what may or may not be a longer chain of causation in which the efficient cause is an order of the government.”
“If one looks realistically at what happened under the sea, there was no government diving down from boats. There were inevitably people diving down from boats to place charges on the lines, and that must have been done, if it was done on behalf of a state, by order of a government agency, and, although my learned friend says that the man in the street would not understand the army as an agency of the government, that is, in my respectful submission, plainly not so. Anyone would understand the army as an agency of the government as they would also understand the CIA or the Russian secret service or anything of that sort.”
“My submission was that it was not by a government but it was under the order of a government, and the reference and I talked about there being, if you remember, no government was under the sea, it was people under the sea.”
“...there does not appear to be any account that anyone has produced, although it is theoretically possible, of this being done without at least some involvement or knowledge by somebody within the chain of command, although not necessarily the government itself.”
“…it included serving Ukrainian military officers who were acting as part of the Ukrainian military so they were ultimately agents of the Ukrainian government itself…If it was done by the Ukrainian army, by soldiers who could not be said to be on a frolic completely of their own because on the hearsay evidence they would have been acting under the head of the armed forces, that is enough for "by a government".”
“The accounts of the Andromeda contain a variety of different (and mutually contradictory) suggestions of the extent of Ukrainian government or military involvement. None of them is an account of a military operation, as such. Some of them posit some degree of either awareness or involvement within the military; but some of them positively assert that the Ukrainian central government was ‘kept in the dark’ about what happened.”
“...if you are looking at a Ukrainian substate actor, all of the evidence about the involvement or lack of involvement of government agencies is material which suffers from some of the flaws that I've identified.”
“...most likely that the Dent was caused by either anchor impact, most likely dropped but also potentially dragged... or less likely by a dropped section of pipeline…”
“One of the most common causes, in practice, are impacts from dropped or dragged anchors”
“Q…if there was an anchor drag, it would have left a visible scar, wouldn't it? A. Yes, there would be a scar of some kind, yes. Q. And there is no such scar? A. No. Q. Right. So we can eliminate an anchor drag as a credible cause, can't we? A. Yes.”
“It should be recognised that an anchor drop is a physically admissible cause of the Dent, although no finding is necessary on Nord Stream’s case that it was so caused. In practice, anchor impact is one of the commonest causes of damage to pipelines, and numerous examples of the same were given by Mr Lumley: Lumley 1, ¶¶7.4.4–7.4.6”
“Q. Now, in your report at 7.4.5, … you set out numerous reported instances of anchors causing damage to pipelines; yes? A. Yes. Q. And in fact you've given I think it’s five at 7.4.5 and then going on to the next page, and then there's one more at 7.4.6? A. Yes. Q. And do you agree, or do we need to go through them, that all of them are examples of anchor drags? A. Yes, they're anchor drags, yes. Q. So I think it’s fair to say that you've not identified any example of an anchor drop actually having happened and caused damage to a pipeline? A. Anchor drag, you see, not drop. Q. No, the examples you've given are drags? A. Yes.”
“Q. So what you've demonstrated is that even at your lower −− your original lower bound of the required energy, and even if the dent is at 10 o'clock and not 9 o'clock, a falling anchor could impart enough energy only if it was falling at least 20 degrees away from the vertical; yes? A. Yes. Q. Right. And I'm not aware there's anything in your reports suggesting that an anchor that's fallen 80 metres down would be travelling at any particular angle off the vertical. Is that fair? A. Yes.”
“Q. …And then you refer to a range of causes including at 4.102 an anchor, and you say you understand that an anchor could match the masses and speeds in that paragraph; yes? A. I do, yes. Q. And is this right, do you use the word "understand" because you're not claiming an expertise in anchors or shipping practices? A. That is correct, yes.”
“Q. Your modelling, I think we've seen, has demonstrated that an anchor falling on to the pipeline is an extremely unlikely cause of the dent, because it has to be travelling at a certain angle and then it has to make only the crater that we see? A. Yes, but it means it's still possible and, as we discussed with the Concorde example. Q. Right, and there is nothing in your modelling that excludes an explosion as a possible cause? A. Not within the modelling, no.”
“…Rather, an anchor is just as likely to damage one part of a pipeline as any other and would pulverise concrete and damage the rebar to the pipeline {Day7/8:9-15}. It is simply that these parts of the Pipelines received particular scrutiny after26 September 2022 with the result that the specific damage was identified (to say nothing of the fact that there were numerous vessels around the Explosions Damage in the weeks following the Sabotage; see paragraph 127 below).”
