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

As mentioned above, it is neither helpful nor necessary to recite every single exchange between the participants although I have sought to take all of the evidence into account. The narrative is largely chronological. From that chronology I have extracted, and dealt separately with, two self-standing topics, namely the Luton Airport project and fire testing.

In 2017, a project manager at Eiffage who had worked with Matière on Le Mans Rennes project approached Matière’s M.Villaret to provide an indicative costing if EKJV were to employ Matière as subcontractor in respect of the pre-casting for the Green Tunnels Project for HS2. M.Blanc put together a budget, which was not a fully costed proposal, in the order of €7m. It assumed the use of a temporary factory for the casting. Temporary factories are sometimes referred to as ‘flying factories’. Matière had no experience of pre-casting in the UK and M.Matiere thought of Sean Minihane of ABM as a potential partner for this job. Matière and ABM had already had a long-standing and profitable relationship on other projects, their relationship having started as long ago as the early 1990’s. Matière explained to ABM that an indicative estimate had been given. The parties agreed to work together to get a more realistic English price.

For some time before this opportunity arose, ABM had been looking for a possible permanent site for the expansion of its own business and concluded that this would be best obtained and set up on the back of a particular job. ABM’s existing permanent factory in Tuxford was not large enough to accommodate the proposed Green Tunnels Project. Scunthorpe had been identified as the principal focus for such a site. The proposal to use Scunthorpe as the pre-cast factory on this project had been in existence from at least March 2018. Mr Sanderson explained that careful consideration had been given to this and that particular site had been identified. There was no secret about this. There was a presentation to Matière about it in October 2017 and a visit to the proposed Scunthorpe site by EKJV in December 2017. Factors relevant to the evaluation of the Scunthorpe site included its nature and location, the availability of labour, the supply and storage of materials and transport to the Green Tunnels locations.

In November 2017, Matière and ABM signed a Memorandum of Agreement through which they agreed to work together in respect of the tender for the Green Tunnels Project. It is unnecessary to refer to its terms because the parties agreed that it would be replaced by a consortium agreement or Joint Venture agreement in due course.

In mid-2018, there was some suggestion that Stanton Bonna, a French company, might also become involved, so as to share the manufacturing workload. This suggestion had initially come from Eiffage and was made to M.Matière. ABM was informed of this suggestion. Despite neither ABM nor Matière being keen, this option was further explored by both Matière and ABM visiting Stanton Bonna together and separately. This was in about July 2018. In the end, nothing came of this suggestion because Stanton Bonna was not sufficiently interested. Below, I make further findings about the interaction with Stanton Bonna in this period.

After this suggestion ran into the ground, M.Blanc explained that the tender process then continued on the basis that the work would be completed by ABM and Matière only.

In August 2018, Matière and ABM jointly replied to an Invitation to Tender for the Green Tunnels Project for Lots C2 and C3. They described ABM Matière JV as an unincorporated joint venture. The Executive Board comprised Sean Minihane and Phillipe Matière. The tender unequivocally identified the proposed manufacturing facility as being located in Scunthorpe and explained why. It was said that a planning application had been submitted on 17 July 2018 and, subject to consent, construction of the factory would commence in early 2019 and be complete within six months.

In January 2019, Matière and ABM entered into the Consortium Agreement.

On 28 January 2019, a Memorandum of Understanding was executed between EKJV as Contractor on the one hand and both Matière and ABM as Subcontractor on the other. It is a curious document. Not all of it is intended to be legally binding. However, the recitals identified that the Subcontractor had extensive interest and specialist knowledge in pre-cast cut and cover tunnels and was seeking the opportunity to be considered by the Contractor to carry out work on Stages C2 and C3. The intention was that the Subcontractor should assist in the production of the Main Contract Proposals (being the final proposals) for the delivery of the Main Contract Works. As ABM points out, this MOU was signed at a time when the status quo was that the pre-casting would be carried out at Scunthorpe, as mentioned in the tender.

In or about February or March 2019, EKJV appointed Matière and ABM under a professional services contract. It carried the title: “Appointment in relation to the Provision of Professional and Specialist Knowledge and Judgement to Eiffage Kier Joint Venture in respect of the Preparation of Stage Two Proposals for Submission to HS2 for Pre-Cast Concrete Double Arch Cut and Cover Tunnels including associated Waterproofing”. The agreement named Matière and ABM as “the Consultant”. The recitals identify it as EKJV’s strategic partner “assisting and advising the Contractor in the Preparation of Stage Two Proposals”. Once again, it is right to record that, at the time of the PSC, the proposal to build a factory at Scunthorpe remained as set out in the tender.

An early sign of possible concerns about Scunthorpe within EKJV was given in M.Blanc’s email of 2 April 2019. He reported that Mr Swift was not in favour of the Matière/ABM pre-cast solution and preferred a CIP (meaning ‘cast in place’) solution. An expressed concern was the length of time and prior work that would be required for an off-site factory. Mr Sanderson replied to M.Blanc that time and resources continued to be spent on factory costing and planning. At an informal meeting on 10 April 2019, Mr Swift said that Matière/ABM’s position was “extremely strong” and that HS2 had accepted that a pre-cast solution was the best and preferred option.

In August 2019, the Prime Minister ordered a review of HS2’s future. Pending that review, work on the bid to EKJV did not stop.

Offers 5 and 6 were submitted by Matière/ABM in September and October 2019 respectively.

On 15 November 2019, Mr Sanderson of ABM produced an initial proposal for financing the proposed factory at Scunthorpe which he sent to M.Martin at EKJV. He expressed enthusiasm for progressing the development of the plant and proposed a separate agreement might be entered into with EKJV in respect of it. The scheme was a land purchase by ABM, rental to EKJV, construction funded by EKJV and buy back by ABM at the end of the project.

On 27 November 2019, there was a meeting between EKJV, ABM and Matière. Difference of views about the factory funding and location were expressed. M.Martin thought a temporary factory at the site may be better but Mr Gida, a more senior person within EKJV, reported that HS2 was in favour of the joint venture plan to undertake the pre-casting off site so as to spread the benefit of the project.

