Ipsofactoj.com: International Cases [2001] Part 4 Case 13 [HL]


HOUSE OF LORDS

Coram

Amoco (UK) Exploration Co

- vs -

Teeside Gas Transportation Ltd

LORD BINGHAM OF CORNHILL

LORD HOFFMANN

LORD HOPE OF CRAIGHEAD

LORD HOBHOUSE OF WOOD-BOROUGH

LORD SCOTT OF FOSCOTE

4 APRIL 2001


Judgment

Lord Bingham of Cornhill

My Lords,

  1. For the reasons given by my noble and learned friends Lord Hoffmann, Lord Hope of Craighead and Lord Hobhouse, whose opinions I have had the opportunity to read in draft, I would allow these appeals.

    Lord Hoffmann

    My Lords,

  2. The Central Area Transmission System ("CATS") is a 36 inch pipeline, 255 miles long, together with ancillary installations, which carries natural gas from various points in the Central Graben of the North Sea to Teeside. It was built by a consortium of four oil and gas exploration and development companies (who have been called "the CATS Parties") between 1990 and 1993 and is operated by one of them, Amoco (UK) Exploration Co ("the CATS Operator"). The first use of the pipeline was to carry gas from the Everest and adjacent Lomond field (also owned by the consortium companies) for delivery to a power station at Teeside. But its capacity was much larger than was necessary to carry the Everest / Lomond gas and the CATS Parties were in a position to offer spare capacity to others.

  3. These appeals concern an agreement by which the CATS Parties agreed to allow a company called Teeside Gas Transportation Ltd ("TGTL"), (originally a joint venture between ICI and Enron Corporation of Texas but now a wholly owned subsidiary of Enron) to use part of the pipeline capacity. It was called the Capacity Reservation and Transportation Agreement ("CRTA") and was executed on 10 September 1990, before the pipeline had been built. By clause 3.1, the CATS Parties undertook to construct the system so as to be capable of carrying gas for TGTL by 1 April 1993. The agreement reserved to TGTL the right to deliver to the pipeline a defined quantity of gas which the CATS Parties would carry as part of a commingled flow to Teeside and there redeliver the appropriate share to the shore installations of TGTL. TGTL was to be entitled to use the capacity from a date on or after 1 April 1993 (defined in the agreement as "the Commencement Date") until 1 October 2018.

  4. My Lords, the definition of the Commencement Date is central to the dispute in this case and I shall have to examine it later in some detail. For the present, however, it is sufficient to say that it was the date upon which the CATS Operator notified TGTL that certain conditions relating to the system had been satisfied. The significance of the Commencement Date was two-fold.

    First, by clause 6.1 the CATS Parties came under an obligation, subject to compliance by TGTL with various conditions, to accept and redeliver its gas:

    6.1

    With effect from the Commencement Date and for each Day thereafter during the term of this Agreement, the CATS Parties shall provide the Transportation Service in respect of Capacity Gas delivered from a Designated Field(s). The Transportation Service shall mean a service whereby, subject to the other terms and conditions of this Agreement and the Allocation Provisions, the CATS Parties shall:

    (a)  

    accept during each Day at the relevant Entry Point Capacity Gas delivered from a Designated Field(s) complying with the Notified Specification up to the Notified Rate;

    (b)

    transport such Capacity Gas through the CATS Transportation Facilities;

    (c)

    redeliver Capacity Redelivery Gas complying with the Redelivery Specification to [TGTL] on behalf of the relevant Capacity Users at the relevant Redelivery Point…

    Secondly, as from the Commencement Date TGTL came under an obligation in accordance with clause 7.4 to make quarterly "send-or-pay" payments, at the rate of about £8m a quarter, whether it used the capacity or not:

    7.4

    An amount (hereinafter referred to as the "Send-or-Pay Payment") shall be payable by [TGTL] to the CATS Parties for each quarter effective from 6 am on the Commencement Date until 6 am on 1 October, 2013…

    Enron and ICI agreed to guarantee the obligations of TGTL under the CRTA.

  5. TGTL (or Enron) did not have any gas for delivery to the pipeline at the time when it entered into the CRTA. It was contemplated that it would acquire it later. On 26 March 1993 another subsidiary of Enron called Enron Europe Ltd ("EEL") entered into Gas Sales Agreements ("GSAs") with the owners of gas fields known as J-Block to buy their gas for a period expiring in 2011. The gas was expected to come on stream in late 1995 or early 1996. On 30 March 1993 the CATS parties notified TGTL that the conditions for the Commencement Date had been satisfied. The notification therefore took effect on 1 April 1993. Thus Enron appeared to be committed over a long period to fixed payments, negotiated at then prevailing rates, for the purchase of gas and the use of the pipeline. In respect of the pipeline, it would have to make send-or-pay payments for about three years before it could make any use of the reserved capacity.

  6. In February 1994 the spot price of gas was 22p a therm. The combined cost to Enron of buying the gas under the 1993 GSAs and transporting it to Teeside under the CRTA was about 19p a therm. The agreements therefore appeared to be profitable. But by the middle of the following year the spot price had fallen below 10p a therm and remained depressed.

  7. In these circumstances it is not surprising that Enron read the CRTA and GSAs with close attention to discover whether there was any means of escape. It focussed upon the definition of the "Commencement Date" in the CRTA, which had triggered TGTL's obligation to start making send-or-pay payments:

    Commencement Date': means the later of 1 April 1993 and the first day of the month commencing immediately after the date on which the CATS Operator notifies [TGTL] that:

    (a)  

    the CATS Approvals have been obtained by the CATS parties;

    (b)

    the CATS System has been tested and commissioned to the satisfaction of the CATS Parties; and

    (c)

    the CATS Transportation Facilities are available to perform the Transportation Service for Capacity Gas at the Capacity Reservation Rate.