“A…if something had hit the pipeline, there was an outflow of reaction, so there's two things could have happened: if an object hit the pipe and the covering, the actual impact could have had a reaction and pushing the rebars apart, or alternatively on recovering the object it might have tangled with the rebar and pulled it up. That is also consistent. Q. None of your modelling sought to model that scenario, did it? A. No, it didn't”
“2.6.6 Anchoring at sea is a controlled seamanship procedure governed by established maritime practice and safety guidance, including the Admiralty Manual of Seamanship and the ICS Bridge Procedures Guide. An anchor is not simply “dropped” at speed. Standard procedure requires a vessel to reduce speed to near zero relative to the seabed, assess depth and holding ground, and lower the anchor under controlled brake tension before paying out chain in a measured manner. 2.6.7. The purpose of this control is to prevent uncontrolled shock loading of the anchor gear, to avoid damage to the vessel, and to ensure predictable embedment of the anchor in the seabed. An uncontrolled highspeed release of an anchor capable of generating the kinetic energy necessary to shatter and pulverise reinforced concrete coating would constitute unsafe seamanship, risk severe damage to the vessel’s windlass and chain system and be inconsistent with normal maritime operations. In addition, subsea infrastructure such as pipelines is charted and subject to anchoring restrictions. Deliberately or negligently deploying an anchor in a manner capable of striking and damaging a known gas pipeline would directly contradict established maritime safety practice. In my opinion, the energy and damage characteristics required to produce the Dent are inconsistent with the controlled procedures under which anchors are deployed in commercial or naval service. 2.6.8. Further, if a vessel had accidentally deployed or dragged an anchor in a manner sufficient to strike and damage a major subsea gas pipeline, such an occurrence would ordinarily constitute a reportable maritime incident. The Master of the vessel bears responsibility for recording and reporting significant navigational or equipment incidents under established maritime practice and the ISM Code (see Annex B). I am not aware of any evidence of such a report having been made.”
“In my opinion the dent was caused by a 3D shaped charge designed to be in direct contact with the pipeline.”
“… if I can explain it, …−−it didn't actually fire a slug; it fired a jet….The jet actually hit the concrete. The concrete then became the slug….And that pushed the dent into the concrete, fracturing the concrete at the same time.”
“4.101 I would deem an impact event from an object with kinetic energy in the order of 0.4 MJ (400 kJ) as being physically admissible and capable of causing the observed Dent. It is beyond my expertise to comment on the likelihood of what was the cause of such an impact. There is a range of possible causes. 4.102 For example, a 10-tonne mass travelling at 32 kph, or a 20-tonne mass travelling at 22 kph will each have kinetic energy of 0.4 MJ (400 kJ). These scenarios reflect impact damage from a large object such as a ship’s anchor which I understand could have a mass and velocity of this order. 4.103 Whilst I am discounting the Dent being caused by the direct effects of an explosion (i.e. gas bubble and/or pressure wave), I have considered whether there are circumstances in which the explosion of a shaped charge could lead to an impact from the projectile/slug from the shaped charge with energy that could be consistent with the 0.4 MJ (400 kJ) required to cause the Dent.”
“4.108 The impact of the projectile/slug from a 5kg plastic explosive (RDX-based) shaped charge situated approximately 1 metre away from the pipeline would therefore be another possible source of an impact with approximately 0.4 MJ (400 kJ) sufficient to cause the Dent. 4.109 Of course, for a shaped charge to be located 1 metre from the pipeline that would necessarily mean that the charge had detached from the pipeline and was located at the moment of detonation in such an orientation that the slug would hit the pipeline at an angle consistent with the Dent’s geometry. I note that the Nord Stream 1 pipelines are embedded into the seabed (perhaps as much as 80- 85%) and, therefore, the area of the pipeline which has been dented would also have to have been above the seabed in order for this hypothesis to work. I cannot say for certain from the images of the Dent both pre-washout and after washout that it was. It is important to note, therefore, that this hypothesis of how the Dent could have been caused by a shaped charge depends on a combination of factors: the shaped charge falling 1 metre from the pipeline, being located at an orientation that the slug would hit the pipeline at the correct angle when it detonated, and that the area that was dented was above the seabed. 4.110 I am unable to express any view as to whether impact from, for example, a ship’s anchor, a detached shaped charge or any other impact capable of imparting 0.4 MJ (400 kJ) of energy to the pipeline would be more or less likely.”