Approved commercial terms for the land and factory at Scunthorpe were provided by EKJV on 12 December 2019 but these were not acceptable to ABM or Matière.

A meeting took place on 17 December 2019 between EKJV, ABM and Matière. A delta in the ABM/Matière prices of £35m was identified. Focus on bridging the gap was required. It was recorded that ABM/Matière was now included by EKJV as a key supplier/subcontractor. Factory funding and construction was also discussed.

The next day, Mr Buckley of ABM provided M.Martin of EKJV with a proposal for the factory funding including a model. On the following day, 19 December 2019, a commercial meeting to discuss this took place. EKJV did not accept the proposal. EKJV emphasised that the £12.5m cost for the factory was very high and had continued to increase from the beginning of the discussions.

In early January 2020 Mr Rossignol of EKJV raised a suggestion of whether a flying factory close to the Green Tunnels was a good idea. M.Matière told Mr Minihane about this. Mr Minihane emailed M.Matière to say it would need to be considered if requested but that it was not a good idea for reasons he gave. He said they needed to stand together in their JV on this and explain to Eiffage that, whilst alternatives would be reviewed, the best proposal was the one which had been worked on for two years now, i.e. a permanent factory at Scunthorpe. ABM submits that, if Matière had followed the approach of standing together at this point, there was every likelihood that the idea of reconsidering a flying factory would have died then and there. I do not agree. It was inevitable that this feature of the project would be revisited at some point. From the outset, there had been concerns about it and, rightly or wrongly, it was part of the difference in the bid cost which would always have had to be resolved.

On 14 January 2020, Mr Sanderson reported internally that he had taken a call from someone at EKJV in which he was told that an instruction for the land purchase at Scunthorpe had been issued. (In fact it was later clarified that it had not been released but was due for issue). The terms upon which the purchase may occur were discussed internally.

On 28 January 2020, Mr Minihane sent M.Matière a draft mobilisation contract which EKJV had sent him. He described it as “good news” showing “serious intent on their behalf”. He said the signal was good that EKJV was finally willing to commit to issuing some instructions. The attachment was a letter from EKJV dated 24 January 2020 which set out terms but envisaged subsequent agreement on a Mobilisation Contract. The letter itself was not a commitment to enter into a Mobilisation Contract or a subcontract with the ABM/Matière joint venture.

I interpose to say that ABM’s case is that this was the last period when it was virtually certain that ABM/Matière would succeed in winning the subcontract and that it would have been on the basis of a new factory at Scunthorpe. As I have said, however, doubts about a factory at Scunthorpe had been raised by various individuals within EKJV for a few months now.

For the reasons I shall in due course explain, I largely agree with M.Vignon that “everything” (by which I believe he meant the downfall of the ABM/Matière JV) started on 12 February 2020, accelerating after 17 February 2020 with the development of alternative options.

This aspect of the chronology begins with a meeting between EKJV and ABM/Matière which was proposed for 7 February 2020 but was rearranged for 12 February 2020. There are minutes of the meeting in Birmingham and various witnesses were asked about it. The Oakervee Review on the future of HS2 had been published. It concluded that HS2 should proceed in full. This was reflected in the minutes. The terms of the mobilisation for the land purchase at Scunthorpe were discussed. Discussions included the provision of an advanced payment bond of £10m to £15m which Matière/ABM would be required to repay. Matière/ABM was also asked to clarify the total budget within their 6^th Offer so that EKJV could see where the cost of the factory was within the price. At this point there remained a significant financial gap between ABM/Matière’s bid price and EKJV’s budget of c.£35m although this is not mentioned in the minutes.

There are differences in recollection about the meeting. Mr. Minihane’s evidence was that EKJV requested a review of having a temporary factory in Scunthorpe. He recalled many and varied considerations being discussed but not their detail. He did not specifically recall temporary or flying factories in other locations being mentioned. I accept M.Vignon’s evidence that there was some discussion, albeit more limited and less trenchant than he suggests, about other sites on which a temporary factory could be set up in locations other than Scunthorpe. M.Matière said that EKJV clearly disagreed with the notion of a permanent factory at Scunthorpe and that this meeting was the point at which it became clear to him that they were on the cusp of losing the project. I reject the suggestion that Matière/ABM was in that position. In my view, M.Matière overplayed the extent to which EKJV was openly hostile to the permanent factory at Scunthorpe at this point.

Of greater potential significance is what happened just after the meeting. The evidence about that was controversial. M.Matière says he spoke with Mr Lowery of EKJV, who had not been at the meeting, but who expressed particular concerns about the cost of the Scunthorpe factory. M.Vignon says that, whilst he was not party to any relevant conversation with anyone from EKJV, M.Matière later reported to him that, on their way to lunch after the meeting, M.Martin and M.Garnier of EKJV had discussed with him the price of the permanent factory and wanted to push instead for a temporary factory at a cheaper price. M.Matière reported to M.Vignon that he had said he would look into it. He gave an indication that a cheaper option could be obtained.

I am satisfied that M.Vignon was accurately reporting to his colleague, M.Villaret, on 17 February 2020 that EKJV “has a serious problem with ABM and their precast factory”. I am also satisfied that M.Matière had given an indication to EKJV that an alternative solution, in the form of a flying factory, would be cheaper. That was an inappropriate thing for him to have said without first discussing it with ABM.

A factual issue had been whether the initial suggestion of any alternative to a permanent factory at Scunthorpe first came from Matière (the making of which, on ABM’s case, would have amounted to a breach of the Consortium Agreement) or from EKJV, with Matière merely aligning itself with the suggestion by offering to investigate alternatives (which may still amount to a breach but where causation may be an issue). The end result was the same, namely that other options were to be investigated. Nonetheless, I conclude that the post meeting discussion about temporary factories other than at Scunthorpe was first raised by Matière but only because it had just been openly discussed by EKJV at the meeting. There was a considerable financial gap between the parties and this appeared to be one way of making inroads into it.

ABM’s submission is that M.Matière’s private conversation with Eiffage in which he indicated that he would support a different scheme from that involving a permanent factory at Scunthorpe, caused a change of heart within EKJV and the slow-down in the negotiations which followed. I do not agree. This was a view which EKJV was in the process of reaching of its own accord. Matière did not cause EKJV to change heart.

