HT-2022-000255 - [2025] EWHC 1434 (TCC)

The alleged breaches fall into three categories:

Drawing on the narrative above, I propose first to deal with the relevant findings of fact. Insofar as necessary I will then turn to the contractual provisions, identifying the scope of the relevant obligations and then address the question of whether ABM has established any relevant breach.

The first breach alleged is that Matière undermined the Scunthorpe factory in a number of different ways and over time. ABM alleges that, throughout 2019 and 2020, Matière continuously expressed criticisms of the Scunthorpe factory to EKJV and suggested that on-site casting would be more cost effective. It alleges that Matière suggested to EKJV that transport costs for the Scunthorpe factory were too high, such that on-site casting should be considered. It says that Matière actively searched for alternative production sites in February and March 2020 and presented such options to EKJV. ABM complains that Matière continued to raise concerns about Scunthorpe without ABM being present, leading to EKJV expressing concern about a divide within the JV over the factory. The call between Mr Lowery and M.Matière which is said to have occurred on or around 3 July 2020 is relied on. Disunity within the ABM/Matière JV, particularly in respect of the Scunthorpe factory, was identified by EKJV in the Summer of 2020. All of these matters are said to be a breach of the duty of good faith.

In a nutshell, Matière’s defence is that it was representatives of EKJV who expressed concerns to Matière about the proposal to build a factory at Scunthorpe, not the other way around. Whilst Matière liaised with Mr Lowery, any significant information resulting from that was passed on to Mr Minihane. Matière also raised its own concerns about Scunthorpe directly with ABM. Matière would have been content with Scunthorpe had it been acceptable to the JV. Matière submits that the duty of good faith which it owed to ABM did not mean it was prevented from raising any criticisms or concerns as to the other’s approach. It suggests that ABM’s position appeared to be that each party was required to subordinate its own view to the view of the other.

I agree that, quite often, representatives of EKJV expressed concerns about the Scunthorpe factory. I also agree that Matière expressed its own concerns directly to ABM. I am also satisfied that, by riding both horses as it continued to do, Matière would ultimately have been content with a factory at Scunthorpe if it had been acceptable to EKJV.

But, I also find that Matière deliberately undermined the choice of the Scunthorpe factory to EKJV. It did so by criticising its suitability and by commenting on matters such as the additional transport costs that would be incurred by using Scunthorpe. These criticisms were made directly to representatives of EKJV. It is no answer (on breach) that these may have been responses to the same or similar points being made by EKJV itself. It would not have been wrong for Matière to look at alternative options jointly with ABM and present agreed outcomes, even ones critical of Scunthorpe, in respect of those investigations. But it was wrong to directly criticise the Scunthorpe factory to EKJV without speaking jointly on behalf of ABM/Matière. Matière also undermined the use of Scunthorpe by looking at alternative production sites and other providers and presenting those options to EKJV. One of the most egregious examples was the investigation into using Pacadar, which began in March 2020, using an alternative approach to a permanent factory at Scunthorpe. This formed part of Plan C, the whole of which was contrary to the interests of the ABM/Matière JV. Another was providing assistance to EKJV in May 2020 by giving them cost information which could be passed to Stanton Bonna. The fact, if it be so, that EKJV could have found this information for itself is not the point. It was an action which undermined the object of the JV. Another example was M.Vignon’s request of EKJV to identify other sites. M.Vignon admitted that on occasions he was working against the interests of the JV.

On the other hand, I am not satisfied that M.Matière specifically said to Mr Lowery that which ABM contends on or around 3 or 13 July 2020. I agree that the different views held by ABM and Matière respectively about the merits of the Scunthorpe proposal would, to a degree, have created an impression of disunity in the minds of EKJV but that is really a consequence of the different views that ABM and Matière held, and EKJV’s knowledge of those views, rather than an independent ground of complaint.

These actions went much further than the mere expression of criticism or concern by Matière of ABM’s approach. Nor do my conclusions proceed on the premise that Matière was required to subordinate its views to those held by ABM. It was required to discuss the position with ABM, not EKJV.

I must now consider whether those matters which I have found proven are breaches of Clause 3 of the Consortium Contract, properly construed.

