Paragraph 180 Expenses and costs
Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any specified works, any damage is caused to any apparatus or alternative 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 EPN, or there is any interruption in any service provided, or in the supply of any goods, by EPN, the undertaker must—
bear and pay the cost reasonably and properly incurred by EPN in making good such damage or restoring the supply; and
indemnify EPN against any other losses, expenses, demands, proceedings, damages, claims, penalty or costs properly incurred by or recovered from EPN, by reason or in consequence of any such damage or interruption or EPN becoming liable to any third party as aforesaid other than arising from any default of EPN.
The fact that any act or thing may have been done by EPN on behalf of the undertaker or in accordance with a plan approved by EPN or in accordance with any requirement of EPN or under its supervision will not, subject to sub-paragraph (3), excuse the undertaker from liability under the provisions of sub-paragraph (1), unless EPN fails to carry out and execute the works properly with due care and attention and in a skilful and workman like manner or in a manner that does not accord with the approved plan agreed by EPN in accordance with paragraph 176(4) and paragraph 178(3).
Nothing in sub-paragraph (1) will impose any liability on the undertaker in respect of—
any damage or interruption to the extent that it is attributable to the neglect or default of EPN, its officers, servants, contractors or agents;
any part of the specified works carried out by EPN in the exercise of any functions conferred by this Order pursuant to a transfer or grant under article 5 (benefit of the Order); or
any indirect or consequential loss of any third party (including but not limited to loss of use, revenue, profit, contract, production, increased cost of working) arising from any such damage or interruption, which is not reasonably foreseeable.
EPN must give the undertaker reasonable notice of any such third party claim or demand and no settlement, admission of liability or compromise must be made without the consent of the undertaker and, if such consent is withheld, the undertaker will have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
EPN must, in respect of any matter covered by the indemnity given by the undertaker in this paragraph, at all times act reasonably and in the same manner as it would as if settling third party claims on its own behalf from its own funds.
EPN must use its reasonable endeavours to mitigate in whole or in part and to minimise any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph applies and if reasonably requested to do so by the undertaker EPN must provide an explanation of how the claim has been minimised.