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

The Claimant (described hereafter as “Matière”) is a designer, fabricator and installer of civil engineering structures, including cut and cover tunnels and bridges. Although it is a French company it carries out work internationally. The Defendant (described hereafter as “ABM”) is an engineering company that specialises in the manufacture and installation of pre-cast reinforced concrete products including concrete tunnel components. It is based in the UK.

This case primarily concerns a fallout between two companies that had sought to bid together for work as a joint venture subcontractor on the troubled HS2 rail project. The bid failed. ABM blames Matière for this and, particularly, contends that Matière acted in breach of good faith during the lengthy and complicated bid process. Its principal claim is for the loss of the chance in winning the bid, which it says was originally ‘virtually certain’ but became “nil or virtually nil” after the alleged breaches. It evaluates the lost chance at 90%, applied to its claim for lost profit, pleaded at £18.92m alternatively at £16.62m. There is an alternative, secondary, claim for an account of profits in the sum of £2,249,399. The principal and secondary claims are relied on by way of set off against Matière’s modest claim for fees, most of which is admitted.

By way of further background, the relevant parts of the High Speed rail link with which this case is concerned were known as lots C2 and C3. They are located at Wendover in Buckinghamshire, and at Chipping Warden and Greatworth in West Northamptonshire. The proposed works to be carried out under the subcontract were the manufacture, supply and installation, including waterproofing, of three ‘cut and cover’ tunnels along the route. The works have been described as the ‘Green Tunnels Project’. The main contractor for the Green Tunnels Project was, itself, a joint venture. Originally it comprised Eiffage Genie Civil (described hereafter as “Eiffage”) and Kier Infrastructure and Overseas Ltd (described hereafter as “Kier”). The joint venture between those two was described as “EKJV”. Subsequently, the joint venture between Eiffage and Kier was further joined by Ferrovial and BAM, then described as “EKFB JV”. However, for simplicity, I shall continue to refer only to EKJV.

The division of responsibility between ABM and Matière under the proposed joint venture bid was as follows. Matière would create the design for the Green Tunnels and would then co-ordinate their installation. ABM was to be responsible for the manufacture of the tunnels themselves. The proposed joint venture was not to be financially integrated. Thus, there was no intention to share the profits and losses. Rather, Matière would make what profits it could on the work which it priced and undertook. ABM would do the same. Each was taking the risk that the other had priced the work as competitively as possible in order to win the work but neither appeared to have contemplated how things would play out financially if the project, once underway, did not go well.