The first task is one of construction, in order to establish the scope and extent of the good faith obligation. I do that having regard to the general principles identified earlier. In this case, the good faith obligation in Clause 3 is quite self-explanatory. It arises during and attaches to the entire performance of obligations under the PSC. It sits alongside the obligation to use reasonable endeavours to forward the interests of the co-operative enterprise. The co-operative enterprise is also the undertaking of the duties of the Consultant under the PSC. As I have earlier concluded, the obligations under the PSC constituted the provision of specialist knowledge in preparing Stage Two Proposals which included the preparation of the joint bid by ABM/Matière. On behalf of ABM, Mr Streatfeild-James KC laid emphasis on the point (which he said applied to both agreements) that the proposed bid was a single offer by the two parties. He pointed out that the contract did not contemplate a split offer but was, instead, intended to be a joint proposal being produced for EKJV jointly. He submitted that informed the nature and scope of the obligation. I agree.

I am satisfied that Clause 3.1 contained a requirement that each of ABM and Matière would act honestly with each other and would not conduct themselves in a manner which would be regarded as commercially unacceptable to reasonable and honest people. I am also satisfied that this is a contract in which the obligation includes keeping fidelity to the bargain. That is because the common purpose and aim of the parties is apparent from the other terms of the contract, namely the requirement to submit a joint bid to EKJV that formed part of the overall Services and which complied with the terms of the PSC. A joint bid is one on which ABM and Matière are agreed. ABM and Matière expressly agreed to act in good faith with each other in the fulfilment of that purpose and aim.

On behalf of Matière, Mr Lewis KC submitted that the review of alternatives to a permanent factory in Scunthorpe was part of the evaluation exercise being undertaken and, in those circumstances, was part and parcel of the co-operative enterprise. By way of example, as I have found, it was EKJV who initially asked for a review of alternatives sites in February 2020. He says it cannot have been a breach of the Consortium Agreement for Matière to have explored alternative options, not least because ABM itself also co-operated in doing so when asked. This point is expressed in a number of different ways but the theme of it remained constant. Mr Lewis KC said it followed from this that the mere fact that part of that review was being done without ABM’s involvement did not mean that it suddenly offended the co-operative enterprise. I do not accept these points because they do not face up to the detail of what actually happened. I quite accept that it would have been proper for ABM/Matière to jointly investigate other sites than Scunthorpe, including temporary ones, as part of the common endeavour to find the most appropriate bid to be jointly submitted to EKJV. But it was not proper for Matière to go it alone in respect of those lines of enquiry without ABM’s knowledge or input. Moreover, it was never part of the co-operative enterprise that the use of alternative sites should be considered in the context of ABM not being employed at all. As Mr Streatfeild-James KC submitted, this was not just a general chat between Matière and EKJV about alternatives. It included consideration of reducing ABM’s scope (Plan B) and then excluding ABM from the joint venture entirely (Plan C) both of which, on any view, offended the co-operative enterprise. The actions which Matière undertook stood in the way of, and did not promote, the ability of the ABM/Matière JV to submit a joint bid. M.Vignon was clear in his acceptance that the steps he took, at EKJV’s behest, worked against the interests of the ABM/Matière JV.

In evidence, M.Matière suggested that the gathering of information about alternatives was only done secretly by Matière for an initial period, with the intention that it later be shared with ABM. I reject that evidence. It found no support in M.Vignon’s evidence. Nor was the information in fact shared.

Matière’s submission that it was not in breach of its good faith obligation includes reliance on those emails which it sent to ABM, emphasising the need to work together in the face of EKJV’s concerns. The email of 14 April 2020 is an example of that. Mr Lewis KC said this showed Matière being motivated to work with ABM, by suggesting a reduction in the price for the benefit of their joint venture. I do not accept this submission. As I have said, Matière was riding both horses. The fact it was prepared to work with ABM does not mean that it was not also prepared to take steps, in breach of its good faith obligation, to work solely with EKJV.

I am satisfied that Matière’s actions described above constitute a breach or breaches of the good faith obligation in Clause 3.1. I reach that conclusion because Matière’s conduct viz a viz ABM in respect of the undermining of Scunthorpe was, on occasions, either dishonest or was of a type that would be regarded as commercially unacceptable to reasonable and honest people. I would also find that Matière did not keep fidelity to the bargain it made with ABM and that its actions had the potential to render that bargain worthless or significantly less valuable. For the reasons given, I uphold the general complaint that Matière undermined the Scunthorpe factory. It is not necessary for me to expressly address each specific paragraph in the Amended Defence and Counterclaim although, as set out above, I do not find the specific facts alleged in paragraph 33 to have been proven.

