The claimant, Thames Water, sought to recover its full costs of work carried out on a sewer necessitated by the construction of the Jubilee Line by the defendant, London Underground. London Underground contended it was only liable for 82% of the expense incurred by Thames Water as the work to the sewer was protective not remedial and that therefore it fell within s84 and s85 of the New Roads and Street Works Act 1991, which made provision for the cost of major work to be shared, and not s29 of the London Underground Act 1992 and s22 London Underground (Jubilee) Act 1993, which required, by incorporation of s13 of the London Transport Act 1976, that one undertaker pay the totality of the costs where another undertaker’s apparatus was interfered with.
The parties agreed to refer to the court the preliminary issue of whether the enactment of s101 of the 1991 Act displaced the effect of the express incorporation of s13 of the 1976 Act into the 1992 and 1993 Acts, on the basis that if the court decided it in Thames Water’s favour, it would be irrelevant whether the works were protective or remedial in nature.