  8. As will be seen, this definition incorporates a number of other defined expressions, some of which must be explained in order to make it intelligible. Under (a), the "CATS Approvals" meant "all necessary consents and approvals in a form and substance satisfactory to the CATS Parties for the construction, operation and use of the CATS System…." The construction of engineering works in the North Sea is heavily regulated by the Health and Safety Executive of the Department of Trade and Industry and approvals were necessary at various stages to enable the pipeline and ancillary works ("the CATS System") to be built and operated.

  9. Condition (b) requires little explanation except to say that neither side suggested that the words "to the satisfaction of the CATS Parties" gave them an unfettered discretion as to what should be tested and what results should be treated as satisfactory. But there was some argument over whether it was enough that the CATS Parties should have acted in good faith or whether the testing and commissioning should have been to an objective standard which the agreement defined as "the standard of a Reasonable and Prudent Operator." I prefer the latter construction. But the point is only marginally relevant (for a reason I shall mention later) because TGTL accepts that condition (b) was satisfied when the CATS Operator notified 1 April 1993 as the Commencement Date.

  10. Condition (c) contains a number of defined expressions but they do not need to be unpacked in any detail. The "CATS Transportation Facilities" meant the facilities to be constructed, owned and operated by the CATS Parties, described in some detail in Schedule 1. "The Transportation Service" meant the service of accepting, transporting and redelivering TGTL's gas. "Capacity Gas" meant TGTL's gas and "the Capacity Reservation Rate" fixed the quantity which it was entitled to have transported.

  11. In February 1995 TGTL, which had already paid about £45m in send-or-pay payments, gave notice that it would not pay any more. It also asked for its previous payments to be refunded. The grounds were that, for various reasons, the conditions for the Commencement Date had not been satisfied. The main, and now the only surviving reason is that the CATS Transportation Facilities were not "available to perform the Transportation Service" within the meaning of condition (c) on 1 April 1993 or thereafter.

  12. On 6 March 1995 the CATS Parties commenced proceedings claiming a declaration that TGTL was liable to make send-or-pay payments from 1 April 1993 and payment of arrears. They commenced separate proceedings against ICI and Enron as guarantors. After 1 April 1996 TGTL amended its defence to claim that not only was it not liable for any send-or-pay payments but that it was also entitled to cancel the whole agreement. This was because clause 2.4 (a) provided that if the Commencement Date had not occurred on or before 1 April 1996, TGTL should have the right to terminate. By the time the case came to trial, this date had passed and TGTL was claiming that there had not yet been a Commencement Date. The GSAs contained provisions which entitled Enron indirectly to terminate them if the CRTA came to an end. In separate proceedings tried with this action, Enron claimed to have exercised these rights as well.

  13. When the action came before Langley J, TGTL was contending that there were four reasons why condition (c) had not been satisfied.

    • First, the designated re-delivery point at Teeside had not been constructed.

    • Secondly, the entry point at which TGTL proposed to tie in its pipeline from the J-Block fields was not in a fit state to receive it.

    • Thirdly, the specification of the Everest / Lomond gas passing through the system, and with which TGTL's gas (if they had been delivering any) would have been commingled, meant that the CATS Parties would not have been able to redeliver TGTL's gas at the appropriate specification.

    • Fourthly, there would have been too much mercury in the gas.

    Langley J heard evidence and argument on these matters over 38 days and in what the Court of Appeal rightly described as a masterly judgment, dismissed them all. He held on the facts that none of the alleged defects could be said to have made the Transportation Facilities "unavailable" to provide the Transportation Service.

  14. TGTL (and ICI and Enron as its guarantors) appealed to the Court of Appeal on one ground only. That was the availability of the entry point, known as T6. The CATS Transportation Facilities which the CATS Parties had to make available included a number of "Entry Points" at which pipes carrying TGTL's gas could be tied in. TGTL had the right to nominate entry points at which the CATS Parties were then obliged to construct the necessary facilities. It had nominated T6. Clause 3.8 (a) provided that the entry points were to be owned by the CATS Parties and form part of the CATS Transportation Facilities.

  15. The entry point constructed at T6 was in a form common in the industry. It consisted of a short spur of pipe ending in a blind flange which could be removed so that the incoming pipe could be tied in by a flange or weld. In order to be able to tie in while the pipeline was live with high pressure gas, as it was after the Everest / Lomond gas started to flow in May 1993, it was necessary to provide a valve assembly which could be closed to isolate the end of the spur from the pipeline. For greater safety, two large metal ball valves were installed in series, with outlet valves to enable the lengths of pipe (or "spools") between the valves and between the second valve and the terminal flange to be vented of gas when the valves were shut.

  16. The T6 valves were installed in August 1992. The judge found that they had been designed, manufactured and installed according to best industry practice by reputable suppliers. They had been fully tested on shore and found to be working properly. Once installed, they were not tested again. The judge found this to be standard practice: first, because testing might damage the valves and secondly, because they would in any case have to be tested again before they were closed to enable a tie-in to take place.

  17. In October 1994 the valves were inspected with a view to a tie-in about a year later. They were found to be leaking to an extent which would not then have allowed a tie-in to proceed. The judge found that they had probably been in the same state on 1 April 1993, when the notification of the Commencement Date had taken effect.