I must also now consider whether those same matters which I have found proven are also breaches of Clauses 3.1 to 3.3 of the Collaboration Agreement. Since this Agreement was only effective from 23 June 2020, I must disregard any allegations of breach which pre-date that. Since the decision by EKJV to terminate was, effectively, taken at the board meeting on 19 August 2020, it is only potential breaches between those dates which could ever be material. The narrative above includes events within that window, including particularly the discussions between Matière and EKJV in early August about EKJV working with Matière alone.

Matière submitted that, on a proper construction of the Collaboration Agreement, there was no obligation on the part of ABM and Matière to advance offers that had within them a factory proposal for a permanent factory in Scunthorpe. This submission was pursued on the basis that the definition of Main Sub-Contract drew a distinction between the Production Elements to be provided by ABM and the Installation Elements to be provided by Matière. In respect of the former, the definition referred only to the construction of a factory but not where it was to be located or whether it was permanent or temporary. In response, ABM pointed out that the definition of Project envisaged the provision of a joint offer, even though it related both to the Production Elements and the Installation Elements. I agree with that and reject Matière’s submission. The requirements in Clause 3 attached to the factory at Scunthorpe because that had been the subject of the joint offers (thereby rendering it part of the Project in that context). It is not a matter of interpretation flowing from the definition of Main Sub-Contract (or Production Elements in particular) but results from an application of the facts to the other provisions, including the Project as defined.

Clause 3.1 obliged Matière to collaborate with ABM in relation to the Project. The definition of the Project was broad and included the putting forward of a joint offer to EKJV for the award of the Main Subcontract. I am satisfied that, by conducting itself in the manner identified above, Matière was not collaborating with ABM in relation to the Project. By Clause 3.2, Matière agreed it would not, directly or indirectly, pursue any opportunity or make any communication with EKJV in relation to the Project or its subject matter save in accordance with the Agreement. I am satisfied that, by conducting itself in the manner identified above, Matière was in breach of this provision because the Agreement did not contemplate private exchanges with EKJV of the type which occurred. In each case, the provisions are bolstered by the requirement for good faith, in Clause 3.3, which attaches to the obligations in Clauses 3.2 and 3.3.

Once again, I am satisfied that Clause 3.3 contained a requirement that each of ABM and Matière would act honestly with each other and would not conduct themselves in a manner which would be regarded as commercially unacceptable to reasonable and honest people. I am also satisfied that this is a contract in which the obligation includes keeping fidelity to the bargain. That is because the common purpose and aim of the parties is apparent from the other terms of the contract, namely the entering into the Main Subcontract as a consortium, and the wide definition of the Project. The parties agreed, as part of this, to submit a joint bid which was one upon which they were both agreed.

I am satisfied that Matière’s actions described above constitute a breach or breaches of the good faith obligation in Clause 3.3 in the respects earlier identified. I reach that conclusion because Matière’s conduct viz a viz ABM in respect of the undermining of Scunthorpe was, on occasions, either dishonest or was of a type that would be regarded as commercially unacceptable to reasonable and honest people. I would also find that Matière did not keep fidelity to the bargain it made with ABM and that its actions had the potential to render that bargain worthless or significantly less valuable.

In summary, Matière was in breach of its good faith obligations under both contracts.

Although Stanton Bonna has featured very heavily in the narrative, the particular breach of the Consortium Agreement alleged by ABM in respect of their involvement is actually quite narrow and specific. In particular, it is pleaded that in or around late 2019 or early 2020, Matière gave a slide presentation to Stanton Bonna, setting out ABM and Matière’s role and plans in relation to the Green Tunnels Project. ABM points out, correctly, that Stanton Bonna was a key competitor of ABM and was ultimately engaged by EKJV for the production of the concrete elements for the Green Tunnels.

The basis for this plea was evidence in Mr Buckley’s witness statement. He said that, on his first trip to EKJV’s office in late 2019 (not early 2020 as pleaded in the alternative), he met M.Vignon who verbally admitted that he had been asked by Alain Villaret to do a presentation for Stanton Bonna, saying that Matière showed Stanton Bonna everything in relation to the Project including costs. In oral evidence, Mr Buckley stood by what he had said and added that the meeting to which he referred, when the alleged admission was made, took place on 6 November 2019. Mr Buckley says his reaction to this admission was limited as he was new to the Project and the relationships within it. When Mr Buckley’s written evidence was put to M.Vignon he completely denied it and said it was impossible. M.Vignon suggested Mr Buckley might have misunderstood what he said. He said that because the idea of Stanton Bonna being a replacement for ABM did not occur until later, in 2020.