On 17 February 2020, M.Martin emailed M.Vignon and Mr Sanderson to discuss the issue about the factory location. He posed two options: continuing to progress the permanent factory including the commercial terms on which that may be carried out; or proposing an alternative solution in the form of the initial plan back in 2017, namely a light flying factory. It suggested that a decision was an urgent action. I would regard this email as an open and clear hint to ABM (and Matière) that M.Martin would prefer a flying factory.

M.Vignon’s internal email to M.Villaret of 18 February 2020 reported that there had been huge discussion at Eiffage about the price of the ABM factory. He said that Eiffage had been complaining about ABM’s price and their aggressive behaviour in negotiating the contract. I agree that this reflects what Eiffage thought. Eiffage was only part of the JV but, looking at later emails, it seems M.Vignon’s reference to Eiffage was shorthand for EKJV. He identified a Plan B, which was to reduce the scope of ABM’s work by removing the prefab plant from their scope. M.Vignon told M.Villaret of EKJV’s Plan B, to reduce ABM’s scope, but not to inform ABM about the Plan. It would result in ABM providing a management service for the plant. M.Vignon explained that he was working on this without ABM’s knowledge.

This email reinforces my conclusion that the initial source of open suggestions about other sites discussed at the meeting was EKJV but, in any event, EKJV would have hardly needed persuading for Matière to look into them. I am also clear that the investigation by Matière into Plan B was done without ABM’s knowledge. Insofar as M.Matière suggested otherwise, I reject his evidence.

On 19 February 2020, M.Vignon emailed M.Villaret and M.Blanc about the fire test. Written in French, it says that EKJV was looking very seriously at “descoper” ABM. This was translated for the purposes of the trial as “taking down” ABM but, having understood the context, I consider it is a reference to the reduction in ABM’s scope, as mentioned in the email of 17 February 2020. At that point, it was not a suggestion to remove ABM from the proposed subcontract entirely. The email confirmed, as I believe to be the case, that M.Vignon had been asked to work on a comparative cost analysis between the ABM plant at Scunthorpe and Eiffage’s Plan B. That this request was being implemented without ABM’s knowledge is clear from the final line:

“The situation is “bizarre”, Ek asks me to work against our JV. Let’s hope ABM doesn’t find out.”

On 20 February 2020, M.Vignon emailed M.Villaret internally. The email, entitled “Warning signal from Eiffage”, said that he was receiving a lot of warning signals regarding ABM. M.Vignon reported on the request that he work on the alternative option to Scunthorpe, which promised some very substantial savings. He reported that the issue was now a wider one than the mere question of where the factory would be located but went to the very point of whether ABM would be retained at all. Kier had seized on the concreting problem (part of the fire test) to warn Eiffage that they had “massive problems with ABM” at Luton Airport in terms of quality and delivery. He had heard discussion that “ABM could be rejected from this project” but that “the good news is that EK will keep Matière for the installation, waterproofing but also the management of the production of the precast elements.”.

M.Vignon described the idea of replacing ABM entirely as Plan C. He says, and I accept, that Plan C was being driven by Kier. After the February meeting, M.Vignon began discussing Plans B and C more explicitly with M.Martin and M.Garnier. Options considered by him included a temporary factory in a warehouse near Banbury and at Greatworth near Brackley. These enquiries took some time and M.Vignon did not have the resources to make them alone. EKJV itself prepared a pack of materials and cost estimates for him and asked him to comment on them.

As part of the investigation into Plan C, M.Vignon contacted an alternative pre-caster to ABM, namely Pacadar, whom he had encountered previously. The enquiry of Pacadar by two emails of 3 March 2020 was a clear example of Plan C in action. M.Vignon invited Pacadar to quote for the ABM works, including the setting up of a precast factory in Banbury. Appendix 3, the Bill of Quantities, contained confidential details of the pre-cast design, unit by unit, together with a schedule of production. In essence, it contained all the information which a competitor to ABM would need to produce a rival price for ABM’s work (except ABM’s own prices). M.Vignon accepted in cross examination that this should never have happened. He was right in this respect.

M.Vignon was pressed to accept that this enquiry was made by him on behalf of Matière but he resisted that. He said he was in the EKJV office, that they asked him to contact Pacadar and organise it and he did what he was asked by EKJV. I accept that, at this specific point, M.Vignon did not tell Matière or, for that matter, ABM that he had contacted Pacadar. But that is of no consequence because, by email dated 6 March 2020, M.Vignon told M.Matière and M.Blanc in terms that he had been asked to look at both Plan B and Plan C. In that email, M.Vignon told them both that Kier wanted to remove ABM from the equation and to keep Matière. He told them he had been asked to contact a new pre-caster and new supplier. Neither of them suggested in a reply email that M.Vignon should not have done this, or that he should not continue to pursue that line of enquiry. As M.Vignon accepted, M.Blanc and M.Matière had known about aspects of this for some weeks already.

In a question, to which he never got a written answer, M.Vignon said:

“My question is: ….How far are you prepared to go? Are you prepared to save ABM but have the factory in Banbury? Are you prepared to abandon your partner ABM in favour of a new sub-contractor? EK asked me these questions; I replied that Matière does not and cannot carry out the project alone; cannot manufacture the green tunnels precast elements alone.”

On 6 March 2020, M.Vignon also contacted Cemex in connection with the possibility of setting up a precast yard in Banbury. The scheme envisaged was a different, separate way of doing the pre-casting. The enquiry was marked confidential and Cemex was told that ABM was not in the loop. An offer for this Plan B was invited. M.Vignon admitted in cross-examination that he had made this enquiry at EKFB’s request and “it was not good to do it”. When asked why, he admitted that:

“I was working somehow against ABM and ABM/Matière interest, the JV I mean.”

I agree that is exactly what M.Vignon was doing. M.Vignon spoke tellingly of his discomfort undertaking this work in secret, and him being unable, first, to tell Mr Sanderson of it when they were together and, second, to tell Mr Buckley of it even though he was sitting next to him.

