“… the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”
“Don’t tell anybody but I used ou/Nm 3, that means that the 1,500 is actually 1,500 ou/Nm 3 jejeje …” 23.2 Indicating that his instinct was not to be honest if pulled up on the point, Mr Faraldo added: “Hope yes, let’s try that they don’t realise, in any case if they pick it … we can just say that was a mistake and include to ou/m 3” 23.3 In fact, Mr Faraldo later concluded that the use of Nm 3 did not favour UBB. On realising this he wrote internally: “Fuck, the stupid is clearly me, it is worse for us using the ou/Nm 3, so we need to go back to Alex, I’ll do it?? Or shall we tell him that someone doing a prove (sic) reading spoted (sic) it (to avoid probs??)” 23.4 In cross-examination, Mr Faraldo simply described his conduct on this issue as “cheeky.”
“That leads us to believe the risk of the 6 week process versus the 7 week, is minimum or non-existing (sic) …” 24.2 Mr Faraldo then forwarded his email to Juan Hernando and Javier Lampaya. His covering email referred in Spanish to it being “today’s motorbike selling.”
“There you go …. At the limit with the 6 week process”
“Gooooaaaaaal!!!! Little Peter motorbike seller … top scorer!!!!”
“It was seen … this was clear I believe I also had the privilege, along with Lampaya, of seeing you really fuck Alex, from afar. Either I am very much mistaken, or the same instant that Alex sucked it all up, we were looking on from afar. You could sense it in the air.”
“You don’t need a super bullshitter to tell a judge that we gave them the composition, and that [Taim Weser] as a technological expert, formulated its own density hypothesis (it’s true that we validated it at the time, but okay, if we send a British person, they’ll surely cope with it).” 25.3 On13 August 2015 , Mr Faraldo forwarded email correspondence about the QSRF Line to Messrs Hernando and Lampaya. In doing so, he identified three “bullshitting steps.”
“You are a genie. You have them where we need them.”
“I’m a numbers person, so I work with Excel and drawings. So for me, that kind of information is sufficient, when you present something in a drawing it is clear enough. So I have referred a lot of time to the ‘bullshit’ part of it, producing documents and papers and reports or like the presentational part of something that to me is already clear when you have the data itself.”
“ECC is still convinced that even with the SRF, the density did not go beyond 0.37t/m 3. Bullshitting against this is very hard.”
“I told them that we are finalising the details, but don’t think I’m so good lying face to face”
“It has become clear over the months that our JV Partner choose what and when they share information with Balfour Beatty. And, they are not concerned about being challenged on misleading or indeed hiding facts from Balfour Beatty.”
“Experts must provide opinions that are independent, regardless of the pressures of litigation. A useful test of ‘independence’ is that the expert would express the same opinion if given the same instructions by another party. Experts should not take it upon themselves to promote the point of view of the party instructing them or engage in the role of advocates or mediators.”
“1. Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation … 2. An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise … An expert witness … should never assume the role of an advocate. 3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider facts which could detract from his concluded opinion …”
“Expert evidence comes in many forms in relation to many different types of case. It is always desirable that an expert should have no actual or apparent interest in the outcome of the proceedings in which he gives evidence, but such disinterest is not automatically a precondition to the admissibility of his evidence. Where an expert has an interest of one kind or another in the outcome of the case, this fact should be made known to the court as soon as possible. The question of whether the proposed expert should be permitted to give evidence should then be determined in the course of case management. In considering that question the judge will have to weigh the alternative choices open if the expert’s evidence is excluded, having regard to the overriding objective of the Civil Procedure Rules.”
“We consider that you may be responsible for defective design checking and or design validation at the facility and in part, responsible for the delays or remedial improvements necessary thereto.”
“I have discussed with John the value of his, and Fichtner’s, experience and views on the equivalency of LOI and BMc in determining BMW reduction, contrasting the merits of LOI with the demerits of BMc, and values comparator and alternative UK plants are managing to achieve with the same input waste streams.”
“I don’t know if Mark spoke to you about this but [Balfour Beatty] told us this morning that they had contacted Fichtner and that John Weatherby was apparently willing to do down BMc more than ORA and Motts have to date. If true, then we’re going to engage him and get him to add his views to the report.”
“Lastly I would like some sort of statement from UBB regarding your claim letter. Whilst I understand this came from UBB EPC, not UBB SPV, we have had no further information from UBB since it was issued months ago. The letter itself was rather peremptory considering we considered we have a good relationship with you, even though I suspect the letter itself was dictated by your insurers. Notwithstanding this, if you want to use us to support you further, I would like the letter to be withdrawn, or at least a clear explanation of the current standing of the letter.”
“Essex has improved its recycling rate each year, but we all need to do more. Too much waste is still ending up in landfill sites, so valuable resources are lost. This needs to change. Sending untreated waste to landfill is not a sustainable way of managing waste. This has been recognised in European and national law which now require local authorities to reduce the amount of biodegradable waste that they dispose of in landfill sites. The County Council has therefore been set challenging landfill diversion targets by Government and all Essex authorities have local recycling targets to meet.”
“The MBT technologies have the potential to extract dry recyclables and/or soil improvers and could produce a solid recovered fuel (SRF) from which energy can be recovered. The biomass component of SRF is typically in excess of 50%. This is a valuable source of renewable energy and could be harnessed. Using SRF in an energy plant avoids the production of methane that would otherwise occur in landfill and the associated effects on the atmosphere where methane escapes.”
“The authority understood that the project would carry a financial cost, but considered that the environmental value of the project in meeting the objectives of the Waste Strategy was sufficient to justify the additional cost. In particular, the benefits of the project identified by the authority included its alignment with the objectives of the Waste Strategy, its significant contribution towards mitigating the potential effects of climate change, the maximisation of useful potential outputs such as high quality composts and Solid Recovered Fuels, reduced exposure to landfill tax and certainty of compliance with the LATS regime.”
“Given the variability of waste compositional data, Bidders should note that the composition stated at Appendix 11 is not guaranteed by the Authority and should not be relied upon for purposes other than the ISOS evaluation. Bidders will need to use their own judgment/assessment of the Contract Waste composition from the data made available by the Authority.”
“The Contractor shall or shall procure that the Construction Sub-Contractor (and its sub-contractors and/or consultants) shall carry out the design (including the preparation of Design Data) and the construction, completion, commissioning and testing of the Works so that: 13.1.1 the Facility shall achieve the Readiness Date on or before the Planned Readiness Date; 13.1.2 the Facility shall achieve Service Commencement on or before the Planned Services Commencement Date; 13.1.3 the Works fully comply with and meet all the requirements of this Contract, the Works Requirements, the Commissioning Requirements, the Works Method Statements, the Construction Programme, Good Industry Practice, Guidance, all Consents and all applicable Legislation ...”
“… the Authority does not give any warranty or undertaking as to the relevance, completeness, accuracy or fitness for any purpose of any of the Disclosed Data.” 84.2 Clause 5.6 added: “… neither the Authority nor any of its agents or employees shall be liable to the Contractor in contract, tort (including negligence or breach of statutory duty), statute or otherwise as a result of: 5.6.1 any inaccuracy, omission, unfitness for any purpose or inadequacy of any kind whatsoever in the Disclosed Data; or 5.6.2 any failure to make available to the Contractor any materials, documents, drawings, plans or other information relating to the Project.” 84.3 Clause 6 put the matter beyond doubt: “6.1 … the Contractor shall be deemed to have: … 6.1.2 gathered all information necessary to perform its obligations under this Contract and other obligations assumed including: … (b) current and projected tonnages, trends and composition of Contract Waste; … 6.1.2 gathered all information necessary to perform its obligations under this Contract and other obligations assumed including: … (b) current and projected tonnages, trends and composition of Contract Waste; … 6.2 … the Contractor shall not in any way be relieved from any obligation under this Contract nor shall it be entitled to claim against the Authority on grounds that any information, whether obtained from the Authority or otherwise (including information made available by the Authority), is incorrect or insufficient and shall make its own enquiries as to the accuracy and adequacy of that information.”
“When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to ‘what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean’, to quote Lord Hoffmann in Chartbrook Ltd v. Persimmon Homes Ltd [2009] A.C. 1101, para. 14. And it does so by focussing on the meaning of the relevant words …. in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the lease, (iii) the overall purpose of the clause and the lease, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party’s intentions.”
“In the event of any inconsistency between the provisions of the body of this Contract and the Schedules, the main body of this Contract shall take precedence. In the event of any inconsistency between Schedule 2 (Authority’s Requirements) and Schedule 3 (Contractor’s Proposals), Schedule 2 (Authority’s Requirements) shall take precedence.”
“(1) The Authority and UBB will co-operate with each other in good faith in order to seek to further the commercial purpose of the Contract over the period of its life; (2) The Authority must exercise any discretion granted to it under the Contract in good faith and not arbitrarily or capriciously; (3) The Authority and UBB will co-operate during any contractual review procedures (including, but not limited to, the Options Review process); (4) Proposed changes to the Facility, method statements and Performance Requirements will be considered by the Authority in good faith and consent to any such changes will not be unreasonably refused; (5) The Authority will comply with all relevant laws and regulations (including, for the avoidance of doubt, legislation relating to the disposal of waste); and (6) The Authority will not obstruct and/or prevent UBB’s performance of its contractual obligations.”