Matière and ABM had met Stanton Bonna much earlier, as Mr Buckley accepted. M.Vignon could not recall how far back this was but Mr Buckley agreed it was in 2018. That was also Mr Minihane’s evidence. It seems this was at a time when a tri-partite arrangement was in contemplation whereby the pre-casting element was to be shared between ABM and Stanton Bonna. Mr Minihane explained that ABM had been asked by EKJV to review bringing in a third party to help with the bid for the Green Tunnels Project. There was one tri-partite meeting at which Mr Minihane attended. Mr Buckley also accepted that Mr Sanderson had been in attendance at those meetings with Matière and Stanton Bonna but, according to Mr Minihane, he and Mr Sanderson attended a separate meeting with Stanton Bonna. At all events, by August 2018, Stanton Bonna had said they were not going to commit. It therefore seems probable that there was at least one meeting with ABM, Matière and Stanton Bonna in 2018. At that time, there may also have been one meeting without ABM and another one without Matière. However, there was no question of Matière having revealed anything at those meetings which it ought not to have done, as ABM was not then in competition with Stanton Bonna. Stanton Bonna was shown some pricing information in the context of this joint arrangement and signed non-disclosure agreements with each of Matière and ABM.

If Stanton Bonna was mentioned by M.Vignon at all to Mr Buckley in November 2019, the most likely explanation is that he was referring to those discussions which took place in 2018. I do not accept Mr Buckley’s evidence about M.Vignon’s admission that, in 2019, he had showed Stanton Bonna everything, including costs, and prefer the evidence of M.Vignon. I did not find Mr Buckley to be a convincing witness on this topic but it is also notable that Mr Sanderson, who was said to have been present at the time of this exchange in November 2019, said nothing about it in his witness statement. Nor was there any subsequent email exchange or other communication within ABM suggesting that M.Vignon’s ‘admission’ had been a revelation of something which should not have occurred. I therefore reject this particular of breach on the facts. There was no separate presentation by Matière to Stanton Bonna in 2019 at which Stanton Bonna was shown everything relating to the project including costs. Nor did M.Vignon so admit.

I make a further point in relation to this issue. It became apparent during Mr Buckley’s cross examination that the significance of this issue to ABM had been overblown. Mr Buckley said that, at the time of this supposed admission, he was not worried about what he heard. It was only “low level revelation” and “a minor beef”. It follows that, even if this breach had been established, it would not have played any significant role in causal terms.

In any event, I dismiss the claim for the breach pleaded at paragraphs 36 and 37 of the Amended Defence and Counterclaim since ABM has not established the facts on which it was based.

ABM says that, shortly after termination of the 2019 Professional Services Appointment, Matière entered into a new agreement with EKJV to continue the same work as that which had been terminated. I have found that to be the case since I rejected Matière’s evidence that it related to different work. The agreement was concluded with effect from 26 October 2020, the date it bears, even if it was only signed in June 2021.

ABM also says that Matière subsequently entered into a subcontract with EKJV, but without ABM, for the installation works relating to the Green Tunnels Project. In fact, the entity which contracted with EKJV was Matière UK Ltd. Other than that, the plea is factually correct. The agreement was concluded on 29 November 2021.

It is important to note that neither of these actions is said to be a breach of the Consortium Agreement. Instead, breach of Clause 3.2 of the Collaboration Agreement is pleaded: see paragraph 38 of the Amended Defence and Counterclaim.

Moreover, these two breaches are not said to give rise to any claim for damages for loss of a chance: see paragraph 39 of the Amended Defence and Counterclaim. Instead, they form the basis of ABM’s separate claim for an account of the profits made by Matière’s entry into the subcontract for the installation works with EKJV: see paragraph 40 of the Amended Defence and Counterclaim.