On the other hand, Matière did not hide EKJV’s unhappiness with the Scunthorpe proposal from ABM, nor the idea that cost estimates for an alternative scheme were being sought. Instead, it passed on “indiscretions” about Eiffage/Kier’s thinking. M.Blanc described “indiscretions” as something that Eiffage had told Matière only, by way of information. On 6 March 2020, M.Blanc emailed Mr Minihane to tell him that:

“It is obvious today that Eiffage and above all Kier is unfavourable to the installation and construction from scratch of the precast plant as you envisioned it In the North East of England.

Eiffage/Kier JV seems to consider that the investment is too important and that more economical solutions exist and need to be considered. Eiffage/Kier also thinks that by reducing transport distances, substantial savings will be made at the logistical level. It’s hard to contradict them.

For your information, Eiffage/Kier has evoked a precast plant in Banbury which is 12 km far from the first two tunnels to be built. Eiffage/Kier plans to rent directly this warehouse. According our Eiffage contact, there is enough space for the precast green tunnels. It seems that there are also office spaces where EK plans to set up their main office.

Eiffage wanted us to work on the cost estimate for this plant and to compare with the solution we have proposed including logistics

Personally I think that, like Judo, we should push together on the way Eiffage wants or the risk is to be excluded definitively from this project. Phillipe MATIÈRE had sensed this reaction on the part of Eiffage-Kier who for the past 6 months has been making many allusions to the costs required for the installation of the precast plant.

We are all aware that Eiffage-Kier’s sole objective is to reduce costs because obviously we are not in the budget announced to HS2.”

M.Blanc said in evidence that the information conveyed here was already known but the situation had worsened. I agree. ABM submits that elements of this email were misleading. In my judgment, whilst there were features of the narrative which were not explained in the email (namely that it stopped short of saying, in terms, that Kier would like to remove ABM from the equation completely but keep Matière, and that alternative cost estimates were actually being procured by Matière from ABM’s competitors) this email to Mr Minihane told him pretty much everything else that was going on in the minds of EKJV.

On reading this important email, Mr Minihane should have appreciated that there were real risks to the JV if ABM was to persist with the Scunthorpe factory. Alarm bells should have sounded when words such as “excluded definitively” were used. Mr Minihane merely replied that the update was “disappointing” and that more work was required to evaluate the costs and risks. He said he was happy to look at the costs and risks of the alternatives.

Mr Minihane did not comment on this email exchange in his witness statement and was inclined to minimise its significance to the narrative in his oral evidence. In my view, he was wrong not to take the warning of definitive exclusion from the project sufficiently seriously at the time. ABM submits that it was wrong and unfair for Matière to criticise Mr Minihane for regarding the position as generally positive in circumstances where Matière was deliberately withholding information about what was actually happening from ABM. I disagree. What was being withheld by Matière was, I accept, a more developed position along a road without ABM but the central threat to the viability of the JV if the Scunthorpe proposal was maintained was sufficiently clear and, yet, was seemingly downplayed by Mr. Minihane.

At about this time, Mr Sanderson called M.Vignon. He was upset that M.Vignon had been deceiving him and asked what was going on. M.Vignon gave a verbal explanation but followed it up with an email dated 10 March 2020. M.Vignon accepted that the email explanation he gave in the email was, itself, a lie. That was because, within it, he covered up the extent of what he had been asked to do. WhatsApp messages between Mr Sanderson and Mr Minihane at that time considered next steps. Mr Minihane wanted to show EKJV that adding the factory cost was not such a big deal. The extent of secrecy on the Matière side led Mr Sanderson to say of their pairing: “some JV!!!”.

M.Vignon met with Pacadar on 10 March 2020. Notably, EKJV also attended, namely M.Martin and Mr Meadows who was the precast and concrete manager at EKJV. This was at the Banbury site.

On the same day as the visit to Banbury, M.Martin sent the ABM/Matière JV team some details of the Banbury depot, asking whether the units could be manufactured there. Internally, Mr Minihane circulated this within ABM, suggesting that any contrast with Scunthorpe which could be made in respect of planning, cost etc. would be good. This was a signal to his own team to highlight the benefits of Scunthorpe at the expense of the Banbury option, wherever this could be done. On the same day, Mr Minihane emailed Mr Lowery and Mr Gilbert to say that the proposed alternative (at Banbury) raised many questions over its suitability. In other words, he was openly and privately pushing back on anything other than a permanent factory at Scunthorpe.

Pacadar discovered that ABM was actually in a joint venture with Matière and, on 18 March 2020, sought an explanation from M.Vignon. M.Vignon replied with an explanation which was not an honest one. In the end, M.Vignon emailed them to tell them in broad terms at what price they should be aiming, projecting:

“a potential of £20/25 Million gross margin (fee) for you guys”

That led to this exchange in the evidence of M.Vignon:

“A. It is not good?

Q. It is more than just not good, it is rather bad, isn’t it. Were you working for the joint venture at this stage or against them?

A. Against.”

M.Blanc suggested that contact with Pacadar behind ABM’s back could be justified on the basis that it was in the joint interest of the Matière/ABM JV to have a price against which it needed to be more competitive. M.Matière said something to similar effect. I do not accept that as a coherent explanation or retrospective justification for what M.Vignon did.

M.Blanc and M.Matière denied that M.Vignon’s implementation of the Plan C investigation, namely the replacement of ABM entirely, was done with the approval of Matière. In my judgment, Matière was plainly aware of Plan C from no later than 6 March 2020 and could have put a stop to Matière’s participation in it had it wanted. It did not want to and did not do so.

On 13 March 2020, Mr Lowery the overall director of the Main Works Civil Contracts, wrote to Matière/ABM JV, and Mr Swift, in respect of the pre-cast factory. He made two important points. First, that EKJV could not move forward until the delta between the budget and the current forecast had been resolved. Second, that his view was that:

“I am not a factory or a precast expert, however, I would expect that we have the best chance of success the closer we are to our operations.”

