UK Supreme Court to Decide on Robin Rigg Case on 3 August

On 3 August, the UK Supreme Court will hand down the judgement in the case of MT Højgaard vs. E.ON Climate and Renewables regarding the Robin Rigg offshore wind farm.

The decision will be made on the liability for the costs of repairing the foundations, considering whether the contract for the design and installation of foundations for the offshore wind farm imposed a fitness for purpose obligation on the contractor amounting to a warranty that said foundations would have a service life of 20 years.

On 20 December 2006, E.ON and MT Højgaard signed a contract for the design, fabrication and installation of the foundations for the wind turbines at Robin Rigg, after E.ON accepted the tender the company submitted in July of that year. In November 2006, MT Højgaard and Rambøll submitted a detailed Foundation Design Basis document, since Rambøll was hired by MT Højgaard to carry out the design work on the project.

MT Højgaard completed the foundation installation in February 2009.

The error in an equation

The facts of the legal case are that from 2007 to 2009, MT Højgaard designed, fabricated and installed the foundations that shortly after the completion of the installation started showing weaknesses in the grouted connections as a result of errors in the then applicable international standard issued by DNV, known as J101.

During a hearing in 2013, an engineer employed by Rambøll, who had designed the grouted connections, said he complied with good industry practice and all the provisions of J101, which was applicable at the time.

The same year Robin Rigg foundations were installed, an issue was discovered at the Egmond aan Zee wind farm in the Netherlands, which caused the grouted connections to fail and led to the transition pieces starting to slip down the monopiles. The same issue started to cause trouble at the Robin Rigg wind farm the following year.

The problem at the Dutch offshore wind farm led DNV to carrying out an internal review during August/September 2009.

The company discovered that there was an error in the value in a specific parametric equation, which was wrong by a factor of about 10, meaning that the axial capacity of the grouted connections at Horns Rev 1, Egmond aan Zee, Robin Rigg and certain other wind farms had been substantially over-estimated, according to a court document.

DNV sent a letter to MTH and others in the industry on 28 September 2009, alerting them to the situation and subsequently revising J101 to correct the error.

The grouted connections at Robin Rigg started to fail in April 2010 with the transition pieces starting to slip down the monopiles.

The court floor

First, E.ON and MT Højgaard embarked on jointly finding a solution to the problem and then agreed that E.ON would develop a scheme of remedial works. These works started in 2014.

The legal proceedings have been initialised to ascertain who should bear the cost of the remedial works, with the legal case taking place simultaneously with the development of the remedial works, during which the companies agreed the cost of the remedial works are EUR 26.25 million, leaving the court to decide who should pay the price.

In 2012, MT Højgaard applied for declarations as to the cost of the remedial works and who should bear that cost, claiming it had exercised reasonable skill and care and complied with all its contractual obligations, and should thus have no liability for the cost.

In the amended defence and counterclaim, E.ON claimed there were numerous breaches of contract by MT Højgaard and counterclaimed for declarations to the effect that MT Højgaard was liable for the defective grouted connections.

The legal action came before a judge in November 2013. In April 2014, the first ruling went against MT Højgaard, but the company filed an appeal, and the Court of Appeal reversed the ruling in favour of MT Højgaard in April 2015. The court upheld MT Højgaard’s appeal on the basis that the contract only required that the foundations should have a “design life” of 20 years, meaning that they would probably, but not necessarily, function for 20 years.

E.ON appealed this decision from 2015 before the Supreme Court, claiming that the contract imposed a fitness for purpose obligation on MT Højgaard amounting to a warranty that said foundations would have a service life of 20 years.

The court(s) found Rambøll not negligent in its design of the grouted connections, explaining that it was reasonable to comply with the provisions of the J101 standard and to adopt the stated value for the parametric equation.

Offshore WIND Staff