I accept that Clause 3.2 of the Collaboration Agreement precluded Matière (directly or indirectly) from entering into any contract or engagement in relation to the Project or its subject matter for so long as the Collaboration Agreement remained in force. I would also accept that entering into the two agreements would, prima facie, breach that obligation if the Collaboration Agreement was still in force. Matière’s central defence to the alleged breach is that it was not. It contends that the whole Collaboration Agreement terminated pursuant to Clauses 2.2, 23.1.1 and/or Clause 23.1.3. Alternatively, it says that each of ABM’s and Matière’s obligations under Clause 3.2 of the Collaboration Agreement terminated. Its case is that the underlying basis for the Collaboration Agreement had fallen away.

Mr Minihane did not accept that the Collaboration Agreement was officially terminated upon receipt of the termination letter. He said he believed that Matière was still bound to ABM beyond that point. He is correct to an extent. Clause 24.1 identifies those provisions which survived termination, which include payment, but notably they did not include Clause 3.

ABM submits that Matière’s termination argument ignores the reality of the position. It argues that for some time M.Matière had intended for Matière to work with EKJV, without ABM. In particular, from at least July 2020, M.Matière explored with EKJV the means of escape from their contractual arrangements with ABM. On ABM’s case, it would be an absurd construction of the Collaboration Agreement to hold that Matière was not in breach by entering into a new Agreement with EKJV in such circumstances.

In my judgment, Matière’s position is the correct one. I agree that, in substance, if not in form, the basis for the Collaboration Agreement had completely fallen away once the letter of termination had been issued. Within the termination provision in the Collaboration Agreement, ABM and Matière had defined the termination criteria reflecting that the substance and purpose of the agreement had fallen away. Those criteria depended on a decision by EKJV to withdraw, or not make, any offer and/or to confirm that no award would be made. In each case, those were EKJV’s decisions to reach, not Matière. The letter of termination was confirmation that the Main Subcontract would not be awarded to the Consortium of ABM/Matière. It was also obvious that the Main Subcontract was never going to be awarded to the Consortium. As Matière submits, it was no longer possible for ABM/Matière JV to negotiate with EKJV from this point. In those circumstances, I agree that a right to terminate accrued pursuant to Clause 23.1.1 and Clause 23.1.3. I would not accept that Clause 2 applies.

ABM’s grievance is that it was Matière who helped to bring about the decision made by EKJV. But the fact remains that it was EKJV that took the decision, as only it could, and that brought Clause 23 into operation. ABM did not plead or develop any principle of construction that Matière was not entitled to rely on the time limiting provision in Clause 3.2 (“for so long as this Agreement remains in force”) where, on its case, it was Matière that had helped to bring EKJV’s termination about. In such a case, proof of causation would have been difficult as I am satisfied that EKJV would had reached its own view on termination irrespective.

All that was strictly required to complete contractual termination of the Collaboration Agreement was the giving of written notice by Matière to ABM: see Clause 23.1. In the circumstances, fulfilment of that requirement was both unnecessary and a mere formality. That both ABM and Matière were of one mind that their joint involvement in the Green Tunnels Project was over is clear from the fact that they (through ABM) provided a Final Account Submission to EKJV on 27 May 2021. ABM did not develop a responsive claim that the Collaboration Agreement was not lawfully terminated for want of written notice. In any event, damages would only ever be awarded to ABM on the basis that Matière could have issued a written notice of termination. The claim for an account would have to take that same approach into consideration.

In all those circumstances, I conclude that Matière was not in breach of Clause 3.2 of the Collaboration Agreement because that provision was no longer effective from the date on which the termination letter from EKJV was received. It follows that it was not a breach of the Collaboration Agreement to have entered into the agreements dated 26 October 2020 and 29 November 2021.

In those circumstances, I dismiss the claim for breach pleaded at paragraph 38 of the Amended Defence and Counterclaim. The claim for the account accordingly fails.

In any event, I would observe that it is difficult to see how entering into a new PSC, which is the subject matter of ABM’s first complaint, could ever have given rise to a claim for an account of profits made under the NEC3 contract, which is the subject matter of ABM’s second complaint.

It is not necessary for me to address the question of whether it makes any difference that it was Matière UK Ltd, rather than Matière, which entered into the NEC3 Contract.

I must now return to those breaches of both the Consortium Agreement and of the Collaboration Agreement which I have upheld, namely the undermining by Matière of the Scunthorpe factory in various ways, and determine the question of causation in relation to them.