That was not an expectation which was supportive of the Scunthorpe proposal. He asked for an assessment of the factory and pre-casting strategy, a revised commercial model and alignment of the ABM/Matière offer. It was a signal from a senior person at EKJV to move away from Scunthorpe and reduce the bid price. In cross-examination, Mr Minihane down-played the significance of this email, merely saying that it raised some interesting considerations which would have to be considered. In his reply to Mr Lowery on the same day, copied to others in the chain, Mr Minihane pointed out the advantages of Scunthorpe (“designed to handle the scale and size of this large project”) and the problems with Banbury (“Banbury does not have any of these advantages”). He expressed willingness to look at alternatives and to review prices. He expressed full commitment of both ABM and Matière to reach agreement with EKJV.

Internally within ABM, however, Mr Minihane expressed caution about giving EKJV too much information on the cost of cranes and moulds given that EKJV was keeping open the prospect of alternative plans. He encouraged his colleagues, Mr Buckley and Mr Sanderson, to be very strong on convincing them of Scunthorpe and to:

“continue to denigrate the unrealistic prospect of casting outdoors”.

In short, whilst openly ABM agreed to look at alternative options, the reality is that it was implacably wedded to Scunthorpe.

ABM developed an idea that it would buy back the factory from EKJV at the end of the project for the sum of £7.25m on the basis of which Mr Swift personally opined that the decision had swung back to Scunthorpe. In the event, that option was not pursued for reasons that Mr Minihane said he could not recall.

On 18 March 2020, M. Vignon emailed M.Matière, M.Blanc and M.Villaret to say that ABM had learned that he was working on Eiffage’s Plan C. His email included the following:

“ABM has learnt that I’m meeting with Pacadar to ask them for an offer for the prefabrication of the tunnel elements….Should I have said No to Eiffage-Kier? But on the other hand, nobody in Matière asked me to stop….Now ABM is asking me to justify my action.”

In a telling reply, M.Matière said:

“You have done nothing wrong.”

On the same day, M.Matière emailed Mr Minihane and asked for an urgent discussion. He forwarded an extract from M.Vignon’s email which reported that Eiffage/Kier was looking into Plan C for prefabrication without ABM, mentioning Pacadar. The subject title of the email was: “Eiffage Kier Plan C sans ABM”. In reply, Mr Minihane said this was a shock. He asked that Matière acted in the spirit of the JV agreement which they had signed. He said the two of them should win the job together or not at all, and that this required much closer cooperation and better communication. He said:

“As we will look together at alternatives including site cast options, I also need your continued full support for the option of the Scunthorpe factory, which we have together proposed and worked on for the past 3 years. To me this option presents the most security for us and the least risk of failing on this massive project.”

On 23 March 2020 there was a Teams meeting between EKJV and ABM to discuss the Gateway 6 price. Minutes of the meeting were forwarded to M.Vignon by Mr Sanderson who explained they had been dragged into an exercise to re-study the price on new assumptions and facts. The figure passed to HS2 Ltd in respect of the Green Tunnels element was £165m.

It is appropriate for me to summarise my key factual findings at this point in the chronology:

ABM submits that, at the start of April 2020, a decision appeared to have been made by EKJV that ABM/Matière JV should be appointed and that Scunthorpe should be the chosen site for pre-casting. It relies on some of the exchanges identified below to support that submission. I do not accept the position was as clear or settled as ABM suggests.

ABM’s Stage 1 report into alternative pre-cast sites was issued on 3 April 2020 and summarised to ABM/Matière in an email of that date. Mr Minihane forwarded it to Mr Swift of EKJV on the same day. On 6 April 2020, Mr Minihane emailed M.Blanc, noting that the decision about what to do rested with EKJV. Mr Minihane also noted that EKJV wanted the Matière/ABM JV to reduce its price by £30m but “this will not be possible”.

Also on 6 April 2020, M.Vignon emailed internally within Matière to report that EKJV had signed its contract with HS2 Ltd. Amongst the recipients was M.Prigent, a lawyer at Matière. As I detail below, the contract with HS2 Ltd contemplated that the Green Tunnels work would be undertaken by ABM/Matière JV using the facility at Scunthorpe. This necessarily required consideration to be given to the terms of the subcontract. In the email, M.Vignon set out the principal terms thereof, including that it was to be a JV with ABM, albeit one not yet formed, on NEC3 type C ‘cost + fee’ basis. In cross examination, M.Vignon accepted that the decision by EKJV to enter into a contract with HS2 Ltd on the basis described meant that, after a lot of work had been done by him and EKJV, a decision had finally been taken that the work would be undertaken in a Matière/ABM joint venture based at Scunthorpe. He agreed the expectation was that everything was going to go towards Scunthorpe. For reasons I give below, I doubt his evidence on these points is correct.

On 8 April 2020, Mr Minihane offered Mr Swift two options: to proceed with the Stage 2 report into alternative pre-cast sites or to focus only on Scunthorpe. From those two options, Mr Swift told Mr Minihane not to proceed further with alternative pre-cast sites. He said focus needed to be on Scunthorpe and confirming the price for that. He said further focus should be on reducing the target price. In light of that, M.Garnier at EKJV emailed Mr Sanderson in order to understand what the price of a factory at Scunthorpe would be. Although a moving target, the idea was to have a mobilisation contract and an advance payment secured by bond.

As M.Vignon explained, Mr Swift’s suggestion to focus on Scunthorpe was not the uniformly held view within EKJV. Whereas that was Mr Swift’s position, others within Eiffage, such as M.Garnier, M.Martin and M.Rossignol, had a different view on the merits of Scunthorpe.

On 14 April 2020 M.Matière emailed Mr Minihane with reference to Mr Swift’s email about Scunthorpe. He warned:

“What is written is that mail is clear. What is their real position is not clear.

…

The most important for me at that time is that we have a major issue: we do not agree with E.K. on the sales price of the tunnels! And we cannot keep working as if we had that agreement!

We also know that their are looking for alternate solutions for the precasting of the concrete elements.”

