High Court rules plaintiff owns cable, finds defendant negligent, awards damages but refuses interest due to delay.

THE HIGH COURT

ADMIRALTY

Record no. 2018 9581P

[2025] IEHC 493

THE LIDA SUZANNA

BETWEEN:

VIRGIN MEDIA WHOLESALE LIMITED

PLAINTIFF

-AND-

THE OWNERS AND ALL PERSONS CLAIMING AN INTEREST IN THE

LIDA SUZANNA

DEFENDANTS

JUDGMENT of Mr. Justice Denis McDonald delivered on 18th September 2025 Contents

Introduction ..................................................................................................................... - 3 - The issues to be determined ........................................................................................... - 6 - Ownership of the Cable ................................................................................................ - 11 - The evidence of Mr. Mark David Hardman in relation to ownership................................... - 12 - Mr. Hardman’s evidence in relation to the role of Virgin Media Limited ............................ - 21 - The claims made by Virgin Media Limited that it is the owner of the cable ......................... - 23 - The terms of the cable crossing agreement suggesting that Virgin Media Limited is the owner of the cable............................................................................................................................... - 25 - The second set of proceedings in relation to the cable in which Virgin Media Limited is named as plaintiff ................................................................................................................................ - 25 - Gaps in Mr. Hardman’s evidence identified by counsel for the defendants ......................... - 26 - The plaintiff’s application to supplement its evidence as to ownership of the cable ............ - 27 - The affidavit of the plaintiff’s solicitor dealing with the need to call further evidence........ - 29 - The additional evidence on the issue of ownership given by Ms. Caroline Egan................. - 32 - The arguments of the parties in relation to ownership of the cable ...................................... - 39 -

Conclusion in relation to the ownership of the cable ............................................................ - 44 - Has the plaintiff suffered a loss? ................................................................................. - 55 - Did the Lida Suzanna cause the damage to the cable? .............................................. - 68 - What was the location and nature of the damage suffered by the cable? ............................. - 73 - Findings of fact in relation to the location and nature of the damage done to the cable..... - 89 - The expert evidence called by the plaintiff in relation to the location and movement of the Lida Suzanna relative to the location of damage to the cable........................................................ - 91 - The evidence of Mr. Brian Molloy, the skipper of the Lida Suzanna ................................. - 113 - The evidence of the expert witness called by the defendants, Captain Nathan Mills ......... - 123 - Findings of fact in relation to the issue as to whether the Lida Suzanna caused the damage to the cable ................................................................................................................................. - 125 - Are the defendants liable for the damage to the cable? .......................................... - 136 - Was there contributory negligence on the plaintiff’s part? .................................... - 165 - The plaintiff’s claim to damages................................................................................ - 166 - The quantum fixed by the Court ............................................................................... - 178 - The claim to interest under s. 22 of the Courts Act 1981 ........................................ - 179 -

Conclusion ................................................................................................................... - 180 -

Introduction

1. This is an action against the owners of a fishing vessel arising from damage to a subsea cable. The plaintiff claims to be the owner of a subsea telecommunications cable called Sirius South (“the cable”) which was laid in 1998 and runs under the Irish Sea from a terminal at Lytham St. Annes, Lancashire, England to a terminal at Portmarnock, County Dublin. The cable is 218.693kms long from beach transition point in Ireland to beach transition point in England. The cable contains 48 optical fibre strands which are used for the transmission of data. Along with a second cable known as Sirius North (which runs between Scotland and Northern Ireland) the cable, at the relevant time, carried all of the plaintiff’s internet data, television and telephone traffic between the United Kingdom and the island of Ireland.

2. The claim is asserted against the owners of an Irish registered fishing vessel, the Lida Suzanna which is based in the port of Wexford. At the time of the incident the subject matter of these proceedings, the vessel was engaged in scallop trawling in the Irish Sea. The registered length of the trawler is 21.54 metres but its1 overall length is 25 metres and its breadth is 6.4 metres. The trawler has a depth of 2.87 metres and is equipped with a 221kW Mitsubishi engine, Model 65A3003. For the purposes of scallop trawling, the vessel is equipped with two scallop trawls, one for use on the starboard side and the other for use on the port side. Each scallop trawl comprises a heavy steel frame and is equipped with spring-loaded metal tines (approximately 9cms or 4ins in depth) which are towed across the seabed by means of a trawl line or “warp”. The tines are designed to scrape the seabed for scallops.

In this judgment, I have deliberately used the inanimate pronoun when referring to the trawler. I have avoided the traditional use of the feminine pronoun.

3. The plaintiff claims that, in the course of scallop trawling undertaken by the Lida Suzanna, on 26th January 2015, the scallop trawls damaged the cable in international waters in the Irish Sea. In para. 3 of the statement of claim delivered in the proceedings on 1st March 2019, it was alleged that the damage occurred while the Lida Suzanna was engaged in trawling operations over the cable at coordinates 5338.113N and 453.849W approximately 136 kilometres west of the Lytham St. Anne’s terminal station. It should be noted, however, that, on the final day of the hearing, the plaintiff applied to amend para. 3 of its statement of claim to identify a different location for the occurrence of damage namely a position represented by coordinates 53 38.113N and 452.849W. It appears to be clear that this arose as a consequence of an accidental error. More significantly, the plaintiff also applied to amend the categoric plea made in para. 5 of the statement of claim that the “location of damage was confirmed to be at the Location detailed in para. 3 …” to read: “The location of damage was in the vicinity of the Location detailed at paragraph 3 above along the length of the Cable over a distance of approximately 260 metres”. (emphasis added). This amendment was necessitated as a consequence of the way in which the evidence unfolded at the trial during the crossexamination of the plaintiff’s witnesses, It transpired that the location represented by coordinates 53 38.113N and 452.849W was not where the actual damage occurred. It was no more than the predicted location of the damage derived from remote testing of the line.

4. The damage to the cable became known on 26th January 2015 at approximately 11:41hrs when a fault alarm was triggered on the plaintiff’s network management system which monitors activity on the cable in real time. As explained by Mr. Peter Jamieson, the principal engineer (core fibre and subsea) of the plaintiff’s related company Virgin Media O2, the fault alarm is activated by an automated fault trigger system which is deployed when equipment based at the terminal points in Portmarnock and Lytham St. Annes stop communicating with each other. According to Mr. Jamieson, within a millisecond of communication breaking down, an alarm is triggered and this sets off the process of testing (which is described further below). The system suggested that the break occurred 90.380 kilometres from Portmarnock and 128.300 kilometres from Lytham St. Annes. By reference to that distance, the repair ship subsequently calculated that the coordinates of the fault position were 53 38.113N and 4 52.849W. As will be seen in due course, this was recorded by the repair ship as the “Fault Geo Position” but, as it transpired, this did not coincide with the actual fault position found by the repair ship which physically inspected and repaired the damage.

5. As part of the investigation undertaken on behalf of the plaintiff, a repair ship, namely the Pierre de Fermat (based in Brest, France) was mobilised to investigate the matter further and attend to any necessary repairs. The daily log of the Pierre de Fermat shows that the vessel left Brest at 16:35hrs on Wednesday 28th January 2015, proceeded to Portland where it collected supplies for the repair, left Portland at 22:18hrs on 29 th January 2015 and sailed to the vicinity of the cable where it commenced the testing process at 10:50hrs on 1st February 2015. A remotely operated underwater vehicle (“ROV”) was deployed as part of the investigation undertaken by the Pierre de Fermat. Physical damage to the cable was first observed on 2nd February 2015 at 05:30hrs at 53 38.053N and 4 52.836W. Repair work commenced at 09:26hrs on the same day. For this purpose, the ROV cut the cable at coordinates 53 38.078N and 4 52.764W. A grappling hook (a Deniell grapnel) was then deployed to recover the cable and at 11:23hrs on the same day, damage to the cable was recorded at 53 38.041N and 4 52.879W. This was subsequently described as the “actual fault location” in the report issued by the Pierre de Fermat on 6th March 2015.

6. At 15:20hrs on 2nd February 2015, the Pierre de Fermat detected a second area of damage to the cable. The log identifies the location of the second area of damage as 53 38.005N and 4 52.979W. The plaintiff does not allege that this area of damage was caused by the Lida Suzanna. The plaintiff maintains that this damage did not occur until sometime after 11:41hrs on 26th January 2015. In the course of his evidence, Mr. Jamieson said that their system recorded only one break at 11:41hrs and that the distance from that break to the beach position in Malahide and the distance from the break to the beach position in Lytham St. Annes “married up to the entire length” of the cable. He also explained that, once that break was detected, the cable was deactivated to enable the repair ship to undertake its work. As a consequence, the second damage was not detected by the system but, based on Mr. Jamieson’s evidence, it appears reasonable to assume that it must have occurred sometime after 11:41hrs on 26th January 2015. The plaintiff launched proceedings against the owners of a different fishing vessel in respect of the second damage namely the MFV Willie Joe but those proceedings were settled before trial.

The issues to be determined

7. The owners of the Lida Suzanna have strongly defended the plaintiff’s claim. While the owners do not contest that the Lida Suzanna was scallop trawling in the vicinity of the cable on 26th January 2015, they deny that the trawler caused the damage to the cable. As described in more detail below, the skipper of the trawler has given evidence that he could not recall “problems of any unusual chucking or catching of the seabed” although he accepted, under cross examination, that he did not have any specific recollection about what happened on 26th January 2015. He nonetheless maintained that he would have known if “I picked up a cable”.

8. A significant number of issues arise in the proceedings as follows: -

(a) In the first place, the defendants have put the plaintiff on proof of ownership of the cable;

(b) Second, the defendants contend that the plaintiff’s case does not get off the ground in circumstances where the defendants maintain that there is no evidence that the plaintiff has suffered any loss. This contention must be seen in the context of the case made by the plaintiff that a related company namely Virgin Media Limited paid out any expenses incurred in respect of the cable in the first instance and such expenses were then charged back to the plaintiff. The defendants maintain that the plaintiff did not provide any evidence to the Court that there was any charge back to the plaintiff in respect of the cost of repair of the cable and that, absent such evidence, the plaintiff cannot succeed in its case;

(c) Third, the defendants contend that the plaintiff has failed to prove that it was the Lida Suzanna that caused the damage to the cable;

(d) In the event that the Court concludes that the plaintiff has made out its case in relation to each of the above issues, the defendants argue that the intersection of fishing activity and the interests of cable owners in laying cables across existing fishing grounds gives rise to a “complicated obligational matrix as regards the rights and duties of both fishers and cable owners”. The defendants contend that they were entitled to fish over the cable and they also contend that it was a fundamental duty of the plaintiff, if found to be the cable owner, to ensure that the cable did not interfere with fishing activity by ensuring that the cable was sufficiently buried in the seabed;

(e) The defendants also contend that the plaintiff is guilty of contributory negligence by failing to periodically inspect its cable and ensure that it was effectively buried at all times under the seabed.

(f) In addition to the defendants’ contention that the plaintiff has failed to prove its loss, the defendants also raise issues in relation to the quantification of the losses claimed by the plaintiff.

9. Two further issues had been in contention between the parties but have now been resolved. First, the defendants had initially resisted the case made by the plaintiff that, following the appearance entered on the defendant’s behalf on 17th January 2019, these proceedings were no longer solely an action in rem against the vessel but, from that moment also became an action in personam against its owners. The distinction between proceedings in rem and proceedings in personam has the potential to have significant practical consequences. In the case of an in rem claim, any judgment in favour of the plaintiff would be enforceable solely against the res (i.e. the trawler itself). In contrast, in the case of an in personam claim, any judgment in favour of the plaintiff would be enforceable against the vessel’s owners and the plaintiff would not be confined to executing any award against the trawler itself. The case made by the plaintiff was that each of the owners at the time of commencement of the proceedings (i.e. Mr. Brendan O’Flaherty, Mr. Denis O’Flaherty, Mr. James O’Flaherty and Mr. John O’Flaherty) had a personal liability to the plaintiff. The plaintiff relied, in this context, on The Dictator [1892] P 304 where Jeune P. examined the law in considerable detail and explained the position at p. 320: - “It may well be that, if the owners do not appear, the action only enforces the lien on the res, but that, when they do, the action in rem not only determines the amount of the liability, and in default of payment enforces it on the res, but is also a means of enforcing against the appearing owners, if they could have been made personally liable in the Admiralty Court, the complete claim of the plaintiff so far as the owners are liable to meet it. It appears to me to be consonant with common sense that … if the owners appear to contest or reduce their liability, they should be placed in the same position as if they had been brought before the Court by personal notice.”

10. Second, the defendants had sought to make the case that the relevant alleged wrongful acts in the navigation and management of the vessel did not give rise to a maritime lien. The defendants argued that it is essential, in order for a maritime lien to arise as a consequence of damage caused by a ship, that there is a causative act of “wrongful navigation” and that this was absent in this case where the specific activity complained of was fishing.

11. Neither of these issues are now being pursued. The defendants now accept that the principle explained by Jeune P. in The Dictator applies here. Following the conclusion of the evidence, the solicitors for the defendants confirmed in correspondence that the defendants “will not be continuing to assert that the proceedings are not in personam as well as in rem. The defendants concede this issue and will inform the Court of the same at the outset of the hearing of oral submissions.” This is so notwithstanding that the trawler was transferred to a company in December 2020, namely Bradan Scallop Limited. Having regard to the fact that the proceedings issued on 2nd November 2018 and that an appearance was entered on behalf of the defendants on 17th January 2019, the transfer to that company is not relevant for present purposes.

12. In their closing submissions, counsel for the defendants also, very properly, acknowledged that, given the dual nature of the proceedings (lying both in rem and in personam), they were no longer advancing the argument that the relevant alleged wrongful acts in the navigation and management of the trawler did not give rise to a maritime lien. That means that it is no longer necessary to consider the defendants’ case that no lien arises in a case such as this.

13. One further important matter was also agreed between the parties over the course of the proceedings. In the defence delivered on behalf of the defendants, they had denied that Irish law applied and they had also contended that the Court had no jurisdiction to make orders in respect of conduct occurring outside the limits of Irish territorial waters. However, the defendants subsequently acknowledged that Irish law governs the claim. This is consistent with the view expressed by the authors of Marsden & Gault “Collisions at Sea”, 15th Edition, 2021 at paragraph 5-003 where the authors say: - ““Apart from certain special rules, there is as far as English law is concerned no transnational or global maritime law of wrongs. Admittedly the High Court of Admiralty once affected to apply a kind of transnational civil law independent of national rules. But the modern view is strongly against the idea that there is any such overarching lex maritima to be applied in the place of national law. On the contrary: Admiralty claims now emphatically reflect the practice of the English admiralty court, and of other English courts exercising parallel jurisdiction. Brett LJ expressed what has become the modern view in 1882, when he said:

‘Now the first question raised on the argument before us was what is the law which is administered in an English Court of Admiralty, whether it is English law, or whether it is that which is called the common maritime law, which is not the law of England alone, but the law of all maritime countries. About that question, I have not the smallest doubt. Every Court of Admiralty is a court of the country in which it sits and to which it belongs. The law which is administered in the Admiralty Court of England is the English maritime law.’ Thus in England today the law of tort is generally applicable to collisions at sea in the same way as it governs torts on dry land. To succeed in an action in tort for damages arising out of a collision at sea, a claimant must prove the facts giving rise to the tort on which he relies. He must also prove that he has suffered the damage complained of, that the damage was caused by the tort and that it is not too remote a consequence of the breach of duty.”

14. In the course of the hearing, the defendants acknowledge that Irish law may be taken as the law applicable to the rights and duties contended for. This was confirmed in the defendants’ written closing submissions.

15. Thus, the matters in dispute between the parties are essentially those identified in para. 8 above. It seems to me to be logical to address the issues in the same order as they are listed there.

Ownership of the Cable

16. In paragraph 1 of its statement of claim, the plaintiff contends that it is and has at all material times been the owner and operator of the Sirus South Cable. This allegation was specifically put in issue by the defendants in paragraph 1 of their defence where, while admitting that the plaintiff is a company domiciled in the United Kingdom, they expressly stated that proof of ownership “is required”. It was therefore clear from the terms of the defence that the plaintiff was required to prove ownership of the cable. Ordinarily, one would not expect that this would create a difficulty for the owner of a valuable asset such as the cable. If the owner had not itself commissioned the laying of the cable, one would expect that ownership could be readily proved by producing the relevant documents that show the chain of title starting with the party who commissioned the cable and ending with the plaintiff. While, technically, it might be said to be necessary to prove each of the documents comprised in the chain of title, I do not believe that any rational and sensible defendant (in the absence of good reason to challenge the authenticity of the documents) would insist on such niceties. Had the requisite chain of title been produced here, I very much doubt that the defendants would have maintained their plea contesting ownership.

17. Regrettably, the approach taken by the plaintiff here was far from straightforward. It will therefore be necessary to review its evidence on the issue of ownership in some detail. The plaintiff was not involved in the commissioning of the laying of the cable and, as can be seen from the discussion below, there were significant gaps in the chain of title produced by it in evidence.

The evidence of Mr. Mark David Hardman in relation to ownership

18. In the witness statements delivered on behalf of the plaintiff, the question of ownership of the cable was first addressed in the witness statement of Mr. Mark David Hardman, finance director, who explained that he is employed by Telefonica UK Limited which he said is a related company to the plaintiff, both of whom are part of the Virgin Media O2 joint venture between Liberty Global plc (“Liberty Global”) and Telefonica S.A. (“Telefonica S.A.”) Mr. Hardman confirmed that he has been an employee of Telefonica UK Limited for ten years and that he has performed his current role as finance director on behalf of the joint venture since 1st June 2021. He also explained that he is responsible for the integrity of financial information within the Virgin Media 02 Group.

19. One of the striking features of Mr. Hardman’s witness statement is that it is clear from its terms that he had very limited personal knowledge of the matters about which he gave evidence. In para. 4 of his witness statement, he provided the following (very unusual) clarification as to his source of knowledge: - “Save where indicated to the contrary, the facts and matters within this statement have been relayed to me by the Plaintiffs legal team, or have been drawn from documents, internal conversations and material I have seen.” (emphasis added)

20. The manner and style in which the witness statement has been drafted leads me to believe that it was probably prepared by English lawyers familiar with the approach taken under the Civil Evidence Act, 1969 (UK). The nearest equivalent to that statute in Ireland is Chapter III of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (“the 2020 Act”) but no attempt has been made in these proceedings by the plaintiff to rely upon the provisions of the 2020 Act.

21. One further observation is necessary at this point. Quite apart from any issue in relation to the admissibility of hearsay evidence, I am particularly troubled by the suggestion that a witness would rely, to any extent, on a party’s legal team to relay “the facts and matters within this statement” to the witness making the statement. This reverses the procedure that is required to be adopted in the preparation of a witness statement. It is essential to bear in mind that a witness statement is intended to provide a précis of the witness’s own evidence. The witness statement should be confined to the evidence which that witness can give of facts within his or her own knowledge and it is essential that it should be expressed in the witness’s own words. The role of a lawyer is simply to assist with matters such as structure, chronology, headings, clarity of presentation and advice on legal issues such as hearsay.

22. In fairness to Mr. Hardman, in the course of his cross-examination on Day 2 of the hearing (at pp. 56 – 57) he sought to explain that, rather than relying on information provided to him by the plaintiff’s lawyers, his witness statement was prepared based on material gathered by the team who work for him. His evidence was: - “A. Okay. I think I understand what you're asking. None of the information in this document that I provided was provided to me by my legal team, it was provided to me by the team that works for me, which is ultimately my finance team. What the legal team did was they set out the very broad case about a damaged cable and informed me of the cable. But none of the information that I was provided exhibits, or that support my statement, have come from the legal team, they have come from the finance team, and the company secretarial teams, to me directly, to support the evidence that I'm giving.”

23. That said, Mr. Hardman was unable to explain why he had stated in para. 4 of his witness statement that some of the facts and matters within the witness statement had been relayed to him by the plaintiff’s legal team. He was also under the misapprehension that he was an expert witness as opposed to a witness as to fact. However, I believe this confusion on his part can be explained by his lack of familiarity with the respective roles of an expert witness and of a witness as to fact. Based on what he said at p. 58 of the Transcript on Day 2 of the hearing I believe that his reference to his being an expert witness is attributable to the fact that it had been decided that he should make the witness statement given his responsibility for the overall integrity of the group’s financial information. In other words, he appears to have equated his status within the Group organisation with that of an expert. His role within the Group was also the explanation he gave for the fact that, contrary to the rules of evidence still in force in Ireland, significant elements of his witness statement were based on information provided to him by two identified individuals namely Mr. James Bibby and Ms. Caroline Egan.

24. The evidence relevant to the issue of ownership begins in para. 7 of Mr. Hardman’s witness statement where he said that he understood that the cable was originally built for a company called NTL (UK) Group Inc. by Pirelli Cables and Systems SA (“Pirelli”). In para. 8 of his witness statement, he exhibited an extract from the contract between those two parties dated 19th December 1997 which recited that Pirelli had agreed to design, manufacture and install an optical fibre submarine cable system which was stated to be more particularly described in the technical specification.

Remarkably, the technical specification (which appears to have been contained in Schedule 4) to that contract was not exhibited. Thus, the extract from the document which Mr. Hardman chose to exhibit does not contain any relevant material which links the agreement with the cable. This is demonstrably the wrong way to proceed. The full agreement should have been exhibited so that the Court could review and understand it. If, notwithstanding the passage of time since 1997, the agreement remains highly confidential, then the appropriate course to take would be to provide it as a sealed exhibit on the basis that only the relevant parts would be read into the record.

Here, not only was that not done but the most relevant part of the agreement (i.e. Schedule 4) was not produced to the Court. That leaves a significant gap in the plaintiff’s evidence. There are, however, a number of matters that should be kept in mind. First, the date of the agreement is proximate to when the cable was laid. Mr. Jamieson has given evidence that it was installed in 1998. While he was not involved in its physical installation, he said that he assumed management of the cable shortly after its installation. Second, a number of documents were discussed in the course of the evidence given by Mr.

Jamieson and by the experts retained by the parties that record Pirelli’s involvement in the laying of the cable. These included a marine survey carried out by an Italian company called GAS s.a.s. (“GAS”) dated 22nd July 1998 which is addressed both to Pirelli and “NTL Communications” and which is described as having been carried out in accordance with Pirelli’s specifications. In the opening sentence of the introduction to that report, GAS states: “This report includes the results of the Marine Survey for the Submarine Fibre Optic Link Sirius North between Lytham St.

Annes … and Portmarnock …”. While that report was never formally proved, it was the subject of cross-examination by counsel for the defendants and its authenticity was not questioned. In those circumstances, notwithstanding the failure of the plaintiff to provide evidence of the relevant parts of the contract between NTL (UK) Group Inc. and Pirelli, I believe that it is appropriate to infer, on the balance of probabilities, that NTL (UK) Group Inc. commissioned the laying of the cable by Pirelli. This constitutes the root of title to the cable.

It follows that all the plaintiff needed to do was to prove how it subsequently acquired title from NTL (UK) Group Inc. itself or from an assignee of that company or from the successor to such an assignee.

25. That is not how the plaintiff proceeded. Instead, in para. 9 of his witness statement, Mr. Hardman jumped to events which took place nine years later between two companies which were not previously mentioned in his witness statement namely Telewest Communications Group Limited and NTL National Networks Limited. He referred to these companies as “subsidiary companies” but he did not identify their respective parents and, crucially, he also did not identify the relationship between NTL National Networks Limited and NTL (UK) Group Inc. He simply said that, in 2006, NTL National Networks Limited merged with Telewest Communications Group Limited and that he understood that “the legacy ntl back bone network assets and service provider operations were acquired from ntl National Networks Limited by Telewest Communications Group Limited.” In para. 10 of his witness statement Mr. Hardman added that, in February 2010, Telewest Communications Group Limited changed its name to Virgin Media Wholesale Limited which is now the plaintiff in these proceedings.

26. Under cross-examination, Mr. Hardman was asked for the source of his information in relation to the acquisition of the NTL backbone network assets by Telewest Communications Group Limited (i.e. now the plaintiff under its current name) and he said that the source was to be found in historic company records which he acknowledged had not been produced by him in the course of his evidence. It was put to him by counsel for the defendants that the company which made the contract with Pirelli to install the cable would have been the original owner of the cable namely NTL (UK) Group Inc. Mr. Hardman acknowledged that this was so but he added: “as I explained earlier, it may well be that internal inter-company transactions then take place to assign assets or liabilities across the respective group.” Counsel put it to him that, in fact, he had no evidence of any such transfer. His only response was to say: “I don't have any evidence in this document, but I can confirm that NTL Group is part of the Virgin Media O2 Group” to which counsel responded that it is “a different company” and that “all of these companies have their own separate legal existence”. Mr. Hardman acknowledged that this was correct and that no supportive evidence had been provided by him of any transfer from NTL (UK) Group Inc. to any other company including NTL National Networks Limited In the absence of that evidence, there is an obvious gap in the chain of title. This gap in the evidence is compounded by the fact that the relevant licence granted by the Crown Estate Commissioners (on behalf of the British monarch) for the right to lay, maintain and use the cable was granted on 5th November 1998 to a company called NTL Transcommunications Limited

27. The plaintiff was therefore driven to rely on the way in which the cable has, according to Mr. Hardman, been recorded as an asset of the plaintiff on the internal accounting records of the Virgin Media O2 group. Mr. Hardman stated, in para. 11 of his witness statement that he understood from the accounting treatment of “Virgin Media O2’s fixed network assets, that the ownership of the Cable is likely to have been held as an asset of different companies within the ntl (and subsequently Telewest) group of companies.” This information was said to have been provided to him by Mr. Bibby who Mr. Hardman explained is an employee of Liberty Global Shared Services Limited which provides accounting services to the Virgin Media O2 joint venture but was previously employed by “Virgin Media” for a seven year period prior to November 2020.

28. In the course of his cross-examination, counsel for the defendants highlighted Mr. Hardman’s use of language and in particular the words “ownership of the cable is likely …”. It was suggested to Mr. Hardman that he had no personal knowledge to support what he said here. In response, Mr. Hardman said that a member of the NTL Group bought the cable, and that, over the course of subsequent years, transfers had taken place within the same group of companies such that the cable now resides in the fixed asset register of the plaintiff. It was put to him that this went further than his witness statement and that he had identified no evidence of the transfer of the asset to the plaintiff either in its current name or former name namely Telewest Communications Group Limited. Mr. Hardman confirmed that he had not provided any evidence to show such a transfer but he maintained that the cable has been included in the asset register of the plaintiff where it is recorded with a specific reference number. In support of that contention, Mr. Hardman exhibited an extract from the fixed asset register as exhibit MH3 to his affidavit. He explained that the register is a large document and that, due to its commercially sensitive nature, he could not attach it in full to his witness statement. The asset known as the cable has been on the fixed asset register since its date in service. The cable is registered as Asset No: NTLH237914, with the asset's date in service recorded as 30th November 1998.

29. Exhibit MH3 comprises a heavily redacted extract from the fixed asset register of the plaintiff. A single line from the register is all that is visible. In addition to the asset number (which is given as NTLH237914), there is a description of the asset which is “Sirius-Submarine link between Glasgow to Belfast & Dublin to Lytham St. Annes”. This is followed by a reference to “Type” under which the initials NTL appear. There is also an entry under the heading “Co” where the reference “4800” appears. Mr. Hardman explained that, within the Group, the designation 4800 is used to identify the plaintiff.

30. In para. 14 of his witness statement, Mr. Hardman also exhibited an internal screenshot at “MH4” which suggests that the NTLH237914 asset was brought into service in 1998. Oddly, despite being brought into service in 1998, the screenshot records that it was not “entered” until April 2007 but, in para. 15 of his witness statement, Mr. Hardman said that the reference to 1998 is the date when the asset registered as NTLH237914 was brought into service and that the reference to April 2007 is the date when the internal systems were integrated following the NTL-Telewest merger. There are a number of headings within this screenshot, not all of which are relevant for present purposes. The first heading is “Book” under which the notation “NTLTW Corp” appears. Under the heading “Cost” one again sees the figure of 11,780,733.40. The final heading is “Ledger” under which there is a notation “NTLTelewest”.

31. In para. 16 of his witness statement, Mr. Hardman exhibited further screenshots showing “the historical Oracle report” which he explained in his oral testimony is the database system used for the financial records of the Group. He said that he has been advised by Ms. Caroline Egan that the internal accounts team use this report to reconcile the asset register to the general ledger. He exhibited, as MH5, the August balance sheet reconciliation and the relevant screenshots for both the cable and a second subsea cable. On the basis of that exhibit, he suggested that the cable is accounted for in both the historical and general ledger.

32. Exhibit MH5 comprises three pages, the first of which is page 3290 which is described as a “Journal Entry reserve ledger report” in respect of the period August 2023. In the top left hand corner of this page there is a reference given “Company: 1034”and there is a reference to the NTL:TELEWEST Group. Mr. Hardman did not explain the significance of this reference or provide any explanation as to the material contained in this page. However, given his evidence that 4800 is the internal group reference used to designate the plaintiff, it appears unlikely that this page can be said to relate to the plaintiff itself. The page comprises a list of assets held by the NTL-Telewest Group setting out the dates they were placed in service, the depreciation method used for accounting purposes, the relevant year of their accounting life, their cost, the relevant depreciation amount, the year to date depreciation and a figure for depreciation reserve. The second page comprised in Exhibit MH5 is page 11722. Like page 3290 there is a reference to the NTL:TELEWEST Group in the top left-hand corner but, here, the entry for “Company” is 4800 which, as Mr. Hardman had earlier explained, relates to the plaintiff. The period is the same in respect of page no. 3290 but there is a specific entry in respect of asset NTLH237914-Sirius showing a date placed in service of 30th November 1998, a life year number of 8.00, cost of “11,780,733.40” and a number of entries relating to depreciation. The third page is not immediately relevant.

33. In order to support the contention that the code 4800 on the asset register is the code used by the plaintiff and the Group to designate the plaintiff, Mr. Hardman exhibited, as Exhibit MH6, an extract from an internal database comprised of a further page from the Oracle system maintained by the Group in which the specific reference numbers for various companies in the Group are given. It is apparent from the page that the designation, 4800, relates to the plaintiff.

34. Mr. Hardman also provided, as Exhibit MH7, a copy of the annual report and financial statements of the plaintiff for the year ended 31st December 2022. In note 9 to the financial statements, the network assets are shown as having been acquired at a total cost of £1,450,957,000 and that their written down value as at 31st December 2022 was £229,180,000. In his direct evidence, Mr. Hardman added that the fixed network assets include the cable but he said that there was a whole range of network infrastructure assets that have been acquired over the course of the last 20 years or so that remain on the asset register of the plaintiff. Mr. Hardman’s evidence in relation to the role of Virgin Media Limited

35. Although Mr. Hardman’s evidence was that the cable constitutes an asset of the plaintiff, it is not directly involved in the payment of day-to-day expenses that arise in relation to it. Instead, these are managed by a related company namely Virgin Media Limited. In this context, Mr. Hardman said, in para. 21, of his witness statement that he had been “told by James Bibby” that the plaintiff does not have a bank account or an accounts payable ledger and, for that reason, any costs incurred “would be paid by Virgin Media Limited if billed to the subsidiary company Virgin Media Wholesale Limited, with Virgin Media Limited allocating the charge to Virgin Media Wholesale Limited on a fair and reasonable arms-length basis. This would be documented in the financial statement.”

36. Exhibit MH8 to Mr. Hardman’s witness statement is also relevant in relation to the payment of expenses. This is an extract from a Mutual Acquisition, Cost Sharing and Operating Agreement (“MACSO”) dated 8th February 2007. In paragraph 20 of his witness statement, Mr. Hardman stated that he had been told by Mr. Bibby that the arrangement under which invoices in respect of the cable are made by Virgin Media Limited as the “primary trading entity within the Virgin Media Group of companies” is covered by the MACSO. However, a full copy of the MACSO was not exhibited to his witness statement. Instead, Exhibit MH8 comprises only a very small extract namely Recitals C and D. Recital D refers to the agreement of the parties to enter into the Agreement while Recital C provides that the parties have agreed that “VML should carry on the day to day management of the respective Businesses (as hereinafter defined) and have agreed to appoint VML as their agent in respect of their respective Businesses on the terms and subject to the conditions hereinafter set forth”. The rest of the Recital was redacted in Exhibit MH8. Mr. Hardman was asked on re-examination what his understanding of the scope of that arrangement was. He responded:- “So my understanding is that Virgin Media Limited, which is effectively the trading entity where we hold the bank accounts and all the ledgers, we'll act on behalf of all the other group companies, and effectively, as I sort of stated earlier, will settle amounts payable, you know, that's where a lot of the most of our employees are based, and then those subsequent costs will be allocated out retrospectively, internally, to make sure that they are recorded in the right legal entity.”

37. In this context, Mr. Hardman also referred, in paragraph 22 of his witness statement, to an invoice submitted to “Virgin Media” dated 23rd January 2023 from the Crown Estate in respect of “rent” for the cable in an amount of £82,954.50. This arises in circumstances where the right to lay, maintain and use the cable is the subject of a licence dated 5th November 1998 granted by the Crown Estates Commissioners and the terms of that licence require payment of a licence fee at half-yearly intervals. In his witness statement, Mr. Hardman confirmed that this invoice is for half the annual fee paid to the Crown Estate as “Virgin Media” is invoiced every 6 months. He also exhibited a copy remittance confirming that payment was made on 31st March 2023 and he said that this was done by Virgin Media Limited rather than by the plaintiff.