“… the Authority acted unreasonably, capriciously and/or in breach of the duty to co-operate in good faith and/or the duty not to obstruct contractual performance in refusing to consent to the [QSRF Line].” 91.2 At paragraph 67A: “The Authority’s refusal to amend MS06, or the parts of MS06 related to the QSRF Line, in its letter of11 December 2015 or thereafter having approved the QSRF Line is therefore also capricious, irrational, in breach of the duty to cooperate in good faith and/or a decision made for an improper purpose (namely to allow the Authority to terminate the Contract).”
“a different and altogether more ambitious undertaking: the interpolation of terms to deal with matters for which, ex hypothesi, the parties themselves have made no provision.”
“for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that ‘it goes without saying’; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.”
“The question of whether a term should be implied, and if so what, almost inevitably arises after a crisis has been reached in the performance of the contract. So the court comes to the task of implication with the benefit of hindsight, and it is tempting for the court then to fashion a term which will reflect the merits of the situation as they then appear. Tempting, but wrong … … it is not enough to show that had the parties foreseen the eventuality which in fact occurred they would have wished to make provision for it, unless it can also be shown either that there was only one contractual solution or that one of several possible solutions would without doubt have been preferred.”
“First, in Equitable Life Assurance Society v. Hyman [2002] 1 A.C. 408, 459, Lord Steyn rightly observed that the implication of a term was ‘not critically dependent on proof of an actual intention of the parties’ when negotiating the contract. If one approaches the question by reference to what the parties would have agreed, one is not strictly concerned with the hypothetical answer of the actual parties, but with that of notional reasonable people in the position of the parties at the time at which they were contracting. Secondly, a term should not be implied into a detailed commercial contract merely because it appears fair or merely because one considers that the parties would have agreed it if it had been suggested to them. Those are necessary but not sufficient grounds for including a term. However, and thirdly, it is questionable whether Lord Simon’s first requirement, reasonableness and equitableness, will usually, if ever, add anything: if a term satisfies the other requirements, it is hard to think that it would not be reasonable and equitable. Fourthly, …. although Lord Simon’s requirements are otherwise cumulative, I would accept that business necessity and obviousness, his second and third requirements, can be alternatives in the sense that only one of them needs to be satisfied, although I suspect that in practice it would be a rare case where only one of those two requirements would be satisfied. Fifthly, if one approaches the issue by reference to the officious bystander, it is ‘vital to formulate the question to be posed by [him] with the utmost care’, to quote from Lewison, The Interpretation of Contracts … Sixthly, necessity for business efficacy involves a value judgment. It is rightly common ground on this appeal that the test is not one of ‘absolute necessity’, not least because the necessity is judged by reference to business efficacy. It may well be that a more helpful way of putting Lord Simon’s second requirement is, as suggested by Lord Sumption JSC in argument, that a term can only be implied if, without the term, the contract would lack commercial or practical coherence.”
“Contractual terms in which one party to the contract is given the power to exercise a discretion, or to form an opinion as to relevant facts, are extremely common. It is not for the courts to re-write the parties’ bargain for them, still less to substitute themselves for the contractually agreed decision-maker. Nevertheless, the party who is charged with making decisions which affect the rights of both parties to the contract has a clear conflict of interest … The courts have therefore sought to ensure that such contractual powers are not abused. They have done so by implying a term as to the manner in which such powers may be exercised, a term which may vary according to the terms of the contract and the context in which the decision-making power is given.”
“The purpose of a contractual right to terminate is to give the party on whom that right is conferred the power to bring the contract to an end. It is a right to bring an end to the parties’ shared endeavour. In my judgment, it is unlikely that the hypothetical reasonable commercial man or woman would expect the party exercising that right to be obliged to consult anyone’s interests but its own.”
“While it seems unlikely that any duty to disclose information in performance of the contract would be implied where the contract involves a simple exchange, many contracts do not fit this model and involve a longer term relationship between the parties which they make a substantial commitment. Such ‘relational’ contracts, as they are sometimes called, may require a high degree of communication, co-operation and predictable performance based on mutual trust and confidence and involve expectations of loyalty which are not legislated for in the express terms of the contract but are implicit in the parties’ understanding and necessary to give business efficacy to the arrangements. Examples of such relational contracts might include some joint venture agreements, franchise agreements and long-term distributorship agreements.”
“… there is no general doctrine of ‘good faith’ in English contract law, although a duty of good faith is implied by law as an incident of certain categories of contract”
“There is in my view a real danger that if a general principle of good faith were established it would be invoked as often to undermine as to support the terms in which the parties have reached agreement.”
“[In Yam Seng], I drew attention to a category of contract in which the parties are committed to collaborating with each other, typically on a long-term basis, in ways which respect the spirit and objectives of their venture but which they have not tried to specify, and which it may be impossible to specify, exhaustively in a written contract. Such ‘relational’ contracts involve trust and confidence but of a different kind from that involved in fiduciary relationships. The trust is not in the loyal subordination of one party of its own interests to those of another. It is trust that the other party will act with integrity and in a spirit of co-operation. The legitimate expectations which the law should protect in relationships of this kind are embodied in the normative standard of good faith.”
“725. I consider the following characteristics are relevant as to whether a contract is a relational one or not: 1. There must be no specific express terms in the contract that prevents a duty of good faith being implied into the contract. 2. The contract will be a long-term one, with the mutual intention of the parties being that there will be a long-term relationship. 3. The parties must intend that their respective roles be performed with integrity, and with fidelity to their bargain. 4. The parties will be committed to collaborating with one another in the performance of the contract. 5. The spirits and objectives of their venture may not be capable of being expressed exhaustively in a written contract. 6. They will each repose trust and confidence in one another, but of a different kind to that involved in fiduciary relationships. 7. The contract in question will involve a high degree of communication, cooperation and predictable performance based on mutual trust and confidence, and expectations of loyalty. 8. There may be a degree of significant investment by one party (or both) in the venture. This significant investment may be, in some cases, more accurately described as substantial financial commitment. 9. Exclusivity of the relationship may also be present.” 726. I hesitate to describe this as an exhaustive list. No single one of the above list is determinative, with the exception of the first one. This is because if the express terms prevent the implication of a duty of good faith, then that will be the end of the matter. However, many of these characteristics will be found to be present where a contract is a relational one. In other cases on entirely different facts, it may be that there are other features which I have not identified above which are relevant to those cases.”
“Without prejudice to any entitlement of the Contractor: (a) to specific performance of any obligation under this Contract; or (b) to injunctive relief; the Contractor’s sole remedy in relation to matters for which an express right or remedy is stated in this Contract shall be that right or remedy and the Contractor shall have no additional right or remedy arising by common law, in equity, by statute or otherwise.”
“Except where expressly provided in this Contract, this Contract constitutes the entire agreement between the Parties in connection with its subject matter and supersedes all prior representations, communications, negotiations and understandings concerning the subject matter of this Contract.”
“The purpose of an entire agreement clause is to preclude a party to a written agreement from threshing through the undergrowth and finding in the course of negotiations some (chance) remark or statement (often long forgotten or difficult to recall or explain) on which to found a claim such as the present to the existence of a collateral warranty. The entire agreement clause obviates the occasion for any such search and the peril to the contracting parties posed by the need which may arise in its absence to conduct such a search. For such a clause constitutes a binding agreement between the parties that the full contractual terms are to be found in the document containing the clause and not elsewhere, and that accordingly any promises or assurances made in the course of negotiations (which in the absence of such a clause might have effect as a collateral warranty) shall have no contractual force, save insofar as they are reflected and given effect in that document. The operation of the clause is not to render evidence of the collateral warranty inadmissible in evidence … It is to denude what would otherwise constitute a collateral warranty of legal effect.”
“A term may be implied into a contract notwithstanding the existence of an entire agreement clause.”
“It is unnecessary and perhaps impossible to attempt to spell out an exhaustive description of what this obligation involved. There is a considerable body of Australian authority on the subject which has informed the interpretation by English courts of express contractual duties of good faith: see Berkeley Community Villages Ltd v. Pullen[2007] EWHC 1330 , at [91]-[97]; CPC Group Ltd v. Qatari Diar Real Estate Investment Co.[2010] EWHC 1535 (Ch) , at [240]-[246]; Gold Group Properties Ltd v. BDW Trading Ltd[2010] EWHC 1632 (TCC) , at [89]-[91]. In Paciocco v. Australia and New Zealand Banking Group Ltd [2015] FCAFC 50, at [288], in the Federal Court of Australia, Allsop CJ summarised the usual content of the obligation of good faith as an obligation to act honestly and with fidelity to the bargain; an obligation not to act dishonestly and not to act to undermine the bargain entered or the substance of the contractual benefit bargained for; and an obligation to act reasonably and with fair dealing having regard to the interests of the parties (which will, inevitably, at times conflict) and to the provisions, aims and purposes of the contract, objectively ascertained. In my view, this summary is also consistent with the English case law as it has so far developed, with the caveat that the obligation of fair dealing is not a demanding one and does no more than require a party to refrain from conduct which in the relevant context would be regarded as commercially unacceptable by reasonable and honest people: see Bristol Groundschool Ltd v. Intelligent Data Capture Ltd[2014] EWHC 2145 (Ch) , at [295] …; and Astor Management AG v. Atalaya Mining plc[2017] EWHC 425 (Comm) , at [98]. In the Paciocco case (at [290]) Allsop CJ also made the important point that: ‘The standard of fair dealing or reasonableness that is to be expected in any given case must recognise the nature of the contract or relationship, the different interests of the parties and the lack of necessity for parties to subordinate their own interests to those of the counterparty. That a normative standard is introduced by good faith is clear. It will, however, not call for the same acts from all contracting parties in all cases. The legal norm should not be confused with the factual question of its satisfaction. The contractual and factual context (including the nature of the contract or contextual relationship) is vital to understand what, in any case, is required to be done or not done to satisfy the normative standard.’”