  18. The rate of leakage caused some alarm and at first it was thought that the valves themselves might be defective. But tests at other entry points in the following month showed that similar valves were behaving in the same way and it was unlikely that they could all be defective. By December 1994 it was accepted that the most likely cause of the problem was insufficient differential pressure across the valves, which caused the heavy metal balls within the valves to float free of their seatings rather than being pressed hard against them. The solution was a rapid venting of the gas on the downstream side of each valve, enabling the upstream pressure to "shock" the ball against its seating. Onshore tests in the early months of 1995 tended to confirm this opinion. The suggested remedy was then applied off shore. Although leakage through the first ball valve still exceeded expectations, it worked sufficiently well to enable the leaking gas to be vented from the spool between the valves so that the tie-in could proceed. This took place in October 1995, well in advance of any gas being available from the J-Block fields.

  19. The judge found that although the state of the valves on 1 April 1993 was not such as to permit a tie-on to have taken place on that day, that did not mean that the entry point was not "available to perform the Transportation Service" on that date. The words did not mean that the Transportation Service had to be available "at the push of a button." Clause 8(3)(a) of the agreement required TGTL to give the CATS Operator at least 100 days notice of the commencement of any tie-in works. The tie-in was the responsibility of TGTL or its contractors. The CRTA provided for a good deal of exchange of information and co-operation before a tie-in could take place. The parties would reasonably have expected that the entry point might require some fine-tuning before there could be a tie-in and the agreement provided for this to happen. There was nothing wrong with the valves or the construction of the entry point. They could be used without modification. All that was necessary was to devise procedures by which the valves could be properly shut. This did not prevent the entry point from being "available" within the meaning of condition (c).

  20. The Court of Appeal disagreed with the judge's view of what was meant by "available". Tuckey LJ said that the words "are available" denoted an objective state of present facts, not a prospective one. The facilities were either available on 1 April 1993 or they were not. The judge had found that no tie-in could have taken place on that date and it followed that they were not available. The Court of Appeal therefore allowed the appeals. As it was common cause that the valves had been made to work adequately before a second precautionary Commencement Date notice was served on 31 May 1995, TGTL's success was not complete. It could not cancel the CRTA or Enron the GSAs. But the send-or-pay payments for which it and the guarantors have been held not liable amount to about £100m. Against those decisions the CATS Parties appeal to your Lordships' House.

  21. My Lords, the argument has tended to concentrate on the state of affairs said to be denoted by the words "available to perform the Transportation Service". At one extreme was the submission of Mr Pollock QC, for the CATS Parties, that it meant only that the CATS Parties had not entered into a conflicting obligation to allow the reserved capacity to be used by someone else. The judge rejected this construction and it was not advanced in the Court of Appeal. Mr Sumption QC, for TGTL, said that it would be very odd to require the CATS Operator to make a formal declaration that the CATS Parties had not done something which would on any view be a fundamental breach of contract. I agree.

  22. At the other extreme is the construction favoured by the Court of Appeal. This means that if it is found, perhaps some years after the notified Commencement Date, that the Transportation Facilities had then been suffering from some remediable defect which prevented their immediate use (apart from what the Court of Appeal called "minor problems") the notification will be retrospectively invalid. It seems to me very improbable that this is what rational businessmen could have intended.

  23. The fact that the power to notify the Commencement Date is vested in the CATS Operator suggests that the parties contemplated, first, that the CATS Operator would be able to know at the time whether the conditions for notification had been satisfied or not and secondly, that the notification would give rise to definite commitments on the part of the CATS Parties and TGTL. TGTL would rely upon the Commencement Date notification to built their feeder pipeline from the J-Block fields and prepare to tie it in. It would be strange if the existence of an unknown defect in the pipeline enabled the CATS Parties to say that there had been no Commencement Date and that they therefore had no obligations under clause 6.1 to provide the Transportation Service. I do not think that in such a situation even the unqualified obligation under clause 3.1 to complete the pipeline by 1 April 1993 would provide TGTL with a remedy. If the CATS Parties were under no obligation to provide any Transportation Service, the failure to complete the pipeline would have caused TGTL no loss.

  24. Likewise, the CATS Parties no doubt relied upon receiving the income stream from the send-or-pay payments from the time when the system had been completed and commissioned. It must have formed part of their financing arrangements. It would not be very businesslike to enter into an agreement which provided that if some remediable defect emerged at the time of a tie-in two or three years later, all the money would be repayable and the CRTA liable to cancellation.

  25. Mr Sumption said that there is nothing unreasonable in a provision by which liability for the send-or-pay payments can be retrospectively invalidated by the emergence of a latent defect. It is simply a commercial allocation of the risk that there might be such a defect. The Court of Appeal agreed. But the construction for which Mr Sumption contends is not what is ordinarily meant by the allocation of risk. It usually means a term which provides that a loss which would otherwise fall to be borne by one party shall be borne by the other. A warranty in a contract of sale allocates to the seller the risk of losses which would otherwise fall upon the buyer. In the present case, however, there was no loss to be allocated. If there had been a loss, other terms of the contract like clauses 3.1 (the obligation of the CATS Parties to construct the system) and 7.5 (which provides for a reduction in send-or-pay payments when capacity is not available) would have come into play. The latent defect in T6 was simply an unforeseeable event which TGTL says entitles it to be relieved of the obligation to pay £100m. I think that Mr Pollock was right in saying that such a term would be more like a bet than a provision for the allocation of risk. Furthermore, the allocation of risk argument does not explain why it would be rational to deny TGTL a remedy for loss suffered because they were unable to tie in by reason of a defect which invalidated the Commencement Date.