38. In para. 22 of his witness statement, Mr. Hardman exhibited, as MH11, an invoice made out to “Virgin Media Networks” in respect of standby fees payable for the availability of a repair ship. His explanation for this payment was that the Virgin Media O2 Group consists of many entities (in excess of 80) and that it does not make any practical sense to “set up a whole host of bank accounts for every single individual entity across that Group”. He said that the Group has a number of trading entities that pay the invoices on behalf of other companies in the Group and that “internally, there will then be cross-charges to make sure that the corresponding entries have been recorded accurately within the respective legal entities within the Virgin Media O2 Group”. He did not provide any supporting documents evidencing any such cross-charges and this is relevant to the second issue identified in para. 8 above. The claims made by Virgin Media Limited that it is the owner of the cable

39. Mr. Hardman was closely cross-examined in relation to the ownership of the cable. In particular, his attention was drawn to a number of claims made by Virgin Media Limited to ownership of the cable. In the first place, counsel for the defendants put a letter to Mr. Hardman from Virgin Media Limited dated 24th April, 2015 addressed to “Saltees Fish” complaining about damage done to the cable in January 2015. It is clear from the terms of the letter that the writer was under the mistaken apprehension that Saltees Fish was the entity that owned the Lida Suzanna. It is equally clear that the writer was asserting that Virgin Media Limited was the owner of the cable. Not only is the letter headed “Virgin Media Limited Litigation Team” but it also states the following: - “Virgin Media own and operate a submarine fibre optic telecommunications cable in the Irish Sea known as Sirius South…”

At a later point, the letter stated that: “Virgin Media will say that the LIDA SUZANNA damaged the Sirius South cable whilst engaged in fishing operations…”. The letter went on to warn that “Virgin Media” would bring a claim for damages. The letter identified that the total cost of repair was £565,374.09. On the second page of the letter it was stated that Virgin Media holds Saltees Fish 50% responsible in the sum of £282,687.05 and it warned that if this amount was not paid, Virgin Media would commence court action. The letter was signed “Dave Hodsdon Virgin Media Limited”. (emphasis added).

40. The claim made by Virgin Media Limited to ownership of the cable was not limited solely to that letter. It was followed by a second letter on 22nd May 2015 which was also sent by the Virgin Media Limited litigation team which repeated the claim made in the April letter and again threatened litigation. In turn, that letter was followed by a subsequent letter dated 22nd June 2015 from the same entity marked “urgent: please do not ignore” which again warned of action by Virgin Media Limited In turn, there was yet another letter dated 23rd September 2015 from the same entity warning that, if nothing was heard from Saltees Fish within seven days, Virgin Media Limited would have no option but to issue court proceedings without further reference. Notwithstanding that letter, there was a final letter of 1st December 2015 which enclosed a copy of the draft claim form and particulars of claim which Virgin Media Limited intended to pursue in the courts of England and Wales. Even more remarkably, the correspondence was followed up by proceedings commenced by Virgin Media Limited against Saltees Fish in the County Court Money Claims Centre based in Salford in the greater Manchester area. Counsel for the defendants put it to Mr. Hardman that, on 27th July 2016, Deputy District Judge James sitting at the County Court Money Claims Centre in Salford gave judgment in favour of Virgin Media Limited against Saltees Fish in the amount of £282,687 damages, £8,054.64 interest accrued at the date of issue of the proceedings, £3,036.04 interest accrued to the date of the application and he also made a costs order in favour of Virgin Media Limited. It was put to Mr. Hardman that these steps were entirely inconsistent with the claim now made in Ireland by the plaintiff and showed that, within the Virgin Media O2 Group, Virgin Media Limited was regarded as owner of the cable rather than the plaintiff. Mr. Hardman acknowledged that these steps were consistent with Virgin Media Limited being the owner. The terms of the cable crossing agreement suggesting that Virgin Media Limited is the owner of the cable

41. Under cross-examination, Mr. Hardman also acknowledged that these steps by Virgin Media Limited were consistent with the terms of a cable crossing agreement dated 26th June 2015 between a number of parties including Virgin Media Limited. Its terms are quite startling in the context of the claim now made by the plaintiff in these proceedings. The terms of the cable crossing agreement run directly contrary to the plaintiff’s claim to ownership of the cable. In that agreement, the term “Telecom Cable” is defined by clause 1 as meaning “the submarine optical-fibre telecommunications cable laid between Portmarnock … and Lytham St Annes … known as Sirius South.”. Strikingly, the agreement expressly defines Virgin Media Limited as the “Telecom Cable Owner”. Furthermore, Recital A drives this home, stating that the Telecom Cable Owner (i.e. Virgin Media Limited) “owns and operates the Telecom Cable” (emphasis added). The second set of proceedings in relation to the cable in which Virgin Media Limited is named as plaintiff

42. Although this was not put to Mr. Hardman in the course of his cross-examination, it should also be noted that, in the course of the hearing, my attention was drawn to a judgment dated 9th June, 2017 given by Admiralty Registrar Jervis Kay QC in proceedings before the High Court of England and Wales (Queen’s Bench Division, Admiralty Court) between Virgin Media Limited as claimant and Joseph Whelan trading as M&J Fish defendant in relation to a claim against the owner of the MFV Willie Joe arising from the damage alleged to have been done by that vessel to the cable. The judgment records in para. 2 that Virgin Media Limited is the owner of the cable which is described as running across the Irish Sea between Lytham St. Annes and Dublin. In that judgment, the Admiralty Registrar came to the conclusion that the courts of England and Wales had no jurisdiction over the claim and that the relevant jurisdiction in which proceedings could be commenced was Ireland. Gaps in Mr. Hardman’s evidence identified by counsel for the defendants

43. Having agreed that all of the material put to him in this context was consistent with Virgin Media Limited being the owner of the cable, it was put to Mr. Hardman by counsel for the defendants that, what he was seeking to do, based purely on information obtained from other persons, was to suggest that the cable was owned by the plaintiff because it appears on the plaintiff’s fixed assets register. Mr. Hardman accepted that this was so although he also pointed out that the asset was included in the statutory accounts for the plaintiff albeit not specifically identified there. He explained that one would not normally find an item of this kind separately enumerated in financial statements and that standard accounting practice is to record it in a fixed asset register which can then be reconciled to the statutory accounts and addressed in the audit opinion. He was then asked where, in any of the material before the Court, there is any reference to the cable being owned by the plaintiff at a point prior to the date of the print-out from the fixed asset register. In response, Mr. Hardman referred to the fact that in Exhibit MH4, the reference to £11,780,733.40 was entered on November 1998. It was then put to him that the plaintiff clearly did not own the asset back in 1998 when it was owned by NTL (UK) Group Inc. and it was put to him that there is no evidence of the cable ever being transferred to the plaintiff. In response, Mr. Hardman maintained that there was not only the entry in the asset register but also the subsequent payments of invoices supporting the holding of the asset in company code 4800. In response, counsel for the defendants suggested that there was no evidence at all showing that any of these invoices were ever discharged by the plaintiff. Mr. Hardman reiterated that this was because only a small number of the entities within the Group were responsible for making payments. He was then asked where the allocation of the charge to the plaintiff was documented. Mr. Hardman responded to concede that this was not “in the evidence that has been submitted but it is something I could get hold of if the Court requires”. The plaintiff’s application to supplement its evidence as to ownership of the cable

44. Later, in the course of Day 3, counsel for the plaintiff indicated that the plaintiff might wish to apply, following the conclusion of the remaining evidence, to call an additional witness to deal with ownership namely either Mr. James Bibby or Ms. Caroline Egan both of whom had been identified by Mr. Hardman as sources for his witness statement. Counsel for the defendants indicated that the defendants would “vigorously” resist any such application and that the calling of an additional witness to plug the gaps in the plaintiff’s proofs, following cross-examination of the sole witness on ownership, would be wholly unjust to the defendants particularly in circumstances where the exchange of witness statements had been the subject of directions given well in advance of the trial. No ruling was made in relation to the application at that point. However, the matter was revisited on Day 5 of the hearing when the matter was fully debated between the parties. I gave a ruling in relation to the application on the same day. In the course of that ruling, I noted that, as counsel for the defendants had fairly acknowledged, in the case of a trial without witness statements and without any order for directions as to witness statements, it would not be entirely unprecedented for a plaintiff to decide to call another witness if the plaintiff considered that a gap had been left in its proofs as a consequence of the performance of the witnesses called up to that point. I noted that counsel for the plaintiff here had, very properly, indicated, prior to closing his case, that he wished to make such an application.

45. On the other hand, I noted that this was a case where the Court had made directions in relation to the exchange of witness statements and the trial had been fixed on that specific basis. I nevertheless added that, even in case managed proceedings, there are occasions where a party, even in the course of a trial, seeks to amend its pleadings and while the amendment of pleadings was no more than an imperfect parallel, it seemed to me that some parallel could be made with the principles that govern such an application. In the case of an application to amend pleadings, it is well-established that there are two different types of prejudice which can defeat an application to amend. The first is where the party resisting amendment can satisfy the Court that, by virtue of the absence of the amended plea in the first place, steps have been taken which would make it impossible or significantly more difficult to deal with the case, should the amendment be allowed. The second is what is often described as logistical prejudice which might occur where the amendment is sought at a very late stage and could have the effect of significantly disrupting the proceedings. Insofar as the first type of prejudice is concerned, I came to the conclusion that this is not a case where the defendants had any witnesses or material available to them, which were no longer available to them, which might prevent them from dealing with the additional evidence that the plaintiff proposed to call. Insofar as logistical prejudice is concerned, I came to the conclusion that such prejudice as will be suffered in this case is not such as could not be remedied by an appropriate award of costs. I took the view that the logistical prejudice that would be suffered by the defendant is the fact that the defendants would have to come back to Court for a further day to deal with something that should properly have been addressed on Day 2. I therefore indicated that, irrespective of the outcome of these proceedings, the plaintiff must pay the costs of the defendants their costs of Day 6 of the hearing.

46. I further took the view that the costs should not be confined to party and party costs but should be costs on a legal practitioner and client basis. I took that view in light of the extent of the obvious gaps in the evidence presented by the plaintiff through the mouthpiece of Mr. Hardman (combined with a related failure to make full discovery of documents) and also because I believe it is important to identify in clear terms the concern that the Court has that case management orders of this kind must be complied with. The failure to comply with an order for directions is particularly serious in this case where the plaintiff was put on very clear notice by the defendants in their defence that they required it to prove its ownership of the cable.

47. In addition, I directed that the plaintiff should deliver an affidavit explaining why the application was made at such a late stage in the proceedings and also addressing the issue as to why it was that it was now proposed to rely on additional documents that were not disclosed in its affidavit of discovery. The affidavit of the plaintiff’s solicitor dealing with the need to call further evidence

48. In accordance with those directions, an affidavit was sworn by a solicitor on behalf of the plaintiff. In that affidavit, the solicitor apologised on the plaintiff’s behalf that it was necessary to make the application and he said that, until the cross-examination of Mr. Hardman occurred, it was believed that enough had been done to prove the plaintiff’s ownership of the cable. The solicitor also accepted that a number of documents should previously have been discovered by the plaintiff and he confirmed that these would now be the subject of a supplemental affidavit of discovery.

49. The solicitor also explained that Mr. Hardman had made the initial witness statement in circumstances where, as finance director, he was responsible for the integrity of the financial information within the Virgin Media O2 Group. The solicitor acknowledged that Mr. Hardman’s evidence only approached the issue of ownership from the perspective of identifying the legal entity within the Group which held the asset on its books and that Mr. Hardman was not in a position to give detailed evidence to establish how the cable came to be owned by the plaintiff.

50. The solicitor also said that the failure to make full discovery was attributable to a similar reason. In paragraph 16 of his affidavit he stated: - “Therefore when discovery was being made, and when the witness statement was being prepared, the documents which evidence the historic chain of ownership were not sought out by the Plaintiff. Those documents are:

(i) Agreement and Plan of Merger between Telewest Global Inc. and NTL Inc. and Merger Sub Inc.

(ii) Accounts for NTL National Networks Limited for Year End 31

December 2006

(iii) Accounts for Telewest Communications Group Limited for Year End

31 December 2006.”

51. In the same affidavit, the solicitor addressed the failure of the plaintiff to provide a full copy of the MACSO Agreement. In paragraph 20 of his affidavit the solicitor stated: “I am informed that the VMO2 Legal Team was asked to confirm whether the MACSO Agreement could be disclosed on 11 April 2023. This was thought to be relevant to show why VML was making payments. I have been advised that a paralegal within the Liberty Shared Services team made enquiries internally within VMO2 and was advised that the only redacted section of the MASCO agreement excerpt could be disclosed due to the confidential nature of the arrangements between the Group Companies. This response was received on 5th May 2023. This was subsequently confirmed to DWF that was subsequently put in the Witness Statement of Mark Hardman.”

52. According to the solicitor, the MACSO agreement has significant commercial sensitivity for the Virgin Media O2 Group but that, in the course of the cross-examination of Mr. Hardman, it became clear that the MACSO Agreement was also necessary to show:

“why Virgin Media Limited was entitled to enter into contracts in respect of the asset owned by the Plaintiff. It was thus relevant to the ownership issue. We are now instructed as to the June 2015 Cable Crossing Agreement which was entered into by Virgin Media Limited and ought to have had available in evidence the necessary documentation to explain how it was that Virgin Media Limited could purport to enter into such a contract if it did not own the Cable. The only explanation that I can offer is that the point was simply missed and this took the legal team by surprise when it should not have.”

53. The solicitor acknowledged that the documents should have and would have been discovered if the plaintiff had not taken an unduly narrow view of what was required to prove ownership. He also acknowledged that additional documents had been annexed to Mr. Hardman’s witness statement which had not previously been discovered and that these should also have been the subject of a supplemental affidavit of discovery.

54. As counsel for the defendants correctly submitted on Day 6 of the hearing, the averments made by the solicitor in his affidavit do not form part of the evidence in the case but they are relevant in the context of the failure of the plaintiff to make adequate discovery. Counsel indicated that he was reserving the defendant’s position in relation to discovery and in relation to any issue of costs that arises by reason of the failure to make full discovery. However, he did not go so far as to suggest that the Court should exclude the additional documents which are now annexed to the witness statement of Ms. Caroline Egan who was the additional witness called by the plaintiff on Day 6. Counsel for the plaintiff also accepted that the affidavit did not form part of the evidence for the purposes of the findings of fact to be made in the proceedings. In addition, counsel for the plaintiff, in response to an objection by counsel for the defendant, agreed to withdraw certain statements made in paras. 7 and 8 of the solicitor’s affidavit in relation to views expressed by a forensic accountant as to the meaning of the documents. The additional evidence on the issue of ownership given by Ms. Caroline Egan

55. Following my ruling on Day 5, Ms. Caroline Egan was called as a witness on behalf of the plaintiff on Day 6. She had prepared a witness statement for this purpose. In her witness statement (which she adopted as her evidence in chief) she explained that she commenced employment with the Telewest Communications Group in July 2001. She also said that she was employed in Virgin Media Limited once the company changed its name in or around 2006. From October 2006, her role involved looking after the fixed assets of “Virgin Media”. She was subsequently transferred to Liberty Global Shared Service Centre Limited which provides services to Virgin Media Limited. In paragraph

4 of her witness statement, she said that she had first-hand knowledge of the fixed assets register on which the cable has been recorded as an asset of the plaintiff since October 2006. Later, under cross-examination, Ms. Egan confirmed that the reference to the cable being recorded as an asset of the plaintiff since October 2006 was intended to mean that she has first-hand knowledge of that fact since 2006 but she clarified that the asset has been on the register since it was first acquired in 1998.

56. In para. 5 of her witness statement, Ms. Egan referred to a number of documents. The first document addressed by her (which had previously been discovered) is an assignment dated 30th November 2004 from National Transcommunications Limited (i.e. the company to whom the Crown Estate had granted the licence) to NTL National Networks Limited which Ms. Egan characterised as an assignment of the cable together with other assets. However, it is clear from the terms of the assignment exhibited at CE1 that the assignment relates solely to property located in the State. This is patently clear from a number of aspects of the assignment as follows: -

(a) In the first place, Recital B records the assignor’s ownership of the assets as follows: - “The Vendor is entitled to the ownership and use of various wayleaves, licences, rights of way, easements, rights or consents (express or implied) and other entitlements to use or enter upon land in the Republic of Ireland (herein called ‘the Wayleaves’) in connection with the installation, use, maintenance, repair or otherwise of those of the Sirius Link Assets which are located in the Republic of Ireland, together with the ownership and use of those of the Sirius Link Assets which are located in the Republic of Ireland.”

(b) Recital C is also consistent with this. It provides as follows: - “The vendor has agreed to transfer, inter alia, the Wayleaves and the Sirius Link Assets which are located in the Republic of Ireland to the Purchaser for the consideration specified in the Designated Core Business Transfer Agreement.”

(c) The operative part of the assignment is to the same effect: - “the vendor as beneficial owner and where appropriate as registered owner hereby CONVEYS TRANSFERS GRANTS and ASSIGNS unto the Purchaser:

(a) ALL OF ITS RIGHT TITLE AND INTEREST in those of the

Sirius Link Assets located in the Republic of Ireland which

are not capable of passing by delivery (herein called ‘the

Sirius Network Assets’) together with the benefit of and

subject to any sub-licences, sub-leases or other interests in

relation to the same which have been granted by the Vendor

to third parties …

TO HOLD the same unto and to the use of the Purchaser in fee simple …” (emphasis added)

57. It should be noted that the “Sirius Link Assets” are not defined in the assignment but Ms. Egan confirmed under cross-examination that the Sirius Link Assets is the collective name used within the Group to designate the cable and the Sirius North Cable. I therefore believe that it is reasonable to conclude that the term must relate to the cable in so far as it is situated within the State. Crucially, given the terms of the agreement highlighted above, the document does not prove the existence of an assignment of the cable beyond the territory of the State.

58. Under cross-examination, Ms. Egan was closely questioned in relation to her evidence in relation to the effect of the assignment. She did not appear to be conscious of the fact that the assignment, by its terms, was limited to the Sirius Link Assets within the State. Her evidence was: - “I think you could -- in any legal document I've ever looked at, there are always bits and pieces that somebody like me would not fully understand, but the nature of the contract is doing what you would expect it to do, to sell an asset from Company A to Company B. So when I read this document, already expecting that Sirius cable to have been transferred between those two companies, because (a) I was familiar with it and, (b) you can still see it in the statutory accounts, this contract reads to me as if that's what's happened. So focussing on that paragraph (a), which is the second paragraph up, it's basically -- to me says it say it is transferring all of its title and interest in those Sirius Link Assets. … … what I was going to try and say before, that I would have expected that usually when we transfer assets between our group companies, which is not infrequent, we wouldn't normally expect to have an official legal document. Usually we would simply have an agreement, you know, that the Board would agree, or something, there'd be a fair and reasonable price agreed for it, and then we would effectively just transfer it in our systems. I wouldn't expect to see a big document like this. So, I, perhaps wrongly, have assumed that this document related to bits in Northern Ireland, or in Ireland, that specifically needed a contract, that all the other bits would be done like we normally do, as just an intergroup agreement.”

59. Counsel for the defendants put it to Ms. Egan that the terms of the assignment do not support what she said in her witness statement. Her response was: - “I apologise for not knowing every little legal term, but to me it does read as if that's what it's doing. Plus, from my day-to-day role, it's pretty clear to me that these assets are owned and held by Virgin Media Wholesale. They're on our Oracle Asset Register, they're perfectly reconciled to the general ledger, which reconciles to the signed company accounts, that I don't feel any doubt over the ownership. So I haven't -- so I've familiarised myself with the history of how those cable assets have come to be owned by Virgin Media Wholesale, but I don't feel that there's any doubt that, sort of under a huge question, that I wouldn't need to doubt the sort of what all these documents are trying to do.”

60. In her witness statement, Ms. Egan also exhibited what she described as the “Overall Merger Agreement” of 2nd October 2005 between Telewest Global Inc., NTL Inc. and a company called Merger Sub Inc., all of which were described in the agreement as Delaware corporations. This appears to predate the merger which Mr. Hardman had scantly mentioned in para. 9 of his witness statement. In that paragraph of his affidavit, Mr. Hardman addressed the subsequent transaction which took place between Telewest Communications Group Limited and NTL National Networks Limited about which Ms. Egan gave more detailed evidence as outlined further below.

61. In paragraph 5.3 of her witness statement, Ms. Egan exhibited the financial statements (including the directors’ report) for NTL National Networks Limited for the year ended 31st December 2006 which, she said, record that it sold its entire assets and liabilities to the plaintiff on 18th December, 2006. There is a statement to that effect in the directors’ report for the year ended 31st December 2006 as follows: - “On 18 December 2006, the company sold its entire assets and liabilities (excluding the shares of ntl Telecom Services Limited and matching loan) to Telewest Communications Group Limited a fellow group undertaking, for consideration of £994,554,000 in the form of an interest bearing loan note.”

62. In addition, Ms. Egan exhibited the corresponding financial statements of the plaintiff (then called Telewest Communications Group Limited) for the year ended 31st December 2006. In the directors’ report for that year, the following was stated under the heading “Principal activities and business review”: - “Following the merger of the NTL and Telewest groups on 3 March 2006, the company is now a wholly owned subsidiary undertaking of Virgin Media Inc, which changed its name from NTL Incorporated on 6 February 2007. The Virgin Media group is an innovative and pioneering UK entertainment and communications business and is the first company in the United Kingdom to offer a quad-play package of television, broadband, telephone and mobile. The group is one of the UK’s most popular residential broadband and pay-as-you-go mobile providers and the second largest provider in the UK of pay television and fixed line telephone services.

Effective 18 December 2006, the legacy NTL back bone network assets and service provider operations were acquired by the company from ntl National Networks Limited, thus consolidating all back bone network assets for the Virgin Media group into one company.

As a result of this transaction the company’s principal activity has become, and will continue to be, service provider operations comprising principally the sale of spare capacity on the Virgin Media network to third parties, whilst its activity of the provision of management and administration services to other cable broadband group undertakings became secondary and has been phased out during 2006 and 2007. Following the merger of NTL and Telewest, Virgin Media Limited has become the principal employer for employees previously employed by the company. Virgin Media Limited has also taken over the provision of management and administration services for legacy Telewest cable broadband group undertakings.” (emphasis added).

63. In Note 7 to the plaintiff’s financial statements for that year, it is noted that the assets and liabilities acquired from NTL National Networks Limited (effective from 18th December 2006) included tangible fixed assets at a value of £327,137,000. In addition, Note 8 stated that the assets representing the NTL back bone network were transferred to the plaintiff on 18th December 2006 “at cost less accumulated depreciation, together with the service provider operations of ntl National Networks Limited, as a going concern”.

64. Along with her witness statement, Ms. Egan also provided a full copy of the MACSO agreement. The plaintiff is not itself named in the MACSO agreement but it is named in a side letter which was also provided by Ms. Egan. The effect of the side letter is that the plaintiff (along with many other Group companies) is entitled to the benefit of the MACSO agreement. Clause 2.1 of the MACSO agreement is important. It authorises Virgin Media Limited to undertake a wide range of activities on behalf of companies within the Group and it expressly provides that it may do so as an undisclosed agent.

65. Ms. Egan was cross-examined in relation to the effect of the MACSO agreement. In response, Ms. Egan described how the agreement operated as follows: - “… the gist of it is that Virgin Media Limited can carry out the day-to-day management of the other Group companies including entering into contracts on its behalf, acting as an agent and basically undergoing any obligations, because that's how you manage the day-to-day business. And then Virgin Media Limited re-charges the other Group companies on a fair and reasonable basis.”

66. It was put to Ms. Egan by counsel for the defendants that the MACSO agreement did not go so far as to entitle Virgin Media Limited to represent itself as owner and operator of the Cable. Ms. Egan’s response was: - “Well, it is enabled to enter into contracts on behalf of any other group companies within that agreement. So on the basis that it can enter into a contract to do with something to do with the cable... I mean, that is a legal technicality that I wouldn't be familiar with, but it is perfectly normal general practice for Virgin Media Limited to enter contracts on behalf of the other group companies in the agreement.” The arguments of the parties in relation to ownership of the cable

67. In their closing submissions, counsel for the defendants argued that there is insufficient evidence before the Court to sustain the plaintiff’s contention that it is the owner of the cable. Counsel argued that, even if the Court were to accept the “very limited snippets of evidence said to derive from the plaintiff’s internal accounting system, none of which were formally proven in the ordinary way, where the means of knowledge of Mr. Hardman was lacking, this evidence amounts to nothing more than evidence of a belief held by the plaintiff, or the plaintiff’s group of companies, that the relevant asset was owned by it.” Counsel for the defendants highlighted that no evidence was placed before the Court which traces the ownership of the cable from NTL Group (UK) Inc. to the plaintiff.

68. With regard to Mr. Hardman’s evidence, counsel for the defendants argued that almost the entirety of his evidence was nothing more than hearsay and that he had no direct knowledge of the matters in respect of which he purported to give evidence. Insofar as the plaintiff sought to rely on the screenshots taken from its internal systems, counsel for the defendants submitted that, at their height, these go no further than evidencing the belief of the plaintiff as to its ownership of the cable in 2022 – 2023 but they do not comprise evidence of ownership by the plaintiff. It was also stressed by counsel for the defendant that Ms. Egan was unable to identify any document evidencing the assignment of the cable to the plaintiff. Counsel for the defendant submitted that it was unsustainable for the plaintiff to contend that a commercial entity of that kind (with statutory obligations in relation to the management and recording of its assets) would not have a documentary record of the assignment even if it were nothing more than a decision recorded in the minutes of a board meeting.

69. A further point that was strongly argued by the plaintiff was the extent to which Virgin Media Limited had been portrayed as the owner of the cable in legal proceedings in England and Wales and in the cable crossing agreement. While counsel for the plaintiff had sought to characterise the commencement of proceedings in England as a mistake, counsel for the defendants emphasised that, in fact, there is no evidence before the Court as to any mistake. Counsel also argued that there was no evidence to support the contention that the Cable Crossing Agreement had been entered into pursuant to the powers conferred on Virgin Media Limited under the MACSO Agreement. In this context, they argued that it made no legal or commercial sense for the Cable Crossing Agreement to contain a contractual representation that Virgin Media limited is the owner of the cable if all it was doing was acting as an agent for an undisclosed principal. Moreover, counsel argued that there is no evidence before the Court that, under the MACSO Agreement, Virgin Media Limited habitually represented itself as the owner of the cable and they submitted that it would not be appropriate to merely look at the MACSO Agreement and infer that the cable crossing agreement was entered into on the basis of the MACSO Agreement. Counsel acknowledged that it was a matter for the Virgin O2 Group to decide how it organised itself but they stressed that each of the entities within the Group is a separate legal entity and that no rights can be claimed by the Group, as such.

70. With regard to the assignment dated 30th November 2004, counsel for the defendants maintained (correctly in my view) that the assignment did not support what was said by Ms. Egan in her witness statement. They submitted that the terms of the assignment clearly demonstrate that it relates solely to assets within the State. In concluding their submissions, counsel for the defendants submitted that, in its action for damages, it is a basic requirement that the plaintiff should prove that it is the owner of the cable. They accepted that this is to be assessed on the balance of probabilities but they contended that the plaintiff has wholly failed to prove in evidence any factual basis that would allow a logical conclusion to be reached, on the balance of probabilities, that the plaintiff (as opposed to any other entity within the Virgin Media O2 Group) is the owner of the cable.

71. In his closing submissions, counsel for the plaintiff sought to characterise the approach taken by the defendants in relation to this issue as lacking reality. He stressed that there is no dispute that the cable is an asset of the Virgin Media O2 Group. With regard to the proposition that there is no evidence of any transfer from NTL (UK) Group Inc., counsel for the plaintiff submitted that it was a “nonsensical proposition” that NTL (UK) Group Inc. still owns the Cable. Counsel suggested that this was a “non-point” because it cannot be seriously disputed that the cable has been owned by the Virgin Media O2 Group since 2007 and that the conduct of the Group thereafter was entirely inconsistent with the cable still being owned by NTL (UK) Group Inc. Counsel for the plaintiff noted that NTL (UK) Group Inc. has made no claim to ownership of the Cable for a period of approximately 20 years.

72. With regard to the assignment of 30th November 2004, counsel for the plaintiff accepted that it deals solely with assets relating to the cable located within the State. However, he argued that it nonetheless provides evidence of title in relation to that portion of the cable that lies within the territory of the State. He also argued that this is not a case where the plaintiff should be required to provide an unbroken root of title; what the plaintiff had to prove was that, on the balance of probabilities, the cable was owned by it. Given that NTL (UK) Group Inc. has not asserted any claim in relation to the cable, counsel maintained that there was “just no question” that the cable was still owned by that entity.

73. With regard to the position of Virgin Media Limited, counsel for the plaintiff accepted that there was no evidence in relation to why proceedings were commenced in England and Wales in the name of that entity as owner of the cable. Insofar as the Cable Crossing Agreement is concerned, counsel for the plaintiff submitted that the representation by Virgin Media Limited in that document that it was the owner of the cable must be seen against the backdrop of the MACSO agreement. He identified that the MACSO agreement involved a very long list of Virgin Media O2 Group companies that are party to it and he also identified the further long list of companies named in the side letter of March 2007 including the plaintiff (then called Telewest Communications Group Limited).

The side letter confirms that the companies named in the schedule to the letter (including the plaintiff) are expressly entitled to rely on the MACSO agreement. The MACSO agreement is said to be a very confidential document but, for the purposes of this judgment, it is nonetheless necessary to refer to certain features of it. It is executed between Virgin Media Limited and the long list of companies set out in Schedule 1. Recital C records that the parties have agreed that Virgin Media Limited should carry on the day to day management of their respective businesses and have agreed to appoint Virgin Media Limited as their agent in respect of those businesses.

Counsel for the plaintiff relied in particular upon the provisions of clause 2.1 which is in the following terms: - “Each of the companies hereby irrevocably authorises VML to do on behalf of the company and for its benefit the acts and things provided for in this agreement and to be its agent for the purposes hereinafter set forth and agrees that VML, as a member of the service group, may, where VML considers that in its discretion it will benefit one or more members of the service group, in its own name acquire and purchase any assets and incur expenses and enter into contracts and take actions or omit to take actions and incur obligations and liabilities and that VML may allocate and change the cost, expense, liability or obligations so incurred to and amongst itself and the other members of the service group in the manner provided in Clause 2.3 hereof.

VML accepts such appointment and agrees to act as so authorised on the terms and subject to the conditions set out in this agreement. Where VML acts as an agent for any of the companies in exercising rights or performing duties and obligations under or pursuant to this agreement it may do so as an undisclosed agent of the relevant company.” (emphasis added)

74. Counsel for the plaintiff also highlighted the provisions of Clause 3.3(a) of the Agreement which is in the following terms: - “This agreement is not intended to and shall not authorise or cause the transfer of any property or the transfer of any business from any company to VML or from VML to any company or to any other person except for the allocation and charge of expenses. .”

75. Counsel maintained that, on the basis of the MACSO agreement, Virgin Media Limited was entitled to enter into the cable crossing agreement of June 2015 without disclosing that it was doing so merely as an agent. He also submitted that the terms of the MACSO agreement would entitle Virgin Media Limited to describe themselves as an owner. In addition, counsel for the plaintiff argued that it is not an unusual proposition for a group of companies to designate one company within the group to act as the main trading company for the group. However, counsel accepted that there was nothing in the MACSO Agreement to authorise the commencement of proceedings in the name of Virgin Media Limited in relation to the Cable. Counsel for the plaintiff was unable to provide any explanation for the commencement of the English proceedings or for any of the letters written prior to the commencement of those proceedings, and no evidence was made available in relation to that issue.

76. In conclusion, counsel for the plaintiff acknowledged that he could not “gainsay” that the plaintiff has difficulty in establishing a chain of title to the cable and this is compounded by the fact that there is no public register of ownership of assets such as this cable. However, on the evidence before the Court, counsel for the plaintiff submitted that the cable has been on the fixed asset register of the plaintiff since 2006 and there is nothing to show that it was ever taken off that register. On the balance of probabilities, he maintained that the plaintiff had established its entitlement as owner of the Cable.

Conclusion in relation to the ownership of the cable

77. As noted above, counsel for the plaintiff has argued that there is no dispute that the cable is an asset of the Virgin Media O2 Group. In my view, that contention gets the plaintiff nowhere. The fact is that the sole party named as plaintiff to these proceedings is Virgin Media Wholesale Limited. Unless the plaintiff succeeds in establishing, on the balance of probabilities, that it is the owner of the cable, the claim for damages must be dismissed. No application has been made to add or substitute any other company or companies in the Virgin Media O2 Group as plaintiff to these proceedings. Even if such an application had been made, it would likely have been met by an argument by the defendants that any claim by such additional party or parties is statute barred. The decisions of the Supreme Court and the High Court respectively in Sandy Lane Hotel Ltd. v. Times Newspapers Ltd. [2011] 3 I.R. 334 (Supreme Court) [2014] 3 I.R. 369 (High Court) show that the outcome of an application to substitute a different entity in the Group in place of the plaintiff would be far from certain. It might also expose the plaintiff and any new party to significant consequences in costs.

78. On the other hand, counsel for the plaintiff was correct to concede that the plaintiff is facing difficulty in showing a chain of title to the cable which can be traced back to its commissioning by NTL (UK) Group Inc. For the reasons outlined in para. 24 above, I believe that it is reasonable to conclude that NTL (UK) Group Inc. was the first owner of the cable. The difficulty for the plaintiff is that it has not proven an unbroken chain of title going back to that root. The best that might be said is that, notwithstanding the lack of any written document evidencing such an assignment, it is reasonable to conclude, based on the evidence of Ms. Egan and the financial statements exhibited by her, that NTL National Networks Limited transferred its interest in the cable to the plaintiff in December 2006. However, there is nothing before the Court to evidence how NTL National Networks Limited itself acquired ownership of the cable. The assignment of 30th November 2004 from National Transcommunications Limited to NTL National Networks Limited does not do so because it is confined to that part of the cable situated within the territory of the State. Accordingly, the assignment does not extend to the place where the cable suffered damage. In addition, no evidence has been presented as to how National Transcommunications Limited acquired ownership of the cable from NTL (UK) Group Inc. That said, it would appear likely from the terms of the licence granted to National Transcommunications Limited by the Crown Estate that there must have been some form of transfer of interest between those two companies. However, even if one were to accept that it is probable that such a transfer took place, there is still a gap in the chain of title as between National Transcommunications Limited and NTL National Networks Limited which the plaintiff has been unable to plug in its evidence.

79. That does not dispose of the issue of ownership. As outlined in para. 27 above, the plaintiff also seeks to rely on the way in which the cable has been recorded as an asset of the plaintiff since the transaction between NTL National Networks Limited and Telewest Communications Group Limited (as the plaintiff was then known) as recorded in their respective financial statements for the year ended 31st December 2006. As noted in para.