“During the first six (6) weeks of this test period, a minimum of the predetermined flow rate (as specified in Table 6.6b above) of Treatable Contract Waste must be fed into the pre-processing module, feeding the bio-stabilisation line operating at maximum capacity, in order to pass this Acceptance Test.”
“The percentage mass loss of Treatable Contract Waste will be determined by the percentage loss in mass that occurs between the Treatable Contract Waste entering the process and the output mass of SOM from the Facility, as measured by the weighbridge records for inputs to and outputs from the Facility. The Contractor will measure Facility performance in terms of the reduction in mass of the Treatable Contract Waste (TCW) … Percentage reduction in mass of Treatable Contact Waste = 𝑇𝐶𝑊𝑆𝑂𝑀 100 – ⌊ x 100 ⌋ 𝑇𝐶𝑊𝑇𝑜𝑡 … The mass loss will be calculated by taking the tonnage of Treatable Contract Waste SOM output (TCWSOM) and dividing this value by the tonnage of Treatable Contract Waste input (TCWTot). this is then multiplied by one hundred (100) and subtracted from one hundred (100) (as shown in the formula above) in order to obtain the percentage reduction in mass.”
“The SRF Mode performance will be confirmed once all Treatment Outputs sampled have demonstrated compliance with the SRF Specification …”
“The Contractor will use the BMc anaerobic biodegradability test as the means to determine the BMW reduction percentage and the Facility Af value in the first instance. This test takes approximately one hundred (100) days to run. The subject test samples will also be subjected to the DR4 aerobic biodegradability test to be carried out by the Contractor in order to provide a more rapid means of assessing performance. This test runs over four (4) days. A Site-specific correlation between the two (2) tests will be obtained from Site-specific data which will be collected during ‘hot’ Commissioning. The DR4 test will be used as a surrogate test as soon as a suitable Site-specific correlation has been obtained.”
“The percentage BMW reduction of Treatable Contract Waste will be calculated … based on the ratio of total biogas produced from the input Treatable Contract Waste (BiogasIN) to the total biogas produced from the outputs (BiogasOUT), in accordance with the following formula: % BMW reduction of Treatable Contact Waste = 𝐵𝑖𝑜𝑔𝑎𝑠𝑂𝑈𝑇 100 – ⌊ x 100 ⌋ 𝐵𝑖𝑜𝑔𝑎𝑠𝐼𝑁 Both BiogasOUT and BiogasIN are measured in m 3 units and are calculated by multiplying the total tonnage of fresh waste inputs and outputs (tonnes) by the biogas produced per tonne from each stream, measured in m 3/t … BiogasOUT is the total biogas from all outputs disposed of by the Authority. This is the sum of total biogas from SOM. For the purposes of the BMW reduction percentage, this does not include SRF which meets the SRF Specification and is marketed as SRF. This can be expressed as the following formula: BiogasOUT = BiogasSOM Where: BiogasSOM = TSOM x BMcSOM x %BMWSOM x %DMSOM x %LOISOM The total biogas produced for the output (BiogasSOM) is calculated using: - The tonnage of the output which is disposed of by the Authority (TSOM), including any SRF which meets the SRF Specification but is not marketed as SRF and must be disposed of by the Authority - The BMc test result (measured in litres biogas / kg LOI of the BMW containing component) (BMcSOM) - The percentage of the output which contains BMW (%BMWSOM) - The percentage of the BMW containing component which is dry matter (%DMSOM) - The percentage of the dry matter in the BMW containing component which is lost on ignition (%LOISOM) Please note that where no tonnage is disposed of by the Authority for a particular output, a zero will be inserted into the appropriate part of the relevant formula.”
“The SRF Mode performance will be confirmed once the Acceptance Test 5 (SRF Quality) described below in section 6.6.10 below has been achieved.”
“(a) for reuse without processing or treatment (other than repairing or refurbishing); (b) for reprocessing in a production process for the original purposes or for other purposes, but excluding energy recovery (but including materials within a residual waste stream that are subsequently separated out and sent for recycling); (c) for composting to result in a final product that can be used as a soil improver, as an ingredient in growing media, or blended to produce a top soil which will meet British Standard BSI PAS 100 and 110 and BS3882 incorporating amendment 1; (d) for sending to a process of anaerobic digestion which results either directly or after subsequent aerobic treatment in a final product that has been sanitised and can be used as a soil improver, as an ingredient in growing media or blended to produce a top soil that will meet British Standard BSI PAS 100 and 110 and BS3882 incorporating amendment 1.”
“Recyclate performance will be monitored through the weighbridge measurements of the quantity of each Recyclate stream transported from the Site for recycling by selected reprocessors (selection procedure set out in detail in section 9.3 of MS09) … The following equation will be used for the purpose of calculating the Recyclate percentage of the Treatable Contract Waste: 135. Recyclate percentage … = x 100 136. Where: 137. TCWTot = Total mass of all Treatable Contract Waste 138. RecyclateTot = Total mass of all recyclate streams transported from the site for recycling by selected reprocessors.”
“… it is now well settled that it is not legitimate to use as an aid in the construction of the contract anything which the parties said or did after it was made. Otherwise one might have a result that a contract meant one thing the day it was signed, but by reason of subsequent events meant something different a month or a year later.”
“The Contractor shall warrant that the Works shall operate to the standards set out in the Performance Requirements. Such warranty shall endure for the Contract Period.” 142.2 PR1.1.38 added: “The Contractor shall design a Facility which is able to comply with these Performance Requirements in both Bio-Stabilisation Mode and SRF Mode. The Facility shall be designed with the capability to switch between Bio-Stabilisation Mode and SRF Mode.”
“The Testing and Commissioning Plan shall include a commissioning programme that demonstrates performance to this Schedule 2 and Contractor’s Proposals in both Bio-Stabilisation Mode and SRF Mode, comprising of but not be limited to the Contractor’s proposals for: a) cold commissioning of individual Equipment and Facility; b) the process to achieve the Readiness Test Certificate; c) hot commissioning of the Equipment and the Facility including the incremental acceptance, processing and treatment of Contract Waste; and d) the Readiness Tests and Acceptance Tests.” 143.2 PR2.7 required that UBB should “carry out commissioning of the Equipment and the Facility to demonstrate that their design, construction, installation and plant performance … are capable of meeting the Performance Requirements in PR3.”
“The Facility has been designed to make use of the same process when operating in either Bio-Stabilisation Mode or SRF Mode. Both modes will produce the same output, the Stabilised Output Material (SOM) which will be fully compliant with the SRF Specification.” 144.2Paragraph 2.1 of Method Statement 2 added: “The Facility process is the same for both Bio-Stabilisation Mode and SRF Modes and therefore the Facility will be capable of switching into and out of each operational mode instantaneously. The Facility process will produce a single Treatment Output, as set out in the Authority’s Requirements, common to both operational modes. The single Treatment Output will satisfy the Authority’s BMW reduction requirements (when operating in Bio-Stabilisation Mode), while also satisfying the SRF specification requirements when operating in partial or full SRF Mode, as set out in Appendix B of the Authority’s Requirements.”
“The Facility will undergo Acceptance Tests for both Bio-Stabilisation Mode and SRF Mode simultaneously.”
“1. This Directive lays down measures to protect the environment and human health by preventing or reducing the adverse impacts of the generation and management of waste and by reducing overall impacts of resource use and improving the efficiency of such use … 4(1) The following waste hierarchy shall apply as a priority order in waste prevention and management legislation and policy: (a) prevention; (b) preparing for re-use; (c) recycling; (d) other recovery, e.g. energy recovery; (e) disposal. 4(2) When applying the waste hierarchy referred to in paragraph (1), Member States shall take measures to encourage the options that deliver the best overall environmental outcome. This may require specific waste streams departing from the hierarchy where this is justified by life-cycle thinking on the overall impacts of the generation and management of such waste.” 4(1) The following waste hierarchy shall apply as a priority order in waste prevention and management legislation and policy: (a) prevention; (b) preparing for re-use; (c) recycling; (d) other recovery, e.g. energy recovery; (e) disposal. 4(2) When applying the waste hierarchy referred to in paragraph (1), Member States shall take measures to encourage the options that deliver the best overall environmental outcome. This may require specific waste streams departing from the hierarchy where this is justified by life-cycle thinking on the overall impacts of the generation and management of such waste.”
“(2) But an establishment or undertaking may depart from the priority order in paragraph (1) so as to achieve the best overall environmental outcome where this is justified by life-cycle thinking on the overall impacts of the generation and management of the waste. (3) When considering the overall impacts mentioned in paragraph (2), the following considerations must be taken into account - (a) the general environmental protection principles of precaution and sustainability; (b) technical feasibility and economic viability; (c) protection of resources; (d) the overall environmental, human health, economic and social impacts.” (a) the general environmental protection principles of precaution and sustainability; (b) technical feasibility and economic viability; (c) protection of resources; (d) the overall environmental, human health, economic and social impacts.”