  26. Mr Sumption said that the availability of the Transportation Facilities from the Commencement Date was what TGTL had bargained for. If they were not in a state to be used, then TGTL was being denied the only consideration for which it was making send-or-pay payments. But this seems to me an unrealistic view of the commercial nature of the transaction. TGTL agreed to pay from the Commencement Date in order to reserve capacity for itself, to be used from whatever date it chose in accordance with the terms of the CRTA. It was not paying to avoid the disappointment of knowing that if it had chosen to tie in at some other date, it might not immediately have been able to do so.

  27. The construction adopted by the judge makes more commercial sense, certainly on the facts as he found them, than either of the extremes so far considered. The only reason why I do not find it entirely satisfactory is that the judge thought it was important that there was nothing wrong with the valves. They could be made to work without modification. This suggests that he might have given a different answer if, by reason of some latent defect or supervening event unknown to the parties (like a trawler net snagging T6 between the time it was built in August 1992 and the Commencement Date on 1 April 1993) the valves were defective or broken and had to be replaced. But this would also produce the retrospective consequences which I have described and would in my view be equally irrational.

  28. It would be possible to modify the judge's construction to cope with this difficulty. But I think that one should go back and examine the basic assumption that the words "the CATS Transportation Facilities are available to perform the Transportation Service" are intended to be descriptive of some state of affairs and that the problem is to identify just what that state of affairs is. It is true that conditions (a) and (b) plainly denote a state of affairs in which certain events have occurred; the CATS Approvals "have been obtained" and the CATS System "has been tested and commissioned". Condition (c) has the same (subject-predicate) grammatical structure and therefore it has been assumed that it also denotes a state of affairs, this time in the present tense. But this need not necessarily be the case.

  29. One clue to the possibility that the words are not intended to denote a state of affairs is that the agreement does not elaborate on what that state of affairs might be. If that was intended to be its meaning, one would certainly have expected this agreement to say exactly what the CATS Parties had to do to comply. The CRTA covers 348 pages with detailed and careful drafting. More particularly, in clause 7.5 it uses the expression "capacity is not available" in a different context, to which I shall have to return later, and provides a three page definition of what for that purpose is meant by capacity not being available. One would therefore have thought that if £100m were going to turn on whether the Transportation Facilities could be said to be available, the agreement would have said precisely what that meant.

  30. A second clue is the purpose that the definition of the Commencement Date was intended to serve. It is a defined expression for use in the substantive provisions of the agreement and, as I have already said, in those provisions it serves two main purposes. It defines the moment from which the CATS parties come under an obligation to provide the Transportation Service to TGTL under clause 6.1 and the moment from which TGTL is required by clause 7.4 to make send-or-pay payments. Thus the fixing of that Date imposes obligations upon both parties. The CATS Parties come under an absolute obligation (subject to a force majeure clause) to provide the Transportation Service, for breach of which they may be liable in damages, and TGTL come under an obligation to make the send-or-pay payments. But the CATS Operator must first decide that the Transportation Service is in a state in which the CATS Parties can accept the obligations imposed by agreement.

  31. Reading the definition of the Commencement Date in this context, it becomes clear why there is no attempt to define the word "available." It is for the CATS Operator to decide whether the Transportation Service should be declared available or not. Conditions (a) and (b) provide TGTL (and no doubt its bankers) with objective assurances, in accordance with the standards of a "Reasonable and Prudent operator", as I have construed condition (b) to require, that the system has been lawfully built, tested and commissioned. But condition (c), despite its similar grammatical structure, is not in my opinion intended to be descriptive of any state of affairs at all. It is rather in the nature of a declaration which (assuming conditions (a) and (b) to be satisfied) triggers the Commencement Date. A notification that "the CATS Transportation Facilities are available" is simply a statement that the pipeline is open for business and that the CATS Parties accept liability from that date to provide the Transportation Service. In speech act theory, condition (c) is technically called a "performative" (see JL Austin, "Performative Utterances" in Philosophical Papers (3rd ed 1979) at pp 233-252). It does not describe anything; it does something, rather as the statement by the visiting celebrity at the village fete "This fete is now open" does not describe anything. The fete is open because she has declared it open.

  32. Of course the making of such a declaration may imply a belief on the part of the maker that a certain state of affairs exists which enables it to be meaningfully made. In the present case, the notification that "the CATS Transportation Facilities are available" would imply a bona fide belief on the part of the CATS Operator that they were in a state which enabled the Transportation Facilities to be provided. The lack of such a bona fide belief might invalidate the notice. But there has never been any suggestion that the CATS Operator did not honestly believe that the Facilities could be provided in accordance with the contract.

  33. This construction means that a Commencement Date notification can be validly given even though, on account of a latent defect or for some other reason unknown to the CATS Operator, it is in fact incapable of providing the Transportation Service. But when one looks at the CRTA as a whole, this does not seem to me at all unreasonable. It avoids what I have described as the irrational consequences of the construction adopted by the Court of Appeal. And it does not cause any difficulties for TGTL. Under clause 3.1 the CATS Parties were under an absolute obligation to cause the CATS Transportation Facilities to be constructed and capable of performing the Transportation Service. So far as a breach of this obligation causes TGTL any loss, it will have a claim in damages. Secondly, clause 7.5 provides for a reduction in send-or-pay payments if capacity is not "available" (as defined in clause 7.5(b)) for the provision of the Transportation Service. I shall have to consider the effect of this clause in a moment, but I think it is clear that it entitles TGTL to a reduction if the CATS Parties are unable or fail to redeliver some or all of its gas after its pipeline has been tied into the CATS system.

