Paragraph 108 CostsI1

Subject to sub-paragraphs (2) and (4), if for any reason or in consequence of the construction maintenance or failure of any of authorised development by or on behalf of the undertaker or of any of the works referred to in this Part of this Schedule or in consequence of any act or default of the undertaker (or any person employed or authorised by it) in the course of carrying out such works, or by reason of any subsidence resulting from such development or works, any damage is caused to any apparatus (other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works) or property of ESW, or there is any interruption in any service provided, or of any access to any apparatus, or in the supply of any goods, or services, by ESW or the performance of ESW’s functions, or any disruption to the normal operation of ESW’s apparatus resulting in an increase in the costs incurred by ESW in performing it’s functions or in any loss, damages or penalty or fines, or ESW becoming liable to pay any amount to any third party, the undertaker must—

by reason or in consequence of any such damage or interruption or disruption or ESW becoming liable to pay any third party aforesaid.

The fact that any act or thing may have been done by ESW on behalf of the undertaker or in accordance with a plan approved by ESW or in accordance with any requirement of ESW or under its supervision does not, subject to sub-paragraph (3), excuse the undertaker from liability under the provisions of sub-paragraph (1).

Nothing in sub-paragraph (1) imposes any liability on the undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of ESW, its officers, servants, contractors or agents.

ESW must give the undertaker reasonable notice of any such claim or demand and no settlement or compromise is to be made without the consent of the undertaker which will not be unreasonably withheld or delayed by the undertaker and which, if the undertaker withholds such consent, has the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.