“71. The starting point must be the terms of Article 4 itself. Without doubt, it creates a hierarchy which must be applied ‘as a priority order in waste prevention and management legislation and policy’. Even when applying the hierarchy in this context, however, member states must take measures to encourage the options that deliver ‘the best overall environmental outcome’. In my judgment that is a clear recognition that a strict application of the hierarchy in all circumstances is not always justified. So, for example, a policy which dictates or encourages the expenditure of large sums of money solely on prevention – the top rung of the Waste Hierarchy – would not be a ‘necessary measure’ if it made no contribution to the best overall environmental outcome. Put another way, if the best overall environmental outcome would be achieved by a policy which spread the expenditure between prevention and a number of other measures then, in my judgment, the terms of Article 4 would be satisfied and there would be no breach by the body which adopted and applied such a policy. 72. I consider, too, that there is force in the argument … that if the Waste Hierarchy is always to be applied strictly in accordance with the descending order of priority set out in Article 4 one would never logically get beyond prevention unless and until it became clear and obvious that prevention could not be achieved in relation to a particular form of waste. In my judgment such an approach would be wholly impracticable. 73. It must also be remembered that Article 4 … must be interpreted in the context of the whole of the Directive. The purpose of the Directive is set out expressly in Article 1 ... It would be a very strange outcome if Article 4 was interpreted in such a restrictive way that on occasions its application had the opposite effect in practice to that intended by the Directive as articulated in Article 1. Indeed there is much to be said for the argument that ‘the result to be achieved’ by the Waste Directive is the result dictated by Article 1 and that the member states are free to choose the means by which that result is achieved, although, perhaps fortunately, this case can be resolved without determining the validity of that particular contention. 74. I am clear in my view, however, that Article 4 is to be interpreted flexibly. It cannot be the case that whatever the circumstances a breach of the Article occurs if the hierarchy is not applied strictly in accordance with the descending order of priorities. Further, and importantly in my judgment, it must be applied in a manner which is consistent with the context in which its application is being considered and consistently with the aim and scope of the Directive as set out in Article 1.”
“The Directive [and] the 2011 Regulations … make it clear that the hierarchy does not have to be followed slavishly.”
“We’ll really appreciate if you can provide a quick review of our estimations … (mainly in terms of size and mass losses) as we need to work quickly with the layouts so that the architects can start working with the final design concepts.”
“This is more than your estimation but considering the height of the stacked matter this should be OK”
“This is a very serious issue as we will not be in a position to start the Acceptance Tests until a solution to the density issue is found.”
“During the last period it has been established that the facility will never operate as intended. To process the waste at the density currently being achieved (which is now reported to be normal) at the biohalls, indicates the halls are approximately 50% undersized … Verbally David Silva has admitted to getting the original density assumption wrong and accepts that this has lead (sic) to a facility design that is incapable of achieving the required throughput.”
“Schliebs: If we need to forecast BMW diversion rates for a proposed facility and no actual data is available (BMc, LOI) – Is there any publicly available data from existing MBT facilities or guidance on BMW diversion rates that we could use to formulate a reasonable estimate? Environment Agency: Not to my knowledge. The problem is that most MBT facilities have different configurations and vastly different performances. The composition of waste input would also effect (sic) facility performance.”
“Good news from Weser … we can expect better values”
“The Council has asked us to provide a rationale for the 80% of BMW reduction, I have modified the file to justify this value, please see modifications in yellow (I have modified DM of the outputs non CLO, and increased AT4 outlets (sic) (more conservative assumption at this stage) in order to achieve the 80%), can you please check there is nothing strange and that we can justify it if they ask for further explanations.”
“As a result of the very effective Bio-Stabilisation process proposed, we are able to guarantee a BMW reduction of 84.2% in Bio-Stabilisation Mode.”
“If you look at the AT4 figures we can guarantee then we think that the figure you offered for BMW reduction is relatively conservative considering and bearing in mind that the composition of the fraction ‘BMW biodegradable/putrescible’ is not known in detail and the spread of the results of analysis afterward is sometimes more than 100%. Anyhow is there a special formula to calculate thin (sic) BMW reduction figure. I found only a lot of blabla information in the net.”
“The main reason for using AT4 is that no other data was available or provided by Urbaser. It is a simplified conversion and it’s not ideal, but it was the best we could do at the time. It was based on various descriptions of the test methods in literature (sorry I don’t have access to those references now). The AT4 and DR4 tests are a similar test where the sample is aerobically digested over 4 days and the amount of oxygen that is consumed by the microbes is measured over that period. There are some differences in the actual test setup, but the basic principle is similar. The main difference between the tests is that the AT4 test is a ‘static’ respiration test, i.e. there is no recirculation of air through the test chamber. The DR4 test is a ‘dynamic respiration’ test where air is continuously recirculated through the sample. However, on that basis, AT4 test would be expected to under-estimate the actual biodegradability of the sample relative to the DR4 test. For the final MBT outputs, this will result in a conservative estimate. I can’t remember if we also used the AT4 data for the raw waste?? If we did, then we might have also underestimated the biodegradability of the raw waste. The problem is that the AT4 is the standard test used in Continental Europe. Whereas the EA in the UK has decided to use DR4. Therefore, Urbaser and Taim Weser could only provide us with AT4 data, as all of their reference plants are in Europe. It was only meant to be used as a rough estimate, in the absence of any better data. Ideally, Urbaser should have undertaken some DR4 tests on their reference plants but I assume time restrictions will make that impossible.”
“It looks like they may well have guaranteed a rather racy BMW diversion performance – which it looks like it was based on untested and simplified assumptions largely from [Parsons Brinckerhoff] … and with limited or no real input from Urbaser or the technology sub-contractors.”
“Ultimately if we need to change our position or simply cannot deliver this guarantee then we must come clean and see what Essex want to do”
“1. 84% BMW reduction using the BMc metric is unattainable at the Basildon MBT because the process we have cannot deliver this high level of performance on the waste input composition we have. The process delivers biodegradation of readily biodegradable material, but not of the less readily biodegradable material – which would take longer than 6 or 7 weeks. The 84% was bid in error, reflecting a misunderstanding that the authority effectively required a Biohall performance value, and the value bid was derived from AT4 performance values being achieved across a number of European facilities – AT4 being the default European metric, and reference test used by the main European process plant manufacturers. This unattainable value is an issue for both UBB and the Authority … 3. 84% is a headline PFI performance value more often ascribed to BMW diversion from landfill, i.e. not BMW reduction per se, but 84% less BMW material going to landfill through a combination of sending some output material elsewhere, and reducing the BMW of the other output that does go to landfill …”
“In short, I do not consider it possible to assess whether the BMW reduction test can be passed or not based on the contractual BMc based method. If the test was adjusted to report the performance of the plant as it was intended to, if Band A waste was provided and if UBB improve operations by a number of means, I would expect the result to be close to the guarantee level, but it would be speculation to say whether it would be achieved or not.” 195.2 He added, at paragraph 6.71 of his second report: “I remain of the view expressed in my First Report that it is not possible to conclude that the Facility cannot achieve the BMW reduction guarantee using Band A waste under the Authority’s interpretation of this test because: - The BMc test method is returning results which are not realistic when compared to other measures of plant performance. - Whilst the BMW reduction target is based on Band A waste, the waste has not been in Band A and contains very little food waste, the main driver for the quick biodegradation process. Additionally, UBB could adopt further measures such as the diversion of the fines stream from the Refining section for use as CLO to increase the BMW reduction rate.”
“245. The historical performance data for the Facility indicates that it has been falling short of the required BMW reduction target by a very significant margin, typically achieving less than half of the reduction required to pass the BMW reduction Test. 246. In my opinion, the BMW reduction target was very ambitious from the outset. Based on UBB’s operation of the Facility, it is my opinion that, even if UBB optimised the performance of the biohalls, it could not achieve this target in order to pass the BMW reduction Test, given the inherent variability of the feedstock and the limited controllability and adjustability of the Taim Weser system.”
“7.33 UBB achieved the required Recycling Rate during weeks 1-6 of the QAT period, thereby demonstrating that the Facility is able to achieve the required Recycling Rate. This should not be open to question. Achieving a higher Recycling Rate is more an economic challenge than a technical one. More material can be removed from recycling by employing more hand pickers. More material can be sent to recyclers if UBB pays the recyclers to take the material. 7.34 I note that generally the Recycling Rate is lower than the Acceptance Test guarantee and this was the case during weeks 7-12 of the QAT. However, this was an operational choice of UBB. As UBB considered it had already demonstrated the required Recycling rate during weeks 1-6, there was no need to go to the extra expense of maintaining the Recycling rate. However, this was an economic decision rather than a technical shortcoming.”
“The Treatment Outputs generated during Bio-Stabilisation Mode can be separated into two (2) fractions: SOM<15mm and SOM>15mm … The SOM<15mm fraction, following separation, may be considered as Compost Like Output (‘CLO’). However, the Contractor is not guaranteeing any CLO as part of its Recyclate performance guarantee.”