71 above, counsel for the plaintiff has also stressed that, since that time, the cable has not only been recorded as an asset of the plaintiff but also that it has been treated as an asset for almost 20 years. He further drew attention to the lack of evidence that any attempt by the NTL (UK) Group Inc. to claim ownership of the cable in the intervening years.

80. I must keep in mind that the standard of proof on this issue is based on the balance of probabilities. Applying that standard to the evidence, it seems to me that, based on the first-hand knowledge of Ms. Egan of the fixed asset register in combination with the records exhibited by her and by Mr. Hardman, the following findings of fact can be made:

(a) First, given the statements in the directors’ reports and financial statements of both NTL National Networks Limited and Telewest Communications Group Limited, I believe that it is reasonable to conclude, on the balance of probabilities, that both companies intended that the former’s interest in the cable (among other assets) would be transferred to the plaintiff (under its then name). While, technically, it might be suggested that the directors’ report and financial statements have not been formally proven, no serious objection was taken to their admissibility and I bear in mind that these documents are publicly filed and are subject to statutory requirements (found in both Irish and British statute law) in relation to their contents. In my view, there is no reason to doubt the contents of the reports (which precisely chime with each other) to the effect that the transfer of assets took place on 18th December 2006 and that the transfer was intended to extend to the NTL back bone network which Ms. Egan has confirmed was intended to include the cable.

(b) Second, while the plaintiff has failed to prove that NTL National Networks Limited had acquired title to the cable (other than the portion located within the State) prior to the transaction with the plaintiff, I nonetheless, find on the balance of probabilities, that the cable has been recorded as an asset of the plaintiff since sometime between 18th December 2006 and April 2007. While Ms. Egan suggested in her witness statement that it was entered as an asset in October 2006, I do not believe that this can be correct. Given the terms of the financial statements of both companies for 2006, I do not believe that the plaintiff could have entered the cable on its asset register until 18th December 2006 at the earliest. In light of the entry in the screenshot which is Exhibit MH4 to Mr. Hardman’s witness statement, it may be the case that the asset was not entered on the plaintiff’s asset register until April 2007. Whether it was entered on that date or earlier is not material. The key point in this context is that it was entered on the register as an asset. In this context, I am prepared to accept the evidence that the cable is entered as asset no. NTLH237914 and the evidence that the code 4800 is the designation used to identify the plaintiff in the asset records of the Group. While Mr. Hardman could not speak directly to those matters, Ms. Egan was very clear that the cable was on the Oracle asset register which in turn matches the general ledger and the company accounts. Her evidence therefore strongly corroborates what was said by Mr. Hardman in this context.

(c) Third, there is no evidence that any other party (other than the plaintiff’s sister company Virgin Media Limited) has made any claim to ownership of the cable in the period since April 2007. In particular, there is no evidence of any claim being made to ownership of the cable by either NTL (UK) Group Inc. or by National Transcommunications Limited.

81. Having made those findings of fact, it is next necessary to consider the impact (if any) of the claims made by Virgin Media Limited to ownership of the cable both in the Cable Crossing Agreement and in two separate sets of proceedings instituted by it in the courts of England and Wales.

82. Turning first to the Cable Crossing Agreement, I do not believe that this, of itself, undermines the plaintiff’s claim to be the owner of the cable. The Cable Crossing Agreement is dated 26th June 2015. While its language plainly suggests that Virgin Media Limited is the owner of the cable, the agreement must be considered in context. The earlier MACSO agreement of February 2007 forms a very relevant part of the context. As I have previously explained, the MACSO agreement was extended to include the plaintiff by the terms of the side letter of March 2007. I agree with the submission made by counsel for the plaintiff that clause 2.1 of the MACSO agreement (which I have already set out in para. 73 above) authorises Virgin Media Limited to not only act on behalf of the plaintiff in relation to the management of its assets but also to do so as an undisclosed agent. The terms of that clause plainly entitled Virgin Media to enter into the cable crossing agreement without disclosing that it was doing so only as agent of the plaintiff. In other words, it could interact with the outside world as though it were itself the owner of the cable. The plaintiff’s position was protected by clause 3.3 (a) (which I have quoted in para. 74 above) which has the effect that anything done by Virgin Media Limited would not, as between it and the plaintiff, cause the transfer of any property of the plaintiff to Virgin Media Limited. On that basis, there was no reason in law for the plaintiff to have a concern about Virgin Media Limited claiming to be the owner of the cable in the Cable Crossing Agreement.

83. I have not lost sight of the submission made by counsel for the defendants that it made no legal or commercial sense for the Cable Crossing Agreement to contain a contractual representation that Virgin Media Limited is the owner of the cable if all it was doing was acting as an agent for an undisclosed principal. It is the case that recital A of the agreement expressly states that Virgin Media Limited is the owner and operator of the cable. To that extent, it might be said that this constitutes a representation to that effect. However, the express warranty given by each of the parties in clause 3.1 is in markedly less absolute terms. Clause 3.1 provides: “Each Party warrants that they are duly authorised to make this Agreement and to give undertakings in their name.” In my view, that language is consistent with both the status and rights which Virgin Media Limited had under the terms of the MACSO agreement.

84. Notably, the putting in place of an arrangement of the kind seen in the MACSO agreement is foreshadowed in the plaintiff’s financial statements for 2006. In the directors’ report (which is quoted in para. 62 above), it is stated that, following the merger of NTL and Telewest, Virgin Media Limited has become the principal employer for employees previously employed by the plaintiff and that Virgin Media Limited has also taken over the provision of management and administration services for “legacy Telewest cable broadband group undertakings.” The report plainly envisaged that, following the merger, the plaintiff would be left without staff of its own and that it would (in common with many other group companies) be dependent on Virgin Media Limited for its management and administration.

85. I also bear in mind that, in my experience, an arrangement of the kind described in the MACSO agreement (the operation of which is described in straightforward terms by Ms. Egan in the passages of her evidence quoted in paras. 65 and 66 above) is not unusual in a corporate group situation. As Ms. Egan said, Virgin Media Limited carries out the day-to-day management of the other group companies and that it is “perfectly normal” for Virgin Media Limited to enter into contracts on behalf of the other members of the group. That is a structure that is not peculiar to the Virgin Media Group. It frequently makes commercial sense for one or more companies in a group to provide the day-to-day services necessary for the functioning of other members of the group. A somewhat similar structure is described (albeit in a tax context) in the recent judgment of Hyland J. in Covidien Limited v. The Revenue Commissioners [2025] IECA 75.

86. Although I do not believe that the cable crossing agreement undermines the case which the plaintiff seeks to make, I am considerably more troubled by the claims made by Virgin Media Limited in the English proceedings that it is the owner of the cable and by the failure of the plaintiff to provide any evidence to explain how and why such steps were taken by Virgin Media Limited rather than the plaintiff itself. As counsel for the plaintiff acknowledged, the MACSO agreement does not go so far as to authorise Virgin Media Limited to institute proceedings in its own name on the plaintiff’s behalf and there is no evidence that Virgin Media Limited understood that the MACSO agreement went that far. Besides, the solicitors’ correspondence which preceded the institution of proceedings made explicit claims that Virgin Media Limited owned the cable. As counsel for the defendants rightly emphasised, there is no evidence that any mistake was made at the time. This is particularly disturbing in circumstances where the plaintiff was given an opportunity to present additional evidence after the cross-examination of Mr. Hardman brought these issues to the fore.

87. Before addressing the impact (if any) of the claims made by Virgin Media Limited, it may be helpful to first consider the position on the basis of the other evidence before the Court. In the absence of the unexplained claim to ownership of the cable made by Virgin Media Limited in the two sets of proceedings commenced in the courts of England and Wales, I believe that there is sufficient material before the Court to conclude, on the balance of probabilities, that, notwithstanding the gaps in the chain of title, the plaintiff is the owner of the cable.

88. I have formed that view for a number of reasons. First, in light of the facts as found in para. 80 (a) and (b) above, the cable has been recorded as an asset of the plaintiff in the records of the Virgin Media Group since at least 2007. In my view, it is significant that within the Group, the plaintiff is given a designation 4800 and that the cable is shown as an asset of the company with that designation. For that reason, as between members of the Group (including Virgin Media Limited), there is an acknowledgement that the plaintiff is the owner.

89. Second, while counsel for the defendants trenchantly made the case that this evidence of ownership in the Virgin Media Group’s records amounts to nothing more than evidence of the plaintiff’s own belief that it is the owner of the cable, there is, as I have previously noted in para. 80(c) above, nothing to suggest that this ownership of the plaintiff has ever been contested by any other party. It is also noteworthy in this context that the relevant transfer to the plaintiff of the cable (as described in the 2006 financial statements of both NTL National Networks Limited and the plaintiff) came from an NTL company in the wake of a merger between NTL Inc. and Telewest Global Inc. While there is no evidence of a transfer of ownership to that NTL company from either NTL (UK) Group plc or National Transcommunications Limited (other than the portion located in the State), the fact that the transfer was from an NTL company is nonetheless important. It seems to me to be inherently unlikely that a transfer by an NTL company would be challenged by any other NTL company such as NTL (UK) Group plc or National Transcommunications Limited. In those circumstances, I do not believe that it is right to characterise the evidence as going no further than showing the plaintiff’s belief. It seems to me that the combination of the records, on the one hand, and the plaintiff’s undisturbed possession of the cable since 2007, on the other, strongly support the case made by the plaintiff that it is, as a matter of fact, the owner of the cable.

90. Third, there is the fact that the Crown Estate, in its capacity as licensor of the laying, maintenance and use of the cable, is no longer invoicing an NTL entity in respect of the licence. Exhibit MH9 to Mr. Hardman’s witness statement is an invoice dated 23rd January 2023 from the Crown Estate for £82,954.50 in respect of licence fee payable in respect of the cable. The invoice is addressed to “Virgin Media”. While the evidence of the plaintiff’s witnesses was that such invoices are routinely paid by Virgin Media Limited rather than the plaintiff, it was explained that this is subject to a charge back to the plaintiff. But, what is more important for present purposes is the fact that the invoice is not addressed to an NTL company (or any third party) but to Virgin Media. This reflects an understanding on the part of the Crown Estate that ownership has passed from the relevant NTL company to a Virgin Media company. The fact that payment is made in the first instance by Virgin Media Limited does not suggest that it makes that payment as owner. As outlined above, the internal records of the Virgin Media Group make clear that it is not the owner and clause 3.3(a) of the MACSO agreement ensures that nothing done by Virgin Media Limited will effect a change in the ownership of an asset of the plaintiff.

91. Accordingly, if one leaves the proceedings instituted by Virgin Media Limited out of the picture, I believe that, for all of the reasons outlined in paras. 88 to 90 above, it would be appropriate to conclude, on the balance of probabilities, that the evidence is sufficient to establish that the plaintiff is the owner of the cable. The remaining question is whether that conclusion is undermined by the existence of those proceedings and by the failure of the plaintiff to provide any evidence to explain them.

92. With some misgivings, I believe that neither the proceedings nor the lack of any explanation for them are sufficient to displace the conclusion, reached on the balance of probabilities, that the plaintiff is the owner of the cable. In this context, I bear in mind that experience shows that proceedings are sometimes instituted in the name of the wrong plaintiff. For example, in this jurisdiction, O. 15, r. 2 of the Superior Court Rules expressly contemplates such a situation. The rule commences with the words: “Where an action has been commenced in the name of the wrong person as plaintiff …”. The fact that the Rules Committee expressly provided for such a situation is a recognition of the need for a provision of this kind. Furthermore, in the specific context of corporate groups, there are, at least, two reported cases in this jurisdiction where proceedings were commenced in the name of the wrong group company namely in the Sandy Lane Hotel case which I have previously mentioned and also in B.V. Kennemerald Groep v. Montgomery [2000] 1 ILRM 370. I have also encountered similar applications being occasionally made in the Commercial List.

93. While I have no evidence of what prompted the naming of Virgin Media Limited as plaintiff in the English proceedings, the records placed in evidence before the Court in these proceedings demonstrates that, within the Virgin Media Group, the cable has consistently been recorded as an asset of the plaintiff. In addition, the 2006 financial statements of the plaintiff and NTL National Networks Limited support the conclusion that the intention was that ownership of the cable would be transferred to the plaintiff. There is no evidence to suggest that the plaintiff ever transferred ownership of the cable to Virgin Media Limited. I have previously addressed the effect of the Cable Crossing Agreement (to which the plaintiff was not a party) and, in light of clause 3.3(a) of the MACSO agreement, I do not believe that it can be construed as evidence that ownership of the cable has been transferred to Virgin Media Limited. In all of those circumstances, I believe that it is clear that Virgin Media Limited was wrongly named as plaintiff or claimant in the English proceedings. Ultimately, the fact that it was wrongly named in that way does not seem to me to undermine the plaintiff’s claim to ownership of the cable in these proceedings. I must decide that issue on the basis of the evidence presented to the Court and, for the reasons outlined in paras. 88 to 90 above, I have come to the

conclusion, on the balance of probabilities, that the evidence is enough to establish that the plaintiff is the owner of the cable.

94. I remain troubled that the plaintiff has wholly failed to proffer any explanation for the claims made in the English proceedings and in the solicitors’ correspondence that Virgin Media Limited is the owner of the cable. However, while I strongly deprecate that failure on the plaintiff’s part, I do not believe that it is sufficient to displace the objective fact that, since at least April 2007, the cable had been recorded as an asset of the plaintiff and that this is reflected in the records of the Virgin Media Group as a whole.

95. In all of the circumstances described above, I find that the plaintiff is the owner of the cable.

Has the plaintiff suffered a loss?

96. As noted in para. 8(b) above, in addition to contesting the individual elements of the damages claimed by the plaintiff, the defendants have argued that the plaintiff’s case does not get off the ground in circumstances where the defendants contend there is no evidence that the plaintiff has suffered any loss. Issues in relation to damage and loss would ordinarily be addressed at a later point in a judgment after all issues of liability have been determined. However, this issue has been raised by the defendants in a preemptive way on the basis that it delivers a knock-out blow sufficient of itself to defeat the plaintiff’s claim. In closing submissions, it was addressed by their counsel immediately after dealing with ownership. In this judgment, I follow the same course.

97. In their closing submissions, counsel for the defendants drew attention to paras. 19 and 20 of Mr. Hardman’s witness statement where he purported to give hearsay evidence as to his understanding of the system in place within the Virgin Media Group for the payment of invoices relating to the cable and how payment is made by Virgin Media Limited rather than the plaintiff. They argued that, to the extent that any of this “evidence” is admissible at all (and they made no concession to that effect), the height of the evidence given in those paragraphs is that Mr. Hardman was told by Mr. Bibby that payments in respect of invoices relating to the cable are made by Virgin Media Limited. Counsel for the defendants then referred to para. 21 of the witness statement where, as noted in para. 35 above, Mr. Hardman said that he was told by Mr. Bibby that the plaintiff does not have a bank account such that any costs incurred would be paid by Virgin Media Limited which would then allocate the charge to the plaintiff on a fair and reasonable arms-length basis. While Mr. Hardman exhibited a number of invoices at paras. 22 and 23, these invoices are not the invoices underlying the plaintiff’s claim. They relate, first, to the annual licence fee paid to the Crown Estate and, second, they relate to the cost of having a repair ship on standby.

98. Counsel for the defendants highlighted that there is no evidence of any allocation of the costs of repairs to the cable (arising from the circumstances giving rise to this action) in the evidence before the Court. While Mr. Hardman, in the course of his evidence in chief, referred to a general practice within the Virgin Media Group, he failed to give any evidence in respect of the specific cost of repair of the damage to the cable being allocated to the plaintiff. Mr. Hardman was pressed on this in cross-examination and was asked whether there is any documentation to show that there was a charge allocated to the plaintiff. As noted in para. 43 above Mr. Hardman accepted that that there was no evidence to that effect but it was something “I could get hold of if the Court requires”. Notwithstanding the opportunity given to the plaintiff to call an additional witness, the plaintiff did not subsequently produce any such evidence.

99. While Ms. Egan was called as an additional witness for the plaintiff, she gave no evidence of the attribution or assignment of the cost of repair to the cable to the plaintiff such as to entitle it to bring these proceedings. In this context, counsel for the defendants argued that it is a fundamental principle of the law of negligence that the party articulating the claim must not only prove a breach of duty but must also demonstrate that it has suffered a loss as a consequence of that breach. They submitted that a mere statement of general practice cannot establish that such a payment in fact took place.

100. In response, counsel for the plaintiff did not contest the suggestion that there was no evidence of the attribution or assignment of the cost of repair to the plaintiff. Instead, he referred to a line of authority to the effect that, where damage is done to a chattel, the measure of damages is the reasonable cost of repair of that property. He first referred to the decision of the Court of Appeal of England and Wales in Coles v Hetherton [2014] 2 All ER 223. In that case, an issue arose in relation to the measure of damages in a motor insurance case.

The claimant’s vehicles were damaged by reason of the negligence of the defendant driver. The claimant’s insurer subcontracted repair of the vehicles to a repair company which was in the same corporate group. A claim was made on the basis of the open market rate for repairs notwithstanding that the subcontractor carried out the repairs for a lesser sum. The defendant’s insurers alleged that the claimant’s insurer was inflating the claim and an issue arose as to whether the measure of the claimant’s loss (being the reasonable cost of repair) should be assessed by reference to the repair charge judged by the open market rate or a rate actually paid to the subcontractor.

The Court of Appeal of England and Wales took the view that, where a vehicle is damaged as a result of negligence and is reasonably repaired (rather than written off), the measure of loss that results from the damage inflicted by the wrongdoer is the diminution in value of the vehicle and that can be measured by the reasonable cost of repair. That loss was suffered as soon as the chattel suffered damage. The Court also expressed the view that events occurring after the infliction of the damage were irrelevant to calculating the diminution in value.

The practical way that the diminution in value can generally be calculated by reference to the reasonable cost of repair so as to put the chattel back in the state it was in before it was damaged. Counsel for the plaintiff referred to the following observations of Aikens L.J. at p. 234 where he said: - “The first question is: ‘where a vehicle is damaged as a result of negligence and is reasonably repaired (rather than written off) is the measure of the claimant’s loss taken as the reasonable cost of repair?’ There can be no doubt about the legal analysis of the general rules.

It was summarised by Lord Hobhouse in his speech in Dimond v Lovell and the relevant passage was quoted by the judge at [22] of his judgment.

Dimond v Lovell was concerned with the recoverability of the cost of hiring a replacement car on credit hire terms after a claimant’s car had been damaged in a collision caused by the negligence of the defendant. But Lord Hobhouse began his analysis with basic principles. Taking Lord Hobhouse’s statement together with statements in other cases: (1) where a chattel is damaged by the negligence of another that loss (the ‘direct’ loss) is suffered as soon as the chattel is damaged; (2) the proper measure of that loss is the diminution in value that the chattel has suffered as a result of the negligence of the defendant. This follows the general principle in awarding damages, i.e. that of restitution. In Lord Hobhouse’s phrase, ‘this can be expressed as a capital account loss’; (3) if the chattel can be economically repaired, the claimant is entitled to have it repaired at the cost of the wrongdoer, although the claimant is not obliged to repair the chattel to recover the direct loss suffered; (4) events occurring after the infliction of the damage are irrelevant to calculating the diminution in value measure of damages. Thus, subsequent destruction of the chattel, or a decision to delay repairs, or an ability to have the repairs done at less than cost or for nothing will not prevent the claimant from recovering the diminution in value of the chattel that has been caused by the negligence of the tortfeasor...”

101. On the basis of the decision in Coles, counsel for the plaintiff submitted that the loss in this case is the reasonable cost of repair and he argued that the Court has evidence from both Mr. Robins and Mr. Jamieson that the repairs have been carried out. Counsel for the plaintiff argued that it was irrelevant whether it was paid by Virgin Media Limited or the plaintiff because, as the extract from the judgment of Aikens L.J. makes clear, events which occur after the infliction of damage are not relevant to the calculation of the diminution in value which is the appropriate measure of damage in the case of a chattel.

102. In further support of this argument, counsel for the plaintiff also cited the decision of the Court of Appeal of England and Wales in The London Corporation [1935] All ER Rep. 393. In that case, a vessel was damaged by collision. The vessel was sold to be broken up. Later, the owner agreed with the wrongdoer the amount of the cost of repair. At the time of this agreement, the wrongdoer did not know that the vessel was to be broken up. However, the Court of Appeal held that this did not affect the position. Greer L.J. said at p. 395: - “… I agree with the learned judge that in cases of this sort the prima facie damage is the cost of the repair. In circumstances which are peculiar to the plaintiffs, namely that they had, before the damage had been agreed, sold the vessel to be broken up is an accidental circumstance which ought not to be taken into account in the way of diminution of damages, any more than it is the case of the sale of goods where a difference in market price and contract price is always allowed. Regardless of the fact, having regard to what the purchaser has done, no such damages are in fact suffered by him, it is desirable that there should be a measure of damage which can be easily and definitely found. In this case, circumstances which are accidental to the plaintiff, of which the defendants have no knowledge, or circumstances applicable to the defendants of which the plaintiff had no knowledge need not be taken into account.”

103. Counsel for the defendants sought to make the case that these English authorities do not represent the law in this jurisdiction. Counsel referred in this context to a number of extracts from Dorgan & McKenna on Damages (2nd. Ed., 2021) and to the decision of the Supreme Court in Munnelly v. Calcon [1978] I.R. 387. Counsel first referred to para.

9.01 of Dorgan & McKenna where the authors say: “9.01 … In instances of torts damaging goods, the accepted metric for determining damages is the diminishment of the value of the chattel. Further, the reasonable cost of repairing the damaged item is prima facie evidence of the diminution in value caused by the damage. It is, however, possible that the cost of repair may not in fact reflect the true diminution of value. Conversely, the cost of repairs may be excessive and unreasonable and therefore not recoverable. If the repairs have the result of enhancing the chattel by, for example, installing old parts with new parts, the defendant gets no discount for any such uplift in price.”

104. In my view, there is nothing in that paragraph which is inconsistent with the English cases on which the plaintiff relies. Counsel for the defendants sought to place some emphasis on the statement in that passage that the cost of repairs may be excessive or unreasonable and he submitted that the underlying principle is that the plaintiff should be put back in the position it was in before the tort was committed (sometimes referred to in Latin as the restitutio in integrum principle). I entirely agree that this is the underlying principle but it seems to me that the approach taken in Coles is consistent with that principle. In that case, Aitken L.J. made clear that it is only the reasonable cost of repair that can be taken to be the measure of diminution in value of a damaged chattel.

105. I do not see anything else in Dorgan & McKenna which suggests that the approach taken in the English case law is inconsistent with existing Irish law on this issue. Counsel for the defendants also cited paras. 9.02 and 9.03 where the authors refer both to Coles and The London Corporation. The authors refer to Munnelly v. Calcon in paras. 9.04 and

9.06 and they identify that, in his judgment in that case (which was concerned with damage to a house), Kenny J. did not make any distinction between damage to real property and damage to chattels but the authors observe in para. 9.06: “Whilst the principle of restitutio in integrum is applicable to both goods and land, there are discrete differences in the applications of the concept, as with land, there may be a case for the reinstatement of the property to its condition in its pre-damage state.”

106. Having referred to Munnelly v. Calcon, and having noted the dearth of Irish authority on the topic in this jurisdiction, the authors suggest in para. 9.07 that: “The English cases … proceed to add ‘flesh to the bones’ and illustrate what is reasonable expenditure to put the claimant back in the position as if the tort had not occurred.” This is followed by a detailed discussion of the decision in Coles and also the decision in Dimond v Lovell [2002] 1 AC 384 on which Aitkens L.J. had relied in Coles.

107. Turning to Munnelly v. Calcon Ltd., it is important to keep the facts of that case in view. There, the plaintiff was an auctioneer with an office in Aungier St., Dublin. A side wall of his property collapsed during building works undertaken by the defendant to an adjoining property. The damage to the plaintiff’s property was irreparable and it had to be demolished. The case is not therefore concerned with the measure of damages in a case where property has been damaged but not destroyed. A further point of distinction is that it was concerned with damage to real property rather than to a chattel.

108. The plaintiff in Munnelly v. Calcon Ltd. claimed the cost of reinstatement at £65,000 even though the pre-damage value of his premises was £35,000 and even though he could also have acquired a comparable property for his business on the south side of the Liffey (albeit not on Aungier St.) for £35,000. The Supreme Court took the view that the figure of £35,000 represented the diminution in value of the property and that this sum was sufficient to restore the plaintiff to his pre-existing situation and that his circumstances were not such as to justify a departure from the restitutio in integrum principle. As Henchy J. explained on p. 401, the plaintiff had moved his office from Rathmines to Aungier St. not that long before the damage occurred and there was no evidence that his business had suffered as a consequence. In circumstances where he could not show that his business was centred on the immediate locality of Aungier St. there was no reason to depart from the usual rule that the diminution in value of his property was the appropriate measure of damages.

109. Counsel for the defendants referred me to the judgment of Henchy J. at pp. 399-400 and the judgment of Kenny J. at p. 405. However, I can find nothing in those judgments which is inconsistent with the decision in Coles. In his judgment, Henchy J. unsurprisingly accepted the analysis of May J. in C. R. Taylor Ltd. v. Hepworths Ltd. [1977] 1 WLR 659 that the purpose of an award of damages in tort is to put the plaintiff in the same position as he would have been had the tort not occurred but that this is also subject to the principle that the damages to be awarded must be reasonable as between the parties. Henchy J. remarked that this was not an exhaustive statement of the restitution principle. He then made clear that the application of this principle will always require a court to have regard to the individual circumstances of the case. In my view, the approach taken in Coles is entirely consistent with these fairly basic principles and counsel for the defendants did not identify any material inconsistency between the approach taken by Henchy J. and the application of the restitution principle in Coles. In both cases, the court emphasised the requirement of reasonableness.

110. In so far as the judgment of Kenny J. is concerned, counsel for the defendant relied on the following passage on p. 405: “The dominant rule of law in assessing damages is the principle of restitutio in integrum and subsidiary rules can be justified only if they give effect to that dominant rule. When a house has to be pulled down as a result of a defendant's wrongful act or when a vessel has been lost by collision due to the sole negligence of a defendant, the owner of the house or vessel is entitled to restitutio in integrum which means that the plaintiff is entitled to recover such a sum as will place him, so far as can be done by compensation in money, in the same position as if the loss had not been inflicted on him, subject to the rules of law as to remoteness of damage… The principle of restitutio in integrum does not involve the subsidiary rule that in every case where property is destroyed or demolished, the owner is entitled to recover the cost of restoration as damages: per Lord Normand in Hutchison v. Davidson; Moss v. Christchurch Rural District Council. There may be some cases in which damages equal to the cost of restoration are the only way to put the plaintiff back into the same position as he was before the accident, but they are special cases and the onus lies on the plaintiff to establish that his is one of them. Examples of such exceptional cases are to be found in the judgments of the Lord Chancellor of Ireland, Sir James Campbell, in Murphy v. Wexford County Council and of Lord Russell in Hutchison v. Davidson. The Lord Chancellor referred to premises which, from special circumstances, have a peculiar value to the owner such that the compensation for their destruction, in whole or in part, would be less than adequate if it did not equal the cost of restoration. …”

111. It is very clear from that passage that Kenny J. was addressing circumstances where property has been destroyed and the property owner seeks reinstatement of the property even though an alternative comparable property could be acquired at a lower cost. Applying the requirement of reasonableness as between the parties, the higher cost of reinstatement will not usually be regarded as the measure of damages in order to put the plaintiff back in the same position as existed before the property was destroyed. The result may be different where the plaintiff can establish some special circumstances to justify the reinstatement. I do not see any inconsistency between what Kenny J. said in that passage and the approach taken in Coles which was dealing with different circumstances. The specific issue which arose in Coles did not arise in Munnelly v. Calcon Ltd. The latter was concerned solely with irreparable damage to the plaintiff’s property and whether the compensation payable to the plaintiff should be measured by reference to the reinstatement cost or the cost of alternative premises. But both cases make clear that, in measuring damages for injury to property, a court will always consider the issue of reasonableness.

112. Having drawn my attention to the judgments of Henchy and Kenny JJ. in Munnelly v. Calcon Ltd., counsel for the defendants submitted that the rationale underlying the restitution principle is that a plaintiff must suffer a loss before there is any entitlement to pursue an action for damages. Counsel suggested, on that basis, that, in the absence of proof that the plaintiff here paid for the repairs to the cable, the plaintiff’s claim must fail.

113. I cannot accept this argument. In my view, the submission overlooks the very salient fact that the plaintiff suffered damage upon the occurrence of damage to the cable. The authorities on which the plaintiff relies show that it is not necessary to prove that damaged property has been repaired or that the property owner has paid for such repairs. The cause of action is complete when the damage is done to the property. While I have not been referred to any Irish case which has followed the English authorities, no cogent or convincing argument has been made to suggest that the English authorities were decided on an erroneous basis.

It is important to bear in mind that Coles is not an isolated authority. It is, in turn, consistent with The London Corporation and with the opinion of Lord Hobhouse in Dimond v. Lovell where he described the approach taken in The London Corporation and two earlier admiralty cases as “authoritative”. In Dimond v. Lovell, Mrs. Dimond’s car had been damaged but not destroyed. A number of complex legal issues arose in the case but what is relevant for present purposes is the explanation given by Lord Hobhouse, at p. 406, of the principle which was subsequently applied in Coles:

“Mrs Dimond was at the time of the accident the owner and person in possession of her car. It was damaged. Its value was reduced. This can be expressed as a capital account loss. This loss can be measured as being the cost of making good the damage plus the value of the loss of its use for a week. Since her car was not unrepairable and was not commercially not worth repairing, she was entitled to have her car repaired at the cost of the wrongdoer. Thus the measure of loss is the expenditure required to put it back into the same state as it was in before the accident.

This loss is suffered as soon as the car is damaged. If it were destroyed by fire the next day by the negligence of another, the second tortfeasor would only have to pay damages equal to the reduced value of the car and the original tortfeasor would still have to pay damages corresponding to the cost of putting right the damage which he caused to the car. These questions are liable to arise in relation to any damaged chattel and have long ago received authoritative answers in cases concerning ships: The Glenfinlas (Note) [1918] P 363; The Kingsway [1918] P 344;

The London Corporation [1935] P 70. These cases also distinguish between the cost of the damage to the chattel and consequential losses to the owner of the chattel such as loss of revenue.” (emphasis added)

114. The position outlined by Lord Hobhouse in that passage is also consistent with the views expressed by the authors of a number of leading English textbooks including McGregor on Damages (22nd Ed., 2024, at paras. 38-007 and 38-008) and Clerk & Lindsell on Torts (24th Ed., 2023) where the authors succinctly summarise the position at para. 26-166 as follows: “The basic rule in the case of damage to goods is that the claimant is entitled to recover. damages to the extent to which the value of the chattel has been reduced: this will usually be ascertained by reference to the cost of repair.

The cost will be ascertained as at the time when it was reasonable in the particular circumstances of the case for the claimant to have the chattel repaired. It does not matter that the repairs have not been carried out at the date of the trial, or even that they are never carried out at all, for example, if the damaged goods are lost before repair. Nor is it a bar to damages being recoverable for the cost of repairs that the claimant has no legal liability to pay the repair costs because they are covered by a consumer credit agreement that is unenforceable against the claimant.

In Coles v. Hetherton, it was held that, where it was reasonable to repair a damaged car, a claimant was entitled to damages for the reasonable cost of repairing the car, even though the actual cost of the repairs, whether incurred by the claimant or his insurer, were lower. The Court of Appeal reasoned that the reasonable cost of repair represented the diminution in value of the car, and that while the duty to mitigate applied to a consequential loss, it was irrelevant to that direct loss (the diminution in the value of the car), which was suffered as soon as the car was damaged and cannot be mitigated.

This may be thought controversial because one appears to be compensating the claimant for more than the loss suffered, but now clearly represents the law.. The approach was followed in National Highways Ltd v. Hubble, where it was decided that damage caused to street furniture was to be treated as diminishing the value of the highway itself, rather than to the individual items; and that it would be calculated in terms of the cost of repair. The claimants’ contractual arrangements, by which they paid a fee for contractors to carry out all repairs, did not affect the approach to calculating damages.

Where it is unreasonable, as between claimant and defendant, for the chattel to be repaired rather than replaced, as where the article is neither unique nor irreplaceable, and the cost of the repair greatly exceeds the replacement cost of the chattel itself, then the claimant cannot recover more than the replacement cost. Similarly, it is submitted that the cost of repairing a ship would not normally be recovered if at the time the damage was caused, she was on her way to the breakers yard, but only the diminution in the value of the ship as scrap.

If the claimant proves a reduction in the value of the chattel due to its having had to be repaired, damages may be recovered over and above the cost of repair.”

115. That appears to me to be an authoritative explanation of the principles which apply in England and Wales. No sufficient basis has been identified to suggest that the principles applied in these authorities is mistaken or that it is inconsistent with the legal position in this jurisdiction. I do not believe that the approach taken in Coles and the other English decisions is inconsistent with the restitution principle. It is an integral part of that principle that the cost of restoration of a chattel to its original condition should be paid by the party which wrongfully damaged that chattel. In the circumstances, I can see no reason not to follow and apply the approach taken in Coles. On that basis, it seems to me to be irrelevant to this issue that the plaintiff has failed to show that it has itself incurred any cost in relation to the repair of the damage done to the cable. As owner of the cable, the plaintiff itself suffered damage on the occurrence of damage to the cable and it is therefore entitled, as a matter of law, to pursue an action for damages against any party that caused the injury to the cable. It follows that the defendants fail in their attempt to deliver a knock-out blow to the plaintiff’s claim on this ground. However, that is not to say that no further issues arise in relation to the plaintiff’s claim for damages. Quite apart from the significant question that arises in relation to liability, the defendants have raised a number of issues in relation to the individual aspects of the damages claimed by the plaintiff. These are addressed further below after I have tackled the question of liability.

Did the Lida Suzanna cause the damage to the cable?