The first point to identify is the nature of the loss claimed because, until that has been properly characterised, it is not possible to test whether Matière has caused that loss. Here, there is common ground between the parties as to what is claimed. ABM’s case is that Matière’s breaches have caused a loss of the chance to win the bid for the Green Tunnels Project. ABM does not claim that Matière caused the loss of the bid itself. Nor does it need to show this in order to prove its claim. It is common ground that the law recognises the loss of a chance as a head of loss which is, in principle, recoverable. That is so where the outcome is one which depends upon what others would have done: in this case EKJV.

As expressed in McGregor on Damages, 22^nd edition at 11-049:

“Losses of a chance appearing in the process of quantification do not fall within the loss of a chance doctrine. Loss of a chance proper, as it may be termed, has a more limited field. It comes in before we get to quantification; indeed it comes in at the causation stage. How is this? It is because there are situations where the law has recognised, and has treated, the loss of a chance as a form of loss, an identifiable head of loss in itself. To take Lord Hoffmann’s way of putting it in Barker v Corus (UK) Ltd “the law treats the loss of a chance of a favourable outcome as compensatable damage in itself”. Causation is then established by showing that the claimant has lost the chance. This is shown on the balance of probabilities. This then makes for three stages in the enquiry: first, it must be ascertained whether loss of a chance is recognised as a head of damage or loss in itself; secondly, it must be shown that on the balance of probabilities the claimant has lost the particular chance; thirdly, the lost chance must be quantified and the quantification is expressed in percentages and proportions.”

In this context, the parties between them appropriately cited Spring v Guardian Assurance plc [1994] 3 WLR 354, Allied Maples Group Ltd v Simmons & Simmons [1995] WLR 1602; Gregg v Scott [2005] UKHL 2 and Perry v Raleys Solicitors [2020] AC 352. It is unnecessary to analyse these cases in detail but I cite Lord Nicholls from Gregg v Scott in which he said at [17]:

“In adopting this approach the law does not depart from the principle that the claimant must prove actionable damage on the balance of probability. The law adheres to this principle but defines actionable damage in different, more appropriate terms. The law treats the claimant’s loss of his opportunity or chance as actionable damage. The claimant must prove this loss on balance of probability. The court will then measure this loss as best it may.”

Beyond the common ground, the approach that each party submitted should be followed in the present case was different. Matière identified three principles:

Beyond that, Matière added reliance on the following two authorities. In Wellesley Partners LLP v Withers LLP [2016] Ch 529, Floyd LJ said at [99]:

“All the claimant has to show in such cases is that the chance is a real or substantial one. Having done so he must still show on a balance of probabilities that the defendant’s act has caused the loss of the chance.”

If the court is not satisfied on a balance of probabilities that the loss of chance was caused by the alleged breach, the assessment of loss of chance becomes irrelevant. Matière cited Pill LJ in BCCI v Ali (No.3) [2002] All ER 750 at [25]:

“Upon the judge’s findings, to which it will be necessary to refer in some detail, he was not obliged to assess the loss of a chance: he found on the evidence that stigma played no part in the failure to obtain employment. Had there been evidence in Kitchen that that claim against the original wrongdoer had no chance of success or in Allied Maples that the vendor would in no circumstances have renegotiated, the judges in those cases need not have applied the loss of a chance principle as they did.”

Applying those principles, Matière submits that, if found to be in breach in respect of the undermining of the Scunthorpe factory, the Court should find that it was EKJV who had concerns about it and who raised it. Those concerns were not caused by Matière but came from within EKJV. EKJV required options to be explored of its own volition. Matière adds that there were other significant multi-faceted issues than the Scunthorpe factory that had been raised by EKJV which remained unresolved, as identified in the letter of termination, including the JV structure, concerns about performance following the fire testing and events at Luton, and the funding of the factory proposal. Taking causation as a whole, EKJV decided it did not want to proceed with ABM because of its perception of ABM and its own preference for Stanton Bonna. The likelihood is that ABM was perceived negatively within EKJV and, increasingly so throughout 2020, for reasons for which Matière was not responsible.

Adopting its three stage analysis set out above, Matière suggests that if the Court were to conclude that Matière’s breaches were not causative of EKJV’s decision to terminate the relationship, the substantiality or otherwise of the chance becomes irrelevant and the Court is not required to assess it, citing BCCI above. Subject to that, the question of whether ABM had a substantial chance of being awarded the subcontract in the bid, and the extent of that chance, falls to be determined at the point of each breach. On the other hand, Matière also submitted that I should also assess whether, at the point when Offer 10 was made, there was a substantial, as opposed to negligible, chance of it being accepted. In circumstances where ABM had no means of funding the Scunthorpe factory, it said there was no substantial chance at that point.