“It is more difficult to estimate the impact of CLO on the BMW reduction rate as there are few measurements of the biogas potential of the CLO material. UBB has recently carried out some measurements in November and December 2018 on the >25 mm and < 25 mm fraction of the SRF as presented in Mr Faraldo’s spreadsheet. This data shows that the biogas potential in the fine fraction (339 litres/kg LOI) that would be used for CLO is slightly greater than that of the coarser fraction (330 litres/kg LOI). If it is assumed that the amount of SRF separated as CLO is 54.6%, as currently indicated by UBB’s recent measurements, I estimated the BMW reduction, calculated using the Authority’s interpretation, would be 61.1% (an increase from 32.3% reported in the QAT period). To do this, I have used the proportion of biogas measured in the SRF in November/December 18 and applied it to the QAT results, so I am mixing data from periods which is not precise. The assumptions and calculations behind these numbers are shown in Appendix A.”
“The main problem we have is that we can’t send all the waste to biohalls to a lack of space. The design density is 0.55 t/m3. Now we are getting 0.3 and hopefully we will increase it to 0.4. Masias is going to change the mesh in the secondary shredders to one with larger holes. This will increase the capacity of this equipment. In addition, we think the density could increase too. This change is not enough. So, we have to choose the kind of waste we are going to send directly to the refining area, like SRF, avoiding the bio-stabilization treatment. Obviously, we can’t send any fraction with organic waste. We want to send directly to the refining area bulky waste and fraction > 300 mm (trommel overflow) shredded. These fractions suppose 200 t per day. This way, depending on the percentage of collections, we will have to send to the biohalls 800 t per day, to fill one infeed. Now, we are filling the infeed with 550-600 t. We are going to do some tests to increase this capacity. In terms of volume, we are going send to the refining area low density fraction, so we expect to increase the density of the waste sent to the biohall. In summary, we have to send to bio-stabilization treatment less waste with a higher density. To achieve this, we must: – Change the mesh in the secondary shredders – Send fraction > 300mm to the bulky shredder – Send bulky shredder discharge to the refining area – Increase selections of plastics and paper”
“The Essex waste facility is currently not able to handle the waste tonnages required under the contract and if unresolved would result in failure to meet the Performance tests require[d] in order to achieve contractual Service Commencement. This situation is principally the result of an incorrect design assumption for the density of the waste received. This error has resulted in a number of elements of the plant being undersized in particular the volumes of the bio-halls. The reduced size of the biohalls means that the plant, as currently configured, will not be able to process the volume of waste anticipated and will not be able to pass the Performance Test demonstrating throughput of 1278Te in a single shift.”
“At today’s date we do not have a solution that enables the plant to meet the throughput performance required. The engineering studies produced are incomplete, do not thoroughly explore the issues concerned and it is unclear whether all the claims that underpin the proposals are credible, at the least they are not fully tested. It seems clear that the team as configured is struggling to cope with day to day issues and at the same time deal with a newly emerged work front which is resolving the issue of plant redesign. Based on the proposals seen to date we do not believe that sufficient rigour and resource is being applied to this extremely urgent and concerning issue.”
“Acceptance criteria – re-write required to represent what is deliverable rather than what is contracted – which in some cases is likely to be impossible.” 227.2 A Red Team report dated12 June 2015 concluded that it had no objective evidence to “provide confidence” that the facility would be able to meet the Recovery, BMW reduction or Recyclate tests at the contractual Throughput. It recommended a commercial strategy of renegotiating the Acceptance Tests and, in particular, a reduction in the Throughput Test and the deletion of the BMW reduction Test. It calculated that the net present value of “buying-down” the contract was as much as£77 million . Professional indemnity insurers were being put on notice and meanwhile UBB explored whether it in turn might have claims against its suppliers. 227.3 On10 July 2015 , UBB issued a “Nightmare Scenarios Paper” that concluded: “Should the current situation continue, the SPV could be terminated under the Project Agreement for contractor default. It is assumed in this paper that the situation is not rectifiable, there would be no retender, and senior lenders would neither step in nor procure the transfer of the contractor’s rights and liabilities to a suitable substitute contractor. A likely more attractive alternative to termination for contractor default would be to seek to negotiate, in good faith, more deliverable acceptance tests and performance guarantees with the authority. This exercise is in train, albeit despite the present lack of empirical data to establish revised operational levels. Critically, in tandem, dialogue and negotiation will need to be maintained with the funders who are disadvantaged by reductions in plant capacity and performance.” 227.4 An internal paper dated30 July 2015 recorded significant issues with both BMW reduction and Recovery: “The implications of the undersized biohalls and the resultant bypass requirement impact heavily on the BMW reduction … test making it virtually impossible to pass … The mass reduction percentage required in the biohalls resulting from biodegradation and moisture loss being measured against the tonnage of [treatable contract waste] entering the facility and as such becomes more difficult to achieve the greater the tonnage of treatable contract waste that bypasses the bio-halls and is not therefore exposed to the bio-degradation and drying processes that occur there.”
“I would like to check with you the modification we are studying with Masias for the fraction of the bulky waste shredder. As you know we have a lot of non-organic / low density material (such as foam form mattresses) that are not good for the biological process. With this solution (reversible conveyor) we could maintain the current process line (Shredder+Magnet+Biohalls) and have a new option (Shredder+Magnet+SRF).”
“Pedro presented a concept to allow non-bio bulky waste to be shredded for RDF without impacting on bio-stabilisation process. Meeting approved the concept and requested formal proposal.”
“As discussed as well we do not intend to use this option in the event HWRC contains biodegradable waste or potentially recyclable waste (black bag) that will be run through processing/biohall. We have several reason (sic) to do so, as biodegradable waste will improve our biological process, increase the density in the infeed area and help us to achieve the performance guarantees (specially Recovery and BMW reduction).”
“These improvements to the Facility would be performed at no cost to the Authority and would be completed prior to the commencement of the Acceptance Tests.”
“… the EPC contractor can confirm that we have not identified any risks arising from the changes that could impact the Authority.”
“(a) in the absolute discretion of the Authority in respect of matters which may or would in the reasonable opinion of the Authority have a detrimental effect on the Performance Guarantees or the Contractor’s ability to achieve the Performance Guarantee; or (b) in respect of matters not set out in (a) above …, through the Review Procedure.” 243.6 Clause 22.3.1 provides that the contractor is permitted to propose changes or amendments to the service method statements. Changes other than to such technical drawings are dealt with as follows: “(a) any change or amendment which may or would in the reasonable opinion of the Authority have a detrimental effect on the Performance Guarantees or the Contractor’s ability to achieve the Performance Guarantees shall be treated and assessed as a Contractor Change and accordingly be subject to Authority approval in accordance with Schedule 21 (Change Protocol); or (b) in respect of matters not set out in (a) above …, such change or amendment to be submitted to the Authority for review pursuant to Schedule 9 (Review Procedure).”
“the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.”
“There is a modern tendency in the law to break down the divisions in the rules on the interpretation of different kinds of document, both private and public, and to look for more general rules on how to ascertain the meaning of words. In particular, there has been a harmonisation of the interpretation of contracts, unilateral notices, patents and also testamentary documents … Differences in the nature of documents will influence the extent to which the court may look at the factual background to assist interpretation. Thus third parties may have an interest in a public document, such as a planning permission or a consent under s.36 of the 1989 Act, in contrast with many contracts. As a result, the shared knowledge of the applicant for permission and the drafted of the condition does not have the relevance to the process of interpretation that the shared knowledge of parties to a contract, in which there is no third party interest, has. There is only limited scope for the use of extrinsic material in the interpretation of a public document, such as a planning permission or a s.36 consent: R v. Ashford Borough Council, Ex p Shepway District Council [1999] PLCR 12, per Keene J at pp.19C-20B; Carter Commercial Developments Ltd v. Secretary of State for Transport, Local Government & the Regions [2003] JPL 1048, per Buxton LJ at [13] and Arden LJ at [27]. It is also relevant to the process of interpretation that a failure to comply with a condition in a public law consent may give rise to criminal liability… This calls for clarity and precision in the drafting of conditions.”
“When the court is concerned with the interpretation of words in a condition in a public document such as a s.36 consent, it asks itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense. Whether the court may also look at other documents that are connected with the application for the consent or are referred to in the consent will depend on the circumstances of the case, in particular the wording of the document that it is interpreting. Other documents may be relevant if they are incorporated into the consent by reference … or there is an ambiguity in the consent, which can be resolved, for example, by considering the application for consent.”
“In summary, whatever the legal character of the document in question, the starting point – and usually the end point – is to find ‘the natural and ordinary meaning’ of the words there used, viewed in their particular context (statutory or otherwise) and in the light of common sense.”
“The waste received will be processed in the following three stages: - Pre-processing; - Bio-stabilisation; and - Refining. In broad terms, the pre-processing stage will allow for the recovery of high levels of recyclable material from the residual stream with the remaining (largely organic) fraction being passed through to the bio-stabilisation phase.”
“The MBT facility will treat Municipal Solid Waste (MSW) from Essex County Council and Southend-on-Sea Borough Council, including Waste Collection Authority (WCA) residual waste, trade waste, bulky waste, street sweepings and waste from Household Waste Recycling Centres (HWRCs). This will be through a process of pre-treatment, bio-stabilisation and refining. The process is designed to reduce the weight and volume of material being sent to landfill while extracting materials for recycling and producing either a Stabilised Output Material (SOM) or a Solid Recovered Fuel (SRF) or both.”