116. The minutes of the meeting of experts would suggest that no issue arises between the parties in relation to the location, cause or nature of the damage suffered by the cable. A meeting took place between the experts on both sides immediately before the hearing. This was attended by the experts retained by the plaintiff namely Mr. Willey, Mr. Mair and Dr. Baines and Captain Mills who was retained by the defendants. As the minutes of that meeting record, the experts agreed a number of things including (i) that the location of the fault to the cable was “53.635210 degrees N and 4.880817W”; (ii) that it was very unlikely that the damage to the cable was caused by a ship’s anchor “since, in such instances, cable damage is far more extensive and the cable can be displaced by a significant distance”; (iii) that the likely cause of the cable fault was fishing damage and that the Lida Suzanna “ likely caused the fault to the Sirius cable”; and (iv) that the cable was exposed locally at the fault location for between 2:00 and 5:00 meters but that, outside the exposure area, the cable was buried, this factor being verified by the lack of marine growth on the cable outside of the fault location. It should be noted that the coordinates given for the fault location in the agreed minute are plainly incorrect. They do not come close to any of the locations where damage to the cable was found by the repair ship, the Pierre de Fermat.

117. Regrettably, that measure of agreement between the experts was short lived at least in so far as it relates to the cause of the damage to the cable. It became clear in the course of cross-examination of the plaintiff’s witnesses that the AIS data that had been used to plot the movements of the Lida Suzanna was quite limited. Notwithstanding that AIS data is widely available at 30-second intervals, the data used by the plaintiff was plotted at two-minute intervals. As explained in more detail below, that meant that any attempt to plot the movement of the trawler was unlikely to provide an accurate representation of its movement.

Even more starkly, it emerged that, in the crucial period on either side of 11:41hrs on 26th January 2015 (when the alarm indicated a cable fault) there was a 4- minute gap in the AIS data used by the plaintiff’s AIS expert, Dr. Baines. This ran from 11:38hrs to 11:43hrs. I should explain that AIS is an acronym for the Automatic Identification System which is designed to transmit information about a vessel’s location, identity, course and speed so that other vessels in the area are aware of its presence and location. Every vessel over 12 metres in length (which includes the Lida Suzanna) is required to be equipped with AIS.

Information transmitted by the AIS is picked up by other vessels (and also by satellite and ground stations). AIS data about a vessel’s movements is also available commercially and can be used to retrospectively map the location and movement of a vessel on a given day or at a given time. The AIS data in this case identified that, at the time the fault was identified on 26th January 2015, the Lida Suzanna was the only vessel over 12 metres in length in the vicinity of the location of the damage to the cable. This data had been procured by Mr. Peter Jamieson, the principal engineer (core fibre and subsea) of the Virgin Media O2 Group.

However, more accurate data was provided to the defendants on the evening of Day 3 of the hearing and was the subject of evidence on the following day. This data showed the position of the trawler at 30-second intervals. In addition to the gaps in data, the plaintiff’s AIS expert, Dr. Baines had plotted the position of the fault location in the wrong place. As will be explained in more detail below, he used the fault location derived from the Geo Fault Position (which was consistent with the case made in the plaintiff’s statement of claim up to the final day of the hearing).

However, this did not coincide with the actual location of the damage to the cable as found by the Pierre de Fermat.

118. When the path of the trawler was plotted using the AIS data at 30-second intervals and when the actual fault location was also correctly plotted, this presented a different picture of the position of the trawler relative to the location of the damage to the cable. In light of these developments, when the defendants’ expert, Captain Mills, came to give his evidence on Day 4 of the hearing, he stated that, notwithstanding the agreement previously reached at the experts’ meeting, he was no longer of opinion that the Lida Suzanna caused the damage. It will be necessary to consider Captain Mills’ evidence in due course including his reasons for disowning the agreement reached with his counterparts immediately before the trial but, in principle, it seems me that an expert must be entitled to change his or her view in light of the emergence of new factual evidence relevant to the expert’s opinion. Moreover, Captain Mills is not an agent of the defendants and they are not bound by the outcome of the experts’ meeting. This is reflected, for example, in the terms of O. 63A, r. 6(1) which is applicable to Commercial List cases. That rule makes clear that any agreement reached between experts is not binding on the parties. As Dowling explains in The Commercial Court, (2nd. Ed., 2012) at para. 8-42, the stipulation in O.63A, r. 6(1) that the outcome of a joint meeting shall not be in any way binding upon the parties is: “recognition of the fact that the expert is not an agent of the party who has the authority to make concessions or admissions on that party’s behalf.”

119. In the circumstances, I believe that I must consider the evidence presented by the parties to the Court and reach my own view on the issues. While there are some aspects of the minute of the experts’ meeting that are not contested, it is clear that there is no longer any agreement between them on the crucial question as to whether the Lida Suzanna caused the damage to the cable.

120. In order to reach a conclusion on this issue, it is necessary to consider the evidence in some detail. The relevant witnesses in relation to this central issue in the case were:

(a) Mr. Peter Jamieson who is employed by Virgin Media O2 as principal engineer (Core Fibre and Subsea). Mr. Jamieson is an Incorporated Engineer. He is a member of a number of professional bodies and he is also Vice Chair of the European Subsea Cable Association (“ESCA”) which is a forum for national and international companies which own, operate and service submarine cables in European and surrounding waters. He has been employed by Virgin Media O2 for 27 years and has held his current position for 22 years. He was a witness as to fact.

(b) Captain Geoff Robins who was the representative of Virgin Media O2 on the Pierre de Fermat in late January and early February 2015 when it located the damage to the cable. Captain Robins is a master mariner who served on board cable ships for 23 years before he retired from active service in 2002. However, after his retirement he continued to be engaged by a contractor called Red Penguin Associates which was retained by Virgin Media O2 to have representatives on standby in case of damage to a subsea cable. Captain Robins explained that, prior to this repair, he had supervised three repair operations for Virgin Media (all in the course of 2013). He was a witness as to fact.

(c) Dr. Neil Baines was called by the plaintiff as an expert witness. Dr. Baines has a background in fishing and is qualified as a fishing boat skipper but he subsequently worked in the merchant navy and has also worked as captain of a wind farm transfer vessel. He now works as a consultant and has a total of 52 years’ experience in the maritime industry. He was retained for the purposes of plotting the track of the Lida Suzanna on 26th January 2015 based on AIS data from the vessel in respect of the period from 01:29hrs to 23:54hrs on that day;

(d) Mr. Aaron Mair of Port Hill Marine Limited was also called as an expert witness on behalf of the plaintiff. Mr. Mair is the managing director of Port Hill Marine Limited which is a marine consultancy company that specialises in fisheries. He was a fisherman for 28 years, 15 of which he served as skipper and owner of various vessels. He has also spent time in the Merchant Navy. He has qualifications as chief mate and skipper from Robert Gordons University, Aberdeen.

(e) Mr. Chris Willey was the final expert called by the plaintiff. He is director of Pelagian Limited which is a specialised marine consultancy supporting the subsea cable sector. He has 49 years of experience in the cable industry. He started out as a cable engineer in the fleet of Cable & Wireless Marine. He has been involved in the management of numerous maintenance and repair operations and cable installation operations.

(f) Mr. Brian Molloy was called by the defendants as a witness. He is the skipper of the Lida Suzanna and was in charge of the trawler on 26th January 2015;

(g) Captain Nathan Mills was called as an expert by the defendants. He is a master mariner who has spent 21 years at sea, working first in the bulk, break bulk, passenger and the roll-on/roll-off sectors and subsequently as deputy captain and vice-captain on Thomson Cruises and Crystal Cruises. Since 2015, he has been a maritime consultant, surveyor and an expert witness.

121. The evidence of the witnesses traversed a number of distinct areas and, with that in mind, it may assist if the evidence is examined, to the extent to which this is feasible, on an issue by issue basis. In determining whether the Lida Suzanna caused the damage to the cable, there are a number of questions to be considered as follows:

(a) It is first necessary to identify the location of the damage on the cable and the type of damage suffered by the cable;

(b) It is next necessary to identify, by reference to appropriate AIS data, the location of the Lida Suzanna relative to the location of the damage suffered by the cable at the time the fault was detected. In looking at that issue, it will also be necessary to consider whether there is any reason to think that there might have been any other vessel more proximate to the location of damage at that time. As noted in para. 117 above, the AIS data will only identify vessels over 12 metres in length;

(c) Once findings have been made on the issues identified at (a) and (b) above, it will then be possible to make findings, on the balance of probabilities, as to whether the damage to the cable was caused by the Lida Suzanna. What was the location and nature of the damage suffered by the cable?

122. There is no dispute between the parties that, on 26th January 2015 at approximately 11:41hrs a fault alarm was triggered on the Plaintiff’s network management system, which monitors activity on the cable in real time. Mr. Jamieson explained that a fault alarm arises from an automated fault trigger system which is deployed when equipment based at the terminal points in Dublin and Lytham St Annes stop communicating with each other. Within a millisecond of communication stopping, an alarm is triggered and this sets off what is known as the ERS Fibre Break process.

123. In the course of his evidence, Mr. Jamieson explained that the system recorded an optical line fail at 11:41:57hrs at Lytham St. Annes and an optical line fail at 11:41:54hrs at Beaumont in Dublin. Mr. Jamieson further explained that, where the cable is severed, the optical signal sent along the optical fibres between Lytham St. Annes and Beaumont will stop. This generates an alarm. In the case of Lytham St. Annes, it stopped receiving light at 11:41:57hrs while, at the opposite end of the cable, Beaumont stopped receiving light at 11:41:54hrs. The alarm is triggered from both ends of the cable because “they are no longer talking to each other”. Mr. Jamieson said that these alarms appeared on screen in the Network Management Centre in Langley, near London. He outlined that, once an alarm of this kind is received, it identifies that there has been a break on the cable which requires to be investigated.

124. The investigation process commenced with testing by engineers employed by Virgin Media 02. In this instance, such engineers attended first at the Lytham Terminal Station, which was the closest to the location of the damage to begin testing. Testing was carried out at both ends of the cable, from the Dublin Terminal Station and the Lytham Terminal Station. The testing consisted of using a tool called an Optical Time Domain Reflectometer (“OTDR”). This procedure remotely measures the length of the optical fibre by sending a pulse of light along the fibre and measuring the time it takes to return. Following tests, only one instance of damage to the cable was detected at that time. The results suggested that there had been a complete break of the fibres. As noted earlier, the existence of a single break was confirmed as the distances from each end to the fault matched in aggregate the full length of the cable. For that reason, Mr. Jamieson was confident that there was only one break in the cable at that time. For completeness, it should be noted that a second instance of damage was subsequently discovered following physical examination of the cable by the repair ship Pierre de Fermat at 15:20hrs on 2nd February 2015 but, in light of the fact that the distances from each end to the fault (as identified at 11:41hrs on 26th January 2015) matched in aggregate the full length of the cable, Mr. Jamieson’s evidence was that the second instance of damage must have postdated the incident the subject matter of these proceedings. That seems to me to be a logical and correct conclusion. As I have previously mentioned, the second instance of damage was the subject of a separate action at the suit of the plaintiff against the owners of the MFV Willie Joe which was ultimately settled.

125. In paragraph 12 of his witness statement (which he adopted as part of his direct evidence) Mr. Jamieson stated that, once initial investigations had been undertaken and it had been determined that the damage location was identified as being within the Irish Sea, he was notified of the outcome by the Virgin Media O2 Network Management Centre.

126. After receiving the information from the Virgin Media O2 Network Management Centre, Mr. Jamieson then proceeded to follow what he described as a standard process to arrange for repairs to be carried out to the cable. He explained that Virgin O2 is part of the Atlantic Cable Maintenance & Repair Agreement (“ACMA”) which is a consortium of companies responsible for the operations and maintenance of undersea communications and power cables. All members of ACMA pay a subscription on an annual basis which allows them access to three dedicated repair ships which can be deployed to repair damage to sub-sea cables. On this occasion, the repair ship, the Pierre de Fermat was made available. The Pierre de Fermat is owned and operated by Orange Marine.

127. Mr. Jamieson emailed Orange Marine at 18:50hrs on 26th January 2015 with instructions to locate and repair the damage to the cable. His evidence was that he gave the Pierre de Fermat the relevant distance along the line of the cable where transmission was interrupted as identified by the OTDR. He did not provide co-ordinates for this location but left that to the Pierre de Fermat which is crewed by, among others, two engineers. This is borne out by the contents of his email of 26th January 2015. However, in the Fault Analysis Sheet (“FAS”) in the Orange Marine report authored by the engineers on board the ship, the co-ordinates for what was described as the “Fault Geo Position” were given as 53 38.113N and 452.849W. Mr. Jamieson stated, on reexamination, that he believed that these represent “where the ship arrives at …using the kilometre distance that I’ve given it.” These co-ordinates were also alleged in the statement of claim to represent the location of the damage (save that the longitude coordinate was misstated). As it transpired, the Fault Geo Position is not where the Pierre de Fermat located any damage to the cable. This is manifestly clear not only from the log provided by the Pierre de Fermat but also in the contemporaneous report provided by Captain Robins in February 2015.

128. Remarkably, this inconsistency was not addressed either in Mr. Jamieson’s witness statement or in the course of his direct evidence. The inconsistency did not emerge in evidence until he was cross-examined. Initially, in answer to questions from counsel for the defendants, Mr, Jamieson maintained that the Fault Geo Position was “the coordinates where the ship found the damage” but it quickly became clear that he was wrong. The actual fault location is described by the authors of the Orange Marine report as being at a different location represented by the co-ordinates 53 38.041N and 4 52.879W. This failure to advert to the actual location of the fault created considerable difficulty at the hearing and this was compounded by the use by the plaintiff of AIS data for the Lida Suzanna which, because the data was recorded at two-minute intervals, conveyed an incomplete picture of the trawler’s movements. But, before I address those difficulties, it is necessary to identify the evidence which emerges from the work done by the Pierre de Fermat.

129. As noted in para. 5 above, the Pierre de Fermat is based in Brest, France. The Pierre de Fermat mobilised and first sailed to Portland where Virgin Media O2 keep their “spares”. The vessel loaded up with spare cable and joints and then headed for the repair ground in the Irish Sea. This was confirmed by Captain Robins who was present on the Pierre de Fermat. His evidence on this issue is considered below. No witness from Orange Marine gave evidence but, at the trial, extensive reference was made by both sides, without objection, to the detailed report provided by Orange Marine on 14th February 2015 and updated on 6th March 2015. This report includes a detailed log of events and findings including dates, times and co-ordinates for the location of some of the most relevant events or findings. The log records the request received on 26th January 2015 to carry out repairs. It describes the departure of the vessel from Brest to Portland on 28th January 2015. It also records the commencement of mobilisation on 28th January 2015 and the passage of the vessel to the location of the cable in the period from the afternoon of 29th January 2015 to the early morning of 1st February 2015. The log shows that the ROV was deployed on Sunday 1st February 2015 but it was not until 05:30hrs on Monday 2nd February 2015 that damage was observed at the cable.

130. In his report of February 2015, Captain Robins explained that several hours were lost searching for a fault in the cable at the position suggested by the OTDR derived fault area. Under cross-examination, Captain Robins agreed that the Pierre de Fermat first went to the location of the Fault Geo Position (as subsequently recorded by the Orange Marine engineers in the FAS) in order to try to locate the fault but did not find it there. Captain Robins added that a position derived from OTDR is “historically not always completely accurate”. He explained that, in order to pinpoint the exact position of the fault, it is necessary “to deploy a 25 hertz tone from the nearest repeater station and the ship then deploys a pair of electrodes to stern and zigzags across the cable line towards the expected fault location and … when the ship crosses the cable line, it picks up the tone, which is generated in the cable, and once it is past the fault location, that tone is lost, the ship will then turn around and do a second pass halfway between where the tone was lost and where it was last received, and by doing that, they can pinpoint the exact location of the fault pretty accurately. But on this occasion, it was not possible to complete that operation because no tone was received from the repeater station.”

131. Because no tone was received, the usual method of identifying the exact fault location could not be adopted. For that reason, the Pierre de Fermat resorted to the use of AIS data which had been provided by Mr. Jamieson. This data related to the position of what was then an unidentified trawler detected by AIS to have been in the area at the time the fault was noted. This trawler was subsequently identified as the Lida Suzanna. In his report, Captain Robins stated that the fault as found “coincided exactly with the AIS derived position of the fishing vessel.” However, he further stated that there “was a difference of approximately 900 metres” between the fault position obtained from OTDR readings (i.e. the Geo Fault Position) and the position of the fishing vessel “in the area at the time the fault occurred, which was obtained from historic AIS information.” For the reasons explained further below, I am of the view that Captain Robins is mistaken in suggesting that the difference was as much as 900 metres.

132. In his report, Captain Robins also provided some details of the condition of the cable as found by the Pierre de Fermat. He stated that, on recovery of the damaged section to the deck of the Pierre de Fermat, the cable was found to be badly strained with the armouring wires intact but the core was severed. In his witness statement, he suggested that this showed that the cable had been dragged under high tension. A more detailed description of the damage was given by Mr. Willey. Although he was not a witness as to fact, he was in a better position, through his cable expertise to elaborate on the nature of the damage from the photographs that were taken during the course of the repairs. In his report, Mr. Willey described the damage to the cable as follows: - “The cable recovered was reported to have been damaged by likely fishing activity with the armouring being damaged and armour wires being broken, along with the inevitable serving damage (the serving being a polypropylene yarn wound over the armour wires) i.e. the cable having been damaged by an external force. The armour wires show as being heavily strained and mauled with the core being severed (the core carrying the fibre optic transmission element). The damage is indicative of trawling damage, the trawl gear imparting high external stress to the cable and heavily stressing and mauling the armour wires.

Photographs of the recovered cable show some small area of marine growth, which indicate that during the intervening period between the original installation and the repair operation, the cable had become exposed over a small section. This exposure is indicative of seabed mobility in an area of high seabed currents. Strong seabed currents were noted during repair 23.”

133. Mr. Willey’s description of the length of cable showing marine growth chimes with what Captain Robins had said, in his report, to the effect that a “small length of approximately 2 metres adjacent to the fault was encrusted with marine growth indicating that it had been exposed on the surface for some time …”. Notwithstanding this reference to an approximately 2-metre length of cable being exposed, the minute of the experts’ meeting shows that the experts have agreed that the cable was “exposed locally at the fault location for c. 2 - 5 metres but outside the exposure area, the cable was buried, this factor being verified by the lack of marine growth on the cable outside of the fault location.” (emphasis added)

134. Captain Robins also expressed the view that the damage was “consistent with a trawler maul”. In his report he had discounted a ship’s anchor as the likely cause of the damage noting that the water depth in the location of the fault is of the order of 50 metres, which, together with its location in the middle of the Irish Sea, makes it a somewhat improbable area for anchorage. His view that the damage was caused by a trawler coincides with that expressed by the experts on both sides as recorded in the minute of their joint meeting. While Captain Mills no longer agrees that the evidence points to the Lida Suzanna as the cause of the damage to the cable, no one has seriously disputed the experts’ joint view (as expressed in the minute) that it was very unlikely that the damage to the cable was caused by a ship’s anchor “since, in such instances, cable damage is far more extensive and the cable can be displaced by a significant distance”. Similarly, no one has undermined their view that the likely cause of the cable fault was fishing damage.

135. Mr. Mair also gave evidence that the damage to the cable was consistent with damage done by a scallop dredge and he referred to a photograph of similar damage to cable as a result of an encounter with a scallop dredge. He produced a photograph of damaged cable recovered for repair in the North Sea where one can plainly observe the mauling and chaffing that occurred through being snagged by such a dredge. Mr. Mair described what is likely to have happened. He suggested that it was likely that the cable was pulled through between the tooth bar and the main scallop dredge frame. He explained that each dredge has a steel bar which runs the length of the dredge known as the tooth bar. On the bar there are teeth which dig into the sea bed to fish scallops. The tooth bar is attached to the scallop dredge frame and is spring loaded to allow for movement as it is towed along the sea beds stop.

136. Under cross-examination, Captain Robins reiterated that the AIS derived position of the trawler was further east from the Fault Geo Position and he agreed with counsel for the defendants that 900 metres, being almost a kilometre, represented a “significant enough difference”. Captain Robins’ evidence to this effect is not borne out by the improved and more comprehensive AIS data which was subsequently made available to the defendants on Day 3 of the hearing. That AIS data (which records the position of the trawler at 30-second intervals) is discussed further below but it is clear from that data that, at the time damage was first identified to the cable on 26th January 2015, the Lida Suzanna was significantly closer to the Fault Geo Position than 900 metres. It is also clear from the 30-second interval data and from the evidence of Mr. Willey (discussed below) that the distance between the location of the Fault Geo Position and the place which is recorded in the Orange Marine report as the “actual fault location” (represented by coordinates 53 38.041N and 4 52.879W) is no more than 152.5 metres to the south southwest of the Fault Geo Position (represented by co-ordinates 53 38.113N and 452.849W). It is not 900 metres east.

137. Captain Robins was cross-examined about the daily log of the Perre de Fermat for 2nd February 2015. In the course of a 90 minute period prior to the identification of damage to the cable, the log records that the depth of burial of the cable varied from 92 centimetres at 04:06hrs, one metre at 04:13hrs, 60 centimetres at 05:08hrs but 30 centimetres at 5:15hrs and 20 centimetres at 05:20hrs. At 05:23hrs, the ROV identified cable at the surface. Seven minutes later at 05:30hrs, damage was observed to the cable at the coordinates 53 38.053N and 4 52.836W.

138. Counsel for the defendants then referred Captain Robins to the entry at 05.33hrs which records that the cable was “in suspension”. Counsel asked Captain Robins whether this was close to the damage observed in the cable at 05:30hrs. His response was that it was almost the same location; about three metres distant from the location at 05:30hrs. Counsel also asked Captain Robins about the entry for 06:09hrs “cable in suspension and small birdcage observed”. The reference to birdcage damage was subsequently explained by Mr. Willey as the delamination of the armour creating an expanded bundle of wires resembling a bird cage although not involving a physical break in the armour.

139. Counsel for the defendants noted that this entry at 6.09hrs was the second reference to the cable being in suspension and he asked whether this was a separate instance of this phenomenon. Captain Robins replied that he could not remember whether this represented two areas of damage or the same one but his evidence was that the geographical locations are very close. That may seem unlikely given the difference in timing but it should be noted, in this context, that the log records that, at 05:37 hrs., the visibility was very poor such that a decision was made to move towards the north and make a large U-turn to come back on the cable “in front of the current”. That manoeuvre appears to have taken approximately 20 minutes because the log records that, at 05: 59 hrs., the ROV was “back” on the cable.

140. It should be noted that, in addition, to the above entries in the log recording damage to the cable, there is one further relevant entry recorded at 11:23hrs on 2nd February 2015. This was after the cable had been recovered on deck of the Pierre de Fermat using the grappling hook described in para. 5 above. The log records “damage onto cable at sheaves” and it also records the repair ship’s position at this point being 53 38.041N and 4 52.879W. The location marked by these coordinates was also described subsequently in the FAS as the “actual fault location”. As a comparison of the longitude co-ordinates confirm, this location is west of the location of the damage identified earlier at 5:30hrs.

141. Captain Robins was asked whether he knew where the cable was caught and he said that it “would have been caught in the middle of the observed damage section”. It was also put to Captain Robins that, at 06:50hrs, further damage was also observed. Counsel for the defendants suggested to Captain Robins that one gets a sense of the extent of the damage and the distance over which the damage extends by looking through the log at the different geo-positions that are indicated there. Captain Robins responded to say that the best indication of the extent of the damage is by measuring the damaged sections when they are hauled on board the ship. However, he did not give any evidence that any such measurements were carried out on this occasion but he said that a length of 415 meters of double armour cable was inserted by the Pierre de Fermat, replacing 236 metres of the original Pirelli cable. Captain Robins’ measurement of 415 metres is slightly different to the evidence given by Mr. Willey, the cable expert called by the plaintiff. However, the difference is so slight as to be immaterial. In his report, Mr. Willey identified that the repair of the cable in February 2015 involved the removal of 236 metres of damaged single armour cable and their replacement with 412 metres of double armour cable. Mr. Willey explained that the additional 176 metres is a function of the final splice deployment where both ends of the cable system are required to be on board in order to make the final splice (i.e. a cable joint). A nominal value of greater than twice the water depth (53 metres at this location) is a physical necessity together with cable required to be deployed into the jointing area.

142. In closing submissions, counsel for the plaintiff sought to suggest that Captain Robins evidence suggests that the entire length of cable removed by the Pierre de Fermat was damaged. I do not understand Captain Robins’ evidence in this way. As I have noted above, Captain Robins did not go so far as to say that he had measured the damaged sections of the cable when the 236 metres of cable were brought on deck. Furthermore, when Captain Robins was asked by counsel for the defendants to identify the proportion of the exposed cable which showed damage, his response was that: “It was a small area of damage. The rest of the area, which was exposed was clean and not damaged.” Counsel for the plaintiff also sought to rely in this context on the evidence of Mr. Willey, the cable expert called by the plaintiff. Although he was not a witness as to fact, he was cross-examined on Day 4 of the hearing in relation to the differences in the locations at which damage was recorded at 5:30hrs, 6:09hrs and 6:50hrs. It was put to Mr. Willey that there were differences both in longitude and latitude for the co-ordinates recorded at each of these times for the position of the cable. Mr. Willey accepted that this was so. The following exchange then took place between counsel and Mr. Willey: “Q. That's consistent with effectively damage along the cable, isn't that right?

A. That's right.

Q. And I think approximately 250 metres of cable were ultimately -- were cut out, isn't that right?

A. Just over, yeah.

Q. Just over. Perhaps it was...(INTERJECTION)?

A. 260, I think. Something like that.

Q. Yes. So effectively there was damage all along that length of the cable, is that right?

A. Yes.” (emphasis added).

142. I do not believe that this evidence is sufficient to establish, on the balance of probabilities, that there was damage all along the 236 metres length of cable which was replaced. Mr. Willey is not a witness as to fact and his evidence is inconsistent with that of Captain Robins who was present on the Pierre de Fermat. As noted above, the latter’s evidence was that there was only a small area of damage to the cable. In light of Captain Robins’ evidence, the most that can be said is that physical damage was found at a number of distinct locations along the cable at the times noted above as the co-ordinates recorded in the log demonstrate.

143. While the log of the Pierre de Fermat provides a contemporaneous record of where the damage to the cable was found, there was considerable confusion on the part of a number of the plaintiff’s witnesses on that issue. In addition to the plainly inaccurate coordinates given in the minute of the experts’ meeting, Mr. Jamieson made the very definite assertion in his witness statement that the “precise location” of the damage was 53˚ 33.800 N and 005˚ 03.154 W. However, those co-ordinates do not match the Fault Geo Position. Nor do they match any of the locations where the Pierre de Fermat encountered damage to the cable. Mr. Jamieson was unable to explain where these coordinates came from. He accepted that he had nothing to corroborate the coordinates and, in these circumstances, I believe that no reliance can be placed on this aspect of Mr. Jamieson’s evidence.

144. The disconnect between the case made by the plaintiff as to the location of the damage to the cable and the contents of the Orange Marine report recording the locations where the Pierre de Fermat found instances of damage to the cable was particularly striking in the context of the evidence of Dr. Baines. As noted above, Dr. Baines was called as an expert witness by the plaintiff to deal with the AIS data transmitted by the Lida Suzanna on 26th January 2015. His evidence in that context is considered further below. What is more immediately relevant in the context of the damage to the cable is the place identified by Dr. Baines in his report as the location of that damage. In each of Figures 1, 3 and 4 of his report, the fault location was shown north of the line of the cable.

In the text of his report, Dr. Baines stated: -

“The location of the cable fault has been identified as 53° 38.113 N 004° 52.849W (see Page 7 of the repair ship investigation report, item [3] Annex A). This position has been annotated with a small black square labelled “FAULT LOCATION 1” in Figure 1. From the plot of the Lida Suzanna’s track in Figure 1, it is apparent that the Lida Suzanna’s track goes right over this point. The passage of the vessel over this location is considered in more detail in the next section.” (Emphasis added)

145. These are the coordinates of the Fault Geo Position as set out in the Orange Marine report. As I have already explained, that is not the location of any of the actual fault locations identified in the Orange Marine report. To my surprise, this was not corrected by Dr. Baines in his direct evidence even though he had been present in court for the cross-examination of both Captain Robins and Mr. Jamieson when the issue had been closely explored.

146. Unsurprisingly, this element of Dr. Baines’ evidence was explored in the course of his cross-examination. The following illuminating exchange took place between counsel for the defendants and Dr. Baines on Day 3 of the hearing in which Dr. Baines ultimately acknowledged that the plaintiff was in error in relation to the location of the fault : “Q. It seems to follow that the statement, therefore, in your report, is in error as to the location of the fault?

A. When you say it is in error, it is correct in the sense that that was the location that was identified originally. But as you have subsequently pointed out, that may be incorrect, because that's due to the OTDR rather than what was finally found.

Q. But that then feeds into the drawings or the charts that you have?

A. Yes.

Q. You've been operating on the basis of incorrect data in that regard in terms of the location of the fault?

A. Yes. The location indicated on, I think, probably everyone's images of the fault, is that location, I believe.

Q. Hmm. And, therefore -- and also the statement that you make that the Lida Suzanna track goes right over this point, you're making that statement in relation to a point which is not the location of the fault. Isn't that right?

A. Yes. ”

147. The confusion on the part of these witnesses on the part of the plaintiff was compounded by the way in which the plaintiff pleaded the location of the damage in its statement of claim. In paragraph 3 of the statement of claim it was alleged that:

“At all times material hereto, the Vessel was engaged in trawling operations over or around the Cable, including at coordinates 53°38.113N and 4°53.849W, approximately 136 kilometres from the Lytham St Annes' terminal station.”

148. While there is a discrepancy between the longitude co-ordinate alleged in the statement of claim and the coordinate given for the “Fault Geo Position” in the FAS, the intention in the statement of claim appears to have been to plead the co-ordinates given for the “Fault Geo Position”. At a later point in the hearing, counsel for the plaintiff acknowledged that this was so. As noted, in para. 3 above, the plaintiff eventually applied to amend the claim on the last day of the hearing in order to address this issue. However, the plaintiff’s reliance on the “Fault Geo Position” as the location of the damage was never satisfactorily explained notwithstanding that it was obvious from both the Orange Marine report and Captain Robins’ report that this was not where damage to the cable was actually found.

149. The plaintiff’s witnesses provided some evidence to explain why there could be a discrepancy between the Fault Geo Position and the actual location of the fault as found by the Pierre de Fermat. Mr. Jamieson explained the former was derived from the ODTR measurements supplied by him to the Pierre de Fermat and that the OTDR test only measures light in a straight line. He said that the fibre is not laid in a straight line across the seabed so there will always be a margin for error in the OTDR reading. Later, Mr. Willey outlined that there is “slack” in the optic fibres within the cable. This means that light travels for a further distance within the fibres than would be represented by the physical structure of the cable on the seabed. OTDR measurements need to be adjusted to account for this discrepancy. He gave evidence that, over a distance of 120 kilometres, there could be up to a kilometre of additional length in the fibre versus the cable. This evidence makes it all the more remarkable that the plaintiff’s pleaded claim right up to Day 7 of the hearing was on the basis that the damage to the cable occurred at the coordinates for the Fault Geo Position.

150. In closing submissions, counsel for the plaintiff sought to argue that there are two possibilities that might account for the distance between the location of the Fault Geo Position and the location of the physical damage to the cable. Counsel suggested that the repair ship could have miscalculated the geolocation based on the OTDR reading or the entry on the FAS in the Orange Marine report does not represent the OTDR reading, as has been assumed. This is pure speculation on counsel’s part. There is no evidence to support it. Furthermore, counsel’s theory is inconsistent with the evidence of Mr. Jamieson on re-examination. The issue was probed by counsel for the plaintiff and, in response, Mr. Jamieson confirmed that the Fault Geo Position was derived from the position which he had given the Pierre de Fermat by reference to the distance along the cable identified by the ODTR. It is where the ship arrives using that location taken from the OTDR information. If the plaintiff wished to canvass a case based on counsel’s theory, the plaintiff should have called one of the authors of the Orange Marine report as a witness. Findings of fact in relation to the location and nature of the damage done to the cable

151. For the reasons outlined in para. 124 above, I am satisfied that the second instance of damage (which the plaintiff has attributed to the actions of the MFV Willie Joe) postdated the incident the subject matter of these proceedings. However, in so far as the first instance of damage is concerned, it is quite clear that the plaintiff was mistaken in putting forward its claim that the damage to the cable occurred at a location marked by co-ordinates 53 38.113N and 452.849W. That is not where the damage to the cable was found.

152. I am also of the view that there is insufficient factual evidence to support the view expressed by Mr. Willey that the 236-metre length of cable which was replaced by the Pierre de Fermat was damaged all along its length. This is not consistent with the evidence of Captain Robins who stated that only a small area of the exposed cable was damaged. In my view, the only areas of cable that have been proved to have suffered damage are those recorded in the Orange Marine report namely those found at the following locations:

(a) The damage recorded at 05:30hrs on 2nd February 2015 at the co-ordinates 53 38.053N and 4 52.836W;

(b) The “birdcage” damage recorded at 06:09hrs on the same day. The co-ordinates for this item of damage are 53 38.088N and 4.52.716W;

(c) The report also records damage (“some armours broken) at 06:50hrs on the same day, the relevant co-ordinates for this being 53 38.059N and 4 52.810W; and

(d) The damage recorded in the FAS as the “Fault as Found” which was recorded at 11:23hrs on the same day and the relevant co-ordinates for which are 53 38.041N and 4 52.879W.

153. It is, however, important to keep in mind that, although these co-ordinates represent the locations of the damage to the cable as found by the Pierre de Fermat, they are not on the original line of the cable. As will become clear from a consideration of the expert evidence in the case, discussed further below, the cable is likely to have been moved as a consequence of being snagged.

154. In light of the evidence discussed above, I believe that there is a clear basis on which to find, on the balance of probabilities, that the damage to the cable was caused by an encounter with a scallop dredge rather than an anchor. As outlined in para. 116 above, this reflects what was agreed at the meeting of experts. It is also supported by the evidence of Mr. Willey as recorded in para. 132 above, the evidence of Captain Robins as summarised in para. 134 above and the evidence of Mr. Mair as summarised in para. 135 above. As noted in para. 209 below, Captain Mills also accepted that the damage was not caused by an anchor.