The email warned that the price needed to come down and the location of the pre-casting was secondary to that and, unless price was addressed, “we are working for nothing”. He apologised for being brutal and rude. In his reply on the same day, Mr Minihane said he accepted these points in good faith. He said he agreed “we need to ‘tie-in’ EK to Scunthorpe” (which was not what M.Matière had been saying). He hoped that, with further work he described, M.Matière’s “valid concerns” would be satisfied. He said they needed to be honest with each other especially where they had differences of opinion.

The Notice to Proceed to Stage Two, being the instruction from HS2 Ltd to EKJV to deliver, had been anticipated by the end of March or early April. In due course, it was issued to Mr Lowery of EKJV on 14 April 2020, whereby HS2 accepted EKJV’s Final Proposals for Stage Two letter dated 31 March 2020. The letter instructed EKJV to continue to design, execute, construct, commission and complete the works in accordance with the Agreement. The Contract Data which accompanied the Notice to Proceed identified ABM/Matière JV as a “key subcontractor” in respect of the Pre-cast Green Tunnels activity. It also described a Green Tunnels pre-casting facility at Scunthorpe as one of the working areas.

In his witness statement, Mr Minihane said that, to him, these factors “spoke volumes as to the confidence of HS2 and EKFB” and that he really thought it meant “game on”. If that was his view, I consider he was wrong to hold it. Given the actual state of play between EKJV, Matière and ABM, those parts of the Contract Data to which I have referred might fairly be said to be unreliable and far less certain than they appeared. However, it is, perhaps, commercially understandable why EKJV had chosen not to inform HS2 Ltd of the actual position, particularly as it was still in the process of establishing who would be undertaking the works and, allied to that, where the casting would take place. Revealing those ‘domestic’ uncertainties to HS2 Ltd might have risked creating a negative impression over the reliability of its own bid. It is for that reason that I do not accept M.Vignon’s evidence that a decision to employ ABM/Matière in a JV using a facility at Scunthorpe had actually been made by EKJV at this point. Behind the scenes there were other indicators to the contrary. I would accept, though, that M.Vignon may have assumed such a decision had been taken. In any event, M.Vignon’s evidence was that, after that, the position changed anyway, perhaps two or three times.

On 15 April 2020, Mr Lowery wrote to Mr Minihane and M.Matière to tell them about the Notice to Proceed to Stage 2. He thanked them both for their dedication and application in reaching that milestone and for their considerable efforts in achieving an objective that he said had been the primary focus for some time. Noting a need to bring a swift and clean close to negotiations and contractual issues, he identified a significant 8 to 12 week period ahead in which all parties needed to deliver and looked forward to closing the outstanding matters. As ABM acknowledges, it seems very likely that this was a standard form of communication to a number of proposed EKJV subcontractors. I rather doubt that Mr Lowery privately had a realistic expectation this would be achieved in the case of ABM/Matière. That did not mean that efforts should not be made to try.

On 22 April 2020, Mr Minihane told his colleagues within ABM that he had been advised by lawyers not to sign the land letter in respect of Scunthorpe without first having the mobilisation contract in place. He accepted in evidence that, until he had reached agreement with EKJV on all the important issues such as the construction, how payments would be made in relation to the funding of construction costs, security etc., all of which would form part of the mobilisation contract, it would have been commercially imprudent to purchase the land. Matière submitted that the failure by ABM to sign the land letter at this time meant that EKJV was equally free from the commitment to indemnify ABM in relation to any losses arising where the land had been purchased and yet the Green Tunnels Project did not proceed with ABM/Matière JV. I agree.

The ABM/Matière JV was working on Offer 7 in April 2020. Mr Minihane said that each party to the JV needed to have the opportunity to examine the other’s price and discuss it before it was issued to EKJV. On 28 April 2020, M.Blanc pointed out to Mr Minihane that their two prices added together were just less than £200m, which was very far from EKJV’s target, and that even the cost prices exceeded their target. Mr Minihane agreed and said both of them needed to look for a discount in their prices. Offer 7 was submitted on 30 April 2020. The £35m gap was highlighted in a meeting between EKJV and ABM/Matière on 14 May 2020. Of that, c.£17m was attributable to the pre-cast factory unit. About £8m was the cost of buy back of the factory which was not included in the offer.

In the meantime, M.Vignon had been continuing his exchanges with Pacadar. On 15 April 2020 he emailed them to say he was happy to get their price confirmation the following week. He reported that Matière was not willing to use the Banbury warehouse but would rent a field near the Green Tunnels to set up a temporary pre-cast yard. In reply, Pacadar said they were content with this. Pacadar was even given a broad hint of ABM’s own price. It hardly needs saying, but the pursuit of a direct arrangement with Pacadar (part of the Plan C option) was directly contrary to the aspiration that the Green Tunnel works should be undertaken in a joint venture between ABM and Matière since it left no scope of work for ABM and was allowing Pacadar to bid in competition. The dialogue with Pacadar was being undertaken with the approval of M.Matière personally. As M.Vignon said, he was instructed to do this by M.Matière who, in turn, had been asked to do so by M.Rossignol. On that basis, M.Vignon was undoubtedly acting on behalf of Matière, the company, and was not on a frolic of his own. In that respect, it is notable that, later, on 29 May 2020 M.Matière offered a face to face or virtual meeting with Pacadar in respect of the HS2 project.

ABM submits that the dialogue with Pacadar at this time is extraordinary because it runs straight across the period when EKJV had apparently decided that it would contract with ABM Matière JV and that the factory was to be in Scunthorpe. It submits that there had been no change of direction from what had happened in February and March 2020. It submits that is also inconsistent with the instruction from Mr Swift on 8 April to focus on Scunthorpe. Whilst the dialogue was extraordinary for the reason I have given immediately above, I do not accept ABM’s submission. In my view, EKJV had not yet finally decided to contract with ABM Matière JV using Scunthorpe, despite what the Contract Data used in the contract with HS2 Ltd had said. There remained significant and unresolved issues between EKJV and the proposed ABM/Matière JV. These included Kier’s clear reluctance to employ ABM at all; the substantial financial gap between the price which had been advanced upstream (£165m) and the offers from Matière/ABM (£200m), which had not reduced; and the antipathy of many within EKJV, including Mr Lowery, to the use of Scunthorpe. I have earlier described the prospect of ABM ever being retained, let alone on a basis that did not include Scunthorpe, as in doubt from mid-February onwards. Since then, whilst there was Mr Swift’s instruction to focus only on Scunthorpe, rather than alternative sites, and the Notice to Proceed had been issued on terms including the Contract Data to which I have referred, the doubt had materially increased. It is also worth pointing out that, if ABM’s premise is correct, namely that a decision by EKJV to employ Matière/ABM using Scunthorpe had been taken at this point, no (alleged) breach by Matière prior to this time would have had causative effect.