“The Contractor shall or shall procure that the Construction Sub-Contractor (and its sub-contractors and consultants) shall carry out the design … and the construction, completion, commissioning and testing of the Works so that: … 13.1.3 the Works fully comply with and meet all the requirements of … all Consents …” 13.1.3 the Works fully comply with and meet all the requirements of … all Consents …”
“… insofar as any Consents are required for the carrying out of any part of the Works at or off the Site and/or the operation and/or use of the Site, the Contractor will at its own expense in all respects procure that such Consents are obtained prior to the commencement of the relevant part of the Works, or the relevant operation or use of the Site (as the case may be), and, in any event, by any such date or dates as may be required to comply with the Construction Programme (as amended from time to time in accordance with this Contract), and will supply copies of such Consents to the Authority.” 263.2Clause 90.2 provided: “Neither the giving or any approval … nor the review of any document or course of action by, or on behalf of the Authority …shall relieve the Contractor of any of its obligations under this Contract …” 263.3Clause 90.3 added: “… no examination or lack of examination by the Authority … of the Contractor’s drawings, documents, calculations or details relating to the design, construction, completion, commissioning and testing of the Facility … nor any comment, rejection or approval expressed by such person in regard thereto, either with or without modifications, shall in any respect relieve or absolve the Contractor from any obligations or liability under or in connection with this Contract …”
“[The proposed walking floor and trailer-loading system] were not related to the production of QSRF (which had already been approved), but rather related to the handling of the QSRF once produced. These changes were necessary to operate the QSRF Line (as previously approved) as the number of truck movements to transport small quantities of QSRF from one side of the Facility to another would be unworkable.”
“The reason for rejecting the documents is that this Method Statement is significantly affected by the ongoing discussions relating to the ‘Quick SRF’ proposals and the switch in testing methodology from BMc to DR4. While these discussions are ongoing, and so as not to hold up the process, the Authority has made comments on the Submitted Items which are attached to this letter. Once the switch in testing methodology is resolved, all of these documents will require re-submission taking these comments into consideration … To help progress discussions relating to the ‘Quick SRF’ and to respond to Chris Winspear’s email of the 07/12/15 regarding MS17, I include the Authority’s comments on the revised Mass Balance Model that need to be addressed. In addition, we are yet to receive a satisfactory proposal regarding the mitigation of the electricity consumptions issues arising from the proposed changes to the Facility operating methods. We look forward to receiving the additional information as requested so that the review and approval of this Method Statement can be completed as quickly as possible.”
“The failure to amend, in particular, MS06 renders it (on the Authority’s construction of the Acceptance Tests) impossible to pass the Throughput Test (as the QSRF Line inputs are not included) and distorts the Recovery Test (as the QSRF Output is excluded). The Authority’s refusal to amend MS06, or parts of MS06 related to the QSRF Line, in its letter of11 December 2015 or thereafter having approved the QSRF Line is capricious, irrational, in breach of the duty to co-operate in good faith and/or a decision made for an improper purpose (namely to allow the Authority to terminate the Contract).”
“2. DEFRA will have the right to review the grant payment if the project facilities fail to deliver the BMW diversion set out in the [Final Business Case] ... 4. The Authority must not, without DEFRA’s prior written approval, agree to or make any material changes to the terms of the Contract or any other changes which represent a departure from the approved Final Business Case. Any plans for any such changes must be reported to DEFRA and approved by DEFRA before the changes are agreed with the Contractor or implemented. The Authority must, if so required by DEFRA, submit a Variation Business Case to DEFRA and must not proceed with such changes until DEFRA’s approval to those changes has been given. Approval to such changes would be given by way of a further Waste Infrastructure Credit Letter... DEFRA has a right has a right to review progress of this project at 3 yearly intervals (commencing at the date of issue of this Waste Infrastructure Credit Letter) to ensure that the project remains in line with the approved Final Business Case and the Waste Infrastructure credits.”
“… a minimum of the predetermined flow rate (as specified in Table 6.6b above) of Treatable Contract Waste must be fed into the pre-processing module, feeding the bio-stabilisation line operating at maximum capacity, in order to pass this Acceptance Test.”
“In summary, the operation of the QSRF diversion requires UBB to trade Recovery and BMW reduction performance for throughput tonnage … In my opinion that trade off makes it extremely unlikely, or even impossible, that UBB could meet all three requirements at once.”
“As I think I have said in my report, if you look at the QAT test and consider the impact of the bypass on the QAT results, they show that it makes the BMW test impossible to pass.”
“The Consortium’s general approach has been to accept waste composition risk across the range of waste categories, with the exception of Residual non-combustible... Urbaser operates over 40 MBT facilities across Europe processing residual MSW and is therefore familiar with managing the risks of changing waste composition and its impact on recyclable performance.... No minimum or maximum limit for the putrescible/biodegradable BMW has been stated as the Consortium is comfortable that this fraction has a stable Carbon to Nitrogen ratio that will allow the fermentation process to function within the parameters required for meeting the Performance Standards.”
“This is not really seen as a major risk as the forecast of future waste collection regimes should not have a substantial impact on the Base case Values.”
“Basically my reading of the situation is: 1. Essex have provided a base composition which is to be used by all bidders as a base for the submission only and isn’t guaranteed by them. 2. We have to guarantee our performance against any composition within the min/max limits we specify in Appendix 6. 3. If composition falls outside the limits (which in our case we’ve said is only a Residual non-combustible limit) then we don’t need to guarantee our performance. This is how I would expect it to work and is in line with how I recall the Lancashire waste mechanism working (which was also an MBT project). As such we should work on basis of our guaranteed performance being the 84% for BMW Diversion and 48% recovery for all compositions within the appendix 6 min/max limits.”
“The mass balance still shows the assumptions of how the 84.2% BMW reduction is arrived at, but it should be noted that ORA are not verifying that the plant will meet this level of reduction. ORA remain of the opinion that the BMW reduction of 84.2% is relatively high for a 6-week process and it is not clear where the margin for error between what the mass balance predicts in terms of BMW reduction and recovery rate is allowed for, especially given the limited restrictions originally set by Urbaser on the waste composition. Urbaser’s recent revision of the input bandings (to set limits for putrescible and combustible BMW) should help in this respect. As discussed before, the actual ability to meet the 84.2% BMW reduction will be dependent on: • The degree to which the assumptions used in the model match reality • The level of sampling and lab analysis variation • The actual performance of the plant • The nature of the Contract Waste which has to be treated at the facility.”
“21.9.2 During the Commissioning Period, the Contractor shall undertake Composition Tests in respect of the Contract Waste, in accordance with this Clause 21.9 (including Clause 21.9A and Clause 21.9B) and Part 4 of the Composition Testing Protocol in Schedule 31 of this Contract (the ‘Commissioning Composition Tests’). 21.9.3 The Contractor shall issue the results of each set of Commissioning Composition Tests, in writing, to the Authority no later than five (5) Business Days following the receipt of the results of the relevant tests from the relevant testing laboratory. 21.9.4 The Authority shall be entitled to dispute the results of any Commissioning Composition Tests and the Contractor shall be entitled to dispute the results of any Authority Pre-Commissioning Composition Tests by referring the matter for resolution in accordance with the Dispute Resolution Procedure. 21.9.5 The Composition Test results shall be determined on a rolling annual average basis using the average results from the four most recent Composition Tests and where there are less than four Composition Tests, the average of the available Composition Tests shall be used for this purpose.”
“21.9A.2 If the results of any Composition Tests confirm that the composition of the Contract waste does not fall within Composition Band A, the Contractor shall, no later than twelve (12) Business Days following the date of issue of the Composition Test results …, produce a report (an ‘Impact and Remedy Report’), together with supporting evidence … 21.9A.4 The Authority shall be entitled to dispute the content of any Impact and Remedy Report by referring the matter for resolution in accordance with the Dispute Resolution Procedure.”
“the Parties shall consider and agree the extent to which adjustments can be made to the Facility (or the design of the Facility) and/or the Commissioning Plan and/or the process equipment and/or operational practices in order to address the deficiency in the composition of the Contract Waste.”
“Following the Options Review, the Authority shall instruct an Authority Change in order to introduce measures to deal with the deficiency in the composition of the Contract Waste such as making adjustments to the Facility (or the design of the Facility) and/or the Commissioning Plan and/or the process equipment and/or operational practices and/or the performance requirements the Contractor is required to meet, and, in which case, for the purposes of Schedule 21 of this Contract: 21.9B.4.1 Such an Authority Change shall be deemed to be within the contemplation of the Parties; 21.9B.4.2 a deficiency in the composition of the Contract Waste will not, of itself, be a valid ground for the Contractor to reject an Authority Change in accordance with Paragraph 2 or Part 1 of Schedule 21 and it shall not be a breach of Paragraph 2.1 of Part 1 of Schedule 21 for the Authority to propose an Authority Change in such circumstances; 21.9B.4.3 the Contract shall co-operate with the Authority in devising an optimum solution for the implementation of the remedial action which takes account of factors such as the long term implications of the deficiency in the composition of the Contract Waste, the value for money implications of the options available and the impact on the overall risk profile of the Project, Provided always that if for any reason (other than due to the breach or negligence of the Contractor or any Contractor Related Party) an Authority Change instructed pursuant to this Clause 21.9B.4 is not implemented, to the extent the Contractor demonstrates that a High Level Composition Issue has delayed or is delaying the carrying out of the Commissioning Plan, such High Level Composition Issue shall constitute a Relief Event and the Contractor shall be entitled to the direct costs (including any increased commissioning costs and/or loss of revenue and/or liability for finance costs) caused by the delay in the implementation of the Commissioning Plan.”