“Q. So you're not really asking her Ladyship to take your 4.3 kilograms as a binding maximum, are you? A. Not binding in the sense that it is irrefutable. I believe that there is always some wiggle room on the numbers that I provide, but it’s merely there to say that the size of the crater is consistent or more consistent with charge masses in the range of 2 to 5 kilograms than it is 14 to 27 kilograms. Q. I see. And when you say 2 to 5 kilograms, would that include, for example, 5.2 kilograms of RDX even though that's slightly more than 5 kilos equivalent? A. Yes, exactly, I would say that's a −− it's not a hard−edged range within reasonable engineering judgment outside of 2 to 5 kilograms I would consider to be represented by that value.”
“Q. …At paragraph 2.32 [of Rigby 2], is this right, your view is that the attackers may well have used different charge types and numbers at different places; is that right? A. Different charge numbers at different locations, yes, but I believe the same charge type was used. Q. When you say charge type, do you mean in the sense that it was linear, or do you mean much more specific than that? A. In the sense that it was a linear cutting charge that was used.”
“Q. And is this [Hayrick charge] a directional charge with some linearity? A. Yes, I would believe that that would be classified as a linear cutting charge. Q. And is it right that you consider that the subseaversion of this is one type of charge that could havebeen used to create the observed rupture damage on theNord Stream pipelines? A. I do, yes. Q. And I put it to you that it was directional. Can I just see if we have a common understanding of that. It'sdirectional in the sense that when detonated, itreleases a metal projectile in a particular direction, is that right? A. Yes, that is correct, although under that description a conical-shaped charge could also be described as a directional explosive.”
“Q. And you describe [in Lumley 1at paragraph 4.3.39] [a Hayrick charge] as a charge which is widely used in −− a widely used surface demolition charge; yes? A. Yes, my Lady. Q. And it's also available in marinised versions which are widely used in maritime demolition and decommissioning? A. Charges of that nature are available – … Q. And … it carries an explosive load of −− is it 5.3 kilograms, something like that? A. That is correct, my Lady. Q. And it can cut through up to 200 millimetres of steel? A. That is correct. Q. And something like that, do you agree, would be ideal for creating the sort of unzipping effect that we see in the pipes in this case? A. This would be an ideal charge for the pipeline attacks that we have seen, my Lady.”
“A. …The jet and the slug are not necessarily considered separate entities. It’s a dynamically evolving process, and it depends on how far that projectile has travelled away from the shaped charge. Q. Yes, I see. So −− all right. So I think it is right in your view that there is a jet consisting of metal particles and behind that is a slug which is more like a solid metal item; is that right? A. My distinction, my Lady, would be more related to the shape of the projectile, so the jet is the leading component of the projectile that has a degree of sharpness to it, whereas the slug is a mass behind that is more blunt that hasn't yet formed into the jet and doesn't have as much penetrative capability, but again, depending on the proximity of the device to the structure, they may well be the same entity, they may well be part of the same coherent piece of metal.”
“Q. And will [the gas bubble] also generally move towards a fixed boundary like the pipeline in the seabed? A. Possibly. It depends on the proximity to the seabed. I believe the coupling to a rigid obstacle will be a secondary effect, whereas the buoyancy and the rising will be the primary effect, so it will want to move upwards far more readily than it will want to move across to a rigid obstacle.”
“… how a charge came to be in a position to strike the pipeline at the 9–10 o’clock position, taking into account the known facts about the seabed level adjacent to the pipeline.”
“…there does remain the problem of when it falls off a line on to a seabed which isabove the mid-point of the pipe, how does the charge then end up in a position that it strikes the pipe?”
“So Professor Rigby has explained the circumstances which need to prevail, but nobody has identified how those circumstances could have prevailed.”
“The impact of the projectile/slug from a 5kg plastic explosive (RDX- based) shaped charge situated approximately 1 metre away from the pipeline would therefore be another possible source of an impact with approximately 0.4 MJ (400 kJ) sufficient to cause the dent.”
“Whether the Dent is in fact at the 10 o’clock position, rather than the 9 o’clock position, is a matter of some controversy…”
“…the recorded position of the Dent is at the 9 o'clock position in some documents, but in [the] opinion [of Mr Lumley] the position of the Dent is in the 10 o'clock position.”
“Q. Now, at that point what is roughly right −− and you’ve marked it on the left −hand side −− is that at this point the pipeline is buried to approximately the 10 o'clock level, and obviously it’s only approximate, but that's about right. And on your view, the centre of the damage from the explosion on the dent is at aroundthe 9 o'clock to 10 o'clock level? A. Yes, that is correct. Q. So more or less then level with the seabed? A. Yes, that is correct.”