By way of overview, the following series of exchanges in M.Vignon’s evidence are important. The questioning initially arose out of the period in early April, but M.Vignon’s evidence went rather wider.

“Q. So some people within the JV, even within the same company, think Scunthorpe?

A.

Yes.

Q. And some people think something else?

A. I know where you are going because after we reinvestigate again this temporary factory, end of April or May, I don’t remember exactly, and we stop and after it has been resurrected again in June and be stop again, and in July, it came back again. I don’t know maybe two three times, four times it happened.”

…

A. But once again, we get the information from one side of Eiffage, the client side…and then, at that time, from March to June let’s say, ABM/Matière was working on(e) time, two times on this option temporary factory. I remember. So we have got, we receive the instruction from these people I mention. We are looking at that one, two three weeks after the other people of the EKFB JV was telling us the opposite and stop us. So it was a pure waste of time, this kind of exercise…”

…

Q. Just as there was a split in EKFB…

A. Yes.

Q. …there was also, obviously, a split in the Matière/ABM joint venture, wasn’t there?

A. Somehow, yes. Somehow, yes.

Q. Because you were working with Eiffage on these ones without ABM and ABM were saying Scunthorpe?

A. Yes.

Q. So the joint venture just weren’t united at all?

A. EKFB created that situation, yes.

Q. But the result of going along with it was that the joint venture was doing different things and going in different directions?

A. It was a mess, yes.”

…

Q. You were describing very vocally that Mr Swift had one view. Other people within Eifffage had another view.

A. Yes.

Q. And that one day it was “let’s do what Mr Swift says and then Mr Martin and Mr Rossignol had another idea”?

A. Yes.

Q. And you found, not only were you keeping all this secret from your joint venture partner..

A. Yes.

Q. …but you found you were going round in circles?

A. Yes.

Q. And you were very frustrated by that?

A.

Yes.”

I regard these exchanges as telling in three respects. Firstly, because they confirm that, in the month of April and following, Matière was continuing to work on options that were contrary to ABM’s interests. Secondly, because they show that both EKJV and Matière/ABM JV were internally split. Thirdly, because the pursuit of options that were contrary to ABM’s interests were being driven by EKJV.

I earlier identified that ABM’s case is that a decision to appoint ABM/Matière JV with a factory at Scunthorpe as the manufacturing facility was taken at the start of April. It further submits that, sometime around the middle of May, EKJV’s view changed such that progress with any contract with ABM/Matière JV was, again, very limited. Its case is that Matière’s conduct was causative of that change in position. I do not accept the premise. My conclusion from the evidence is that the prospects of ABM/Matière JV ever succeeding in a bid using Scunthorpe in this period were materially in doubt but, to the extent that the prospects appeared to briefly rise in early April, they soon fell again. This was not by reason of Matière’s undermining of the merits of Scunthorpe to EKJV, directly or by looking at other options.

Returning to the chronology, I have already mentioned the meeting with EKJV to discuss the gap in price on 14 May 2020. Mr Minihane emailed M.Blanc and M.Matière on that day. He shrugged off the view expressed by EKJV as “not a surprise”. He saw this as simply a negotiation, albeit one in which they, ABM/Matière, had a “fight on our hands”. In cross examination he refused to accept he was not properly reading the mood music at this time. However, this was a fair summation of his position, in my view. I conclude Mr Minihane remained over-confident about the chances of EKJV accepting the use of a factory at Scunthorpe at this time.

All parties met on 20 May 2020. EKJV said that a joint venture agreement between ABM and Matière would need to be in place and the Green Tunnel Fees agreed before any mobilisation contract could progress.

On 26 May 2020, there was a private exchange of emails between M.Thibaut of EKJV and M.Prigent, Matière’s lawyer. M.Thibaut expressed concern at the lack of progress in entering into the subcontract with the ABM/Matière JV. Based on what ABM had said, M.Thibaut doubted that a JV agreement would be concluded soon. He lacked evidence of ABM’s commitment to the project. He said these were the reasons why EKJV would neither enter into a mobilisation agreement, nor the main subcontract. He asked if Matière had signed an exclusive agreement with ABM. In reply, M.Prigent said he thought both parties to the JV intended to work together but there had been a lack of organisation. He was initially unable to answer the question about exclusivity but later explained that whilst there was no express reciprocal exclusivity commitment between Matière and ABM there may be an implied one. He said the JV agreement had not been finalised because that, in turn, depended on the award of the subcontract. Mr Lewis KC submitted that M.Prigent’s response was supportive of the joint venture and did not seek to undermine it. Any suggestion that there had been ambivalence or positive undermining of the joint venture would be wrong. In my view, this careful email from M.Prigent sought to keep both options open: simultaneously indicating that the JV parties intended to work together but also that a deeper conversation might be interesting, and not answering any question of exclusivity.

On 28 May 2020, M.Vignon sent an email to his colleagues within Matière titled “Eiffage Kier doesn’t want ABM – continuation of the February-March episode”. It was not sent to M.Matière but he became aware of it. M.Vignon noted that only Mr Swift was aligned with Mr Minihane. He identified a change in strategy at EKJV. The change was that, not only might ABM be rejected by using clause 26 of the main contract between EKJV and HS2 but that Matière might also be dispensed with. If Matière did not support EKJV’s concerns about ABM then Matière itself will have its own interests dismissed. If ABM was to stay involved then both Eiffage and Kier would be uncompromising with the JV on all aspects, such as commercial, quality and financial matters. The email ended:

“I’m just the messenger, and don’t want to get involved like I did at the beginning of the year. My honeymoon with ABM is over now ABM knows that I’ve worked against their interests. Following Andy Swift’s agreement to carry on as before after this small pause in searching for a Plan B; ABM will try to prioritise their new factory. The priority being to save Matière’s interests and satisfy EK, our Customer. So you have my point of view.”