155. There is one further factual finding to be made in this context. On the basis of the evidence and as agreed between the experts at their meeting, it is clear that only a short length of cable was exposed above the surface of the seabed for any appreciable period. This follows from the fact that marine growth was visible on no more than a 2-5 metre length of cable. It is clear from the evidence that the snagging of the cable led to a longer stretch of cable (running to more than 200 metres in length) being uprooted from the seabed. The expert evidence called by the plaintiff in relation to the location and movement of the Lida Suzanna relative to the location of damage to the cable

156. Having made findings in relation to the nature of the damage to the cable, it is next necessary to consider the location and movements of the Lida Suzanna in the critical period on either side of 11:41hrs on 26th January 2015. For this purpose, the AIS data in relation to the movement and location of the Lida Suzanna is of critical importance. As I have previously explained the trawler is equipped with AIS and, on 26th January 2015, it was transmitting AIS information as to its position, speed and course. That data was recorded and is available from a number of reputable commercial sources. Such AIS data provides invaluable information that allows the movement of a vessel to be determined retrospectively. While Captain Nathan Mills (the expert retained by the defendants) had initially expressed significant doubt about the accuracy and reliability of AIS data, Captain Mills accepted at the experts’ meeting that such material is helpful. Furthermore, on Day 4 of the hearing, Captain Mills accepted that the AIS data made available on Day

3 of the hearing is accurate, save for a number of data points around 12:30hrs on 26th January 2015. In circumstances where the critical period is centred on the movement of the trawler in the immediate period preceding 11:41hrs and the minutes immediately afterwards, any such inaccuracies are not relevant for the purposes of this judgment.

157. Dr. Baines was the first expert to give evidence on behalf of the plaintiff. He explained that he had examined the AIS data for the trawler which had been supplied to him by Mr. Jamieson. He also explained that this was sourced from Marine Traffic which is a reputable commercial provider of data transmitted by the AIS onboard vessels around the world. He outlined that vessels transmit AIS data (when moving) somewhere between every 3 and every 10 seconds. He suggested that the latter would be the case “under normal operations”. Such data is routinely acquired by independent monitoring companies who choose to store it at different rates. In the case of Marine Traffic, the data is stored at 2 minute intervals. While he said that the data would normally have an hours, minutes and seconds value, the seconds value had not been recorded in respect of the data received by him from Mr. Jamieson. On that basis, he said that the positions plotted by him on the graphs attached to his report were accurate to 59 seconds. However, it was subsequently identified in the course of his cross-examination that his statement to that effect is inaccurate and potentially misleading. As noted previously in para. 117 above, there is, in fact, a 4-minute gap in the readings in the AIS data used by Dr. Baines in the critically important period between 11:38hrs and 11:42hrs. In this context, it must be kept in mind that the fault alarm was triggered on the plaintiff’s network management system at 11.41hrs on 26 January 2015. The significance of this 4-minute gap was highlighted in the course of Dr. Baines’ cross-examination. This arose in the context of the accuracy of Figure 5 of his report which is a graph purporting to show the Lida Suzanna’s course and speed over the ground for the period between 11:20hrs and 12:00hrs on 26th January 2015. It shows that at some point close to 11:38hrs, the speed of the vessel began to drop significantly and the course over the ground also altered sharply. But Dr. Baines had to concede that he could not say at what point between 11:38hrs and 11:42 hours, this had occurred. The following exchange then took place between counsel and Dr. Baines: “Q. You say, based on my questioning of you in relation to Figure 5, that you cannot say what happens between 11:38 and 11:42?

A. Correct. Because we only had data supplied with a two-minute update rate. I said that earlier.

Q. Well, that's 4 minutes though. 11:38 to 11:42.

A. Yes. Yes, okay. So that must have been one of the data points that was missing. As I say, when we analysed the data, we found that the average gap was 2 minutes 42. The maximum gap was 7 minutes.” (emphasis added).

158. I have highlighted part of that exchange because it demonstrates a lack of appreciation on Dr. Baines’ part in relation to the role of an expert witness. As the judgment of Creswell J. in The Ikarian Reefer [1997] 2 Lloyd’s Rep. 68 makes clear, it is part of the duty of an expert to identify whether there is a deficit in the available data. An expert is also required not to omit material facts which might undermine the expert’s opinion. The judgment of Cresswell J. has been approved and followed in this jurisdiction by the Court of Appeal in Duffy v. McGee [2022] IECA 254. In my view, there was a glaring gap in the AIS data here which, plainly, should have been highlighted by Dr. Baines in his report. It is very clear that, before expressing a view on the issues, he should also have had the good sense to seek more comprehensive AIS data on which to base his opinion.

159. It was put to Dr. Baines that there was no proper basis for another of his conclusions in his report where he said: - “Immediately upon crossing the cable, the Vessel’s speed dropped from over 3 knots to 1 knot, and her course changed from 337° to 76°. This would be consistent with her trawl having snagged on the cable as she crossed over the cable.” (emphasis added)

160. This was ultimately accepted by Dr. Baines although he sought to characterise this very definite expression of opinion as an unfortunate choice of words. The relevant exchange was as follows: “Q. You've made a statement that immediately upon crossing the cable, the speed reduced. So that's a statement of a particular point in time, and I want to suggest to you that you had no data to actually make that statement that you were engaging in complete speculation?

A. I think my choice of words may not have been good in that particular -- I think when I said ‘immediately’, what I meant was the next data point after crossing the line.

Q. Well, that's not just a slight unfortunate use of words. You made a very definite

conclusion there and you didn't have the data to support that. Isn't that correct?

A. As I say, I think the choice of words was unfortunate.” (emphasis added)

161. This was no unfortunate choice of words. As an expert, Dr. Baines should have disclosed and addressed the very significant gap in the data which he had utilised for the purposes of his report. By not doing so, he created a situation where the readers of his report (including the Court) were liable to be misled. On re-examination, Dr. Baines effectively accepted that the gap in data points between 11:38hrs and 11:42hrs meant that one could not accurately plot the track of the Lida Suzanna because the trawler would not necessarily move in a straight line between the data point reported at 11:38hrs and the next data point reported at 11:42hrs. As will be seen below from the new chart provided to the defendants on Day 3 of the trial, if one plotted the movement of the trawler solely on the basis of the data analysed by Dr. Baines, it would suggest that the Lida Suzanna took a highly dramatic hairpin turn during this 4-minute period. It will come as no surprise that, when more comprehensive AIS data was ultimately addressed in evidence, this concession on Dr. Baines’ part proved to be correct. As will be seen from the new chart discussed below, the movement of the vessel in the four minute interval between the two data points used by Dr. Baines proved to be quite different to the straight line movement suggested in the Figures in his report. The new chart very helpfully plots the course of the trawler both by reference to the more extensive AIS data located on Day 3 of the hearing and by reference to the limited data which Dr. Baines used.

162. Mr. Mair was the next expert witness called by the plaintiff. He is a fisheries expert. He accepted that he was never involved in scallop trawling but he has experience of beam trawling which he said is “basically the same as scallop trawling”. His expertise in and experience of fishing was acknowledged, on a number of occasions, by the defendant’s expert, Captain Mills. At the commencement of his direct evidence, it was agreed by both sides that additional and more comprehensive AIS data would be obtained. That was obviously necessary in light of the unreliability of the data used by Dr. Baines in his report in the particularly critical period between 11:38hrs and 11:42hrs.

163. In addition to addressing the movement of the trawler, Mr. Mair provided some helpful background evidence. He confirmed that a log (whether physical or electronic) should be maintained on board every fishing vessel. He also explained that, typically, a scallop trawler deploys its gear on both the port and starboard side of the vessel. He explained that the king scallop season in the Irish Sea is a controlled fishery which is open for seven months of the year commencing on 1st November in each year and closing on 31st May in the following year. Mr. Mair said that towing the scallop dredges at a speed of around 3 knots was consistent with scallop trawling. Likewise, he agreed that the north westerly course of 337 degrees was consistent with such trawling. He also agreed that the AIS tracks shown in Dr. Baines’ report for the day as a whole are consistent with scallop fishing tracks in the Irish Sea and how a vessel would operate while its gear is deployed and engaged in scallop fishing.

164. As I have previously mentioned, Mr. Mair drew attention to the features of the scallop dredge which is used for the purpose of scallop trawling. These have already been described in paras. 2 and 135 above. Each dredge is equipped with a steel bar known as a tooth bar on which there are teeth which dig into the seabed to fish scallop. In Diagram

1 to Mr. Mair’s report, he provided a useful illustration of the way in which scallop gear is typically deployed on both the port and starboard sides of a scallop fishing trawler. There is no dispute that this was the set-up of the Lida Suzanna. In the illustration, the port side gear comprises four dredges which are individually hooked to a transverse bar. There is a bag or net attached to each individual dredge. This arrangement is mirrored on the starboard side. I include an extract from this diagram below which shows the arrangement in question:

165. In his direct evidence, Mr. Mair suggested that, while this would ultimately depend on the weight of the gear, one would probably have about 80 metres of cable where the depth of the water was 48 metres, the relevant ratio being about 2:1. In the course of cross-examination he corrected this evidence. Contrary to the answer given earlier, he said that the ratio could be 2:1 or 3:1 and that it depended on the skipper of the vessel. He also accepted that, on the basis of the depth of water in this area of the Irish Sea (which is about 50 metres), the length of the line would be between 100 metres and 150 metres. He agreed with counsel for the defendants that this does not mean that the dredges are that distance behind the vessel. Obviously, the depth of the water occupies a significant element of the length of the lines. It later appeared to be common case that the length of the cables in water of 50-metres depth would be of the order of 150 metres. Based on a probable length of line of 150 metres, Mr. Mair suggested that the tow would have been about 75 to 80 metres behind and to the south of the trawler.

166. In contrast to the approach taken by Dr. Baines, Mr. Mair explained that, for the purposes of his report, he had commissioned AIS data from a supplier called Asset Monitor to give him a breakdown of all shipping movements within an 18km range of the incident for 26th January 2015. That data confirmed that, on the day and time in question, there were no fishing vessels transmitting an AIS signal other than the Lida Suzanna in the area where the damage occurred. This was shown graphically in Figures 1 and 3 of his report. The second screen shot (Figure 2) is a close up of the Lida Suzanna movements at the time of the incident which indicate the vessel had snagged something on the seabed. This is replicated immediately below.

167. The red diagonal line represents the line of the cable before it suffered damage. The blue line represents the movement of the trawler. The notations on the diagram are comprised first of the date, then the time followed by the speed of the vessel as recorded at that time. It will be seen that the AIS data used for this diagram is significantly more comprehensive than that used by Dr. Baines. The intervals between the readings are considerably shorter (some as short as 20 seconds). Furthermore, there are a total of nine readings between 11:38:11hrs and 11:42:00hrs (i.e. the roughly four minute period which is so notably absent from the data analysed by Dr. Baines.

168. Figure 2 suggests that, at approximately 11:40:31.475hrs, the vessel turned to starboard. At 11:42:00.129hrs the vessel turned again quite steeply to starboard. There is also a significant difference in speed over the same period. At 11:39:21.524hrs, the vessel was travelling at 3.1 knots. At 11:39:50.472hrs, the speed had reduced slightly to 2.8 knots. It reduced slightly again at 11:40:10.883hrs to 2.4 knots. This was just over 20 seconds before the vessel commenced the first turn to starboard. At 11:40:31.475hrs, the vessel was travelling at 2.8 knots. This is when the vessel made the first turn to starboard. At 11:40:51.614hrs, the vessel was travelling at 2.1 knots. However, by 11:42:00.129hrs, the speed had dropped to 0.8 knots which was also when the trawler made the second turn to starboard. A little later, at 11:44:30.435hrs, the speed had dropped to 0.7 knots. All of this occurred at a point north west of the cable. The trawler had crossed the line of the cable at some point between 11: 39:00.059hrs and 11:39:21.524hrs.

169. With reference to the movement of the trawler as shown in Figure 2, Mr. Mair expressed the following view in his report:

“Times, speed and vessel track of the Lida Suzanna these indicate the vessel was fishing and something happened (snagged at cable) at 11:40:31.475hrs where she slows and moves East and hauls back to the cable on her Starboard (East) side. This is a typical scenario of a fishing vessel snagging something on the seabed.”

170. It should be noted that the red star in Figure 2 is supposed to represent the location of the cable damage. This is incorrect. It is the location of the Fault Geo Position. Mr. Mair readily acknowledged that this was so and he explained that he had been instructed that this was the location of the damage to the cable. It was not something which he had investigated. The position of the red star should be noted. It is on the starboard side of the north-westerly course of the Lida Suzanna up to 11:40:31.475hrs. The new chart provided to the defendants on Day 3 suggests that the actual location of the damage was on the port side of the trawler.

171. In what proved to be a significant element of his evidence, Mr. Mair expressed the view that, if the gear snags on the seabed, a trawler will pull to whatever side snags. Thus, if the snag is encountered on the starboard side, a trawler will pull to the right. In his report, Mr. Mair stated that, in the case of a vessel towing at 3 knots on a course of 337 degrees with the speed dropping to 1 knot and the course swinging to 076 degrees, this “indicates her gear was deployed and she snagged something on her Starboard dredges”. This evidence is important because, at this point in the hearing, it appeared likely that, if it were the case that the Lida Suzanna had snagged the cable, this would have occurred as a consequence of the starboard dredge coming into contact with the exposed section of the cable. This was consistent with the plaintiff’s case as to the location of the damage to the cable which was believed to be on the starboard side of the trawler’s course. That is where it was shown in Mr. Mair’s Figure 2. As Figure 2 graphically shows. the trawler made a sharp turn to starboard between 11:40:31.475hrs and 11:40:51.614hrs. There was a further sharp turn to starboard at 11:42:00.129hrs.

172. With regard to the first starboard turn made by the vessel close to 11:40:31.475hrs, it was put to Mr. Mair that this was not a dramatic turn. While Mr. Mair accepted that it was a rounded turn, he nonetheless stressed that the turn was close to a 90 degree angle. Counsel for the defendants put it to him that, as shown in Figure 2, the turn to starboard occurs some distance to the northwest of the cable. Mr. Mair accepted that this was so. On that basis, it was put to Mr. Mair that this means that it is possible that the cable is not in the place where it is indicated in Figure 2. Mr. Mair accepted that it was a possible explanation but suggested that, if the vessel was trawling with its gear deployed 75 to 80 metres behind it and it snagged something it will have pulled “it slightly north out of position”. It was then put to Mr. Mair that he was doing no more than speculating that, because the vessel turned to starboard, it must have been the starboard dredge that fouled the cable. It was suggested to him that, if it had been the starboard dredge that fouled the cable, the turn to starboard would have caused the port dredge to also snag the cable. Mr. Mair initially maintained that the exact opposite would occur. But, following further probing, Mr. Mair qualified his evidence on the issue in a very important respect as follows: “Q. Well, that's -- you're assuming that the cable stays in the same position once its snagged. If the tow moves the cable forward, is there not a danger of the port side tow also snagging on the cable?

A. But you're saying it's moving forward being snagged on the starboard.

Q. Sorry, just say that again? Sorry?

A. You said you're moving forward, snagged on the starboard.

Q. No, I'm operating on the basis of your evidence, that you're speculating that if it snagged the cable, it snagged it on the starboard tow, and I'm asking the question, if -- the vessel presumably doesn't come to a stop immediately when it snags, so that there may be some movement in the cable?

A. [Witness nods]

Q. That it's likely then that the port side tow would also snag the cable?

A. Yeah. Yeah. Apologies for the expression, but, yeah. The way I look at it is, if it's going along and it snags, and it turns like that (witness indicating with arms outstretched), that arm is further away than that that one. (Witness indicates arms turning).

Q. But isn't it necessary for the port side dredge … to actually cross the cable at some point, if the mechanism you've described happened?

A. The port and the starboard dredge would have crossed simultaneously on a straight line.

Q. Yes. So it would already have been over the cable. Is that what you're assuming?

A. On a straight line.

Q. On a straight line. Well assuming the -- perpendicular to the cable, because the cable isn't necessarily going due east. Isn't that right?

A. No, it's running northeast/southwest, according to that.”

173. In my view, this exchange is important because it suggests that, assuming a trawler crossed the cable at a 90 degree angle, the port and starboard dredges would both cross the cable at much the same time. Conversely, if the angle is somewhat different, there may be a gap in time between the passing of the dredges over the cable. It also suggests that, if one dredge catches the cable and moves the cable forward, there is a danger of the dredge on the opposite side of the trawler also snagging the cable. This suggests that both dredges could snag the cable.

174. It was also put to Mr. Mair by counsel for the defendants that relatively sudden changes in course are not unusual for a trawler engaged in scallop fishing. Thus, for example, the AIS records obtained by Mr. Jamieson show significant changes in course at 09:40hrs and 09:42hrs on 26th January 2015 from 511 degrees to 327 degrees in the first instance and 511 degrees to 49 degrees. Mr. Mair’s explanation was that the gear could have been on the surface at those points in which case one can turn a lot quicker and a lot sharper. It was suggested to him that this was nothing more than speculation on his part. Counsel suggested to him that there is no reason to believe that the vessel was not fishing at that time but Mr. Mair responded that counsel was entirely wrong. Later, I asked Mr. Mair whether a vessel would slow down to raise the gear. Mr. Mair’s evidence was that the trawler would slow down slightly. He explained that the trawler would not stop.

175. Counsel for the defendants suggested to Mr. Mair that, when one considered the AIS data for the day as a whole, there was nothing unique about the period around 11:41hrs on 26th January 2015. Mr. Mair accepted that there were “lots of changes in course” over the course of the day but he maintained that the movement of the vessel was different at 11:41hrs.

176. Counsel for the defendants also suggested to him that, in the course of a scallop trawler’s activities, there will be quite a lot of changes in speed, such that a change in speed could not be said to be unusual. Mr. Mair answered that “It is if you are towing in a straight line. … If … you’re fishing and you’re towing, you set a course … and you tow in that course, and you may turn to starboard, or you may turn to port, but you turn in a certain manner that was different from what’s in the report.” It was then put to him that the material on the trawler’s speed addressed in Dr. Baines’ report showed that the trawler changed speed at times throughout the day on 26th January 2015. Mr. Mair acknowledged this but insisted that “they’re different”. At the conclusion of his evidence, I asked Mr. Mair to elaborate on why he said that the turn at 11:40:31.475hrs was different. He responded: “A. Well, you've got gear behind you … at 70 metres. And if you're going to execute a turn …. You can execute it radically at times, but if you do that you've a danger of locking your gear if you turn too sharply. So you turn it at a rate, taking into consideration the currents and prevailing winds, you may turn early or turn later, depending on the currents, and you execute that turn as you should. But turning sharply like that (indicates) you've the chance of locking your gear.

Q. When you say ‘locking your gear’, that the gear would -- the starboard and port might...(INTERJECTION)

A. Yeah, cross over.

Q. Yes, I follow.

A. And that's something you don't want to happen.”

177. Mr. Mair was also cross-examined about the possibility that smaller fishing vessels under 12 metres might have been in the vicinity. He accepted that such vessels are not required to indicate their position on either AIS or VMS (which is an acronym for Vessel Monitoring System, which is somewhat similar to AIS). Although inshore vessels (i.e. vessels less than 12 metres in length) are designed to be used within 6 to 12 nautical miles of the coast, they frequently fish outside those inshore areas. He acknowledged that it was therefore a possibility that such vessels might have been in the vicinity of the cable at the time the damage occurred. He also acknowledged that the area where the damage occurred is a traditional scallop fishing area. However, this evidence must be read in context. Mr. Mair expressed the view that he would expect any such vessels to keep to a distance of about 250 metres.

178. Having regard to the unsatisfactory nature of the AIS evidence provided by Mr. Jamieson (particularly in relation to the 4 minute gap in time between the 11.38hrs to 11.42hrs’ period discussed above), Dr. Baines, on Day 3 of the hearing, obtained a further set of AIS data from an entity called Vessel Finder. Very helpfully, this provided data in relation to the Lida Suzanna’s position at 30 second intervals which Dr. Baines plotted on a new chart showing the movement of the trawler between 11:38:23hrs and 11:50:23hrs. Importantly, the defendants’ expert, Captain Mills accepted that he was satisfied that the new AIS chart is correct. This was confirmed at the outset of his evidence on Day 4. The new chart shows the Fault Geo Position as “Fault Location 1”. Strikingly, while the trawler is shown as passing directly over the Fault Geo Position at 11:42hrs, the fault as found is significantly to the southeast of that position and the trawler is shown as passing the fault as found at sometime between 11:39:01hrs and 11:39:33hrs. The hard copy version of the new chart also shows the position of “Fault 1 as found” marked with an “X”. Notably, the location of the “Fault 1 as found” is on the port side of the trawler’s course. This raises an obvious issue in relation to the theory that the trawler’s starboard dredge had snagged the cable and caused it to turn sharply to starboard.

179. I have to observe at this point that it is unsatisfactory that it was not until Day 3 of the trial that this step was taken. It was clear from the Orange Marine report (issued as long ago as March 2015) that the location of the fault as found was not at the same place as the Fault Geo Position derived from the distances projected by the OTDR. It is therefore difficult to understand how the plaintiff had, right up to the cross-examination of Mr. Jamieson, operated on the basis that the location of the fault coincided with the Fault Geo Position. Any careful reading of the Orange Marine report of March 2015 would have identified the actual fault as found by the Pierre de Fermat and the fact that the Fault Geo Position was at a different location. It is equally difficult to understand how the plaintiff continued to rely on the plot of the trawler’s movements shown in Dr. Baines’ report when much more detailed data was available to it thanks to the AIS data obtained by Mr. Mair. While that data showed that the trawler turned twice to starboard, reasonably sharply, in the critical 4 minute period after 11:38hrs, it did not suggest that it was quite so dramatic as the hairpin turn which had been plotted in the Figure shown in Dr. Baines’ report. That said, the production of the chart on Day 3 of the hearing had at least one benefit namely that, when Mr. Chris Willey came to give his evidence, a more reliable chart was available for consideration by the parties and by the Court.

180. The new chart shows the line of the cable in pink which runs diagonally across the chart in a south-westerly to north-easterly direction. It also shows the track of the Lida Suzanna derived from the new AIS data in orange. It also, very helpfully, shows, in green, the much more limited glimpse of the track of the trawler when it was plotted solely by reference to the data used by Mr. Jamieson and Dr. Baines. The vessel is shown to be moving steadily in a north-westerly direction until 11:40:42hrs. However, between then and 11:41:12hrs, it turns reasonably sharply to the starboard before turning again to starboard at 11:42:12hrs. The movement shown on the chart is broadly consistent with Mr. Mair’s Figure 2 but it provides a clearer picture of what occurred after the starboard turn at 11:42:12hrs. The new chart shows the trawler moving first in a south-easterly direction until 11:45:23hrs when the vessel turned to port and began a movement in a north-easterly direction until 11:49:12hrs when it began to move in an easterly direction before gradually changing course to a south-easterly direction and crossing the cable once more, as it did so.

181. In so far as it has been possible to do so on the basis of the electronic version of the chart, I replicate the new chart in para. 183 below. Unfortunately, the electronic version does not show the “Fault 1 as found” and, for that reason, I have not been able to show it here. However, if one looks at the quadrangle immediately to the port side of the vessel at 11:39:01hrs, the location of “Fault 1 as found” is roughly on the same latitude as the prow of the vessel and is slightly more than half way across the quadrangle to the west. The “Fault 1 as found” is some distance to the north-west of the track of the cable but that is not a surprise given the evidence that a length of cable in excess of 200 meters was pulled from its bed.

182. The fact that the “Fault 1 as found” is on the port side of the track of the trawler is important. It is also significant that, notwithstanding that fact, the trawler turned to starboard rather than to port. Looking at the position of the trawler relative to the “Fault

1 as found”, one might well form the impression that, if the trawler were to snag the cable, the most likely element of its gear to do so would be the port dredge. Had that happened, one would expect, having regard to Mr. Mair’s evidence, the trawler to swing to port rather than to starboard. That said, the chart shows the trawler approaching the cable at very close to a right angle. As noted in para. 172 above, the evidence of Mr. Mair was that, in such circumstances, both the starboard and port dredges are likely to have crossed the cable at the same time. Thus, the location of the damage to the cable as shown on the new chart does not necessarily lead to the conclusion that the port dredge would pass over the cable first.

183. In order to ensure that the chart can be read in a somewhat larger scale, it is replicated overleaf in landscape rather than portrait orientation2.

It should be noted that the scale used in this version of the chart is in nautical miles. As will be seen from the chart overleaf, the scale is shown in the bottom left hand corner of the chart running to 0.09 nautical miles. There is a further version of the chart in hard copy which shows the scale in metres. It is the latter version that was addressed in the evidence but, as it was not made available in soft copy, I am unable to replicate here. As I understand it, 0.09 nautical miles as shown on the attached version of the chart equates to approximately 167 metres.

184. Before considering the evidence in relation to the chart, I should draw attention to a number of possible anomalies in the chart and in the underlying AIS data that I have identified in the course of writing this judgment. The first such anomaly arises in respect of the lines of longitude shown on the new chart. They are identified in very small print but if one takes the lines of longitude at the east and west sides of the quadrangle where the experts agree the “Fault 1 as found” is sited, they are given as 452.51W and 452.54W, respectively. Those lines of longitude do not coincide with any of the coordinates given in the Orange Marine report for the location of any of the items of damage to the cable identified on 2nd February 2015. The longitude co-ordinate for the “actual fault location” recorded in the Orange Marine report is stated to be 452.879W. Similarly, the longitude co-ordinate given for the damage observed at 05:30hrs is stated to be 452.836W. It is unnecessary to go through each of the other findings. It is sufficient to note that all of them are somewhat further west of the lines of longitude shown on the chart. Given that the defendants’ expert agreed that the new chart is accurate and given that counsel for the defendants (in closing submissions on Day 7 of the trial) stated that the “AIS data as plotted … that’s a factual matter that is in agreement between the parties” , I believe that I should proceed on the basis (a) that, notwithstanding the anomaly I have identified, the chart can be taken to accurately plot the manner in which the trawler moved relative to the cable and relative to at least one area of damage to the cable (i.e. “Fault 1 as found”) and (b) that, through some error, the lines of longitude on the chart have been mislabelled but that the chart still shows the movement of the trawler and its orientation viz. the cable and the area of damage. If it transpires that serious errors have been made in the evidence presented to the Court, it will be for the parties to consider whether this is an occasion where, notwithstanding the agreed basis on which the new chart has been presented, the findings of fact made in this judgment can be reopened or whether some other step should be taken.

185. The other anomaly which I have identified relates to the underlying AIS data for the Lida Suzanna which I understand was used to prepare the new chart. During the course of the trial, I asked to see this data but the relevant excel spreadsheets were not ultimately provided to the Court until after all of the evidence had concluded. While studying them for the purposes of this judgment, I looked, in particular, at the entries for the critical period between 11:38hrs and 11:42hrs on 26th January 2015. In light of the fact that they were not addressed in evidence or submissions, I may, of course, be misreading them. However, the latitude co-ordinates for the position of the vessel in that critical period do not appear to me to align with any of the lines of latitude of the quadrangles displayed on the new chart or with any of the co-ordinates of latitude recorded in the Orange Marine report for the locations of damage. In the chart, the lines of latitude run from 5338N in the south to somewhere not far above 5338.6N in the north. This tallies with the coordinates given in the Orange Marine report for locations of damage to the cable. Thus, for example, the relevant latitude given for the “actual fault location” is 5338.041N. Similarly, the latitude recorded for the damage found at 0530hrs is 5338.053N while that recorded for the bird cage damage identified at 06:09hrs is 5338.053N. However, the readings shown in the excel spreadsheet of AIS data are quite different. They suggest that, at 11:38, the latitude recorded was 5363.339N and that, between then and 11:42, the latitude was north of that. Those latitudes are all north of anything shown on the new chart. In addition, as noted in para. 187 below, Mr. Willey expressed doubt about the plotting of “Fault 1 as found” and he suggested that, it may have been placed too far north on the new chart. Notwithstanding these troubling anomalies, I believe that, for the same reasons and subject to the same caveat as I have previously set out at para. 184 above, I should proceed on the basis of the agreement between the parties in respect of the new chart.

186. Turning to the evidence in relation to the new chart, this was the subject of crossexamination of Mr. Willey in the course of Day 4. Mr. Willey was asked about the distance between the reported fault position which is identified on the new chart as “Fault Location 1” (i.e. the Fault Geo Position shown in the FAS) and the “actual fault location” which is shown on the new chart as “Fault 1 as found”. He said that he asked one of his engineers to run a distance check between those positions and that the distance is 152.5 metres.

187. Mr. Willey accepted that there was a “significant difference” in respect of the fault location that everyone had been “operating off”. Counsel for the defendants put it to Mr. Willey that, having regard to the position of “Fault 1 as found”, if the Lida Suzanna cut the cable, it would have to be the port dredge rather than the starboard dredge that did so. While Mr. Willey stressed that he was not an expert in fishing, he accepted, on the basis of the evidence given by Mr. Mair that, if the port dredge had snagged the cable, the vessel would likely veer to port. Mr. Willey also accepted that, on the basis of the thesis that the vessel veered to starboard, the track of the vessel should, in fact, have been to the west of “Fault 1 as found”. In light of those concessions by Mr. Willey, he was asked would he wish to reconsider the agreed conclusion reflected in the minutes of the joint experts meeting that the Lida Suzanna had likely caused the fault to the cable. In response, Mr. Willey said that he would need to check the revised chart and in particular to check all the co-ordinates for latitude and longitude. He said that the position of the “Fault 1 as found” did not look “quite right” and that it appeared to be “a little bit north of where I thought it would have been”. That exercise of checking all the co-ordinates was not subsequently undertaken.

188. On re-examination, Mr. Willey was then asked by counsel for the plaintiffs to explain what happens physically when a trawler snags a cable. His evidence in this context is potentially important and, for that reason, I set it out in full: - “A. Yes. So when the trawl becomes snagged/engaged with the cable, it goes -- the cable will then go through a process of firstly being deformed and pulled out of its burial trench all at the same time. The armour wires will start to deform. Possibly they can break. What also does happen is that often it's not a straight perpendicular pull on the cable, often there is a sideways element to it as well. So the fishing gear starts to move along the cable, causing what we call the serving, the outer polypropylene layer to bunch up and expose the armour wires to the sea. And then as things move along, the cable will become more and more deformed, and then one or two things happens; either the cable breaks in its entirety or, as happened in this case, the inner core was spilt out from the armour layers and then it became severed, and then obviously at that point the trawl gear must have somehow been pulled off the cable.

Q. And what happens if the cable doesn't break, in terms of its movement? If it's snagged and dragged and doesn't break, what happens thereafter?

A. It gets pulled out of position, as shown by the Fault As Found position, which is north of where the cable line was. So it does get pulled out of the trench and gets pulled away from its original line, in whatever direction that the ship that was pulling it would have been taking.

Q. Okay. And in circumstances where there are strong currents of 2.2 knots, what effect would that have on an exposed cable that has been taken out of its trench?

A. Itself, nothing. A cable can quite happily sit in 2 knots on the surface. Nothing would happen to it because its armoured.”

189. That exchange is important because it shows that, in the event of snagging by a scallop dredge, the cable is likely to be pulled and dragged for some distance before a break would occur. The break is unlikely to be instantaneous. It also shows that the movement of the cable will have a sideways element to it. At the conclusion of his evidence, I also asked Mr. Willey to estimate the difference between the line of the cable as shown on the revised chart and the location of “Fault 1 as found”. He estimated that the distance would be between 50 and 60 metres. There is a metric scale on the new chart that was debated in the hearing and, by my estimation, that scale suggests that the distance would be closer to 50 metres than 60 metres. Captain Mills later gave evidence that he had measured the distance between the track of the Lida Suzanna (as shown on the new chart) and the location of “Fault 1 as found” at 37 to 38 metres. Looking at the scale on the chart, that seems to me to be within the correct range.

The evidence of Mr. Brian Molloy, the skipper of the Lida Suzanna

190. The evidence of the experts cannot be considered on its own. It is also necessary to carefully consider the evidence of Mr. Brian Molloy who was the skipper of the Lida Suzanna on 26th January 2015. He is the only witness who attended the hearing who was present in this area of the scallop fishing grounds in the Irish Sea on 26th January 2015. He provided a surprisingly short witness statement dated 7th November 2023 in the following terms: - “To whom it may concern:

I, Brian Molloy skipper/master of fishing vessel Lida Suzanna WD 8 was fishing in the Isle of Man area on the 26th January 2015, I would be on watch all day long and recall no problems of any unusual chucking or catching of the seabed. If I was to catch anything like a cable I would definitely remember it. I have never encountered any problems in the Isle of Man fishing area.

The alleged incident was 11.41am on January 26th 2015.”

191. No additional testimony was given by Mr. Molloy as part of his direct evidence. However, he was cross-examined closely by counsel for the plaintiff. Under crossexamination, Mr. Molloy confirmed that he had fished with the Lida Suzanna for about

20 years. On 26th January 2015, he said that both he and a crew of four were on the trawler. No witness statements were provided by any of the crew. Mr. Molloy accepted that he did not remember anything about what happened on 26th January 2015 but he maintained that he would have known if “I picked up a cable”. He explained that he picked one up before and that “you’d feel the weight on it”.

192. Mr. Molloy was asked when he first discussed the allegation that he picked up a cable. He said that it was likely to be months after the event but he could not remember. Mr. Molloy could not recall how many years passed before he was required to make a statement in relation to the matter. It was put to him that this must have been a “big issue” for him in terms of an allegation that a vessel he skippered had struck a cable. His response was: - “A. Well, it didn't happen. I didn't think there was going to be anything by it, because I didn't hit a cable.

Q. But presumably somebody came to you and said 'no, there's going to be litigation over this, there's going to be a court case?’