In this case, the breaches I have found to have existed occurred over a period of time. That presents a difficulty when it comes to causation. Matière pointed out that an early breach may not have caused the loss of chance (perhaps because the playing field still remained open at that time or because other causes were operating) whereas a later breach may not have caused loss either if, by then, the chance of winning the subcontract had reduced to such a point that it was no longer substantial for unconnected reasons. In between, the position should be assessed at the time of each breach.

ABM’s approach to causation was focused on the application of principles to the facts of this case, rather than on any difference about the law. It also recognised the difficulty of how to assess the causative effect of breaches which occurred over time as arose on the facts of this case. For example, it pointed out that, on its case, it would almost certainly have been possible to overcome any difficulties resulting from Matière’s breach in mid-February 2020. Thus, it accepts it would be difficult to say that, taken in isolation, a breach on (say) 12 February 2020 caused the significant damage which later occurred. Equally, ABM accepts that M.Matière’s contact with Mr Lowery in September 2020 was unlikely to have been causative since, by then, the damage had already been done. Understood in this way, it suggests that the correct approach is not to consider each individual breach and its consequence on a chronological basis but see it as a whole course of conduct, akin to a single continuing breach, which had the cumulative effect contended for. It would be wrong in principle just to go to the end of the story and conclude that, by reference to the letter of 18 September 2020, the prospects of success in winning the subcontract were negligible (a finding which, of course, it resisted in any event). On its case, there was a single course of conduct by Matière in undermining the factory at Scunthorpe, which manifested in a continuing set of breaches over time. It submits that the Scunthorpe factory became an issue because of Matière and remained an issue because of Matière. Since it was a course of conduct akin to a continuing breach it was appropriate to stand back and conclude that between February 2020 and September 2020, ABM’s prospects of securing the subcontract went from extremely high to virtually nil. A loss of chance in the order of 90% is suggested.

Matière submits that this approach assumes what it seeks to prove, namely that, but for the breaches, the chance that ABM might have had at the outset of negotiations would have continued intact despite all the other matters that arose for which Matière was not responsible. ABM’s prospects were never “almost certain” because they depended on EKJV being satisfied as to ABM’s competence, the price and funding risk. When considering breaches by Matière, it submits that I should also take into account that ABM would not have acted differently but would, instead, have continued its aggressive commercial negotiating strategy, focused on Scunthorpe and, until a very late stage, requiring EKJV to fund the cost of building it. Moreover, since ABM was unable to show on a balance of probabilities that it was or would have been able to secure a bond necessary to secure advance factory funding, or the finance to fund the factory itself, there never was any real or substantial prospect of it being awarded the subcontract, since there was no prospect of EKJV agreeing to do so.

In terms of the law, I am satisfied that the approach identified by Matière which I have earlier set out above is correct. Overall, I must be satisfied that ABM had a real or substantial chance of winning the subcontract. That is a chance which is neither non-existent nor negligible. Anything with prospects of less than 10% would be negligible. The burden lies on ABM to prove that it had a real and substantial chance and that a breach, or breaches, by Matière were the effective or dominant cause in a reduction of that chance. Evaluation of the lost chance then follows, if it arises.

At the time of the earliest breach alleged, in February 2020, I am satisfied that ABM/Matière had a real and substantial chance of winning the subcontract. Indeed, that must have been so given the fact it had been named as subcontractor in the draft Main Contract with HS2 Ltd. The common expectation at the time of the Consortium Agreement was that ABM/Matière would be successful in their bid. However, I do not accept that ABM/Matière was ‘virtually certain’ to win either then or at any time subsequently. I am also satisfied that by no later than the EKJV board meeting on 19 August 2020, it had no real prospect at all of winning the subcontract. Indeed, the prospects had already been reduced to negligible by the end of May/early June.

