Design requirements ruling puts the wind up contractors

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Aug 04, 2017
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The Supreme Court ruled that a company that build wind farm foundations was obliged to ensure they had a minimum lifetime of 20 years

Danny Lawson/PA

Wind farm manufacturers are likely to have to ensure that their designs go well beyond the requirements of international standards after a landmark ruling from the UK’s highest court.

Lawyers predicted yesterday that the judgment in the long-running dispute, MT Højgaard v E.ON, which was handed down yesterday in the Supreme Court, would “come as a shock” to the renewable energy industry. The judges – Lord Neuberger of Abbotsbury, the court’s president, Lord Mance, Clarke of Stone-cum-Ebony, Lord Sumption and Lord Hodge – unanimously found that the contractor, MT Højgaard, was under an obligation to ensure that the offshore wind farm foundations would have a minimum lifetime of 20 years.

Mark de la Haye, a lawyer at Clyde & Co, a City of London law firm, said “this effectively placed on the contractor the consequences of an error in the international standard to which they were working”. De la Haye predicted that the implications of the judgment were that “in the absence of clear wording to the contrary, contractors may unwittingly be obliged to ensure that their work goes above and beyond current international design standards”.

The lawyer argued that the ruling would also have ramifications beyond the offshore industry. He said it “could significantly affect the terms of future contracts, the risk assessment of existing contracts, as well as insurance and finance arrangements in the offshore wind farm sector”.

The legal team for the appellant in the case was led by John Marrin, QC, of Keating Chambers in London, who was instructed by the Anglo-Canadian firm Gowling WLG. David Streatfeild-James, QC, of Atkin Chambers in Gray’s Inn, lead the legal team for the respondent, instructed by the law firm Fenwick Elliott.

Supreme Court ruling on ‘grey market’ goods is black and white

Supreme Court judges also dealt a potentially fatal blow to so-called grey market goods by ruling that their sale is a criminal offence.

The case involved allegations, which have yet to be proved, against three anonymous appellants are that they are engaged in the bulk import and sale of goods bearing registered trademarks that were manufactured in countries outside the EU. A significant portion of the goods said to be sold by the appellants were manufactured, and the trademark applied, with the permission of the trademark proprietor, but were then sold without the trademark proprietor’s consent.

These are known as “grey market” goods as distinguished from true counterfeits, which are manufactured without the authorisation of the trademark proprietor.

Lord Neuberger, sitting with Lord Mance, Lord Sumption, Lord Hughes and Lord Hodge unanimously ruled that they sale of grey goods was a criminal offence.

Andrew Stone, an intellectual property specialist at the London law firm Clarke Willmott, described the ruling as “a solid blow against the convoluted arguments which infringers regularly try to put forward”. Stone said the ruling was “a real boost to brand owners who can use this as another tool in their armoury to prevent counterfeiters”.

The lawyer advised that trademark owners should review the agreements they have in place with their authorised manufacturers to ensure that they deal with the issue of grey market items by having strict controls over production. They should also implicitly state that grey market goods are not authorised, must not be sold by the factories and are to be returned to the brand owner or be de-branded and destroyed.

“The trademark owners can then rely on such agreements at court should this be required to support criminal cases against the sellers of grey market items,” Stone said.

Henry Blaxland, QC, of Garden Court Chambers in Lincoln’s Inn, and Michael Bromley Martin, QC, of Three Raymond Buildings in Gray’s Inn, led the teams for the appellants, and were instructed by the London and Manchester law firm Stokoe Partnership Solicitors. Julian Christopher, QC, of 5 Paper Buildings in the Temple, appeared for the respondent, instructed by the Crown Prosecution Service.

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