27.—(1) Subject to sub-paragraphs (2) and (3), if by reason or in consequence of the construction of any works authorised by this Part of this Schedule or in consequence of the construction, use, maintenance or failure of any of the authorised development by or on behalf of TfL or in consequence of any act or default of TfL (or any person employed or authorised by him) in the course of carrying out such works (including without limitation works carried out by TfL under this Part of this Schedule or any subsidence resulting from any of these works), any material 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 National Grid, or there is any interruption in any service provided, or in the supply of any goods, by National Grid, or National Grid becomes liable to pay any amount to any third party, TfL must—
(a)bear and pay on demand the cost reasonably incurred by National Grid in making good such damage or restoring the supply; and
(b)indemnify National Grid for any other expenses, loss, demands, proceedings, damages, claims, penalty or costs incurred by or recovered from National Grid, by reason or in consequence of any such damage or interruption or National Grid becoming liable to any third party.
(2) The fact that any act or thing may have been done by National Grid on behalf of TfL or in accordance with a plan approved by National Grid or in accordance with any requirement of National Grid as a consequence of the authorised development or under its supervision does not (unless sub-paragraph (3) applies) excuse TfL from liability under the provisions of sub-paragraph (1) unless National Grid fails to carry out and execute the works properly with due care and attention and in a skilful and professional manner or in a manner that does not materially accord with the approved plan or as otherwise agreed between TfL and National Grid.
(3) Nothing in sub-paragraph (1) imposes any liability on TfL in respect of—
(a)any damage or interruption to the extent that it is attributable to the neglect or default of National Grid, its officers, servants, contractors or agents; and
(b)any authorised development or works authorised by this Part of this Schedule carried out by National Grid as an assignee, transferee or lessee of TfL with the benefit of this Order pursuant to section 156 (benefit of order granting development consent) of the 2008 Act or under article 59 (transfer of benefit of order, etc.) of this Order subject to the proviso that once such works become apparatus (“new apparatus”), any works yet to be executed and not falling within this sub-paragraph are subject to the full terms of this Part of this Schedule including this paragraph 27 in respect of such new apparatus.
(4) National Grid must give TfL reasonable notice of any such claim or demand and no settlement or compromise is to be made without National Grid first consulting TfL and considering their representations.
(5) National Grid 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 27 applies. If requested to do so by TfL, National Grid must provide an explanation of how the claim has been minimised. TfL is only liable under this paragraph 27 for claims reasonably incurred by National Grid.