  34. These conclusions, differing from those of the Court of Appeal, make it necessary for me to consider Mr Sumption's alternative argument based on clause 7.5 which the Court of Appeal found it unnecessary to address.

  35. Clause 7.4, as I have said, deals with the obligation to make send-or-pay payments. There is a formula for calculating the amount of the payment in which one factor is C-S. C is, roughly speaking, the total reserved capacity expressed as the number of cubic metres available on each day in the relevant quarter and S is the aggregate quantity of gas actually delivered over the same period, for which payment is made according to a different formula. So C-S represents capacity reserved but unused. Clause 7.5 provides for a reduction in C if the reserved capacity is "not available (as determined pursuant to Clause 7.5(b)) for the provision of the Transportation Service". Clause 7.5(b) therefore contains an exhaustive definition of what is meant by not being available for the purposes of clause 7.5(a) and, as I have said, it covers some three pages. I cite a few of its provisions:

    (I)

    Capacity shall be deemed not to be available for the provision of the Transportation Service when (and to the extent that) the CATS Parties are unable or fail to redeliver Capacity Redelivery Gas at the relevant Redelivery Point for whatever reason, including without limitation:

    (A)

    periods of maintenance of the CATS System;

    (B)

    Force majeure affecting the CATS Parties, the CATS Operator, the CATS Transportation Facilities or the operation thereof;

    (C)

    the failure of the CATS parties or the CATS Operator to accept at any relevant entry point Capacity Gas at the relevant Capacity Input Rate and at the relevant Notified Specification…

    unless such inability or failure of the CATS Parties is due to any of the following:

    (E)

    an act or omission of [TGTL]…

    (G)

    failure of [TGTL] … to deliver Capacity Gas to any Entry Point at the relevant Capacity Input Rate and at the relevant Notified Specification for any reason…but excluding any such failure caused by an act or omission of the CATS Operator or any of the CATS Parties.

  36. Mr Sumption said that during the period from the Commencement Date until the problems with the T6 valves had been sorted out, the CATS Parties were "unable … to redeliver" TGTL's gas to the extent of the whole of the capacity to which it was entitled. Factor C should therefore be reduced to zero and it follows that the send-or-pay payments should also have been reduced to zero.

  37. It appeared in the course of the argument that the provisions of clause 7.5(b) might give rise to some tricky questions of causation. Mr Pollock said that for the CATS Parties to be unable or fail to "redeliver Capacity Redelivery Gas", there must have been some gas delivered. It could not apply when TGTL had no gas to offer. Mr Sumption said that, in that case, why did (G) create a specific exception for the case in which the failure to redeliver was because TGTL had not delivered any and then excluded from that exception a failure to deliver "caused by an act or omission of the CATS Operator or any of the CATS Parties"? That meant that if the reason why TGTL was not delivering any gas was because the pipeline was shut (e.g. for maintenance under (A)) it was still entitled to its reduction.

  38. Mr Sumption may well be right in these submissions but I do not think that I need to deal with them because in my opinion it is clear that capacity cannot be said to be "not available .... for the provision of the Transportation Service" at a time when the CATS Parties have no obligation to provide the Transportation Service. I have quoted the definition of the Transportation Service in clause 6.1 and it is an obligation to accept, transport and redeliver gas "subject to the other terms and conditions of this Agreement". One of the other terms is clause 5.14, which provides that "the Transportation Service for a Designated field shall not commence" until certain conditions have been satisfied. The first of these is that TGTL's facilities to bring the gas from (in this case) the J-Block fields shall have been "constructed, installed, tied-in, certified, tested and commissioned". It follows that for the entire period during which TGTL say that capacity was "not available…for the provision of the Transportation Service" within the meaning of clause 7.5(a), it was not entitled to the provision of the Transportation Service. It was therefore not entitled to a reduction in send-or-pay payments.

  39. It follows that TGTL has been liable for the send-or-pay payments since 1 April 1993 and ICI and Enron are liable as guarantors. For these reasons and those of my noble and learned friend Lord Hope of Craighead, I would allow both appeals with costs here and in the Court of Appeal and restore the orders of Langley J.

    Lord Hope of Craighead

    My Lords,

  40. The Capacity Reservation and Transportation Agreement (CRTA) with which these appeals are concerned identified the commercial context in which it was entered into by means of a brief preamble in which the following recitals are set out:

    (A)

    The CATS Parties intend to construct, own and operate the CATS System.

    (B)

    The ICI/Enron Party wishes to reserve capacity in the CATS Transportation Facilities and to procure certain transportation services and the Parties wish to provide herein for such reservation of capacity and the terms upon which such transportation services shall be provided by the CATS Parties.

    (C)

    The Gas Sales Agreements have been entered into on the date hereof.

  41. As Langley J observed at p 20 of his judgment, the overall context was the deregulation of the power supply industry in the United Kingdom and the consequent opportunities to compete in a market. The CATS Parties were aware that very large quantities of natural gas were soon to become available in the Graben area of the North Sea. They were the holders of interests in the Everest and Lomond fields, of which Amoco was the operator. In order to reach the market their gas would have to be transported to processing facilities onshore. The only practicable means for this to be done was by way of a pipeline to the nearest convenient point, which was at Teeside. The laying of a pipeline under the North Sea for the distance required, which was more than 250 miles, was a substantial and very expensive undertaking.

