Jurisdiction(s):
United Kingdom

Competing remedial schemes: TCC (England and Wales) finds choosing costlier option reasonable to avoid outages, given business, reputational and public interest factors (Southern Electricity v OCU Modus)

Published on: 10 April 2025

Published by a LexisNexis Construction expert

Legal News

Article summary

Southern Electricity Power Distribution PLC v OCU Modus Ltd [2025] EWHC 723 (TCC) What are the practical implications of this case?

This judgment underlines that a range of elements, including non-pecuniary considerations, can influence how the court assesses damages for breach of contract where works are defective and there is a choice between remedial schemes. The usual position is that, if two alternative remedial options are equally effective and one costs less, then, prima facie, the claimant should implement the cheaper solution (McGlinn v Waltham Contractors). Equally, if the claimant elects for a costlier route in that situation, that does not, of itself, render the decision unreasonable; however, the extra expenditure is generally treated as stemming from the claimant’s selection rather than the defendant’s wrongdoing (Hirtenstein v Hill Dickinson).

Here, the judge concluded there were only two viable methods to rectify the defects: one involved significant power outages but came at a lower cost...
The other avoided substantial outages yet incurred a higher overall expense...

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