A. I heard that after. Yeah. I don't know how long after it was.

Q. Well, are we talking months or are we talking years?

A. Probably months, I suppose, yeah.

Q. Okay. So you did hear about it in 2015?

A. Probably. … I'm not 100%.”

193. It is clear from Mr. Molloy’s evidence that no log or diary was kept recording the activities of the Lida Suzanna. He said that the only book that he maintained was a record of his catches. He confirmed that the vessel did not have an OLEX but that it was equipped with a Sodena. He also confirmed that the Sodena system shows relevant charts and submarine cables (which are updated every six months) and he accepted that he knew the position of the cable from the Sodena. He was asked whether he was familiar with the warning on the Admiralty chart in relation to fishing over cables and the similar warning in the Mariner’s Handbook. Mr. Molloy’s response was that he was familiar with them and that it says that care must be taken. He was then referred to the terms of the warning on the Admiralty chart (discussed further below) but his response was that “ours is all computers… we don’t use paper charts anymore”. He was not sure whether the Mariner’s Handbook was among the materials kept on the vessel. In response to the warning given in the Admiralty Chart that mariners should not (inter alia) trawl in the vicinity of submarine cables and pipelines, Mr. Molloy said: - “A. Like, every fishing vessel that's up there is towing across the lines, like. For they've done it for 20 years.

Q. Well, they're not all doing it.

A. They are all doing it!

Q. Not according to Mr. Mair's evidence. He says some fishermen are doing it. But are you taking the view...(interjection)

A. Well, they are doing it. I've worked there for 20 years. They're doing it.

Q. Well, do you take the view that it's just your right to go across the cable as you wish?

A. No, no, I don't. We try to avoid it like, you know.

Q. What do you do to try and avoid it?

A. Just haul in between the lines, in between the cable. … Fish in between …”

194. It was then put to him that the AIS data shows that the trawler crossed the cable 11 or 12 times in the course of 26th January 2015. Mr. Molloy said he was not sure but he accepted that it was possible that it had done so. His attention was drawn to para. 9.66 of the Mariner’s Handbook which says: - “Submarine cables, many carrying high voltage electric currents, are laid across rivers and harbours offshore to islands and structures in between them and across the oceans. Mariners should note that seabed mobility may leave cables spanning undulations of the seabed, increasing the likelihood of fishing or other gear becoming irrecoverably snagged and potentially putting the vessel in severe danger.”

195. Mr. Molloy acknowledged that subsea cables can become uncovered. He was then referred to the passage in the Mariner’s Handbook at para. 9.67 which provides: - “Every care should therefore be taken to avoid anchoring, trawling, fishing, dredging, drilling or carrying out any other activity in the vicinity of submarine cables which might damage them.”

196. It was put to him that this specifically tells fishermen that they should not be dredging in the vicinity of a cable but Mr. Molloy’s response was that there are “so many cables… there’s not much room…”. However, he did not provide any detail to justify such a sweeping statement and there is no evidence that the seabed is so cluttered with cables as to make it impossible for fishermen to avoid. Moreover, Mr. Molloy said that sometimes he would haul the gear before crossing it and that he would shoot the gear the other side of it. It was put to him that he was fishing over it on 26 th January 2015. His response was: “I was fishing, yeah, well, it looks like it, but I could be hauling either side of it either, I don't know, it's that long ago.” .

197. Mr. Molloy was asked whether there was anything he could do to avoid the cable where it has become unburied. He reiterated: - “A. You'd haul before it and you would shoot the other side of it.

Q. But you also trawl over it. You have said that already.

A. Yeah, I probably have trawled over it, yeah.”

198. Mr. Molloy was asked whether he hauled the gear before crossing the cable and he responded that he would sometimes do so: - “A. … So sometimes you'd haul up and then you would shoot the other side …

Q. But you didn't put that in your witness statement?

A. I didn't realise I had to, sure. …

Q. Okay. You didn't discuss that with the O'Flahertys when you discussed this with them back in 2015?

A. No. … They just asked did I pick up a cable and I said no…

Q. Okay. And in terms of this, when you are trawling over and back, would you accept that that is consistent with trawling activity, the loops there?

A. It probably is consistent, yeah, but there could be hauls in the middle and before the cable, there could be hauls after the cable, I don't know.

Q. Okay.

A. There's probably other boats in the area, like, if you're towing there, you could have another couple of boats going up and down.

Q. Well, … I think the only other boat in the area that we can track was about 8 nautical miles away, that is the closest.

A. Yeah but all under 12 metre boats fish that area as well. …

There's about 15 or 16 of them could be around you …

Q. And again, you didn't put that in your witness statement?

A. I didn't realise I had to, sure. I thought I was only putting in, like, that I didn't catch the cable.”

199. In response to the suggestion that there could be 15 or 16 smaller boats operating around the Lida Suzanna, counsel asked Mr. Molloy how close such vessels might come up to the trawler. His response was that they could be about 20 metres away sometimes but he was unable to say whether that occurred on 26th January 2015.

200. Later, when he came to make his closing submissions to the Court, counsel for the plaintiff made a number of submissions in relation to this evidence about the flotilla of smaller vessels that “could be around you”. In the first place, counsel highlighted that there is nothing in Mr. Molloy’s witness statement to that effect and he also noted that, in circumstances where Mr. Molloy knew of the plaintiff’s complaint as early as 2015, it could not be said that, when the witness statement was made in 2023, Mr. Molloy was grappling to recall for the first time, the events of January 2015. Second, counsel drew attention to the lack of any supporting evidence from any of the four crew on board. Third, he maintained that it was not tenable to suggest, as Mr. Molloy had done, that there could be large numbers of 12 metre boats operating very close to the Lida Suzanna. The fact that each of them would have dredges in tow inevitably means that they would have to keep well apart to avoid entanglement. Fourth, counsel argued that the new chart shows very clearly that there was only a relatively small distance between the path of the Lida Suzanna and the fault location and he submitted that, if there was a 12 metre boat there, it “would literally have been on top of the Lida Suzanna.” Those points seem to me to have significant force.

201. Counsel for the plaintiff also explored with Mr. Molloy why the Lida Suzanna turned to the starboard close to the time at which damage occurred to the cable. The relevant exchange between counsel and Mr. Molloy was as follows: - “Q. … does that manoeuvre make sense to you?

A. Yeah, because if we had got nothing on the tow. That's, to me, is if I hauled and I shot away at 4 knots, I was looking at the speeds on it, you shoot at 4 knots, like. And I probably got nothing in that shoot because it looks a different tow.

Q. But there's no other manoeuvre like that in the tracks.

A. But you are always manoeuvring, like, because if there's no scallops there, you don't stay there, like.

Q. Well, when you were talking about hauling earlier as you are going over and back over the cable in those traverses, it doesn't go dramatically in a different direction?

A. But that's like as if I hauled and I just turned out to the east.”

202. Counsel for the plaintiff highlighted to Mr. Molloy that the speed over the ground of the Lida Suzanna at this time dropped to about 1 knot. Mr. Molloy replied, saying that the speed always drops “when you haul, 'cos you're pulling back a boat, like. You slow down 1350 revs so the boat would be only doing about a knot or a knot and a half and get the gear up then. And then you knock it out because -- you knock it out when you are pulling in the gear to the side of the boat and then you go ahead again.” It is difficult to see how the drop in speed from 2.1 knots at 11:40:51.614hrs to 0.8 knots at 11:42:00.129hrs (as shown on Mr. Mair’s Figure 2) could be due to the hauling of the gear. That drop in speed coincided with the period after the first turn to starboard at 11:40:31.475hrs and immediately before the second turn to starboard at 11:42:00.129hrs. Those movements are not consistent with the hauling of nets. As Mr. Mair confirmed, such a manoeuvre would carry the very obvious risk that the port and starboard dredges would become entangled.

203. Mr. Molloy’s evidence about the possible proximity of another trawler is also contradicted by Mr. Mair. In his report, Mr. Mair said that, if another vessel over 15 metres in length did snag the cable they would have to have mirrored the Lida Suzanna’s movements and that Mr. Molloy would have been aware of a vessel this close to his trawler. It would have been extremely dangerous and endangered both vessels. They would also have been breaking the law by not transmitting an AIS signal. He said that the same applies to any other vessel under 15 metres and not required to have AIS. He elaborated on this in his oral evidence when he was asked to consider not only trawlers of 15 metres or over but also smaller craft and was asked “about what kind of distance you would expect” between them. His response was that one would need to maintain a distance of about 250 metres.

204. On re-examination, Mr. Molloy was asked why any fisherman would ever trawl over a submarine cable and his response was “yeah, just getting catch”. He then said that a fisherman would proceed on the basis that the cable was buried but, as noted in para. 195 above, it is clear from his earlier evidence that he was aware that cables can become uncovered. He also confirmed that when the dredges are hauled up to the side of the vessel, their contents would be tipped out and that this process took between 15 and

20 minutes. At that speed the vessel would slow down to about a knot or 1.5 knots. After that process is completed, the dredges would then be shot at a speed of about 4.5 knots but that could be affected by the tide. Following questions from me, Mr. Molloy confirmed that the entire process of hauling, tipping and shooting takes between 15 to 20 minutes. I then asked him to break that period down and he confirmed that it would take about 5 minutes to raise the gear to the surface of the water. In my view, this means that the process of hauling the gear could not have occurred in the one and a half minute period between the first and second starboard turns shown on Mr. Mair’s Figure 2. Mr. Molloy then said that two crewmen would next tip the contents onto the vessel and that process could take between 5 and 6 minutes (if there was dirt in the dredges) but, in other circumstances it could be as low as 2 to 3 minutes. Mr. Molloy said that the shooting process would then take about another 5 minutes

205. At the conclusion of his evidence, I asked Mr. Molloy about his witness statement. I asked him whether, prior to making his witness statement, he had seen any of the plaintiffs’ witness statements. He confirmed that he had not. I also asked him had he seen the statement of claim delivered in the proceedings and again he confirmed that he had not. I expressed serious concern to counsel for the defendants as to how that occurred, especially in circumstances where the Court had directed a sequential exchange of witness statements. It was inherent in that process that the witnesses for the defendant should see the witness statements delivered on behalf of the plaintiff and would respond to them in a substantive way. There were serious factual issues raised in the witness statements delivered on behalf of the plaintiff and the Court is entitled to expect that these would be addressed in the evidence of the only witness as to fact called by the defendants. The Court is also entitled to expect that a potentially crucial witness as to fact would address the relevant events of the day in some level of detail. The evidence of the expert witness called by the defendants, Captain Nathan Mills

206. As noted previously, Captain Nathan Mills was called by the defendants as an expert. At the outset of his evidence, he accepted that he had limited experience in the context of fishing. Captain Mills also made clear, at the outset of his evidence, that he was satisfied that the new AIS chart is correct. He said that this had a significant impact on the matters previously agreed between the experts at their meeting. Captain Mills said that, during the experts’ meeting, it was agreed that the trawler turned to starboard because the starboard dredge caught the cable. In light of the “new evidence” that has come to light in relation to the fault position as shown on the new chart, Captain Mills said that he is now of the opinion that, on the basis of the location of “Fault 1 as found”, it is unlikely that the Lida Suzanna caught the cable.

207. At the conclusion of his direct evidence, Captain Mills reiterated what was said in para. 9.7 of his report that there were four possible reasons for the snagging of the cable namely:-

(a) that the cable was lying on the surface and was obviously not buried;

(b) that the cable was suspended;

(c) that there may have been sand waves or current affecting the cable;

(d) that there was an anchor that ploughed up the cable although Captain Mills stated that this was unlikely.

208. Under cross-examination, Captain Mills confirmed that he no longer maintained the position stated in his report to the effect that AIS transmissions are often inaccurate He also conceded that, at the time he made his criticisms of AIS data, he had not analysed the AIS data available in this case.

209. At one point in his cross-examination, Captain Mills accepted that, based on the fact that it was the only vessel in the vicinity of the damage transmitting AIS and VMS signals, it would be a “fair conclusion” that the Lida Suzanna caused the damage to the cable. He also accepted that the damage was not caused by an anchor. He nonetheless continued to maintain that it was unlikely that the Lida Suzanna caused the damage and he explained his position on the basis that the new chart shows that the damage to the cable occurred to the port side of the Lida Suzanna. He said that the damage is far enough away from the vessel that the outermost dredge on the port side could not have “contacted the damage”. He gave evidence that the length of the span from the centreline of the Lida Suzanna to the outermost dredges was 14 metres and, as previously noted, he measured the distance between “Fault 1 as found” and the track of the trawler at 37 to

38 metres. He explained the position taken by him at the experts’ meeting on the basis that, at that time, it was assumed that the damage was very close to the 11:42:12hrs position of the Lida Suzanna which put the trawler at the cable. On cross-examination, it was suggested to him by counsel for the plaintiff that a vessel travelling at 3 knots which snags a cable is going to move the cable. Captain Mills accepted that this was so. Captain Mills further accepted that, other than providing a report in relation to the case against the owners of the MFV Willie Joe, he had no experience in relation to cables. On the basis of Mr. Mair’s evidence, it was suggested to him that both the port and starboard dredge could both go over the cable at the same time. Captain Mills accepted that this is correct. It was then suggested to him that no one could say which side (i.e. the port or starboard side) actually snagged the cable. Captain Mills accepted that he was not able to do so. He also accepted that cables can become unburied and that every care should be taken to avoid dredging in the vicinity of a cable. He said that as a master mariner, he would not fish over a submarine cable and that a vessel of whatever kind would not wish to snag a cable. Captain Mills did not disagree with the opinion expressed by Mr. Mair that the track pattern of the Lida Suzanna, as plotted from the AIS data, was consistent with the fishing pattern of a scallop trawler.

210. On re-examination, Captain Mills confirmed that his observation that the Lida Suzanna was the most likely vessel to have caused damage was based solely on looking at vessels for which there is electronic data available. He was also asked about the effect which the dropping an anchor is likely to have on the direction of a vessel. He explained that, if the starboard anchor is dropped, the bow would swing to starboard and the stern would swing to port because of the momentum that is generated. The opposite movement would be noted if a vessel dropped its port anchor. The faster one goes, the faster will be the turning momentum. If a vessel is moving more slowly, the turning momentum will be less. Finally, Captain Mills also noted that the track of the Lida Suzanna was in a north-westerly direction while the track of the cable was running in a north-easterly direction. Against that backdrop, Captain Mills was asked whether the port dredge would pass over first followed by the starboard dredge? Captain Mills agreed that this would be so and said that the “angle of attack on the cable matters as to what dredge goes over first”. Findings of fact in relation to the issue as to whether the Lida Suzanna caused the damage to the cable

211. I have given careful consideration to the evidence on this issue including the evidence of Mr. Molloy as the only factual witness who was present on the scallop beds in this area of the Irish Sea on the morning of 26th January 2015. As noted above, he has said that he did not notice any snagging at that time. However, this statement must be considered in the context of his evidence as a whole. The reality is that he has no clear recollection of the events of that day. It is very unclear as to when he was first asked for an account of what happened on that day and, as I have previously noted, he was not provided with any of the plaintiff’s evidence before being asked to provide his remarkably short witness statement. That seems to me to have put Mr. Molloy in an invidious position. As noted in para. 191 above, he accepted that he did not remember anything about what happened on 26th January 2015. The furthest he could go was to say that he would have known if a cable had been snagged because this had happened once before and that “you’d feel the weight on it”. As discussed further below, there are a number of aspects of his evidence that are unconvincing and he was unable to satisfactorily explain the turns to starboard made by the trawler in the period after 11:40hrs.

212. On the basis of Mr. Molloy’s evidence and also on the basis of the views expressed by Mr. Mair, it seems to me to be more probable than not that, when the Lida Suzanna crossed the cable on 26th January 2015 at 11:39:01hrs, it was towing its scallop dredges. As Mr. Mair’s Figure 2 illustrates, the trawler was travelling at a speed of between 3 and

3.1 knots at that time. As noted in para. 163 above, Mr. Mair’s evidence was that a speed of 3 knots would be consistent with scallop trawling. There is nothing to suggest that the trawler had slowed down to raise its gear. It is also the case that the general pattern of movement of the trawler at this time was consistent with scallop trawling. It was on a steady north-westerly course. While Mr. Molloy suggested that he might have hauled the gear up before crossing the cable, his evidence to that effect was very equivocal and he accepted that there were occasions when he trawled over the location of the cable. Given the speed of the trawler and the evidence of Mr. Mair, the latter seems much more likely at the crucial time of 11:39:01hrs than the former. Furthermore, as outlined in para. 204 above, Mr. Molloy’s evidence was that it would take about 5 minutes to haul the gear and that the speed would slow down to about 1.5 knots. That manoeuvre did not occur prior to crossing the line of the cable. In addition, it took less than 2 minutes from the time the trawler crossed the line of the cable at 11:39:01hrs to the moment the trawler made the first sharp turn to starboard. That turn makes no sense if the trawler was then in the process of raising its gear. There would be an obvious risk that the dredges would become entangled.

213. In addition, I cannot accept Mr. Molloy’s evidence that there could have been another trawler fishing as close as 20 metres to the Lida Suzanna when the latter crossed the cable at 11:39:01hrs on 26th January 2015. Given the length of the tows that drag the dredges behind scallop trawlers, the risk of entanglement outrules this suggestion. The fact that each of them would have dredges in tow inevitably means that they would have to keep well apart to avoid entanglement. This is particularly so in circumstances where, as counsel for the plaintiff argued, the new chart shows very clearly that there was only a relatively small distance of 37 to 38 metres between the path of the Lida Suzanna and the fault location. In this context, I accept the evidence of Mr. Mair that such trawlers with their gear down would need to keep at least 250 metres apart. Mr. Mair was the only fishing expert to give evidence and I found him to be a very helpful and reliable expert witness.

214. I must always keep in mind that the burden lies on the plaintiff to establish, on the balance of probabilities, that the Lida Suzanna caused the break in the optic fibres within the cable. In their closing written submissions, counsel for the defendants made a number of arguments in which they suggested that, in light of the evidence, the plaintiff’s claim is unsustainable. While not losing sight of where the burden lies, I believe that it may be helpful to consider these submissions next. First, counsel for the defendants argued that the new AIS data made available on Day 3 and the plotting of that data on the new chart clearly demonstrate that the trawler did not cause the damage to the cable. They correctly maintained that, on the basis of the “agreed evidence”, the track of the trawler passed more than 35 metres to the east of “Fault 1 as found”. They said that the margin for error for the GPS derived AIS data was less than 10 metres. They drew attention to the evidence of Captain Mills to the effect that the reach of the beam of the trawler (to which the dredges were connected) would have been some 14 metres from the centre point of the prow of the trawler and that it could only have been the port dredge that was at risk of catching the cable. They argued that the port dredge was out of the reach of the fault on the basis that, adding up a maximum GPS error of 10 metres, and 14 metres, the dredge was still out of reach of the actual location of fault. That argument seems to me to be misconceived. “Fault 1 as found” is where the cable was found on 2nd February 2015 after something had snagged the cable and more than 200 metres of cable had been ripped from its bed. Mr. Mair and Mr. Willey both gave evidence about the movement of cable that would be caused by a snagging incident. Captain Mills agreed with their view. It is therefore unreal to assume that the catching of the cable could only occur at the location of “Fault 1 as found”. If the caller caught the cable, it appears significantly more likely that it did so much closer to the line of the cable as shown on the new chart. In those circumstances, I do not believe that there is any substance to this element of the defendants’ argument.

215. Counsel for the defendant also argued that, as a matter of physics, the port dredge of the Lida Suzanna could not have caught the cable, as this would have caused the trawler to hook to port, whereas the AIS data shows the trawler veering to starboard. They relied on Mr. Mair’s evidence (summarised in para. 171 above) to the effect that, if a trawler’s gear snags on the seabed, the trawler will pull to whatever side snags. They elaborated on this in their oral argument. In the first place, counsel drew attention to the way in which each of the locations where the Pierre de Fermat recorded damage are east of “Fault 1 as found”. This is confirmed by a consideration of the longitude co-ordinates given for each of the items of damage found respectively at 05:30hrs (recorded as the “damage observed onto cable” at 4.38.059W), 06:09hrs (the birdcage damage observed at 4.52.716W) and 06:50hrs (“some armours broken” at 4 52.810W) on 2nd February 2015. Each one is further east of the “Fault 1 as found” at 4.52.879W. As counsel for the defendants justifiably observed, it is very unhelpful that none of these points have been plotted on the new chart but there was no dispute between the parties that, of the above four instances of damage, the location of the “Fault 1 as found” is the most westerly of the four.

216. Counsel for the defendants emphasised that a considerable portion of the plaintiff's thesis up until the plotting of “Fault 1 as found” on Day 3 was that that the trawler must have caught its starboard dredge because of the way in which it suddenly veered to starboard. Counsel argued that the relative positions of the trawler and the location of the damage to the cable meant that it was only the port dredge of the Lida Suzanna that could be in play. Had its dredging gear struck “Fault 1 as found” on the port side, it would have caused a pull on the port side and the trawler would have veered to port and travelled in a westerly direction.

217. Counsel for the defendants maintained that, for the plaintiff's case to succeed, the trawler’s track would have been some way west from where it is plotted on the new chart so as to snarl one of the starboard dredges on the fault as found rather than one of the port dredges. Counsel argued that the fact that the trawler turned to starboard rather than to port demonstrates that it could not have caused the damage to the cable.

218. I acknowledge that there is some force in the submissions made by counsel for the defendants as summarised in paras. 215 to 217 above. However, I do not believe that one could safely conclude that any of these factors, either individually or collectively, means that the trawler could not have caused the damage to the cable. In the first place, the arguments do not take account of the fact that more than 200 metres of cable were uprooted from the seabed. Looking at the scale used on the new chart and using the longitude coordinates shown on that chart3, that represents a length of cable running diagonally from 4 52.54W to a little beyond 4 52.45W. It is not known where along that line of cable, the exposed section of 2-5 metres lay. It could have been on either the port or starboard side of the trawler. It is therefore possible that the starboard dredge of the trawler snagged the exposed section of the cable. In this context, I am very conscious that there is no evidence of damage to the cable east of the course of the trawler and that the only instances of damage that have been the subject of evidence are all on the port side. I am also conscious that Mr. Willey’s evidence is consistent with those instances of damage having occurred as a consequence of that length of cable being dragged through the dredge and that, in light of its location on the port side of the cable, that damage might be said to have been more likely caused by the port dredge rather than the starboard dredge. However, Mr. Mair’s evidence under cross-examination was that the possibility of the port dredge also snagging the cable cannot be ruled out. It is therefore possible that the starboard dredge caught the exposed part of the cable first and that the port dredge was then snagged by the cable as it was ripped from its bed. The converse is also a possibility.

219. On the basis of Mr. Mair’s evidence recorded in para. 171 above, counsel for the defendants sought to discount the possibility that both dredges could have been snagged. However, I do not believe that, when considered as a whole, Mr. Mair’s evidence ultimately supports that thesis. As recorded in para. 172 above, Mr. Mair acknowledged under crossexamination that the cable could have been snagged by both dredges. As noted in para. 209 As noted in para. 184 above, these co-ordinates appear to be mistaken but that does not matter for the purposes of illustrating the point made above. above, Captain Mills accepted that this is correct. He also accepted that no one could say which side (i.e. the port or starboard side) actually dragged the cable. Captain Mills had the benefit of the new chart when he made those acknowledgements. Mr. Mair also said that, if the trawler’s track was perpendicular to the cable, both dredges are likely to have crossed the cable at much the same time. When one looks at the track of the Lida Suzanna relative to the cable as shown on the new chart, it seems to me that the trawler crossed the cable at reasonably close to a right angle but, given the dynamic conditions at sea, it is difficult to reach any conclusion, on the balance of probabilities, that this meant that both the port and starboard dredges necessarily crossed the cable simultaneously. It also has to be kept in mind that both dredges could have snagged the cable even if they did not cross the cable at the same time. Given the fact that more than 200 metres of the cable was ripped from its bed, there was an obvious risk that, if one dredge snagged the cable first, the ripping out of the cable from its bed could have led to the snagging of the cable by the remaining dredge.

220. Counsel for the defendants also argued that “Fault 1 as found” must be the point of initial contact. Counsel submitted that, if “Fault 1 as found” was not the initial point of damage, one would expect to see damage west of “Fault 1 as found”. That does not seem to me to necessarily follow. “Fault 1 as found” is some 60 metres north of the line of the cable. In other words, it is the result of the dragging of the cable in a north or north westerly direction and the ripping out of more than 200 metres of the cable from its bed. Counsel for the defendants argued that “the eastern direction of the vessel” would mean that any subsequent damage after the initial impact would have taken place to the east of “Fault 1 as found”. However, it is important to recall that the trawler was moving on a north westerly course and that, if the Lida Suzanna caught it, the cable was probably first dragged in that direction. The location of “Fault 1 as found” supports that thesis. Taking the timings shown on the new chart, the trawler did not make its first turn in an easterly direction until 11:40:42 at which point it was (using the scale on the new chart) well past

100 metres from the line of the cable. Given the evidence that the dredges followed some

70 to 80 metres behind the stern of the trawler, it seems likely that, if the Lida Suzanna snagged the cable, the trawler must have continued in a north-westerly direction after the dredge snagged and before turning to starboard. I therefore do not believe that the fact that the other locations of reported damage are all east of the location of “Fault 1 as found” means that it is probable that it was the first point of contact. In addition, the latitude co-ordinates for all four recorded instances of damage show that damage was found at a number of slightly different latitudes illustrating the dynamic nature of the event that caused the damage. The latitude co-ordinate for “Fault 1 as found” is 5338.041N; for the bird cage damage, it is 5338.088N; for the “some armours broken”, it is 5338.059N and for the “damage observed at cable” at 05:30hrs, it is 5338.053N.

221. Furthermore, one could not exclude the possibility that the cable might first have been struck by another vessel somewhat earlier than the incident on 26th January 2015 and that, as a consequence, more than 2-5 metres of cable might have been exposed and dragged out of line but without causing a fracture of the fibre optic wires. While the length of the cable which showed marine growth was no more than 2-5 metres long, this does not exclude the possibility that some more of the cable might have been exposed in the immediate days or hours before the incident (i.e. before marine growth had time to attach itself to the cable). If that had happened and if the Lida Suzanna subsequently snagged the exposed length of cable, the snagging may have occurred at a point some distance from the line of the cable as shown on the new chart. This creates a further difficulty in trying to reach a finding, on the balance of probabilities, as to which dredge might have first crossed the cable.

222. In all of the circumstances, it seems to me that it is simply not possible to reach a

conclusion as to whether, on the balance of probabilities, it was the port dredge or the starboard dredge which first passed over the cable or as to which of them (if either) might have snagged the cable. Without intending any criticism of counsel for the defendants, there is simply too much speculation involved in trying to reach a conclusion on those issues.

223. Where, then, does that leave the plaintiff on whom the burden of proof lies? That depends on a consideration of those facts about which there is sufficient evidence to safely form conclusions on the balance of probabilities. There are a number of matters that require to be borne in mind in this context. First, for the reasons outlined in para. 211 above, I have already made a finding of fact that, on crossing the cable, the Lida Suzanna was scallop fishing and that it had its scallop dredges in the water for this purpose. There is no dispute that those dredges were designed to comb the surface of the seabed on which at least 2-5 metres of cable was exposed above the surface. There is also no dispute that the damage to the cable is consistent with damage done by a trawler. Next, it is important to recall that, for the reasons stated in para. 213 above, I have also made a finding of fact that, having regard to the distance between the Lida Suzanna and “Fault 1 as found”, there was insufficient space for another trawler (whether 15 metres in length or smaller) to have caused the damage. For that reason, I believe that one can exclude the possibility that the rupture to the fibre optic element of the cable that occurred close to 11:41hrs could have been caused by another trawler that was not transmitting AIS data.

224. The timing of events is also critically important. The relevant times are very helpfully recorded on the new chart and on Mr. Mair’s Figure 2. Taking the timings shown on both of these charts, the Lida Suzanna did not turn to the starboard (and therefore to the north east) until sometime between 11:40:31hrs and 11:40:51hrs. None of the experts estimated the time when the dredges are likely to have crossed the line of the cable. They were being towed about 70 to 80 metres behind the trawler which is shown on the new chart as crossing the line of the cable at 11:39:01hrs. On the assumption that the dredge was 70 to 80 metres behind the trawler, the metric scale on the new chart would suggest that the dredges would have crossed the line of the cable not long before 11:40:12hrs. The first turn to starboard occurred between 30 seconds and 40 seconds later. Very shortly afterwards, the speed of the trawler slowed. Mr. Mair’s Figure 2 shows that, at 11:40:31.475hrs, the trawler’s speed was 2.8 knots. Twenty seconds later it had reduced to 2.1 knots and at 11:42:00.129hrs, it had reduced to 0.8 knots at which point the trawler made the second quite sharp turn to starboard. Crucially, this coincides very closely with the time when the cable fault is detected on the Virgin Media O2 system at 11:41:54hrs at Dublin and 11:41:57hrs at Lytham St. Annes. Furthermore, having regard to the risk of entanglement of the dredges, those turns to starboard are not consistent with the activity of scallop trawling. They suggest some other cause. Nor, for the reasons outlined in para.

212 above, are they consistent with hauling up the gear. As outlined in para. 201 above, Mr. Molloy was asked to explain that manoeuvre and he suggested that it looked as though he had hauled and then just turned to the east. In my view, that explanation is wholly unconvincing. As explained in para. 203 above, I cannot accept Mr. Molloy’s explanation that the reduction of speed as the trawler travelled east could be attributed to the hauling up of its gear. That makes no sense. There was insufficient time in the one and a half minute period between the two turns to starboard (as illustrated in Mr.

Mair’s Figure 2) to carry out that task. As noted in para. 204 above, Mr. Molloy’s evidence was that the process of hauling the gear would take about 5 minutes at a speed of 1.5 knots. Up to the first of those turns, the trawler was plainly not engaged in that process. The speed and the course of the trawler are consistent with fishing. Mr. Mair’s Figure 2 shows that, immediately before the first turn to starboard, the speed was 2.8 knots which, on. Mr. Molloy’s evidence was too fast to haul up the gear. On the other hand, Mr. Mair gave very clear and convincing evidence that these turns to starboard (which are shown not only on the new chart but also on his Figure 2) are different to any of the other turns made by the trawler in the course of the day.

As set out in para. 176 above, I asked Mr. Mair to explain why these turns were different and he explained that sharp turns of the kind seen on his Figure 2 at 11:40:31.475hrs and again at 11:42:00.129hrs carry the risk of entangling the gear. That makes obvious sense when one considers that the trawler was towing dredges behind on both the port and starboard sides. As recorded in his report and as reiterated in his oral testimony, Mr. Mair was very definitely of the view that those turns were typical of a fishing boat snagging something on the seabed.

Captain Mills was not in a position to contradict that evidence and Mr. Molloy was unconvincing in his response to it. In those circumstances, it seems to me that there is evidence before the Court sufficient to prove on the balance of probabilities that the Lida Suzanna encountered something at this moment on 26th January 2015 which snagged its gear causing it to make the turns to starboard that are seen on the new chart and on Mr. Mair’s Figure 2. For the reasons previously outlined above, I do not believe that Mr. Molloy’s evidence is sufficient to persuade me that the trawler did not experience a snagging incident at this moment.

He does not have a clear recollection of the events of that day.

225. I am of the view that the following facts taken together lead to the conclusion on the balance of probabilities that the break in the optic fibre in the cable was caused by the snagging of one of the dredges of the Lida Suzanna namely:

(a) the matters outlined in para. 223 above;

(b) the finding that I have made, in para. 224 above, that the gear of the trawler snagged something on the seabed and the other factors identified in that paragraph;

(c) the timing of the snagging as evidenced by the two turns to starboard, first between 11:40:31 and 11:40:51 (as shown on Mr. Mair’s Figure 2) and the second at 11:42:12 (on the new chart) or 11:42:00.129 (on Figure 2); and

(d) the timing of the break in transmission of signals on the fibre optic cable namely 11:41:54hrs at Dublin and 11:41:57hrs at Lytham St. Annes.

226. I am therefore satisfied that the plaintiff has established on the balance of probabilities that the break in the fibre optic cable was caused by the Lida Suzanna.

Are the defendants liable for the damage to the cable?

227. It does not follow automatically from my finding in para. 226 above that the defendants are liable for the damage to the cable. The plaintiff must also establish, as a matter of law, that it has a good cause of action against the defendants. In so far as counsel have been able to identify, this is the first case in Ireland in which there has been a trial of a claim brought by the owner of a subsea cable against the owners of a vessel which has caused damage to such a cable.

228. The cause of action asserted by the plaintiff is negligence on the part of the defendants in dredging over a cable which was known to be present on the seabed in the area where the Lida Suzanna was fishing. In its statement of claim, the plaintiff also asserted a claim based on breach of statutory duty and relied on the Convention for the Protection of Submarine Telegraph Cables 1884 which was given the force of law in the State by the Submarine Telegraph Act 1885 as applied and amended by s. 8 of the Continental Shelf Act 1968. In written submissions, the plaintiff also referred to the 1958 Geneva Conventions on the Continental Shelf and the High Seas and also the 1982 UN Convention on the Law of the Sea. In their written submissions, counsel for the defendants argued that none of these conventions or statutory provisions formed the basis of a cause of action in civil proceedings of this nature and, in oral submissions, on Day 7 of the hearing, counsel for the plaintiff confirmed that the plaintiff was relying solely on the common law tort of negligence. Classically, in order to succeed in an action in negligence, a plaintiff must prove that the defendant owed the plaintiff a duty of care which required the defendant to conform to a certain standard of behaviour in order to avoid the risk of harm to the plaintiff or others in the same position as the plaintiff. Over the course of time, the courts have found that a duty of care of that kind is owed in a wide variety of situations running from driving a motor vehicle to providing professional services. The categories of case in which a duty of care is owed are not closed but there is a test to be passed if a plaintiff wishes to establish that a duty of care is owed in a new category of case. In this case, the plaintiff contends that there is a long established line of English authority that a duty of care is owed by mariners to avoid causing damage to undersea cables which are known to exist.

229. In their written submissions, the defendants accepted that “it is long established that the operators of vessels have an obligation to navigate their vessels in such a manner as to avoid harming submarine cables, this relates to an obligation on the operator of a vessel to take reasonable care, having regard to foreseeable dangers, hazards or damage to other potential interests, in the management or navigation of their vessel.” However, they argued that, on the facts of this case, the defendants were carrying on a lawful activity, namely fishing, where “if the cable had been protected as would have reasonably been expected, no damage would have resulted.” The defendants argued that, if the cable had been properly buried to a depth of between 0.6 and 1.0 metres and had been adequately maintained, the 9 cm dredges of the Lida Suzanna could have passed over it without difficulty. They suggested that the defendants had historic rights to fish in this area (and that this is recognised in the terms of the licence granted by the Crown Estate Commissioners dated 5th November 1998); that it was common practice to fish over cables and that the plaintiff could not unilaterally make the route of a cable a “no go area” for fishermen who were legitimate joint users of the seabed.