“Perhaps here is one of the answers to all the problems!! (maybe the solution) Attached the latest composition results based on combined WCA/Bulky. We are outside Band A! As you can imagine this could potentially set out a completely different scene for our discussion with ECC so we need to be absolutely sure we have a great understanding of the results …. can I please ask you to have a quick look to it so we can discuss the findings and how we can use them?”
“Apparently we have to notify ECC of the results, and we have 12 business day (sic) to present an Impact and Remedy Report, defining if we consider a low level impact (can be solve (sic) with additional waste) or high level impact (not solved with additional waste). We need to tell them the impact that the composition have (sic) in the Commissioning and proposed solution. If it is confirmed, ECC cover all costs, delays etc Imagine that we propose as solution the QSRF, modifications in the [bio-halls], etc and ECC will have to cover the cost of all modifications? (we can even tell them that in some way the density problem is their fault …)”
“Summarising the latest composition results … they show that the waste is below the lower limit of the BMW Putrescible, which forces us to fulfil the performance and carry out the Acceptance Test, and place the blame for everything with the customer who would have to bear all of the costs if it is confirmed. As you would imagine, it is the lawyers and co. that are very excited, and as was to be expected the serious work ends up falling on us to the ‘technicians.’ The idea is to begin to build a report that can identify the issues created by the ‘crappy’ waste and, to some extent, assess if they can be resolved without stopping the Commissioning. We need to present something on Friday so there is no much time for embellishments, and we have to focus it on listing every issue that we can link to the lack of biodegradable material. I would like to begin ‘like the English’, which is to say without being embarrassed to say that we have a lot of flies because there is very little food, which in reality means that there is a lot of food but it is old, and therefore there is a greater probability of attracting flies (such nonsense to begin with …). Of course, at some point a ‘reasonable’ cut will need to be made, or not? … Juan H / Javi, if anyone has any input on the nonsense, it’d be welcome, so if you have any crazy ideas share them there.”
“If the results of any Composition Tests confirm that the composition of the Contract waste does not fall within Composition Band A, the Contractor shall, no later than twelve (12) Business Days following the date of issue of the Composition Test results …, produce a report (an ‘Impact and Remedy Report’), together with supporting evidence …”
“The Composition Test results shall be determined on a rolling annual average basis using the average results from the four most recent Composition Tests and where there are less than four Composition Tests, the average of the available Composition Tests shall be used for this purpose.” 333.2 Further, it is inconsistent with the flow diagram at Part 5 of Schedule 31 which clearly shows that the Composition Test results are to be determined on a rolling annual average basis and the question then posed, on the basis of such rolling average, as to whether the waste is in Band A. Such diagram can be properly used as an aid to construction; indeed, the parties so agreed at clause 21.9C.1 while also agreeing that the flow diagram was not itself contractually binding and that the provisions of the contract would prevail in the event of conflict or inconsistency. 333.3 Mr Stewart’s argument is also inconsistent with MS17. While the contents of the method statements yield to any contrary provision in the body of the contract (see paragraph 88 above), there is no such contrary provision. Paragraph 17.4.2.5 of MS17 provides: “The method for calculating the rolling average across the six (6) material categories and therefore determining which composition band the Contract Waste falls into will be consistent with the following clauses of the Contract: For the Commissioning Period: • Clause 21.9.5 – sets out the requirement for calculating the average consumption based on the four (4) most recent quarterly composition tests and • Clause 21.9A (Composition Test Results) – sets out the procedure for reporting this as part of the impact and remedy report set out in this clause”
“when the language of a contract does not expressly, or by necessary implication, fix any time for the performance of a contractual obligation, the law implies that it shall be performed within a reasonable time.”
“As the waste delivered in 2015 was unrepresentative of the Contract Waste, in or around April 2015, and as evidenced by an email from Alex Creecy of the Authority to Mr Faraldo dated24 April 2015 , the parties agreed that: (1) The Contract did not anticipate sampling from a limited number of sources; (2) Sampling at that time was unlikely to generate a result that was representative of Contract Waste; and (3) Such results should therefore be excluded from the rolling quarterly average calculation referred to in Clause 21.9.5 of the Contract (and addressed further below).”
“The 2015 tests were not representative of Contract Waste. UBB relies, amongst other things, on: (i) Clause 21.9.2 which stipulates that UBB shall undertake Composition Test “in respect of Contract Waste”
“While you are in the process of considering your approach to the quarterly input waste sampling, I thought I should put a marker down in terms of the results, this composition set may generate. The Contract did not contemplate a situation whereby the quarterly composition sampling was occurring with limited Contract Waste inputs. Given the current inputs comprising Basildon WCA only, the sampling event is unlikely to generate a result that is representative of Contract Waste. We may therefore need to agree to exclude these results from the rolling quarterly average calculation. I’m sure that all waste sources will be undergoing treatment at the Facility during the next sampling event. However, if this is not likely to be the case, please let us know and we can arrange for representative loads to be delivered for sampling purposes using the same method as the authority was employing during its period of composition sampling responsible prior to the Readiness Date.”
“We may therefore need to agree to exclude these results from the rolling quarterly average calculation if a composition ‘Band’ issue arises in the short term.”
“The Authority determines where waste was sent and elected in February 2017 to instruct the contractors who collect … waste from household and collection centres to send all of the waste elsewhere. When it stopped delivering waste to the Facility in February 2017, it therefore did so wilfully, meaning intentionally and deliberately.”
“Notwithstanding any other provision in this Clause 21.2, all Contract Waste leaving a Commissioning Waste Source (which is required to deliver Contract Waste to the Facility in accordance with the Commissioning Plan) will be delivered to the Contractor in accordance with the Commissioning Plan. In the event that the Authority wilfully directs or wilfully allows such Contract Waste to be delivered elsewhere, such wilful act shall be treated and assessed as a Compensation Event.” 371.The adverb “wilfully” can of course be used to connote acting with an intention of causing another harm. The adverb can, however, be used simply to mean that the act of default is intentional or deliberate. As Bowen LJ observed in Re Young & Harston’s Contract (1885) 31 Ch. D. 168, at pages 174-5: “[Wilful] … is a word of familiar use in every branch of law, and although in some branches of the law it may have a special meaning, it generally, as used in courts of law, implies nothing blameable, but merely that that person of whose action or default the expression is used, is a free agent, and that what has been done arises from the spontaneous action of his will. It amounts to nothing more than this, that he knows what he is doing, and intends to do what he is doing, and is a free agent.”
“As between the parties …, it seems to me that the court can grant a declaration as to their rights, or as to the existence of facts, or as to a principle of law, where those rights, facts or principles have been established to the court’s satisfaction. The court should not, however, grant any declarations merely because the rights, facts or principles have been established and any one party asks for the declaration. The court has to consider whether, in all the circumstances, it is appropriate to make such an order.”
“… when considering whether to grant a declaration or not, the court should take into account justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose and whether there are any other special reasons why or why not the court should grant the declaration.”
“(1) The power of the court to grant discretionary relief is discretionary. (2) There must, in general, be a real and present dispute between the parties before the court as to the existence or extent of a legal right between them. However, the claimant does not need to have a present cause of action against the defendant. (3) Each party must, in general, be affected by the court’s determination of the issues concerning the legal right in question. (4) The fact that the claimant is not a party to the relevant contract in respect of which a declaration is sought is not fatal to an application for a declaration, provided that it is directly affected by the issue … (5) The court will be prepared to give declaratory relief in respect of a ‘friendly action’ or where there is an ‘academic question’ if all parties so wish, even on ‘private law’ issues. This may particularly be so if it is a ‘test case’, or it may affect a significant number of other cases, and it is in the public interest to decide the issue considered. (6) However, the court must be satisfied that all sides of the argument will be fully and properly put. It must therefore ensure that all those affected are either before the court or will have their arguments put before the court. (7) In all cases, assuming that the other tests are satisfied, the court must ask: is this the most effective way of resolving the issues raised? In answering that question, it must consider the other options of resolving this issue.”
“Outside the realms of mythology and literature, no one can foretell the future. Even in those realms the prophecies of the Oracle of Delphi were always ambiguous, Cassandra was never believed, and the prophecies of the witches in Macbeth were downright obscure.”
“Subject to Clause 67.1 (Rectification) if a Contractor Default has occurred and the Authority wishes to terminate the Contract it must serve a termination notice on the Contractor.”
“The Authority agrees that prior to determining whether to exercise any right of termination in respect of limb (a) of the definition of Contractor Default it shall, acting reasonably and in good faith by reference to the nature of the breach, give all due consideration to taking action other than termination of this Contract (including exercising its other contractual rights and remedies under this Contract (having regard to the nature of such rights and remedies) to deal with the breach or circumstances giving rise to the breach.”
“The essence of what I have called a business option is that the character of the obligation is altered to suit the option holder. There must, therefore, be some provision, express or implied, for its exercise within a reasonable time and for the communication of the election to the other party. It would be wholly unreasonable for the principal obligation in a contract to be altered without the other party being informed.”