  42. It made good sense in these circumstances to design a pipeline which would be capable of transporting very large quantities of gas. The ability to commingle gas from a number of customers within the same pipeline would offer the prospect of the use of the facility by the developers of several other fields in addition to those which were being developed by the CATS Parties. Contracting for its use by other developers would provide the CATS Parties with a return on their investment. In addition to the profit which they could expect to make on the sale of their own gas, they would have the benefit of a stream of income in the form of payments made by others for the use of the facility. Almost every commercial enterprise depends upon the investment of capital with the expectation of profit in return. The proposal for the construction and operation of the CATS System was just such an enterprise.

  43. Step by step these arrangements were put in place. On 10 September 1990 agreements were concluded by Teeside Power Ltd for the purchase of gas to be produced from the Everest and Lomond fields. This gas, which was to be transported by means of the pipeline to Teeside under the Everest / Lomond Transportation Agreements, was to be used as a feedstock for a power station which was to be constructed there by TPL. On the same date the CATS Parties entered into the CRTA with TGTL. TGTL had not yet entered into an agreement for the purchase of gas from any developer. But they were able for their part, by reserving capacity in the pipeline, to acquire the ability by this means to transport a further quantity of gas from other fields. This enabled them to purchase gas which they could bring ashore, process at Teeside and then sell. It was only after these agreements had been entered into that the work of constructing the pipeline was put in hand.

  44. On 26 March 1993, against the background of the CRTA, agreements were entered into with the owners of the J-Block fields by which the owners of these fields sold all the gas in J-Block to Enron Europe Ltd (EEL), one of the participants in TGTL. On the same date agreements were entered into with TGTL for the transportation of the J-Block gas to Teeside using TGTL's reservation under the CRTA of capacity in the CATS pipeline. Contracts were subsequently entered into by the CATS Parties with the developers of a number of other fields for the transportation of their gas to shore by means of the CATS pipeline.

  45. It is hard, in this context, to see the provision in the CRTA which defines the expression "Commencement Date" as having the function which the respondents say ought to be attached to it. Their argument is that the phrase "the CATS Transportation Facilities are available to perform the Transportation Service" in head (c) of the definition requires that the facilities must actually be able to perform that service on that date. Nothing short of an actual ability to perform the service will do. As Mr Sumption QC put it, the service could only be said to have been available on that date if TGTL could step in then and use the facilities. "Availability" according to this argument was a question of fact. It was to be measured by the completeness of the facilities to perform the service of transporting the gas.

  46. But the consequence of this approach is to treat the giving of the notice by the CATS operator as amounting to a warranty. So treated, the definition would lead to a state of uncertainty as to whether or not there was a Commencement Date until the Capacity Facilites had been tied-in, certified, tested and commissioned and were found in fact to be capable of delivering gas to the facilities: see clause 5.14. This is because the notice given by the CATS Operator would be at risk of being set aside in the event of the discovery of a defect which rendered the facilities, albeit temporarily, incapable of performing the Transportation Service. The contract would, in that event, once again be without a Commencement Date until the defect had been rectified. This would remove from TGTL the right to the Transportation Service under clause 6.1, and it would remove from the CATS Parties to right to receive the Send-Or-Pay Payments under clause 7.4.

  47. Of these consequences, the removal from the CATS Parties of the income stream represented by the Send-Or-Pay Payments and the obligation to repay to TGTL the payments already made by them is the most difficult to reconcile with the commercial purpose of the agreement. The investment in the construction of the pipeline and in the reservation of capacity was an exercise in commercial judgment on both sides. Part of the return on their investment by the CATS Parties was to be obtained by means of payments made by others for the use of the pipeline. In the case of the CRTA, it was to be obtained by means of the payments which TGTL agreed to make for the reservation of capacity with effect from the Commencement Date. From the point of view of TGTL the return on their investment was the price that they could charge others for the purchase of gas which they could then transport by using the reserved capacity. The cost of that investment was the price which they undertook to pay to the CATS Parties for its reservation in the form of the Send-Or-Pay Payments with effect from the Commencement Date.

  48. From both points of view it made commercial sense for the Commencement Date to be a fixed point of time which was to be identified once and for all by the giving of a notice by the CATS Operator. All that was needed was a declaration made in good faith by the CATS Operator that the CATS Transportation Facilities were available. The obligations which the CATS Parties undertook in terms of clause 3.1 to cause the CATS Transportation Facilities to be constructed and capable of performing the Transportation Service by 1 April 1993 provided TGTL with a sufficient basis for obtaining a remedy from the CATS Parties in the event of loss due to the fact that the facilities were not actually available on that date. The remedy which TGTL seek in these proceedings, which includes calling for the repayment of all the Send-Or-Pay Payments already made, bears no relation to any loss sustained by them. It is a far more extreme remedy for the emergence of a defect in the facilities prior to tie-in than the parties can be expected to have had in view when the agreement was entered into.

  49. For these and the further reasons given by my noble and learned friend, Lord Hoffmann, whose judgment I have had the advantage of reading in draft and with which I agree, I consider that notification of a Commencement Date could validly be given under the CRTA even although, due to a latent defect or for some other reason unknown to the CATS Operator. the facilities were not in fact available to perform the Transportation Service on that date. So I, too would allow these appeals and restore the order made by Langley J.