“Q. I think your view is that what you're envisaging is that the bubble will strike a glancing blow to the pipe, no? A. I refer to a glancing blow in my report. … Q. Now, if you have the charge at seabed level, so around the 9 or 10 o'clock position, and the bubble impinging on the pipe at around the 9 or 10 o'clock position, that can't be a glancing blow, can it? It’s striking at the normal angle? A. There will be a certain degree, my Lady, of damping by the silt clay sandy bottom of the seabed directing the bubble towards the pipeline as it oscillates and shrinks”
“we say that what Professor Rigby says is he sets out the scientific basis on which it could happen, but that doesn't answer the question whether practically, given the evidence about the dent and its position and the seabed, it's a real possibility, much less a probability, which is what it needs to be, obviously.”
“As to the Dent, there is (only) a succession of videos and some heat map images taken about a month after the adjacent explosion on Line 1.”
“…The dent and crater (created by the ROV for closer inspection) can be clearly seen in Figure 3-15 below…”
“A comparison of the 2021 and 2022 data show trawl scars in the same area, therefore the damage to the pipeline was most likely from recent events as no damage was seen in 2021. Below Figure 3-16 shows Raster data created in ArcMap comparing the same area in 2021 and 2022…”
“Q. … And as far as the markings on the seabed are concerned, both the crater and the markings on the other side, do you accept that those are the kind of things that can be caused by explosions; yes? A. The crater, yes, I agree that that could be caused by an explosion. The so-called touchdown markings on the other side I have reservations about, not least because I cannot guarantee that they are untampered with -- not untampered with -- unaffected by anything that happened beyond the event.”
“A. I believe the crater is -- or could be taken as clear evidence of an explosion, yes. I believe that the markings on the other side are -- to me they don't look as clear-cut as being caused by an explosion, and I didn't want to exclusively count an explosion as the cause, my Lady, because I have no background in other aspects of seabed disturbances, so I didn't see it in my position to rule out things that I was unaware of.”
“Q. … And so if a charge, like, say a 5.3-kilogram Hayrick was detonated about a metre away from the pipeline underwater, could the shock wave pass over the pipeline and have an impact on the seabed on the other side of the pipeline? A. Yes, that is a possibility, yes. Q. Might the impact of that shock wave leave marks on the seabed on the other side of the pipeline? A. That is a possibility, yes, but the extent to which it would leave a lasting impression, I do not know.”
“There is no physical explanation as to why the shock wave would separate and cause two distinct markings adjacent to one another with a ridge in the middle. If that were indeed touchdown markings from an explosive, it would just be a single disturbance radiating outwards.”
“Q. …Are you suggesting that there is any impossibility in the science in the idea that a 5-kilogram RDX charge exploded somewhere within 1 metre of the pipeline, causing the dent and also creating the crater? A. No, I am not disputing that, my Lady, that matches the evidence that I have provided.”
“Yes, but I would say that a lot of debris from the dent -- from the ruptures on line 1 and line 2 over-splayed the dent area, so it's not conclusive that because a piece of copper is somewhere near the dent means that it came from the dent. It could easily have come from the explosive devices that were used to rupture line 1 and line 2 only 90 metres away and some of the debris went over the top of line 2 to the south of it as well.”
“A. … prior to the clean−up there was evidence of highly pulverised concrete at the base of the pipeline. Q. But it would be consistent with any other impact, wouldn't it, to concrete? A. With an explosive event, my Lady, typically, one would see highly pulverised material; with a mechanical impact, a slow velocity impact, it would be larger particles. Q. If it was a slow velocity impact it might be larger particles; if it was a higher velocity impact, it might be different…”
“Q. So you're not saying that a polished surface is inconsistent with an explosion; what you're saying is you do not believe there was a polished surface before the washout; is that right? A. Yes, that is correct.”
“A. The clean−up operation was exactly to expose what was on the pipeline, my Lady. Q. What it also did −− and we've seen it with our own eyes −− is in various places it scratched and polished the pipe, as you'd expect; correct? A. Correct, my Lady.”