“The inspiration for Crosstown’s submission is that a term should be implied appears to come from cases where it was held that it was appropriate to imply a term requiring notice to be given within a reasonable time if a contracting party wished to exercise an option or certain contractual choices provided for in the contract. Thus, a term of this kind was implied in Reardon Smith Line Ltd v. Ministry of Agriculture, Fisheries and Food [1963] A.C. 691; United Dominions Trust (Commercial) Ltd v. Eagle Aircraft Services Ltd [1968] 1 W.L.R. and Zeeland Navigation Co. Ltd v. Banque Worms (The Foresight Driller II) [1995] 1 Lloyd’s Rep. 251. In my judgment, those cases are distinguishable, and their reasoning is not applicable to the right created by clause 18(a). That right is not an option of the kind considered in those cases. It does not involve a right to determine a contract and to avoid future performance. It does not involve one party, by service of a unilateral notice, in changing the obligations as to performance by the other party. A notice under clause 18 involves no change in the contractual performance required of the recipient of the notice.”
“On the one hand there are dicta in such cases as Mardorf Peach & Co. Ltd. v. Attica Sea Carriers Corporation of Liberia (The Laconia) [1977] A.C. 850, 872, per Lord Wilberforce, which, if read out of context, might be taken to suggest that there is an implied term or rule of law that such a right be exercised within a reasonable time otherwise it is lost, regardless of whether any inference of election can be drawn from the passage of such time. On the other hand, there are decisions - conveniently summarised by Lloyd J in Scandinavian Trading Tanker Co. A.B. v. Flota Petrolera Ecuatoriana (The Scaptrade) [1981] 2 Lloyd’s Rep. 425 which appear to make it clear that such a right will only be lost by election, whether expressed or inferred from the circumstances. In the appellants’ submission the dicta which are relied upon as suggesting an implied term or rule of law regardless of an election were made in cases where this problem did not arise and do not support the proposition. In The Scaptrade … Lloyd J analyses Lord Wilberforce’s speech in The Laconia … as laying down that it is a question of waiver or election not of an implied term. In this connection attention is drawn to the argument of Mr Hobhouse in The Laconia … for it would appear that Lord Wilberforce adopted the proposition there put forward.”
“Cases dealing with the operation of war cancellation clauses are rare. More common are cases dealing with the right to withdraw a vessel from a charterparty for nonpayment of hire. Those cases all agree that such a right has to be exercised within a reasonable time of the non-payment, but they do not agree on the juridical basis for such a requirement. As an alternative to an implied term, principles of election, waiver and estoppel have been advanced as the explanation. These principles can raise difficult theoretical questions as to the manner of their application (see … The Scaptrade …), although they do not appear to have done so in practice. We believe that there is a good reason for this, as we shall explain. Having regard to the different theories to which we have referred above, it is at least arguable that there is a serious doubt as to whether the juridical basis of the requirement to exercise a right to withdraw from a charter within a reasonable time is an implied term. For the reasons which follow we do not need to express a final view on this matter.”
“The contracts in this case all work perfectly well if there is no such implied term. Indeed, the contracts would work less well if such a term were to be implied.”
“(1) [I]f a contract gives a party a right to terminate upon the occurrence of defined actions or inactions of the other party and those actions or inactions occur, the innocent party is entitled to exercise that right. The innocent party has to decide whether to or not to do so. Its decision is, in law, an election. (2) It is a prerequisite to the exercise of the election that the party concerned is aware of the facts giving rise to its right and the right itself. (3) The innocent party has to make a decision, because if it does not do so then ‘the time may come when the law takes the decision out of [its] hands, either by holding [it] to have elected not to exercise the right which has become available to [it], or sometimes by holding [it] to have elected to exercise it.’ (4) Where, with knowledge of the relevant facts, the party that has the right to terminate the contract acts in a manner which is consistent only with it having chosen one or other of two alternative and inconsistent courses of action open to it (i.e. to terminate or affirm the contract), then it will be held to have made its election accordingly. (5) An election can be communicated to the other party by words or conduct. However, in cases where it is alleged that a party has elected not to exercise a right, such as a right to terminate a contract on the happening of defined events, it will only be held to have elected not to exercise that right if the party ‘has so communicated [its] election to the other party in clear and unequivocal terms.’”
“It is clear from Lord Goff’s analysis that when a party to a contract is put in a position where it has to decide whether or not to exercise a right to terminate that it is given by the terms of a contract and it is disputed whether that party has terminated or has elected to abandon the right to terminate, then a court has to make a finding one way or the other. Whether a party has elected to terminate or to affirm the contract is a question of fact: either a party has affirmed the contract or it has not. If the innocent party has not affirmed the contract, then the right to terminate will be exercisable still.”
“By reason of UBB’s breach(es) of contract and/or negligence as set out at paragraphs 29 and 30 above, the Authority has suffered and continues to suffer loss and damage: PARTICULARS OF LOSS 31.1 From or around July 2015, UBB diverted all RCHW/HWRC/bulky waste and the trommel overflow fraction of WCA residual waste away from the biohalls, mixing these waste streams to form the new output called QSRF. 31.2 QSRF operation was not approved by the Authority, is not permitted by the Environmental Permit and has given rise to environment, health and safety issues. It was unilaterally implemented by UBB in an attempt to improve performance of the Facility as a result of its breaches of contract and/or negligence. 31.3 QSRF operation by UBB has resulted in additional Treatment Outputs from the Facility and an increased tonnage of material for disposal, leading to the following additional costs: 31.3.1 Increased disposal costs; and 31.3.2 Increased transport costs.”
“ECC’s monetary claim arises out of the financial consequences for ECC of UBB operating the QSRF Line in breach of contract. The basis for this claim is that (PoC §31): (1) In the commissioning period, ECC is obliged to deliver the waste that UBB calls for. With the QSRF Line in operation, the Facility is able to process more waste than it would have done if the QSRF Line had not been operating. This results in increased costs being payable by ECC, since the cost of processing waste at the Facility is levied on a 'per tonne' basis. (2) Without the QSRF Line, the Facility does not have capacity to process that additional waste and UBB would not have called for the delivery of that additional waste. (3) ECC is also obliged to dispose of the Treatment Outputs from the Facility, at its own cost. It therefore incurs a disposal cost in respect of each tonne of QSRF output from the Facility. (4) The cost of treating waste through the QSRF Line (comprising the cost of delivering waste to the Facility, and the cost of disposing of the relevant outputs) is greater than the equivalent cost would have been if the same waste had been disposed of to landfill. (5) The operation of the QSRF Line, in breach of contract, has therefore increased directly ECC’s costs.”
“92 However, the QSRF line was ultimately unsuccessful in remedying the underperformance of the Facility. Further, it has since become clear that the QSRF line has been installed in breach of the Planning Permission. Despite the Authority’s rejection of part of the August QSRF Equipment and despite its written requests for UBB to cease its operation, the entire QSRF line has continued to be operated by UBB without the Authority’s approval and in breach of contract. 93 The continued operation of the QSRF line by UBB means that a significant proportion of the waste sent to the Facility bypasses the biohalls and refining hall entirely and is not subject to any biological treatment. By improperly operating in this manner, UBB is frustrating the primary purpose of the Facility, namely to mechanically and biologically treat waste in order to reduce its mass, biodegradable content and to remove recyclable materials including aggregates … 124 UBB, wrongly and in breach of contract, continues to operate the QSRF line despite requests from the Authority not to do so and despite being in breach of relevant consents for the Facility. 124A … the operation of the QSRF Line has been found to be in breach of the existing planning consent and the Planning Authority asked UBB to apply for a variation to the existing planning consent. Although the Planning Authority has subsequently determined not to take enforcement action in relation to the operation of the QSRF Line, pursuant to clause 13.1.3 of the Contract UBB is required to procure that the Facility complies fully with all Consents, including the planning consent. The QSRF Line does not comply fully with the existing planning consent and an alteration to that consent was therefore required in order for the QSRF Line to be operated in accordance with the terms of the C Contract. 124D … it is denied for the reasons set out herein at paragraphs 88 to 114 that the Authority approved the operation of the QSRF Line, whether expressly or otherwise. Further, given that (as set out at paragraph 124A) the operation of the QSRF Line is in breach of the Consents, the operation of the QSRF Line is not permitted under the terms of the Contract whether or not it was approved by the Authority.”
“1034. That submission conflates two different breaches of contract. UBB’s failure to design and operate the Facility adequately so that it could pass the Acceptance Tests is not the breach upon which this claim is founded. Had UBB fulfilled its obligations and passed the Acceptance Tests such that Services had commenced, ECC would have received its full benefit under the contract including properly biodegraded waste with reduced Treatment Output tonnages… 1035. In fact, ECC’s claim is founded on the basis of a separate breach of contract, namely UBB’s operation of the QSRF Line. If UBB had not breached the Contract in this way, the QSRF Line would not be in operation and ECC would have incurred less costs: in other words, but for that breach of contract by UBB, ECC would not have incurred those additional costs and is entitled to compensation.”
“If as a direct result of the occurrence of a Compensation Event: … 39.1.2 the Contractor is unable to achieve Service Commencement on or before the Planned Service Commencement Date or, following the Planned Service Commencement Date, before the Acceptance Longstop Date … then the Contractor is entitled to apply for relief from its obligations and/or claim compensation under this Contract.”