  50. In Total Gas Marketing Ltd v Arco British Ltd [1998] 2 Lloyd's Rep 209, which was another case arising out of an elaborate contract relating to activities in the North Sea by the oil and gas industry, I said at pp 223-224 that I thought that it was unlikely that the result in that case was one which had been intended by the parties as it seemed to me to be at odds with the commercial purpose of the agreement. It is satisfactory to find that it has proved to be possible in this case to construe the agreement in a way that is consistent with its commercial purpose and the context in which it was entered into.

    Lord Hobhouse of Woodborough

    My Lords,

  51. In agreement with my noble and learned friends Lord Hoffmann and Lord Hope of Craighead, I too would allow these appeals and restore the orders made by Langley J. Like my noble and learned friends I also agree in substance with the reasons which Langley J gave for his decision. It was firmly based upon the findings of fact which he made and his understanding of the commercial structure and purpose of the Agreement. I will come back to his findings of fact shortly but the argument of the respondents and the decision of the Court of Appeal was founded on just one of them:

    (10)

    The T6 Entry Point was first inspected by Rockwater (Phillips' contractors) in late October 1994. A welded connection was then contemplated. The valves were found to be not sealing as they should causing leaks of gas. The probability is that the condition of the valves was the same on 1 April 1993. The leaks were such that a tie-in by either weld or flange could not have proceeded then and investigation of the problem was required.

    Thus it is argued that on 1 April 1993 the valves were not in working order and the Facility was not available to perform the transport service.

  52. The function of a notice provision in a contract is normally as part of the machinery of the contract. It serves to trigger or define other rights and obligations under the contract. That is undoubtedly its function in this Agreement: the service of the commencement date notice triggers obligations of both parties to the Agreement. The definition shows that it is a notice to be given by the CATS Operator only when it has satisfied itself, for its own protection, of certain matters. As my noble and learned friends have explained, the character of the notice is as an expression of the willingness of the Operator to proceed to the next, mutual, stage of the implementation of the contract, accepting for itself the attachment of the further contractual obligations which arise from proceeding to that stage. The delivery of the notice is an act which brings into effect obligations set out elsewhere in the Agreement; it does not itself create any obligations for either party.

  53. But I do not consider that the notice provision should be construed from the point of view of the Operator alone. There are two reasons for this. The first is that the service of the notice impacts on both parties. It triggers important monetary obligations for the respondents: from 6.0am on the Commencement Date they must start making the 'send-or-pay' payments "in consideration of the reservation of the Capacity Reservation and the provision of the Transportation Service" (cl.7.1 and 7.4). Paragraph (c) of the Commencement Date definition presupposes that the CATS Transportation Facilities exist; otherwise how can they be available? I do not accept the respondents' argument that the service of the Commencement Date notice involves any warranty or undertaking. But I am prepared to accept that the Agreement, as a matter of construction, should be read as including, as a condition of the right to serve the Commencement Date notice that there is a Facility available to perform the Transportation Service. The various phrases used in paragraph (c) are defined phrases involving cross-references to other clauses in the Agreement - cl.3.1 for the Facilities and cl.6.1 for the Service. Cl.3.1 imposes an obligation upon the CATS parties, by 1st April 1993, to cause the Facilities to be constructed and "capable of performing" the Service. The obligations under cl.3 are to be performed "in accordance with the standard of a Reasonable and Prudent Operator" (an elaborately defined term used in a number of places in the Agreement). The Facilities include the Entry Points into which the Respondents were entitled to tie in. Thus far the argument follows a familiar logic analogous to the interpretation of other contracts. It is at the next step that I consider that the argument and the reasoning of the Court of Appeal becomes erroneous.

  54. The respondents' argument, successful in the Court of Appeal, is that, for a valid notice to be served for 1st April 1993, the Facilities including the relevant Entry Points must be in such a state of completeness and readiness that the respondents could on that very day tie in to the Entry Point(s) and feed gas into the pipeline. Using finding number (10), they say that, because on that day the valves would leak excessively if simply closed without any remedial operational steps being adopted, the Facility would not have been available (or capable of performing the Service) and the condition entitling the Operator to serve the Commencement Date notice would not have been satisfied. The argument is erroneous both in law and in fact. I will take the law first.

  55. I accept that the fulfilment of any conditions to the service of the notice has to be considered as at the date of the notice. It is therefore legitimate to consider what was the state of affairs on 1st April 1993. But it is a fallacy to proceed from that proposition, as it seems did the Court of Appeal, to the proposition that it must be possible to tie in on 1st April 1993. This was an Agreement for the provision of a right to share the use of a pipeline and terminal. It was not a 'turn-key' (or as it was put a "push-button") contract for a piece of equipment or a system. Tying in to an Entry Point was a necessary preliminary to making use of the pipeline and the requirement that the Operator accept the respondents' gas. Tying in is the responsibility of the respondents and detailed requirements have to be fulfilled by them in order to do so: clause 3.4 and clauses 5 and 8. The judge rightly held that the nature of the business in which the parties were engaged and the structure of the Agreement was one which required the parties to co-operate and contemplated that there would be problems which would have to be worked out. As the judge put it in his finding number (23), accepting the evidence of Mr Styles, "there was never any question or expectation that Phillips could or would just turn up and get on with the tie-in". The use of the word "available" in the definition means exactly what it says: the Operator is making the Facilities available to the respondents to perform the Service. The use of that word does not import that no problems can arise. As explained, the notice triggers other obligations. Having given the notice, the Operator may become liable for breaches of those obligations but the notice is still an effective notice. Indeed, it is the effectiveness of the notice which premises the liability of the Operator for the non-performed or defectively performed obligation. To treat such a breach as invalidating the notice would, as my noble and learned friends have said, negate the structure of the Agreement.