For the reasons that I have largely expressed in the narrative above, I do not consider that ABM has proved that any of the breaches by Matière played a material part in the reduction of ABM’s prospects of being appointed with Matière under the subcontract. I reach that conclusion whether by looking chronologically at each of the breaches individually or by aggregating their effect. There are, essentially, three reasons for that conclusion. The first is that whenever Matière undermined the Scunthorpe factory, it did so in response to, or at the behest of, EKJV and with its encouragement. The problems that EKJV had with the factory at Scunthorpe were problems that it had already identified, and would have done with or without assistance from Matière. ABM submits that, if Matière had held fast and rejected EKJV’s overtures or encouragement to look at alternative manufacturing locations then a reconsideration of Scunthorpe would never have happened and the overall prospects of success for ABM/Matière would not have reduced in this way. There is an element of ‘chicken and egg’ about that submission but, overall, I reject it. EKJV was the master in all of this and Matière was its servant. Matière chose to keep its options open in response to whatever it was that EKJV asked for. It is plain to me that EKJV was, for much of the time, unhappy with ABM’s element of the joint offering, whatever Matière said. Plan C was EKJV’s own suggestion. Mr Lowery’s email of 29 May 2020, which I have found to be an honest expression of his true thoughts, is an example of the unhappiness. I conclude EKJV would ultimately have made its own equivalent investigations into other sites and other contractors irrespective of whether Matière went along with it or not. Matière did not push back on these initiatives, as it plainly should have done pursuant to its contractual obligations owed to ABM, but its failure to do so made no ultimate difference. In short, Matière’s breaches did not cause the diminution in the chance of winning the bid.

By broad reference to the time-slices relied on by ABM in its closing submissions, my analysis is as follows:

The second reason for my conclusion on causation is that there were other factors which occurred over time so as to diminish to non-existent such prospects of ABM/Matière winning the subcontract as ever previously existed. They are the matters listed by Mr Lowery in the termination letter, as set out above. Although what mattered was EKJV’s perception of the position, rather than whether that perception was objectively justified, it is clear that at least some of those matters were well founded.

The third reason for my conclusion is that ABM was never actually in a position to fund the construction of the factory, by means of a bond or otherwise, despite that having been the basis of Offer 10. In my judgment, Mr Minihane grossly exaggerated the position in drafting for inclusion in an email to Mr Gilbert of EKJV on 10 September 2020, a statement that: “We are in financial discussions with 2 large financial institutions with who ABM has had strong relationships and co-operation for many years”. In truth, Nat West had come back with nothing and the Bank of Ireland’s indicative terms had not been followed up. There is no evidence before the Court that it could ever have obtained funding at the time of Offer 10 or in the future either. Thus, for the entire period in which Offer 10 was live, ABM could never have actually fulfilled it. By the time of the decision to terminate, EKJV had still not been satisfied by ABM that it could have fulfilled it and that was a cause of the decision to terminate. Responsibility for that lay entirely within ABM’s hands. An alternative approach is to conclude that, at the time of termination, ABM lost no substantial chance of winning the bid in joint venture with ABM because, on a balance of probabilities, there is no evidence to show it could in fact have fulfilled Offer 10 on which the bid was based.

I should add, for completeness, that had I found Matière to have been in breach of the Consortium Agreement by presenting the project to Stanton Bonna in 2019, I would not have found such a breach to have had any causative effect in reducing the chances of ABM/Matière JV’s success. As I have noted, Mr Buckley accepted the alleged presentation by Matière (whenever it was) was only a “minor beef”. Moreover, later on, it was subsequently EKJV’s own wish for Matière to liaise with Stanton Bonna, which it did, as part of Plan C. This would have been the case with or without any earlier private presentation by Matière.

For these reasons, I conclude that ABM has failed to prove that breaches by Matière caused it to lose a real and substantial chance of winning the subcontract. It follows that the counterclaim fails.

The trial of this action required me to consider the profit level of the subcontract to which an appropriate percentage loss of chance was then to be applied. It raised some interesting questions including whether the assessment should take into account that history subsequently showed that the actual project only involved the erection of two tunnels, not three as originally envisaged. Quantification of the loss depended on expert evidence from a quantity surveying expert on each side. In circumstances where I have dismissed the claim on causation grounds, I do not need to consider quantum and do not do so.

For the reasons set out above, there will be judgment on the claim. The counterclaim is dismissed.

I take this opportunity to thank leading and junior counsel for their helpful submissions and to both legal teams for the smooth conduct of the trial.

I invite the parties to draw up an order reflecting the above once consequential matters such as interest and costs have been addressed.