230. At one point the defendants also argued that, when fishing, the trawler was not involved in navigation and therefore did not owe the duty that a navigator might owe. I sought to tease that out with counsel in the course of the oral arguments and suggested that the act of pulling the dredge along the seabed requires navigational skill such that it carries with it the obligations of a navigator. Counsel for the defendants did not dispute that proposition but argued that this did not prevent the defendants making the case outlined in para. 229 above.

231. Before addressing the arguments on both sides, it is necessary to first draw attention to the recent decision of the Supreme Court in Barlow v. Min. for Communications, Marine and Natural Resources [2025] IESC 14. In his judgment in that case, Murray J. provided very clear guidance as to the approach to be taken in determining whether, for the purposes of the law of negligence, a duty of care is owed by a defendant to a plaintiff. At para. 155 of his judgment in that case, Murray J. identified that the following approach should be taken:

(a) the first reference point in any contested duty of care case should be whether the existing case law provides a binding precedent that mandates the conclusion that the relationship between the parties in issue is such that the defendant owes the plaintiff a duty of care not to cause harm to the plaintiff;

(b) If there is no such binding precedent, it is appropriate to address whether such a duty of care should be imposed by reference to the essential characteristics of the case viewed in the light of the principles governing the law of negligence as developed in the decided authorities. Foreseeability of loss and proximity are central features of that analysis.

(c) If a given case presents a situation that is truly analogous to one in which a duty of care has been imposed by the law, it will usually be because there is (i) a sufficient relationship of proximity and (ii) sufficient foreseeability of loss. The factors that generate that proximity and foreseeability of loss will constitute legally significant features of any situation, and the identification of whether, and if so how and why, those elements are present in a relationship will be central to any determination as to whether the extension to that relationship of a duty of care, of the kind contended for, is legally coherent.

(d) In those cases in which the Court is finding a duty of care by analogy with the principles identified in earlier authority, it is additionally appropriate to consider broader policy implications of such an extension of liability. In that context, it is appropriate to consider whether it is just and reasonable to impose such a duty. That captures a range of factors, including whether the imposition of a duty of care will conflict with other legal duties, whether it will inhibit the exercise of public functions, whether the imposition of such a duty will embroil a court in a dispute that is not properly justiciable, whether the imposition of such an obligation is consistent with a statutory scheme together with whether the extension of a duty of care to a new category of case will expose defendants to disproportionate liability.

232. While the plaintiff has identified a line of English authorities which seem to me to be very relevant, they are not, technically, binding on an Irish court. In those circumstances, they do not satisfy the criterion identified in para. 231(a) above. The defendants also maintain that, in any event, the English authorities should be distinguished on the basis that they do not specifically address whether, in the course of fishing operations, a duty of care is owed by the owners or operators of fishing boats to cable owners to avoid causing harm to undersea cables. In light of the approach taken by the Supreme Court in Barlow, I must therefore consider whether a duty of care should be imposed in this case. In considering that issue, it is clear from the decision in Barlow that it is both useful and appropriate to consider the position in analogous situations where a duty of care has been imposed. The English authorities are very relevant in that context.

233. The first relevant authority is a decision of the Court of Common Pleas of England and Wales of 1864 in Submarine Telegraph Co. v. Dickson (1864) 15 C.B. (N. S.) 760 which was delivered at a time when submarine cables were acquiring significant commercial and popular significance. To put it in perspective, the first undersea cable across the English Channel was successfully laid in 1851. Later in the same decade, several efforts were made to lay a submarine cable across the Atlantic from Valentia Island to Newfoundland. While that project did not finally succeed until 1866, the first telegraphic message from Queen Victoria to President James Buchanan had been sent across the Atlantic on an earlier version of that cable in 1858 and the laying of that cable had attracted huge public interest both in Europe and the United States. I therefore do not think that it can be doubted that the commercial significance and public utility of undersea cables were matters that were well appreciated at the time the Submarine Telegraph case was decided.

234. The Submarine Telegraph case was concerned with damage done to the subsea telegraph cable from Dover to Calais that had been initially laid in 1851. This was caused by the dropping of an anchor by a Swedish ship which was on a voyage from Spain to Sweden. The owner of the cable brought an action alleging that the ship ought to have known of the existence of the cable in that location and that the ship was guilty of culpable negligence. Echoing to some extent, the arguments of the defendants here, the shipowner maintained that the plaintiff had no cause of action; that the ship was entitled to cast anchor wherever necessary and that this was “a right which belongs to all persons … who navigate the sea”. This was rejected by the Court. In language that foreshadows the speech of Lord Atkins in Donoghue v. Stevenson [1932] A.C. 562, Willes J said at p.991: “The rights and duties of persons navigating vessels apply equally whether in port or on the high seas. It is the duty of the persons navigating so to exercise their rights as to do no damage to the property of others. I see no substantial difference between a telegraphic-cable and another ship, -- except that the position of the cable may or may not be known, and it may or may not have been the duty of the master to know that it was there ... No one is justified in wilfully or by culpable negligence injuring the property of another, whether above or under water.” (emphasis added).

235. It is true that the judgment of Willes J. does not address the position of fishing boats. But the language used by him is very wide. The sentence emphasised above is framed in terms that apply the principle to all mariners. It is also noteworthy that Willes J. expressly stated that he could see no substantial difference between the approach to be taken in respect of damage to a cable (which is known to exist) and the approach to be taken in relation to damage to a ship. In his judgment in the same case, Erle C.J. noted that similar issues had arisen in the past in respect of oyster beds and sunken ships both of which were regarded as lawful uses of the seabed. He regarded the laying of a cable on the seabed as a “known mode of using that part of the earth’s surface”.

236. It must be emphasised that this judgment is not the view of some random nineteenth century judge. Willes J. is one of the most respected judges of the nineteenth century and his views are regarded as being particularly authoritative4. For example, until the enactment of the Occupiers’ Liability Act 1995, his judgment in Indermaur v. Dames

(1866) LR 1 CP 274 was treated as one of the principal authorities on occupiers’ liability See, for example, Heuston, “James Shaw Willes” (1965) 16 NILQ 193 at p. 205 in this jurisdiction.5 The defendants make a number of arguments in relation to the Sub- Marine Telegraph case. As I have previously mentioned, they contend that the decision does not cover the activity of lawful fishing where, if the cable had been “properly buried”, the act of pulling the dredges over it would not have caused damage. I will address that argument presently. They also argue that the judgment is concerned with “culpable” negligence which they submit must be interpreted as requiring some heightened standard involving something approaching wilful or reckless behaviour. I cannot accept that submission. The reference to culpable negligence must be seen in the context of the state of the law at the time the judgment was delivered. As Lord Diplock explained in The Tojo Maru [1972] A.C, 242, at p. 296, the concept of negligence as a cause of action at common law was still its formative stage between 1840 and 1860. As Henchy J. explained in the Supreme Court in Northern Bank v. Henry [1981] I.R. 1, at p. 11, nineteenth century judges were “prone to stigmatising actionable negligence as ‘gross’ or ‘culpable’”. Both Henchy J. in that case and Lord Diplock in The Tojo Maru attribute the abandonment, for this purpose, of the distinction between negligence and gross negligence to another judgment of Willes J., this time in Grill v. General Iron Screw Collier Co. (1866) LR 1 CP 600 where he said at p. 612:

“It is further complained that the Lord Chief Justice misdirected the jury because he made no distinction in this case between gross and ordinary negligence. No information, however, has been given us as to the meaning to be attached to gross negligence in this case; and I quite agree with the dictum of Lord Cranworth in Wilson v. Brett … that gross negligence is ordinary negligence with a vituperative epithet, …. Confusion has arisen from regarding negligence as a positive instead of a negative word. It is really the absence of such care as it was the duty of the See McMahon & Binchy “Law of Torts”, 4th Ed., 2013, at para. 12.03 defendant to use. A bailee is only bound to use the ordinary care of a man, and so the absence of it is called gross negligence. A person who undertakes to do some work for reward to an article must exercise the care of a skilled workman, and the absence of such care in him is negligence. Gross, therefore, is a word of description, and not a definition, and it would have been only introducing a source of confusion to use the expression gross negligence, instead of the equivalent, a want of due care and skill in navigating the vessel; which was again and again used by the Lord Chief Justice in his summing up.”

237. The decision in the Submarine Telegraph case does not stand on its own. A somewhat similar issue arose in The Clara Killam (1870) L.R. 3 A & E 161. In that case a submarine telegraph cable was damaged by the anchor of a ship. The ship had been sheltering from a storm off the English coast at South Foreland near Dover when it was decided to weigh anchors and proceed with a voyage to Boston. At that point, it was discovered that one of the anchors had become entangled in the telegraph cable. The master of the ship ordered that the cable be cut in order to free up the anchor. The cable owner sued for damages and the shipowner was found liable. Phillimore J., having referred to the Submarine Telegraph case, accepted that both cable owners and ships had concurrent rights to use the seabed but he explained his decision as follows at p. 165: “I must consider that this telegraph cable was lawfully placed at the bottom of the sea, and in the spot where it received the injury. I must also consider that the vessel which did the injury to it was in the exercise of her right both in navigating the surface of the sea, and in dropping her anchors where and when she had let them go. The law requires that each party should exercise his right so as, if possible, to avoid a conflict with the right of the other. It was the duty, therefore, of the ship to disentangle, if possible, her anchor from the cable without injuring it. She was bound to apply ordinary skill, and to take the time necessary for this purpose, unless she thereby exposed herself to present or imminent peril - the suggestion … that it was impossible to extricate her anchors ‘before the lapse of a considerable time, save by severing the said cable,’ cannot be admitted as a justification of the act. It has been contended that the cable when brought up was in so injured a condition as to render the cutting of it practically immaterial. I should be disposed to admit this defence if it were supported by the evidence. But I am satisfied that it is not; but that, on the contrary, both the oral evidence, and that derived from an inspection of the parts of the cable produced in court, prove that the copper wire in the centre, through which the fluid passes, was wholly unimpaired …”

238. A somewhat similar situation arose in The Daphne (1934) 50 Ll. L. Rep. 51 which was decided after the seminal decision in Donoghue v. Stevenson. In that case, the anchor of a ship sheltering near Dover snagged an underwater telegraph cable that was known to be present. Despite knowing that the cable was in the vicinity, the master of the ship had allowed the ship to drag its anchor. The anchor caught the cable and broke it. At p. 54, Bateson J. referred to the fact that the location of the cable was marked on the relevant charts for the area. He accepted that the ship could anchor in the area but that, if it did so, it must proceed with care. At p. 55, he came to the conclusion that the ship was negligent notwithstanding that there was evidence that other vessels occasionally anchored nearby. He explained his position as follows: “I have got to say what I think is the negligence of the master in doing what he did with his ship in picking up this cable and parting it in the way that it was parted. I think - as he did - the anchor was close to the known position of the cable, without any necessity to be so; and in face of the directions which are given in the nautical instructions that is negligence. I am so advised that it is. The fact that other people do it does not seem to me to be any answer.”

239. The plaintiff also referred to the judgment of the Federal Court of Appeal of Canada in Peracoma Inc. v. Société Telus Communications 2012 FCA 1996. In that case, the skipper of a crab fishing vessel cut an underwater fibre optic cable in the St. Lawrence river when it became entangled in the vessel’s fishing gear. The skipper knew he was cutting a cable and had adverted to the risk that it was in use but, nonetheless, formed the view that it was obsolete. The vessel, its owner and the skipper were all held liable by the Federal Court for the damage to the cable.

That decision was appealed to the Federal Court of Appeal. The latter’s judgment was principally concerned with issues as to the application of the Limitation Convention and insurance cover but it also addressed a number of other issues and upheld the Federal Court’s finding of negligence against the vessel, its owner and skipper. In the course of their judgment, Gauthier and Trudel JJ.A referred to the finding by the Federal Court that the skipper should have known of the presence of the cable which was shown on the relevant charts. They also referred to the rejection by the Federal Court of the case made by the defendants that the cable should have been buried.

The Federal Court did so on the basis of evidence that burying the cable was not feasible as a consequence of the softness of the sand on the river bottom and the length of the cable. In their judgment, Gauthier and Trudel JJ.A expressly approved of the basis on which the Federal Court held the defendants to be liable. At para. 39, they said: “Indeed, in the Judge's view, it was clear that Mr. Vallee owed a duty of care to his ‘neighbours both on and below the water line’, including Telus ... We agree with the It should be noted that this case was later the subject of a decision of the Supreme Court of Canada reported as The Realice [2014] 2 Lloyd’s Rep. 315 which allowed an appeal in part.

However, the Supreme Court judgment does not comment on those aspects of the Court of Appeal decision which are addressed in this judgment. Judge's approach as this is not a new category of duty that required a more detailed analysis, given that the duty of ship operators not to damage underwater cables or pipelines has been recognized and applied time-and-time again. It even pre-dates Donoghue: The Clara Killam (1870) L.R. 3 A & E 16. It is part of Canadian maritime law. In fact, there are many cases where liability for damage to such underwater structures were admitted and the cases focused on whether the ship owner could limit its liability:

Grand Champion Tankers Ltd. v. Norpipe A/S and others, [1984] A.C. 563”

240. The defendants have argued that the Canadian case can be distinguished on the facts because, there, the skipper intentionally cut a fibre optic cable which is quite different to the present case. I accept that the facts are quite different but it seems to me that the approach taken by the Federal Court of Appeal in the paragraph quoted above was not based on the intentional act of the skipper. On the contrary, the Court treated the case as an instance of negligence and took the view that it called for the application of the neighbour principle established in Donoghue v. Stevenson (although the Court acknowledged that the approach to be taken in cases of this kind predates the decision in Donoghue).

241. As I have previously noted, the language of Willes J. in the Submarine Cable case foreshadowed the speech of Lord Atkin in Donoghue. Willes J. spoke of the duty of navigators to exercise their rights in such manner as to avoid damage to the property of others. In Donoghue, Lord Atkin, at p. 580, spoke of the need to avoid injury to one’s neighbour (who he defined as someone so closely and directly affected by one’s acts that one ought reasonably to have them in contemplation when directing one’s mind to one’s acts and omissions). In the context of navigation, there is a common thread going back at least to the Submarine Cable case confirming that care must be taken to avoid injury to other vessels and also to undersea cables. As I have already highlighted, the language used by Willes J. is very broad and, in my view, was sufficiently wide to cover all mariners. While the decision in that case is not binding on an Irish court, the decision is one which formed part of the body of common law cases which were in existence at the time of the establishment of the State. Had the issue arisen in an Irish court before independence, it would have been surprising if the decision were not followed in this jurisdiction. For the purposes of the exercise which is mandated by the decision in Barlow, this line of authority seems to me, at minimum, to provide very helpful guidance by way of analogy.

242. On the face of it, the approach taken in the Submarine Cable case should logically apply to fishermen. This is the view which was taken in Canada in the Peracoma case. In this context, it cannot be said that the location of the cable was not clearly marked on all relevant charts or that its location was unknown. In his evidence, Mr. Jamieson highlighted that the cable is marked on the charts published by the UK Hydrographic Office. In addition, he explained that the cable’s position is also identified in USB cards (previously CDs) that are provided by Kingfisher Information Service under its Offshore Renewable & Cable Awareness project (“KIS-ORCA”) which is a joint initiative between ESCA and the Kingfisher Information Service of Seafish. The evidence was that these cards are sent out to fishing organisations. The USB cards contain cable data that can be uploaded onto the plotters onboard fishing vessels such as the Sodena plotter which Mr. Molloy confirmed was available on board the Lida Suzanna. The USB cards can be plugged into the plotters and automatically downloaded and updated. In addition, Virgin Media O2 has engaged a contractor called Seagard which sends agents to fishing ports in the United Kingdom and Ireland each year to engage in an awareness campaign for skippers and fishermen. KIS-ORCA sends out fortnightly bulletins to all fishing organisations to update them of any important information. Mr. Jamieson said that, for example, if Virgin Media O2 knows that a cable has been exposed, a bulletin would be published via KIS-ORCA to keep fishermen informed.

243. In his evidence, Mr. Mair also drew attention to the way in which subsea cables are clearly marked on navigational charts and he explained that all trawlers are required to carry the charts in either paper or electronic format. He highlighted that, on the Admiralty chart for the western part of the Irish Sea, there is a very clear warning stated in the top right hand corner of the chart about submarine cables and pipelines in the following terms:

“Mariners should not anchor, trawl, or engage in seabed operations in the vicinity of submarine cables and pipelines. Submarine cables support national infrastructure. Damage to them may affect critical services and can result in serious consequences as well as creating a potential hazard to mariners. Wilful or negligent damage to cables may result in legal action. Pipelines are not always buried and their presence may significantly reduce the charted depth. They may also span seabed undulations and cause fishing gear to become irrevocably snagged, putting a vessel in severe danger.”

244. Mr. Mair also drew attention to the existence of the KIS-ORCA charts supplied by the ESCA which accurately plot the subsea cables. He explained that the KIS-ORCA charts are compatible with nearly all plotting systems on fishing vessels so that they will be apparent when a fishing vessel plots its proposed course.

245. Most importantly, Mr. Molloy, the skipper of the Lida Suzanna accepted that he was aware of the presence of the cable and that it was shown on the Sodena plotter on board the trawler which displays the relevant charts showing the position of cables. He also accepted that these charts are updated every six months.

246. However, the defendants have strongly argued that the Submarine Telegraph principle should not be extended to lawful fishing activities of the kind undertaken by the Lida Suzanna on 26th January 2015. As noted in para. 229 above, they maintain that they were lawfully fishing in the area of the cable and that the laying of the cable could not make the route of the cable a “no go area” for fishing. Among the matters cited in support of this proposition was the licence granted by the Crown Estate Commissioners in November 1998 for the laying of the cable which provides in clause 2.1: “The Commissioners grant to the Licensee consent to the Licensee exercising the Rights during the Licence Period SUBJECT to the public rights of navigation and fishing and all other rights easements and quasi-easements now exercisable over the Seabed …” (emphasis added)

247. The defendants also referred to the pre-installation survey reports commissioned at the time which showed that fishing was already well established in this area of the Irish Sea and they submitted that this clearly shows that the laying and operation of the cable was never intended to displace fishermen from trawling in the area of the cable. Neither side called any English law evidence to assist in the interpretation of the licence which is governed by English law. Nor was there any debate about the legal effect (if any) of the grant of a licence by the Crown Estate Commissioners over an area of the seabed in international waters. Similarly, there was no discussion about the legal effect of the licence for the purposes of proceedings in Ireland. But, subject to those caveats, it seems to me to be self-evident that the saver in the licence in respect of rights of fishing previously exercisable over the seabed could not have been intended to permit forms of fishing which were potentially destructive of the cable itself. That would have defeated the whole purpose of the licence which was clearly intended to endure into the future. On the contrary, the underlying purpose of clause 2.1 appears more likely to have been to give effect to the pre-existing principle recognised in the case law that both cable owners and mariners have concurrent rights to lawfully pursue their interests whether in port or on the high seas. But, as the English case law shows, those concurrent rights must be exercised in a manner that seeks to avoid injury to the property of others. I very much doubt that the Crown Estate licence can be said to have any legal effect in proceedings in this jurisdiction in respect of an event which occurred in international waters but, if it does have any legal effect, that is the view which I take of it.

248. In any event, the defendants do not, for this element of their case, limit themselves to reliance on the terms of the Crown Estate licence. They make a similar case based on long user of the scallop beds prior to the installation of the cable. As I have previously mentioned, they also point to the fact that in pre-installation surveys of the proposed route of the cable, it was evident that there was extensive fishing activity along its route. It seems to me, however, that this argument does not provide a plausible basis to reject the application of the Submarine Telegraph principle to this case. That principle recognises the existence of concurrent rights exercisable by different users but it requires those users, in the exercise of their rights, to take care to avoid injury or harm to other users of the ocean. As Phillimore J. observed in The Clara Killam, “The law requires that each party should exercise his right so as, if possible, to avoid a conflict with the right of the other.” In this case, the evidence very clearly establishes that fishermen, engaged in scallop fishing, can readily take steps to avoid harm to subsea cables which are known to exist. In these circumstances, there is no reason why fishing activity cannot operate in harmony with the existence of the cable in a similar manner to that envisaged by Phillimore J in the context of shipping activity.

249. As outlined in paras. 193 to 198 above, Mr. Molloy acknowledged that it was possible for him to haul the gear before crossing the path of the cable and shoot the gear the other side of it. As outlined in those paragraphs, he also accepted that, while this was not always the case, he sometimes took that course when crossing the cable. He did not suggest that there was any difficulty in doing so. It is true that, as explained in para. 204 above, this process may take between 15 and 20 minutes but Mr. Molloy did not suggest that it was, in any way, onerous or bothersome. It also has to be kept in mind that it is a process that has to be undertaken from time to time during the ordinary course of fishing operations so there is no reason why it cannot be planned as part of the day’s operations to coincide with the crossing of the route of a cable. In these circumstances, the principle applied in the English cases in respect of anchoring operations is plainly capable of being extended to fishing operations such as scallop trawling without any serious consequences for fishermen. On the basis of the evidence in this case, the rights of both parties can be respected and the risk of harm can be avoided by taking sensible practical steps to avoid injury both to the cable, on one side, and the trawler itself, its gear and crew, on the other side.

250. In this context, Mr. Mair’s evidence was that the best practice of fishermen is to avoid subsea cables. He explained that the cables represent a potential danger to fishing vessels and that “most fishermen avoid anything that’s going to endanger a vessel.” He added: “But you get some guys who perhaps think there’s more fish at the cable, or more to gain, or for whatever reason, but some do and some don’t”. Captain Mills also said that, as an expert mariner and a master mariner, he would not fish over a submarine cable and that no vessel of any kind would wish to snag a cable. That said, there was some evidence that fishermen fish over cables. Mr. Molloy claimed that many do so and, as noted above, Mr. Mair also said that some do. While the evidence to that effect is lacking in detail, I am of the view that, even if there were evidence of extensive fishing over cables, that would not undermine the impact of the evidence as to the steps that can be readily taken to avoid damage to the cable or the importance of the evidence as to the risk both to the cable and the fishing vessels themselves that is inherent in such activity. The risks in question are also spelt out in the Mariner’s Handbook quoted in para.194 above and on the face of the Admiralty chart quoted in para. 243 above.

251. For all of the reasons outlined in paras. 248 to 250 above, I believe that the fact that scallop fishing was historically taking place in this area of the Irish Sea prior to the laying of the cable does not provide a basis to distinguish the Submarine Telegraph case or the authorities which followed it. That is not, however, the end of the defendants’ arguments. As noted in para. 229 above, they also contend that the cable should at all times have been properly buried to a depth of between 0.6 and 1.0 metres and that, had that been the case, the passing of the 9 cm deep dredges over the cable would not have been problematic. They also allege that the plaintiff should have regularly inspected the cable to ensure that it did not become uncovered and to rebury any elements of the cable that came to the surface. While those arguments may overlap with issues in relation to causation and the defence of contributory negligence, they are also relevant to the issue of whether a duty of care arises on the facts of the case.

252. In support of their arguments, the defendants sought to rely on the evidence of Captain Mills. As I have mentioned before, he was the only expert called as a witness by the defendants. While Captain Mills conceded in his direct evidence that he does not have expertise in cable laying, he nonetheless offered some strongly expressed views on cabling issues. He noted that the reports in respect of the installation of the cable referred to strong currents in the area. He emphasised that para. 8.22 of the Burial Survey Assessment states that provision should be made in respect of “influences of any type of currents in the area” and he expressed the view that no provision appears to have been made in respect of the cable regarding the strong currents identified. In his report, he went so far as to suggest that “normally”, a submarine cable would be trenched to a deeper depth and rock dump or mattressing would be used along with double armour to protect the cable. In para. 5.7, he suggested that double armour cabling would have been more appropriate, particularly in areas of heavy tidal movement and that “it may be the case that rock armour should have been used if one was to go by the depth of water” which, at the site of the damage, was 48 metres. Captain Mills also went so far as to say that, in his opinion, the cable had not initially been installed properly and that cost implications took priority over vessel safety.

253. Captain Mills addressed the utility of post-installation surveys to monitor the ongoing condition of cables. His evidence was that the offshore wind industry are required to carry out surveys and that when he was involved in the Hornsea Wind Farm project, there were cables not just running between the wind turbines but also between the wind farm and the mainland and his evidence was that those cables are periodically surveyed. He expressed the opinion that, logically, it would be a worthwhile task to monitor and survey a cable at least from the time it was buried until the incident but, again, he accepted that he was not a cable expert.

254. Captain Mills views were strongly contested by the plaintiff and his expertise on this aspect of the case was challenged. In the course of cross-examination, he acknowledged Mr. Willey’s expertise and accepted that he did not, in fact, have a basis for many of the views. Before considering the weight to be given to his evidence on this issue, I should first address the factual evidence that was given on the issue (such as it was). In addition to Captain Mills’ evidence about the record of currents in the area, Captain Robins addressed the issue of sand waves, the existence of which may indicate a greater likelihood of dynamic conditions in areas where they are found. In his report he had said that, on inspection, the sea bed in the area where the snagging occurred was found to be generally soft sand with harder ground and some boulders and large stones to the east and some evidence of sand wave activity towards the west. However, in response to counsel from the defendants, Captain Robins clarified that small sand waves had been found in the area of repair no. 24 (relating to the second area of damage, the subject of the proceedings against the MFV Willie Joe), but not much in the area around fault no. 23 (which is the damage in issue in these proceedings). He then clarified that he ”didn’t actually see any on repair 23. That was my supposition as to the fact that they might have been there at fault 23.” It was suggested to Captain Robins by counsel for the defendants that it was good practice to try to avoid laying cable in an area where sand waves are found. Captain Robins acknowledged that this was so, where possible.

255. That said, there is no evidence of any significant presence of sand waves at the location of the damage in this case. Captain Robins’ evidence that he did not see any in the area of fault no. 23 was supported by Mr. Willey. He noted, by reference to the installation report prepared by Pirrelli at the time of installation of the cable, that the seafloor in this area is quite flat and the underlying sediments are sand or clay at least a metre deep. Mr. Willey expressed the view that this is “entirely a good seabed for cable burial”. Based on a chart showing the topography of the seabed in this area, Mr. Willey maintained that it does not show the presence of sand waves. They would ordinarily be shown by contours on the chart but such contours are absent from it. It is true that, under cross-examination, Mr. Willey accepted that the area of the seabed where the fault in the cable was found is subject to currents of 2.2 knots and that some of the seabed in this area comprises loose silty sand which Mr. Willey accepted was more vulnerable to erosion by currents. However, he rejected the suggestion that the cable had not been installed properly. On the basis of the installation records which he had reviewed, he was of the view that it had been properly installed.

256. There was no direct evidence from any witness in relation to the laying of the cable. However, some evidence was given by Mr. Jamieson. He explained that he was not involved in the physical installation of the cable by Pirelli or the planning process in relation to its installation but he said that his understanding was that work on the installation of the cable began in 1998 and continued into 1999. He assumed the management of the cable in 2000. Under cross-examination, Mr. Jamieson explained that the target burial depth for the cable beneath the surface of the seabed was one metre. He said that it could not be deeper than one metre because that was the limit which the installation plough could achieve. Mr. Jamieson also explained that the installation charts showed that the burial depth along the length of the cable ranged from between 30 centimetres to 1 metre. In the area where the damage to the cable occurred, Mr. Jamieson’s evidence was that the burial depth achieved was recorded as lying between

0.6 and 1.0 metre. Although those records were not formally proved, this aspect of Mr. Jamieson’s evidence was not challenged.

257. According to Mr. Jamieson, there were 14 repairs to the cable in the period between 2000 and 2019. Of those, there were six in the period between 2015 and 2019. Mr. Jamieson said that the cable was installed with an anticipated fault rate of one a year and that the number of repairs required (when averaged across the life of the cable) roughly equated to that. His evidence was that this was similar to his experience of other cables installed at that period. However, Mr. Willey was later cross-examined about two other undersea cables in the Irish Sea which were identified in a desk-top study undertaken by Cable & Wireless prior to the installation of the plaintiff’s cable. The cables in question are the Lanis running between the Isle of Man and Blackpool and the BT-TE-1 running between Port Dafarch in Anglesea and Portmarnock. The Cable & Wireless document records that the Lanis had suffered two faults since it came into service in 1992 one of which was attributed to trawler maul. The document records that, although the cable was buried, the seabed in the area had limited sediment dispersal between small areas of rock outcrops with the result that part of the cable was exposed. In the case of the BT-TE-1 cable, the document recorded that the cable was laid in 1986 and that, in the period between then and the date of this document7, it recorded only one fault in a surface laid section of the cable and none in the buried section. In cross-examining Mr. Willey, counsel for the defendants contrasted the low number of faults recorded in respect of the BT-TE-1 cable with the much higher number recorded in respect of the plaintiff’s cable. He then suggested to Mr. Willey that a possible explanation for the relative success of the BT-TE-1 cable was that it had been laid in a better way. Mr. Willey admitted that this was a possibility but he did so in circumstances where he had earlier explained that he had no familiarity with the BT-TE-1 cable. While the defendants, in their closing submissions, sought to rely on the comparison with the BT-TE-1 cable, I do not believe that there is any sufficient evidence before the Court to allow me to reach even a tentative

conclusion in relation to it. The Court has been furnished with no details about the BT- TE-1 cable or the methodology employed in its installation. I am therefore not in any position to assess how it was laid or whether the methodology employed was superior to that used by Pirelli in laying the plaintiff’s cable. I also know nothing about the performance of the BT-TE-1 cable in the years since 1998. It might be the case that there have been additional faults in that cable since that time. In the circumstances, I can see The extract from the document put to Mr. Willey is undated but it predates the laying of the plaintiff’s cable in 1998, so it probably dates from 1997 or early 1998. no basis on which I could make any comparison between the BT-TE-1 cable and the plaintiff’s cable.

258. With regard to post-installation monitoring, Mr. Jamieson accepted, under crossexamination, that the cable is not monitored on an ongoing basis. He said that, once laid, the cable was not surveyed thereafter. His explanation for this was that certain parts of the seabed are not a static environment such that surveys are “only as good as the day you do it”. On Day 1 of the hearing, it was put to him that there was nothing to prevent the plaintiff from surveying the cable to monitor whether any sections of the cable might no longer be buried after such a long time since its installation in 1998. Mr. Jamieson’s response was: - “If you are suggesting that we survey a 232 kilometre cable, and I could go along and survey that cable on the 26th January, and let's just say, for argument's sake, that there was an exposure and then I could say, 'Okay, well, then, I will come back and bury that cable' and I come back on the 5th February and the cable is buried.”

259. Counsel for the defendants pressed Mr. Jamieson in relation to this issue and suggested that, because the nature of the soil or sand in the seabed makes it susceptible to shifting, it would plainly have made sense to survey the cable at some point in the period since its installation. However, Mr. Jamieson again stressed that the seabed is not a static environment and that, while a survey might reveal exposure of the cable on one day, one could come back a week later and find no exposure (or vice versa).

260. Mr. Jamieson accepted that the problem in relation to scallop fishing would only arise where the cable is exposed or is buried to a depth of less than 9 centimetres. In addition, he accepted that, if Virgin Media O2 had been monitoring the cable and became aware that it was exposed at particular points, a notice to that effect could be issued to users such as fishermen to warn them of the specific danger associated with fouling their gear on the exposed cable. While Mr. Jamieson accepted that this was so, he reiterated that a monitoring system was not practical for the reasons outlined above. In addition, as noted in para. 262 below, there are good reasons why the publication of notices of that kind could be counter-productive. It should also be noted that Mr. Jamieson made a distinction between the circumstances outlined above and cases where, for example, it is not initially possible to successfully bury a cable following a repair. In cases where that happened, Mr. Jamieson’s evidence was that notices would be issued to mariners in such circumstances and guard boats would be put in position pending full repair and reburial.

261. In his witness statement, Mr. Jamieson also addressed the use of single and double armour for the purpose of protecting the cable. He explained that the cable is double armoured from the beach transition point for a distance of 10 kilometres out to sea while the remainder of the cable is single armoured. Mr. Jamieson’s evidence was that single armour is used because it is lighter and can more easily conform to the seabed. However, he also accepted that it was less expensive to use than double armour and he said that double armour is used where a relatively small sections of the cable (of several hundred metres) are replaced following repairs (as occurred following the damage to the cable in January 2015). The use of double armour to effect repairs of that kind arises in circumstances where such repairs are carried out by an ROV which jets the repaired section into the seabed. This process may not succeed in burying the cable as deep as the plough used for the installation of the cable in the first place.

262. Mr. Jamieson’s evidence on these issues was supported by that of Mr. Willey who was the only cable expert to give evidence. Mr. Willey confirmed that, in practice, there is no monitoring of cables in the Irish Sea to check whether any sections of them have become uncovered. He explained that, within the ESCA, there have been discussions about this but the overall view of the industry is that surveys would not serve a useful purpose and that the publication of notices following such surveys would be counterproductive. His evidence was as follows: - “but basically, you can carry out a condition survey of a cable and it will show you what the condition is on that day, but it could well change in three months’ time and so if one were to then publish information which says that the cable is buried in such a location and in three months’ time, it becomes exposed, then nobody knows of that and were somebody, say, a fisherman, be thinking it's safe to trawl over that area, because as far as we know, by the latest publications, the cable is buried and then it becomes exposed, there is obviously a safety issue for the fishermen and so that's why we don't tend to do these things. We all know that the seabed does move and cable does become exposed. It also gets covered up again. But that's why we don't do it.”

263. It was suggested to Mr. Willey by counsel for the defendants that there is a difference of opinion among experts in relation to the issue. Mr. Willey accepted that there is a different regulatory view in terms of some of the offshore windfarms but he maintained that, in terms of the submarine cable industry and linear cables of that kind, the views are fairly consistent. However, Mr. Willey qualified this to say that, “up until recently” the regulatory view has been silent on the point but that he had seen a number of conditions come in recently (or draft conditions) where such surveys had been proposed. He expressed the view that windfarm developments at sea occupy extensive areas of the seabed whereas submarine telecommunications cables are less problematic. He also stressed that windfarm developments require very high voltage cables with many cross-connecting cables occupying the seabed.