  56. But this is not necessarily the end of matter since I have accepted that the definition should be construed as including certain conditions upon the right of the Operator to serve the Commencement Date notice. I have accepted that the defined phrases used in paragraph (c) necessitate looking also at cl.3.1 and cl.6.1. The word used in cl.3.1 is "capable". In the context of this commercial Agreement, this is a commercial term not a scientific one. But, anyway, saying that 'x' is capable of something is to state that when some further things ('y' and 'z') happen 'x' will produce the relevant result. The respondents' argument involves making an assumption about 'y' and 'z' which is not justified or appropriate upon a fair reading of the Agreement as a commercial document. The respondents need to be able to say that any adjustment or adaptation is to be excluded and that no refinement of the tie in procedure can be made even though it can be made in the ordinary course and without distorting or negativing the contractual structure or the parties' commercial purpose. The commercial interpretation is reinforced by the references to the "standard of a Reasonable and Prudent Operator". Commercially capable means capable within commercially acceptable parameters. If the Transportation Facilities (which include the Entry Points) are capable of performing the Transportation Service in a commercially acceptable way, that suffices. It is commercially acceptable that the testing of the Entry Points in situ should be left until the time when they are going to be used to tie in to the pipeline (the judge's fifth finding). It was commercially acceptable that any problems then discovered, a fortiori any operational problems, should then be sorted out. It is not commercially acceptable to treat some complication, albeit arising from some feature of the Facilities, as altering the financial structure of the Agreement. Such a result is not to be found in the use of the word "available" nor in the word "capable". The financial scheme was that the respondents were buying into the facilities whether they chose to use them or not. The Facilities involved an extensive physical and contractual structure required for the transport of gas from a number of fields in the North Sea to delivery ex a terminal at Teesside. The construction of the definition of "Commencement Date" argued for by the respondents is irreconcilable with this scheme.

  57. But the judge's findings show that the respondents' argument is also unsustainable on the facts. Mr. Sumption QC emphasised that when first tested by the respondents' contractors, the valves malfunctioned. He submitted that this was due to an imbalance between the volume of the spaces within the spool and the size of the 2" vent valves intended to release the pressurised gas from them. This would have been a design fault. Whilst it is correct that the size of the vent valves would have affected the speed at which gas would pass through them, this was not the critical factor; it was, as the appellants' expert witness testified and the judge found, the rapidity with which the vent valve was opened. In the actual tie-in procedure, both as originally planned and as executed, the contractors fitted their own valves on the end of the vent pipes and their solution was to use quick release 2" quarter-turn valves. The evidence did not support the factual relevance of Mr. Sumption's technical argument. It was not the finding of the judge and was not the basis of the Court of Appeal's decision to allow the respondents' appeal.

  58. As regards the cause of the leakage across the 24" valves, the judge found that its cause was the failure to create a sufficient pressure differential, that this was not due to a manufacturing or design defect, that the tie-in could be and was achieved without any alteration or repair to the valves and without any modifications to the Entry Point as it existed on 31 March 1993, and that, even if the contract had required the making of a welded connection, this would in fact have been possible. As regards the respondents' (i.e. Phillips') timetable, the judge found that the correct assessment of the situation and what needed to be done had been made by 9 December 1994, that it was not in doubt that a tie-in could and would be achieved successfully within the time scale required by Phillips, and that he, the judge, was satisfied that "there was never any real likelihood that a successful tie-in could not be achieved to the existing assembly and that following Phillips' letter of 11th November 1994 any doubts about whether it could be achieved to meet Phillips' timetable were quickly dispelled".

  59. My Lords, the decision of the Court of Appeal was mistaken both in construing the Agreement as if it was a 'press button' contract and in failing to give effect to the judge's findings of fact.

  60. Finally, I should mention cl.7.5. This was of the nature of an off-hire clause. The respondents argued that it lent support to their submitted construction of the Commencement Date definition. I consider that it had an opposite effect. Cl.7.5 provided the respondents with a measure of protection after they had started to make the 'send-or-pay' payments; it was thus adverse to their submission that unexpressed implications needed to be read into the definition. On their substantive argument, the respondents fared no better. Cl.7.5 is drafted by reference to the phrase "unable or fail to redeliver". This phrase, on any view, raises the same considerations as I have discussed earlier. The respondents' case fails for the same reasons of law and fact. But there was a further difficulty for the respondents in relation to the use of the word "fail" in cl.7.5. It is not necessary to express a concluded view but it is probable that "fail" is used in this clause in a more restricted sense as is shown by 7.5.(b)(i)(C). However, the respondents simply have not got the findings of fact to enable them to succeed on any reading of cl.7.5.

  61. For these reasons and those given by my noble and learned friends, I would allow these appeals and make the orders proposed.

    Lord Scott of Foscote

    My Lords,

  62. I have had the opportunity of reading in advance the opinion of my noble and learned friends, Lord Hoffmann and Lord Hope of Craighead. For the reasons they give, which I agree with, I, too, would allow these appeals.


Cases

Total Gas Marketing Ltd v Arco British Ltd [1998] 2 Lloyd's Rep 209

Authors and other references

JL Austin, "Performative Utterances" in Philosophical Papers (3rd ed 1979)


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