Enyo Law client, Wirsol Energy Limited and group companies, successfully defends c.£30m claim

Published: 14/4/2021

Enyo Law client, Wirsol Energy Limited and group companies, successfully defends c.£30m claim brought by Toucan Energy Holdings.

Enyo Law represented Wirsol Energy Limited and group companies in their successful defence of proceedings brought against them by Toucan Energy Holdings Limited for damages of c.£30m related to the construction of 18 industrial solar parks by Wirsol.

Toucan alleged that Wirsol had failed to properly construct the solar parks such that they were defective and at risk of catastrophic failure. Toucan also made a variety of related claims, including that the portfolio of Solar Parks had suffered blight (i.e. diminution in value in addition to any remedial costs) and that Toucan had had to refinance the debt of the solar parks very quickly as a result of the defects. Wirsol contended that (save in very minor respects) the solar parks were properly built and that Toucan’s losses were therefore minimal. Wirsol denied all of Toucan’s related claims. Wirsol counterclaimed for payment of c.£6.5m pursuant to an outstanding invoice for services under an Asset Life Extension agreement. Toucan alleged that no payment was due on numerous grounds, including that Wirsol had not met all of the conditions precedent to payment.

Following a five week trial in October – November 2020, which took place in person at the Rolls Building with just one factual and one expert witness attending remotely, on 14 April 2021, Mr Justice Henshaw handed down Judgment remotely.

The Judgment dismissed the vast majority of Toucan’s £30 million claim, finding that only a fraction of the losses related to the defects were made out. All other related claims were dismissed. On the contrary, the Judge upheld Wirsol’s counterclaim, finding that c.£6.25m was due on the unpaid invoice. The judgment contains a detailed analysis of the circumstances in which a waiver can be given under a commercial contract. The Judge ultimately concluded that Toucan was obliged to give a waiver under the contract in certain circumstances and that it had done so. In any event, Toucan’s conduct was such that (if required) it would have been found to have given an equitable waiver.

Prior to and during the course of the trial, the case attracted national press attention after it emerged that Toucan had raised very substantial sums from a local authority as part of its refinancing arrangement.

Given the complexities of the case, there will be a consequential hearing in due course to finalise the damages calculations. However, it is clear that Wirsol stands to make a very substantial net recovery.

Read the full judgment.

The Enyo Team comprised of Edward Allen (partner) and Oliver Waxman (associate). Enyo instructed Craig Morrison (Brick Court Chambers), Emily Husain (Hardwicke Chambers) and Jacob Rabinowitz (Brick Court Chambers).

Toucan were represented by Stewarts Law LLP, which instructed Stephen Cogley QC (4 Pump Court), Samuel Townend (Keating Chambers) and Sophia Hurst (Serle Court).

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