“…I've pondered over it a number of times. I haven't −− you know, whether it was part of −− a mechanical part of the explosive system or whether it was part of a hook, you know, there is no definitive description to know what it actually is…”
“4.7.26 Crucially, there is considerable corelation in size, appearance and position of the cratering demonstrated in Figures 26 and 54 of my Expert Report indicating that charges of similar (or the same) size were used. In both cases, the charge detonations did not result in catastrophic failure of the pipelines, but in a dent and comparatively minor leak damage. The presence of similar craters from bubble touch down at these locations would be a massive coincidence…”
“Q. If we go back then please to … your reference to "considerable correlation in size, appearance and position", as far as the crater at the dent is concerned we agree that the −− it was of at most a radius of 2 metres; correct? A. Yes, my Lady. Q. And 20 centimetres deep; correct? A. Yes. Q. The crater at the site of the leak on Nord Stream 2 is 3.4 metres across; correct? A. Yes. Q. And deeper, isn't it? A. Yes, it is. Q. 1.2 metres deep; yes? A. Yes, my Lady. Q. So not just a bit deeper, but six times as deep? A. Yes, my Lady. Q. There isn't a considerable correlation, is there, in the size of the cratering? A. Perhaps not significant correlation, my Lady, but a correlation regardless.”
“At its lowest, this is a little problematic”
“Q. …If we go a stage further and we look at the specific attack on the Nord Stream pipelines in September 2022, we enter a realm in which we have a variety of more troublesome sources, do you agree, including things like anonymous sources, internet leaks, journalists, speculations and so forth? A. Yes, although I would stress that those sources were also available for everything before Nord Stream. It's simply that they are perhaps of more salience in the current case because of the want of hard substantive fact that tends to wash away much of what is otherwise −− might be seen as frivolous or unhelpful or sometimes insane.”
“A. They may have planned to do it. What they want to do maybe in reality just didn't happen because the situation changed when they were on board.”
“…where the evidence is thin and incomplete the right conclusion may be that even the “most likely” of the explanations that seem plausible may well not satisfy the test of being more likely than not.”
“In my view there are three reasons why it is inappropriate to apply the dictum of Mr. Sherlock Holmes, to which I have just referred, to the process of fact-finding which a judge of first instance has to perform at the conclusion of a case of the kind here concerned. The first reason is one which I have already sought to emphasise as being of great importance, namely, that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take. The second reason is that the dictum can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated. That state of affairs does not exist in the present case: to take but one example, the ship sank in such deep water that a diver's examination of the nature of the aperture, which might well have thrown light on its cause, could not be carried out. The third reason is that the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds that a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not. If such a judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden. In my opinion Bingham J. adopted an erroneous approach to this case by regarding himself as compelled to choose between two theories, both of which he regarded as extremely improbable, or one of which he regarded as extremely improbable and the other of which he regarded as virtually impossible. He should have borne in mind, and considered carefully in his judgment, the third alternative which was open to him, namely, that the evidence left him in doubt as to the cause of the aperture in the ship's hull, and that, in these circumstances, the shipowners had failed to discharge the burden of proof which was on them. … The shipowners failed to establish that the ship was seaworthy, and they only put forward an extremely improbable cause of her loss. In these circumstances the judge should have found that the true cause of the loss was in doubt, and that the shipowners had failed to discharge the burden of proof which was on them.”
“Having regard to the way in which Bingham J. expressed the view that he was compelled to choose between the shipowners' submarine theory on the one hand and underwriters' wear and tear theory on the other, and having regard further to the fact that, when he neared the point of decision in his judgment, he did not discuss or consider the third possibility which was open to him, of simply finding the shipowners' case not proved, I am driven, reluctantly but inescapably, to the conclusion that on this occasion even Homer nodded. ... In my opinion the only inference which could justifiably be drawn from the primary facts found by Bingham J. was that the true reason of the ship's loss was in doubt, and it follows that I consider that neither Bingham J. nor the Court of Appeal were justified in drawing the inference that there had been a loss by perils of the sea, whether in the form of collision with a submerged submarine or any other form.”
“As regards the shipowners' submarine theory, Bingham J. stated in terms that he regarded it as extremely improbable, a view with which I think it unlikely that any of your Lordships will quarrel. As regards underwriters' wear and tear theory, it was contended by counsel for the shipowners that Bingham J. had ruled it out as impossible. The language used by him in different places is, however, ambivalent, and I think that it would be more accurate to say that he regarded the wear and tear theory not as impossible, but as one in respect of which any mechanism by which it could have operated was in doubt.”
“These two appeals were heard together because they raise an issue as to the approach the judge was entitled to take to the determination of proof of causation where alternative mechanisms of causation were put before the court. In each case the sole issue before the court was whether the respondent to the appeal who had suffered the damage could prove on a balance of probabilities that a defect had caused the damage sustained; each appellant contended that the judge had adopted a train of reasoning which the House of Lords made clear in The Popi M [1985] 1 W.L.R. 948 was impermissible.”
