Connect Plus (M25) Ltd v Highways England Company Ltd

A contractual definition of a critical incident required a declaration by or on behalf of the Secretary of State. The declaration was to be made by reference to objective criteria in the applicable emergency procedures. The deemed categories in the Network Management Manual automatically satisfied the general definition, but were not exhaustive. The relevant event also had to satisfy the separate contractual requirements for a Relevant Critical Incident before the payment adjustment applied. Post-contractual administration did not establish an agreed variation or estoppel.

Connect Plus operated and maintained parts of the M25 under a 30-year design, build, finance and operate contract transferred to Highways England. The parties disputed the meaning of “Critical Incident”, who could declare one, and whether the Critical Incident Adjustment applied.

The issues concerned contractual construction, alleged post-contractual agreement, the effect of a Network Board reference, and estoppel by convention or representation. An expert had determined that a Critical Incident required declaration by NILO. Connect Plus challenged that determination in the Technology and Construction Court.

1. The declaration of a Critical Incident was for the Secretary of State or a person acting on the Secretary of State’s behalf. The wording did not confer that power on Connect Plus.
2. The applicable emergency procedures were the Network Management Manual as incorporated into the contract. Its definition was objective: an unforeseen event had to seriously impact the Highways Agency and its ability to deliver its stated objectives. The deemed categories automatically satisfied that definition, but were not exhaustive.
3. The declaration alone did not trigger payment. The event also had to be a Relevant Critical Incident under Schedule 25, including the specified closure, obstruction or damage requirements and the Incident Controller’s request for attendance.
4. The parties’ use of the INFORM system and administration of payments did not establish a binding agreement that Connect Plus could make declarations. There was no intention to vary the contract.
5. The 2013 correspondence resolved the immediate payment issue but left the contractual definition and its application unresolved. No estoppel was established because there was no sufficient shared assumption, reliance, representation or unconscionability. Any estoppel could not determine the proper construction of the contract for future dealings.
6. The issues were therefore determined against Connect Plus, subject to the contractual construction stated above.