264. Mr. Willey confirmed that single armour cable is normally used where (as was the case here) the seabed is conducive to burial. In his report, he explained this in the following terms: - “The reason why single armour cable is preferred for burial operations, is that the cable is less rigid than double armour, so it therefore is more likely to conform to the seabed structure and consequently has lower risk of suspension occurring, even in mobile sediments. It is easier to bury more deeply than double armour cable due to the reduced armour and rigidity, thus protection from burial is maximised. Single armour cable can pass through a plough body without risk of damage to the cable.”

265. Notably, on re-examination, Mr. Willey confirmed that, if he was planning to install a new cable now along the route of the Sirius cable in issue, he would still proceed on the basis of single armour.

266. In the course of his direct examination, Mr. Willey rejected the suggestion made by Captain Mills about the use of rock dumping or mattressing the cable. Mr. Willey expressed the view that this would not be appropriate for the area of the seabed in question. When he came to give his evidence a little later, Captain Mills was unable to substantiate his suggestion that these steps should have been taken and, under crossexamination, he agreed that he had no basis to suggest that such methods should have been used at the time of the cable’s installation. He made the same concession in relation to the use of double armour and he accepted that he had no basis to suggest that it should have been used at the time the cable was installed.

267. In light of the evidence discussed in paras. 252 to 256 above, it seems to me that the following findings can be reached in relation to the defendants’ contention that the cable should at all time have been properly buried to a depth of between 0.6 and 1.0 metres and that the plaintiff should have regularly inspected the cable to ensure that it did not become uncovered:

(a) It has not been established on the balance of probabilities, that the cable was not installed properly or that cost concerns took priority over vessel safety. Captain Mills had no basis on which to express such a view. Quite apart from his lack of expertise on this aspect of the case, he was unable to point to anything which could substantiate his view. While he suggested that the cable should have been trenched more deeply and that rock dump or matressing should have been used to provide additional protection for the cable, he accepted, under cross-examination, that he had no basis on which to express those views;

(b) There was also no basis to suggest that double armour should have been used in the installation of the cable. Captain Mills accepted that this was so. More importantly, Mr. Willey gave convincing evidence that single armour was sufficient and that the use of single armour cabling allows a greater depth of burial to be achieved;

(c) There is nothing to suggest that the depth of burial achieved in the area in issue was insufficient at the time of installation. The depth achieved was between 0.6 and 1.0 metres. Burial at that depth would not create difficulty for a scallop fishing using the standard dredge of 9 cm deep even if a scallop trawler fished over the line of the cable;

(d) It is true that part or parts of a buried cable can become uncovered over time. That was acknowledged by the plaintiff’s witnesses and it is evidenced by the 2-5 metre length of cable with marine growth found by the Pierre de Fermat on 2nd February 2015. This raises an issue as to whether the plaintiff should have carried out periodic monitoring of the cable along its length. No such monitoring was, in fact, carried out. While Captain Mills referred to the practice in the offshore wind industry of periodic inspection of undersea power cables, both Mr. Jamieson and Mr. Willey confirmed that periodic inspections are not currently carried out by the owners of telecommunications cables in the Irish Sea. The question of monitoring appears to have been the subject of ongoing discussion within the ESCA and Mr. Willey also identified that he had recently (i.e. as of the date of the hearing in 2024) seen some conditions or draft conditions proposed by regulators for monitoring. However, there is no evidence of any practice of monitoring as of the date of the snagging in 2015;

(e) It does not necessarily follow that, because there was no practice of monitoring prior to 2015, monitoring was not required. However, on the basis of the evidence before the Court in this case, a convincing basis has been put forward by the plaintiff to persuade me that monitoring would not have served any useful purpose. On the basis of both Mr. Jamieson’s and Mr. Willey’s evidence, a survey will only provide reliable results for the day on which it is carried out. Because of dynamic undersea conditions, an exposed length of cable may become covered again days later. Conversely, a length of cable shown to be buried on the day of an inspection may become unburied days later;

(f) Furthermore, Mr. Willey has explained, in very clear terms, why it would be unworkable (and potentially dangerous) for cable owners to publish details of exposed areas of cable that might be found, following a monitoring exercise.8 As outlined in para. 262 above, any information published in that way could quickly become misleading in circumstances where conditions on the seabed changed. Areas that had been found to be covered might become uncovered and vice versa. Thus, the published information could mislead the fishing community into thinking that it is safe to trawl over areas of the cable that are believed to be buried when, in truth, they This is to be contrasted with the situation that arises where, as outlined in para. 260 above, full burial is not initially achieved following a repair. In such circumstances, it makes sense to issue a notice pending full repair and successful burial. had become uncovered. As Mr. Willey highlighted this would be a safety issue for fishermen. In circumstances where movement of material on the seabed is known to occur, the safer course in such circumstances is to warn the fishing community and mariners more generally of the existence and location of cables on all relevant charts, so that appropriate steps can be taken to avoid trawling over cables which may have become exposed. It is clear from the materials discussed in paras. 242 to 244 above that extensive warnings are given as to the location of cables and as to the risk of serious consequences for both mariners and cable owners in the event of fishing over the cables. It is equally clear that regular updates are widely distributed and available on board the plotting systems available on board vessels such as the Sodena plotter on board the Lida Suzanna. Mr. Willey suggested – and I accept – that all relevant players are aware that cables may become exposed in that way. Thus, as outlined in para. 195 above, Mr. Molloy confirmed that he was aware that cables can become uncovered.

268. In light of those findings, I do not believe that (a) the fact that a length of the cable became uncovered following installation, or (b) the absence of periodic monitoring of the condition of the cable, provide a basis to distinguish the Submarine Telegraph case. While I, again, stress that I have reached that conclusion on the basis of the evidence given in this case, it seems to me that there is nothing in these factors that would make it inappropriate to adopt a similar approach to that of Willes J. and hold that the defendants owed a duty of care to the plaintiff, as owner of the cable, to take appropriate steps to avoid causing damage to the cable.

269. In all of the circumstances discussed in paras. 233 to 268 above, it seems to me that, notwithstanding the factual differences which exist between this case and those that existed in the English and Canadian cases, those cases are nonetheless analogous with this case. They all arise in relation to concurrent user of the seabed by cable owners and mariners. That creates an obvious proximity between the parties. They all concern cables which were known to exist. Likewise, they all relate to activities which, if carried on over the route of a cable, are known to carry the risk of damage to the cable. That satisfies the requirement of foreseeability. If anything the circumstances of this case are more stark in circumstances where the risk of damage has been identified in explicit terms on the relevant Admiralty chart and where extensive efforts are made on a periodic basis under the KIS-ORCA project to keep the fishing community updated as to the existence of the cables. It therefore seems to me that it would be legally coherent (to use the language of Murray J. in Barlow) to hold that a duty of care is owed by the defendants to the plaintiff to take reasonable steps to avoid harm to the cable. As I have already explained, such steps are – and were in January 2015 – readily available to the defendants. As Mr. Molloy himself acknowledged, the dredges can be hauled up before crossing the line of the cable and the risk of damage can be avoided in that way.

270. The factors identified in para. 269 are not the end of the enquiry. In light of the fact that the decision in the Submarine Telegraph case is not binding on me, I should go on to consider the broader policy considerations identified by Murray J. in Barlow and which I have summarised in para. 231(d) above. In that context, it is clear that the imposition of a duty of care on members of the fishing community of the kind suggested in para. 269 would not conflict with any other legal duties that arise. Nor would it inhibit the exercise of any public functions or embroil the Court in a dispute that is not properly justiciable. No relevant statutory scheme would be adversely affected by the imposition of such a duty. Likewise, it could not, plausibly, be suggested that the extension of the Submarine Telegraph duty to fishing activities will expose the defendants or others like them to a disproportionate penalty. As I have already explained, all that is required to avoid the risk of harm to the cable is that trawlers of this type should haul their gear before passing over the route of the cable and shoot it again afterwards. Relative to the risk of damage to the cable, that is a comparatively straightforward and proportionate step to take. Moreover, it is a step that has to be taken from time to time in the ordinary course of trawling activities. The risk of not taking that step is starkly illustrated in the text highlighted on the face of the Admiralty chart which trenchantly warns navigators that cables support national infrastructure and that damage to them may affect critical services and cause a hazard to mariners. A cable of this kind is not some inconsequential item of property. Even though privately owned, it has a significant public utility in carrying signals so vital to modern communications and both commercial and domestic activities. It is in the interests not only of its owner but also of the common good that navigators, including those involved in fishing activities, should take reasonable steps to avoid damage to it.

271. For all of these reasons, I have come to the conclusion that it is just and reasonable to hold that a duty of care was owed by the defendants in this case to take reasonable steps to avoid damage to the cable. On the evidence in this case, no steps were taken by the Lida Suzanna to avoid snagging the cable. I have already held that the trawler did snag the cable and that, as a consequence, the fibre optic cable was damaged. It follows that the plaintiff has established that the defendants here are liable in negligence for the damage done.

Was there contributory negligence on the plaintiff’s part?

272. The defendants bear the burden of proof on this issue. In light of the findings which I have made in para. 267 above, I do not believe that there is any basis on which it could be said that the plaintiff was guilty of contributory negligence. The defendants have failed to show that there were any steps which should have been taken by the plaintiff but which were not taken by it. In those circumstances, there is no scope for a finding of contributory negligence against the plaintiff.

The plaintiff’s claim to damages

273. For the reasons discussed in paras. 96 to 115 above, the plaintiff is entitled to recover damages measured by reference to the reasonable costs of repair of the cable necessitated by the damage done by the defendants. But the plaintiff bears the burden of establishing the quantum of those costs. The defendants in their defence have expressly put the plaintiff on proof of all loss claimed by it and the particulars of loss provided by the plaintiff have also been denied. This position was reiterated in the defendants’ written submissions provided in advance of the hearing.

274. There is a significant issue between the parties in relation to quantum. In order to explain how that arises, it is necessary to first consider the pleadings. In its statement of claim delivered in March 2019, the plaintiff claimed damages on the basis of the reasonable cost of repair to the cable and it claimed a round sum of €800,000 as the approximate cost without providing any details as to how that sum was arrived at. In December 2022, the defendants sought further particulars of the claim including full details of the cost of repair and they requested vouching documentation. In January 2023, the plaintiff responded to that request. The plaintiff did not provide any breakdown of its claim but merely attached a number of invoices namely:

(a) an invoice from the ACMA ( i.e. the organisation described in para. 126 above) for $759,019.74 to which is attached a breakdown of that sum which shows that it is made up of “fixed charges” of $606,578.05, fuel at $126,002.04, lube oil at $2,102.40 and “other port charges” at $24,337.25. The breakdown suggested that there were a total of 19.167 repair days claimed. The breakdown also identified that the 2015 “day rate” was $31,647 and the amount claimed was in respect of both repair no. 23 (i.e. the damage the subject of these proceedings) and repair no. 24 (i.e. the second damage alleged to have been caused by the MFV Willie Joe). This figure for day rates later became significant in the manner in which counsel for the plaintiff argued the claim for damages at the hearing but no reference was made to day rates in the particulars furnished with the invoice and breakdown;

(b) an invoice from Red Penguin Associates for £11,700 sterling for the services of Captain Robins on the Pierre de Fermat. The invoice referred to both repair nos. 23 and 24 and stated: “RPA Advisor 13 days (18-5 days) @ £750 £9,750.00” The balance of the amount claimed related to VAT at 20% ;

(c) a list of time spent by the plaintiff’s employees in dealing with the line fault in respect of which £4,529.23 was claimed. As it happens, that element of the claim was not pursued at the hearing and can be ignored.

275. It should also be noted that, in parallel with the claim made in these proceedings, the plaintiff also commenced proceedings against the owners of the MFV Willie Joe in which a claim was also made for the cost of repair of the cable in the amount of €800,000. However, those proceedings were settled on 16th May 2022. Under the terms of that agreement, the owners of that trawler agreed to pay to the plaintiff €180,000 “as a contribution to the cost of repair No. 24 to the Sirius South Cable …”. If the defendants in both proceedings were concurrent wrongdoers within the meaning of the Civil Liability Act 1961 (“the 1961 Act”), such a settlement could be capable of having significant consequences for the plaintiff’s claim in these proceedings9. However, in circumstances where separate instances of damage were suffered by the cable, the defendants in both See ss. 17 and 35(1)(h) of the 1961 Act proceedings are not concurrent wrongdoers within the meaning of the 1961 Act. It is clear from s. 11(1) of the 1961 Act, that persons will not be concurrent wrongdoers unless they are responsible for the same damage. Nevertheless, the settlement of the claim against the owners of the MFV Willie Joe is of some relevance in the context of the manner in which the plaintiff has presented its claim.

276. In advance of the hearing, the plaintiff did not provide any fresh particulars of its claim for damages. Its claim for the cost of repair was advanced on the basis of the documents furnished with the further particulars of its claim in January 2023 and on the basis of the witness statements and documents exhibited in those statements. In the written submissions furnished in advance of the hearing, counsel for the plaintiffs referred to the particulars previously furnished and to the make-up of the individual items identified in the ACMA invoice.

They also made the case that this is a case of “so-called simultaneous repairs, where two tortfeasors have both caused separate damage to property belonging to an innocent party, and the innocent party repairs both sets of damage at the same time. Some repair costs will be common to both.” In that context, they referred to para. 37-044 of McGregor on Damages (20th Ed., 2017)10 where the author suggests that, in the context of two separate instances of damage to ships, the shipowner is free to pursue the claim for items such as dock expenses necessitated by the ship having to remain at port for repairs against either of the wrongdoers who caused the damage but that the owner is not entitled to recover twice.

Counsel noted that the costs of mobilising and demobilising the Pierre de Fermat were common to both instances of damage here and that it was only the task of actually repairing the cable breaks that were In the more recent 22nd edition (2024) of McGregor on Damages, the relevant principle is addressed in para. 38-046 but I am not convinced that the principle applies here. The more relevant principle is addressed in para. 38-045 of the text. See para. 283 below. specific to each occasion of damage. The submissions on this issue then concluded in the following terms:

“By letter dated 19 December 2022, the solicitors for the Plaintiff confirmed to the solicitors for the Defendant that the claim in these proceedings would not exceed €600,000. This letter was sent to allow the Defendants to assess whether they wished to amend their Defence to plead limitation. The reduction in the quantum of the claim from the sum pleaded in the Statement of Claim reflect (sic) the fact that a contribution of €180,000 to the cost of … Repair No. 24 …. was made by the Vessel that caused the Second Damage …. If the Defendants are entitled to any reduction in the total cost of repairs, the reduction is limited to the costs associated solely with the repair of the Second Damage for which an allowance has already been made” (emphasis in original).

277. Notably, the submissions did not contain any calculation of the costs of repair attributable to the damage alleged to have been caused by the MFV Willie Joe. The case was opened to the Court on the basis outlined in the submissions and the pleadings. Other than putting the relevant ACMA and Red Penguin invoices in evidence, there was very little direct evidence given by the plaintiff’s witnesses in respect of the quantum of the claim. In his witness statement, Captain Robins said that he was not able to comment on the ACMA invoices for the costs of repair as “these were outside of my knowledge and were not submitted by me”. In his direct evidence, he confirmed that the Red Penguin invoice was for the services provided by him as the plaintiff’s representative on the Pierre de Fermat. He did not provide any commentary on the terms of the invoice. In particular, he was not asked to explain the legend on the invoice which, as noted in para. 274(b), states: “RPA Advisor 13 days (18-5 days) @ £750”. The reference to 13 days should be noted. It is entirely unclear how Mr. Robins spent 13 days on this assignment. The reports attached to his witness statement suggest that his assignment started on 30th January 2015 at midnight on that day and the last date mentioned in his reports is 8th February 2015. That suggests that the assignment lasted a total of 10 days. At a daily rate of £750, that would equate to fees of £7,500 on which there was 20% VAT (i.e. £1,500) making a total of £9,000 rather than £11,700 as claimed. As discussed further below, that period of 10 days roughly equates to the time which I am prepared to accept was spent by the Pierre de Fermat on the repairs to the cable damage caused by the Lida Suzanna.

278. The evidence was equally terse in so far as the ACMA invoice is concerned. It was briefly addressed in the evidence of Mr. Jamieson and Mr. Hardman. In para. 20 of his witness statement, Mr. Jamieson confirmed that the daily rate in 2015 was $31,647 but that variable costs would also be payable in respect of fuel, cabling and joints. He also confirmed that fees are incurred as soon as the repair ship is deployed. At exhibit PJ9, he exhibited the same invoice and breakdown as had been attached to the particulars furnished in January 2023. In his direct evidence, he confirmed that this was the invoice issued by ACMA. Under cross-examination, he was unable to answer any questions in relation to it. He said that he “was here as an engineer who looks after the cable system” and that he was not involved in financial matters. He was also unable to explain how it was that in the English proceedings described in paras. 39 to 40 above, the claim was confined to £252,687.05 which the solicitors’ correspondence confirmed represented 50% of the costs of repair.

279. Mr. Hardman also exhibited (at Exhibit MH 11 to his witness statement) the same invoice and breakdown but did not provide any evidence in relation to it. Like Mr. Jamieson, he was also unable to assist in relation to the English proceedings which had confined the claim to 50% of the costs now claimed.

280. Save to the extent outlined above, no evidence was given by any witness on behalf of the plaintiff to explain the make-up of the ACMA invoice. It appears from Mr. Jamieson’s evidence that ACMA bills for time at a fixed daily rate and that, on top of the daily rate, it also bills for variable costs such as fuel. That is consistent with the terms of the ACMA invoice and accompanying breakdown. However, there is no breakdown of the figure of $606,578.05 claimed in respect of fixed charges (i.e. the daily rate). If one divides that sum by the daily rate of $31,647, that would suggest services extending over

19.16 days. That is consistent with the reference at the top of the breakdown document which suggests that there were a total of 19.167 days but that appears to relate not only to repair no. 23 but also repair no. 24. This must be read with the underlying narrative contained in the Orange Marine report. Section 9.1 of that report very helpfully sets out in tabular form the scope of the work undertaken by the Pierre de Fermat from the moment of mobilisation to the time of demobilisation in so far as repair no. 23 is concerned. This shows that mobilisation commenced in Brest at 05:00 on 28 January 2015 and it states that demobilisation occurred in Brest at 01:00hrs on 8th February 2015. That may seem odd in circumstances where the plaintiff maintains that the repairs to the damage alleged to have been done by the MFV Willie Joe were undertaken prior to the repair ship returning to Brest and where Mr. Jamieson said in his witness statement that those repairs were not completed until 13th February 2015. However, that is how Orange Marine have recorded the scope of their work in relation to repair no. 23. The right-hand column of the table shows the cumulative days and hours spent in that period and shows that the cumulative total was 10 days and 20 hours. By my calculation, 20 hours represents

0.83 days. Taking the daily rate of $31,647, that very clearly suggests the maximum amount for fixed charges should be $342,737.01 (i.e. $31,647 x 10.83) in respect of repair no. 23 rather than $606,578.05 as claimed. As the table shows, this includes both transit to Brest (20 hours claimed) and demobilisation (6 hours claimed).

281. I should make clear that I have made these calculations in the course of writing this judgment in an attempt to satisfy myself as to the sustainability of the plaintiff’s claim. These calculations were not made in the course of the hearing where, as I have already indicated, there was no detailed evidence given in relation to the make-up of the cost of repair. The plaintiff simply put the underlying documents in evidence without any additional explanation or detail being given.

282. When it came to closing submissions, counsel for the plaintiff presented the claim in a way that was not prefigured in either the statement of claim or in the particulars furnished in January 2023. Counsel took the figure of 19.167 days as though it had been proven in the course of evidence as the total amount of time spent on the repairs to both sets of damage. Counsel then suggested that the repair ship spent a total of 5 days and 7 hours (or 5.29 days) transiting to, and repairing, the second damage (which they suggested ran from 10:00 am on 7th February 2015 to 17:00 on 12th February 2015). According to counsel, this leaves a total of 13.877 days spent on the repair ship voyage excluding repair of the second damage. They said that this represented 72.4% of the total time spent by the repair ship on both repairs. They then suggested that, on the basis of the daily rate of €31,647, it is possible to calculate the costs associated with repairing the second damage (€31,647 x 5.29 = €167,412.63). They submitted that the appropriate course for the Court to take was to allow the plaintiff 72.4% of each of the elements of its claim and they suggested that, when that was done, the overall reduction of the claim chimed relatively closely with the €180,000 paid by the owners of the MFV Willie Joe under the 2022 settlement agreement. The effect of the reduction, on this basis, would be to reduce the total claim (before interest) to €510,467.14 (after converting the US dollar and sterling sums claimed). Counsel suggested that a similar result would be achieved if one converted the ACMA and Red Penguin invoice amounts to euro and then deducted the settlement amount of €180,000. Counsel said that this would equate to €518,946.00.

283. In oral closing submissions, counsel for the plaintiff also addressed the legal basis for the new way in which the claim was made. He referred to McGregor on Damages at para. 37-04311 to the effect that, where repairs are necessitated to a ship by two separate incidents of damage, the sequence of the casualties becomes important and the loss of profits and dock expenses incurred while the ship is under repair will be properly attributed to the first in time. As I understand it, the result is that, while each party who caused damage to the ship will be liable for the cost of the repairs necessary to address the damage caused by that party, the additional costs that arise from the fact that the ship is out of operation will be for the account of the party who caused the first damage. McGregor refers, in this context, to the observation of Lord Jowitt in Carslogie SS Co. v. Royal Norwegian Government [1952] A.C. 292, at p. 306, that the relevant principle “rightly treats the first wrongdoer who renders the vessel unseaworthy as responsible for the consequent delay, notwithstanding the act of a second wrongdoer who also rendered the ship unseaworthy.” Counsel for the plaintiff submitted that the effect of this principle is that the costs of mobilisation and demobilisation were for the account of the Lida Suzanna and that the MFV Willie Joe was liable solely for the costs incurred during the period while the second area of damage was under repair.

284. Counsel for the defendants vigorously opposed the new approach taken by counsel for the plaintiffs in relation to the quantification of the claim. He highlighted the fact that, in the English proceedings and in the letters before action, the plaintiff had expressly confined itself to 50% of the overall cost of repair. He also referred to the fact that in the Counsel, again, referred to the 17th edition of McGregor on Damages. The principle is now addressed in virtually identical terms in para. 38-045 of the 22nd edition of the work. English proceedings against the owners of the MFV Willie Joe (described in para. 42 above), the claim had likewise been confined to 50% of the overall cost of repair.

285. Counsel for the defendants also strongly argued that, if the plaintiff wished to pursue its claim in the manner addressed in counsel’s submissions, it should have been pleaded in that way and that it should have been the subject of specific evidence. He stressed that neither Mr. Jamieson nor Mr. Hardman were able to answer any questions in relation to the quantification of the plaintiff’s claim. He also drew attention to the lack of any evidence in relation to how the settlement payment of €180,000 by the owners of the MFV Willie Joe was quantified. In the absence of such evidence, he argued that there was no basis for the plaintiff’s contention that the payment was close to the full value of the plaintiff’s claim against that vessel.

286. In my view, counsel for the defendants was justified in many of the complaints which he made. The manner in which the plaintiff addressed the issue of quantum is unsatisfactory. Quite apart from the failure to give proper notice, through the pleadings, of the manner in which the plaintiff proposed to advance its claim, I am very concerned by the fact that no witness was called by the plaintiff who could speak to the detail of the quantification of its claim in this way. That put the defendants in an invidious position in trying to test the plaintiff’s claim through cross-examination. As noted by counsel for the defendants, Mr. Jamieson and Mr. Hardman were unable to answer questions in relation to the losses claimed. The failure to call an appropriate witness has also left me in the position where I have very little evidence in relation to the repairs to the damage alleged to have been caused by the MFV Willie Joe. It appears from Captain Robins’ report that the damage may have been more extensive and more severe than that caused by the Lida Suzanna but his report is in such general terms that it is impossible to know whether that is, in truth, the case. In contrast to the very helpful level of detail in the Orange Marine report in relation to the identification and repair of the damage caused by the Lida Suzanna, there is no equivalent detail in relation to the extent of the second damage or the works required to the repair it or even the duration of those works. While Mr. Jamieson said that the works to repair no. 24 were completed on 13th February 2015, there is no back-up material to substantiate the time spent on those repairs or to allow me to assess them in any meaningful way. The log of the Pierre de Fermat in respect of those repairs was not provided.

287. Thus, even if the pleading issue did not arise, I am not equipped with sufficient evidence to engage in the kind of assessment and division of responsibility which the plaintiff now urges. I cannot form a view as to whether the deduction of costs proposed by the plaintiff is the right approach to take. I do, however, have the benefit of the Orange Marine report in relation to the damage caused by the Lida Suzanna and in relation to the repairs undertaken to the cable as a consequence. I have already drawn attention to section

9.1 of that report which very helpfully identifies the amount of time spent by the Pierre de Fermat on the damage to the cable which is the subject of the claim made in these proceedings. That table can be cross-referenced to the daily log of the Pierre de Fermat which provides a considerable amount of information in relation to each stage of the operation of the repair ship. As I have previously noted, the table in section 9.1 includes both mobilisation and demobilisation costs. While the latter may not have actually been incurred until after the repairs to the second area of damage were completed, the Pierre de Fermat was obviously in a position, on completion of the repairs to the first area of damage, to accurately estimate the time it would take to return to its home port of Brest. The authors of the Orange Marine report plainly prepared it as a standalone report to address the specific circumstances of repair no. 23 (i.e. the repair to the damage caused by the Lida Suzanna). Along with the evidence of Mr. Jamieson and Captain Robins, that report was the basis on which the plaintiff’s evidence was presented at trial in relation to the contemporaneous events of 2015. It is the principal source of detail in relation to the underlying facts relating to the investigation of the damage to the cable caused by the Lida Suzanna. While Captain Robins was able to give some supporting evidence, his reports and his witness statement did not provide the level of detail recorded in the daily log of the Pierre de Fermat. Furthermore, as I have previously mentioned, Captain Robins expressly said that he was unable to comment on the costs of repair.

288. The plaintiff has chosen not to go into evidence to qualify, explain or supplement what is said in section 9.1. of the Orange Marine report. In those circumstances, I do not believe that the plaintiff is entitled to advance a case which is inconsistent with that table. I have already drawn attention to the fact that the table suggests that a total time of 10 days and 20 hours was attributed by the Pierre de Fermat to the repairs to the damage caused by the Lida Suzanna. In my view, the vast bulk of that time is supported by a consideration of the contents of the daily log. However, there is one area where there is insufficient information in the log to fully explain the time recorded in the table. That relates to the time recorded in respect of mobilisation and demobilisation. The table in section 9.1 of the report suggests that 11.5 hours were attributable to mobilisation. When one looks at the detail in the log, it is very difficult to see why so much time was required for this purpose. The log suggests that demobilisation of the previous repair project was completed at 06:00hrs12 on 28th January 2015; that refuelling was completed at 12:30hrs, that victualling and crew change was completed at 17:00hrs and that cast off occurred at 17:35hrs. That adds up to 11.5 hours but there is no explanation for why it took 6.5 hours to refuel the ship or why the crew change and victualling could not have taken place at the same time as the refuelling operation. This is particularly so in circumstances where, It should be noted that the times recorded in the log are based on UTC+1 while the times given in the table in section 9.1 of the report are based on UTC under the ACMA arrangement described by Mr. Jamieson, the repair ship is supposed to be on standby. In the absence of an explanation, I cannot accept that 11.5 hours has been justified in respect of mobilisation. I accept that refuelling was necessary but I have no evidence as to how long it would ordinarily take to refuel a ship such as the Pierre de Fermat. In circumstances where I am left in the dark, all I can do is make what I believe is a fair allowance. In the absence of evidence to support the time claimed, I believe that a period of 4.5 hours should have been sufficient to refuel the ship and allow a crew change and victualling which, in my view, could have been carried out while the refuelling was being undertaken.

289. For obvious reasons, there is no information in the log in relation to the period of 6 hours shown in the table for demobilisation on 7th and 8th February 2015. That was clearly an estimate. Again, I have no information to explain why such a period was required. I am again left in the dark and, doing the best I can, I believe that it would be appropriate to allow a period of 2 hours for demobilisation. As a result of the adjustments made by me in respect of mobilisation and demobilisation, I am of the view that I should deduct

11 hours from the cumulative time shown in the table in section 9.1 of the Orange Marine report. I am satisfied that the balance of the time recorded in that table is supported by the information in the log. On that basis, I accept that the Pierre de Fermat spent 10 days and

9 hours on the repair of the damage done by the Lida Suzanna. No one has suggested that the daily rate of US$31,647 is unreasonable. That equates to US$316,470 for a 10 day period. By my calculations, 9 hours equates to 37.5% of one day. This adds a further US$11,867.62 to the total in respect of the fixed charges making in the aggregate, US$328,337.62.

290. In addition to the fixed charges represented by the daily rate, the ACMA invoice also adds US$126,002.04 for fuel and US$2,102.40 for lube and US$24,337.25 for port charges. I can well understand the charges for fuel and lube. However, the port charges are unexplained and I can find nothing in the Orange Marine report to account for them. The Pierre de Fermat was briefly docked at Brest for refuelling, reprovisioning and a crew change and was also briefly docked at Portsmouth to take on cabling equipment. It is not self-evident that a vessel the size of the Pierre de Fermat would incur port charges of that magnitude in the brief period the ship was docked in port on those occasions and I have a concern that this may well relate to the port charges due in respect of a longer period which is unconnected with the repairs in issue. In the absence of evidence to support this charge, I cannot allow it.

291. With regard to the fuel and lube charges, they plainly relate to the entire of the repair work done by the Pierre de Fermat. They are not all attributable to the work relating to the damage caused by the Lida Suzanna. The defendants are liable only for the period of 10.375 days. The balance of the 19.167 day period is not for the account of the defendants. By my calculation, 10.375 days represents 54% of the total 19.167 period. On that basis, the plaintiff is entitled to recover 54% of the amounts claimed in respect of fuel and lube. In the case of the fuel claim, that amounts to US$68,041.10. In the case of the lube claim, that amounts to US$1,135.30.

The quantum fixed by the Court

292. Accordingly, the plaintiff is entitled to recover from the defendants the sum of US$328,337.62 in respect of the time charges, US$68,041.10 in respect of the fuel charges and US$1,135.30 in respect of the lube, making in the aggregate the sum of US$397,514.02. In addition, for the reasons outlined in para. 277 above, the plaintiff is entitled to recover the sum of £9,000.00 in respect of the fees of Red Penguin Associates. There will be judgment for the plaintiff against the defendants for the aggregate of the euro equivalent of the sums of US$397,514.02 and £9,000.00.

The claim to interest under s. 22 of the Courts Act 1981

293. The plaintiff also seeks interest under s. 22 of the Courts Act 1981 (“the 1981 Act”). That section allows the Court to award interest at 2% in respect of the whole or any part of the period between the date of accrual of the cause of action and the date of judgment. The applicable principles were addressed by the Supreme Court in Reaney v. Interlink Ireland Ld. [2022] 1 I.R. 213. In his judgment in that case, O’Donnell J. (as he then was) held that interest should be awarded by the Court where the Court concludes that the amount of its award is clear-cut and where the Court is satisfied that the amount could, and should, have been paid at an earlier time, Conversely, where a claim is difficult and requires assessment and determination, it may not be appropriate to award interest. Even in cases where such difficulty is absent, it may still be appropriate for the Court to take account of factors such as delay in pursuing the claim.

294. In my view, it would be wholly inappropriate to award interest in this case. This was not a clear cut case either in respect of liability or quantum. By the conduct of its sister company, Virgin Media Limited, there was an obvious issue in relation to the plaintiff’s title to sue. That company had gone so far as to obtain judgment in its name in the English proceedings for a substantially smaller sum than the completely unparticularised claim for a round sum of €800,000 claimed in these proceedings. The particulars furnished in January 2023 did nothing to explain how the defendants were said to be liable for the whole of the amounts claimed in the ACMA or Red Penguin invoices. In addition, the plaintiff was extraordinarily dilatory in its pursuit of the claim. The proceedings were commenced on 2nd November 2018 which was more than 3 years after the damage was sustained. The statement of claim was not delivered until 1st March 2019 and no real effort was made to progress the proceedings after that date. The plaintiff did not even seek to have the proceedings entered into the Admiralty List until some time after February 2021. Even after the case was entered in the Admiralty List, there were frequent, and often lengthy, adjournments of the directions hearings. While responsibility for the slow pace of the proceedings within the Admiralty List rests with both parties, the plaintiff could have injected greater urgency into the progress of the proceedings. As plaintiff, it was in the driving seat. Its failure to progress the proceedings with expedition is an added reason why it would be inappropriate to award interest under s. 22 of the 1981 Act. For all of the above reasons, I refuse the application for an award of interest.

Conclusion

295. For the reasons outlined in this judgment, I have come to the conclusion that the plaintiff is the owner of the cable and that the damage to the cable that was sustained in the period around 11:41hrs on 26th January 2015 was caused by the Lida Suzanna. I have also come to the conclusion that the defendants were negligent and in breach of their duty of care by dredging over the cable and that the Lida Suzanna ought have hauled its gear before crossing the cable. As a consequence, the plaintiff is entitled to recover from the defendants the costs of repairing the damage to the cable which I have assessed in the sum of $397,514.02 together with the additional sum of £9,000. There will be judgment against the defendants in favour of the plaintiff for the euro equivalent of those sums but I refuse to award interest to the plaintiff under s. 22 of the 1981 Act.

296. Prior to the delivery of this judgment, the matter was to be listed for mention before me on 8th October 2025 at 10:15 a.m. for an update on progress of this judgment. I will leave the matter in the list for that time on that day with a view to fixing any directions that may be necessary to address the costs of the proceedings. In the meantime, I direct the parties to liaise with each other to agree the euro amount for which judgment is to be given and to discuss the issue of costs. In the event that the issue of costs has not been agreed by noon on 7th October 2025, I direct the parties to submit their proposed directions to deal with the issue of costs not later than 4:30 pm on that day, such proposals to be furnished by email to the Court.