“…The Popi M was a very unusual case and as these two appeals demonstrate, the difficulties identified in that case will not normally arise. In the vast majority of cases where the judge has before him the issue of causation of a particular event, the parties will put before the judges two or more competing explanations as to how the event occurred, which though they may be uncommon, are not improbable. In such cases, it is, as was accepted before us by the appellants, a permissible and logical train of reasoning for a judge, having eliminated all of the causes of the loss but one, to ask himself whether, on the balance of probabilities, that one cause was the cause of the event. What is impermissible is for a judge to conclude in the case of a series of improbable causes that the least improbable or least unlikely is nonetheless the cause of the event; such cases are those where there may be very real uncertainty about the relevant factual background (as where a vessel was at the bottom of the sea) or the evidence might be highly unsatisfactory. In that type of case the process of elimination can result in arriving at the least improbable cause and not the probable cause.”
“This was a case where there were only two possible causes—either Mr Ide lost control and the handlebar fractured as suggested by Dr Chinn or it was defective. No other cause was suggested. Neither was improbable. This was not a case which raised the difficulties identified in The Popi M. Moreover as this was a claim under the Consumer Protection Act, it was, in my view, unnecessary to ascertain the cause of the defect. The issue was simply was the fall caused on the basis of Dr Chinn’s theory or was there a defect. Dr Chinn’s theory was rejected as most unlikely to be right. The judge had found that the bicycle had been regularly maintained and there was no suggestion of misuse or damage; the judge was entitled to infer, as the handlebar had failed in normal use for a bike of this type, that it was defective within the meaning of the Act. This was not a process of reasoning that led the judge to conclude that the defect was the cause because it was the least improbable of the two; once the other cause had been eliminated, all the evidence pointed to a defect in the handlebar. The judge was entitled to conclude that the defect was on the evidence the probable cause of the loss of control of the bike and the fall.”
“…First of all it seems to me that the judge was correct in concluding that arson was “unlikely in the extreme”
“The basis of the Defendants’ case is that they can point to explosion damage in the vicinity of the Dent and then suppose that any other damage in that general area that in any conceivable way could be the result of an explosion probably is. But that rests on faulty reasoning. Explosion damage is an inherently unlikely cause of damage to a pipeline. The Dent does not closely resemble the known explosions—the truly striking thing about it, compared to them, is how relatively slight the damage to the pipe and the disturbance of the seabed is. There are massive unknowns and uncertainty. The correct conclusion is that although it is not impossible that the Dent is the result of a failed attack, it cannot be said that it is more likely than not that it was so caused. The correct conclusion is that its cause is unknown.”
“In short, the Defendants cannot satisfy the Court on the balance of probabilities on a case which depends on the wholesale abandonment of their own evidence, and partial approval of the evidence of Professor Rigby, which itself is not expressed on a ‘more likely than not’ basis. The exercise carried out by the Defendants’ experts has not been one of objective analysis, but of credulous theory-building: a search simply for scraps of evidence in other people’s work which might support the explosive theory. It completely lacks a coherent and scientifically rigorous account of how a charge, placed on the top of the pipeline, of a size consistent with what those experts regard as operationally plausible, would have produced the Dent.”
“finding a reliable estimate of the force (or range of forces) required to produce the Dent without puncturing the pipe, considering the position that charge would need to be in to do that; explaining how a charge would have ended up on detonation at that position on detonation; and explaining how the resulting scenario is consistent with a coherent and plausible view of how a sabotage operation would be carried out.”
“Q. …Are you suggesting that there is any impossibility in the science in the idea that a 5-kilogram RDX charge exploded somewhere within 1 metre of the pipeline, causing the dent and also creating the crater? A. No, I am not disputing that, my Lady, that matches the evidence that I have provided.”
“…the dent could have been caused following the detonation of an explosive device that had fallen from its original position (i.e. from impact of the projectile/slug from a shaped charge).”
“…the dent was caused by an explosive charge laid and detonated as part of the same coordinated attack that caused the ruptures on the NS1 and NS2 pipelines, which likely fell from its original placement point at the 12 o’clock position on the pipeline and failed to rupture the pipeline.”
“The question for the court is, we know there's a dent, at the location it's at, with the dimensions it has. Is it more likely than not that that was caused by an explosive charge?”
“It is beyond my expertise to comment on the likelihood of what was the cause of such an impact.”