This email confirmed, if ever it was needed, that M.Vignon had been working against ABM’s interests and that this was now known to ABM. Matière’s attempt to ride both horses throughout the long period of negotiation appeared to have a new dynamic. The risks to Matière’s future involvement were such that it was being asked by EKJV to align itself with EKJV, not with ABM.

On 29 May 2020, there were various calls between Mr Minihane and each of M.Matière, Mr Gilbert of EKJV and Mr Swift of EKJV. Both Mr Gilbert and Mr Swift warned Mr Minihane that EKJV was reviewing its options in respect of the Green Tunnels Project because of a concern about the price and fee. Mr Minihane remained of the view that Scunthorpe was the best option and said in his witness statement that he found what they told him puzzling given ABM/Matière JV’s involvement since 2017. In a demonstration of what I consider to be a complete lack of realism, Mr Minihane said about these calls:

“I did not consider there to be any threat to the ABM/Matière bid.” (my emphasis)

Also on 29 May 2020, M.Matière sent a draft email to Mr Minihane that was to be sent by M.Matière (alone) to Mr Lowery. It was sent for Mr Minihane to comment on. The draft identified discrepancies within different members of the EKJV team about the pre-casting operations conditions. It added that he, M.Matière, had got recent information telling him that EK’s management could use clause 26 of the contract with HS2 to “pull ABM out of the game”. It also revealed that Stanton Bonna had apparently been contacted by Mr Lowery’s team.

The latter was true but did not fairly or fully explain Matière’s own participation in the contact with Stanton Bonna. On 21 May 2020, M.Vignon had sent M.Martin information to enable Bonna Sabla (the French arm of Stanton Bonna (Footnote: ²)) to price for works that would otherwise be undertaken by ABM, including the Appendix 3 attachment which had been provided to Pacadar. That divulged quantities consistent with the design prepared by ABM/Matière. M.Martin was asked to keep the matter between themselves. As M.Vignon said, Eiffage had wanted to get Bonna Sabla involved ever since 2017. He also accepted that seeking a comparable price from Bonna Sabla should not have happened, just as it should not have happened with Pacadar.

M.Vignon’s provision of information to M.Martin for onward transmission to Bonna Sabla so they could price in competition to ABM formed another activity within Plan C, EKJV’s plan to replace ABM. M.Vignon had Matière’s authority to pursue Plan C. It was plainly contrary to the interests of the joint venture between ABM and Matière for Matière to do this. In closing submissions, Matière pointed out that M.Vignon did not contact Bonna Sabla himself. Nor did he, personally, provide them with pricing information. He only provided EKJV with information it already had on its servers. Those points do not seem to me to matter. They were steps taken which undermined the JV. However, I do accept that they were steps taken at the behest of EKJV.

Limited visibility over the fact that contact had been made with Bonna Sabla was provided to ABM by M.Matière in the email of 29 May 2020 but not Matière’s role in it. The email also contained other features which concealed what had been going on. In my judgment, one of the reasons M.Matière sent this draft to Mr Minihane was in an attempt to hint strongly to ABM that there was a real risk that it (or they) would not end up being party to a subcontract with EKJV.

The final version of the email that was sent by M.Matière (alone) to Mr Lowery on 29 May 2020 did not expressly refer to Bonna Sabla or the contractual provision that could be used to replace ABM but it did emphasise a desire to work on this project. As in the draft, it talked of echoes and discrepancies between different members of Mr Lowery’s team about the pre-casting operations and the location of the factory, including whether it would be temporary or permanent, near the job site or remote. Mr Lowery’s email in reply to M.Matière (alone) later the same day was an important one in the overall narrative. One of the reasons it is important is because Mr Lowery would not have known that his reply would be sent on to ABM, as it was. I regard it as an honest expression of his true thoughts. He said:

“I will be honest with you, the main issue is with ABM. We do have some commercial challenges and we do need to reduce the overall cost. However, we believe the cost issues are primarily associated with manufacture of the units.

We are looking at different options with regards to manufacture, some of which I think the Matière team may be aware. We have some serious concerns over ABMs ability to manufacture and deliver the pre cast units, both in terms of cost, efficiency and at the right quality, We also have issues with their profit expectations.

I understand this is difficult, but, I very much value our relationship. You will pleased to know that all of our considerations include Matière, and as I have detailed above, it is the manufacturing and associated factory that is our primary concern.

I am happy to arrange the video conference between our teams, and maybe we can catch up on a 1 to 1 basis to review how we can change the approach of ABM or at least discuss our options in this space.”

Transparently within the ABM/Matière JV, M.Matière sent the email from Mr Lowery on to Mr Minihane on 1 June 2020 who, in turn, sent it on to Mr Sanderson. Despite the obvious importance of this email string, Mr Minihane did not even discuss it in his witness statement. There is force in Mr Lewis KC’s submission that, when preparing his witness statement, Mr Minihane simply ignored exchanges which did not fit with the optimism contained in his own narrative. In cross examination, he only reluctantly agreed that Mr Lowery’s email had, indeed, expressed points of concern about ABM. Mr Sanderson was more forthcoming: he accepted this was a significant email because of the serious concerns it expressed. Indeed, he realistically accepted that by 1 June there was a clear threat to ABM’s position.

M.Matière replied to Mr Lowery that he fully shared the points made by Mr Lowery and would fly to Birmingham to meet with him to find a cost efficient solution which respected the schedule. He forwarded the email exchange internally within Matière, marked “Tres Confidentiel”.

On 1 June 2020, M.Vignon reported to Mr Sanderson that he had been asked by M.Matière to re-open the costing exercise on the airfield site, apparently at EKJV’s request. Internally Mr Sanderson said to Mr Minihane that he did not know how much to believe of what M.Vignon was telling him but he was sure there was “no smoke without fire” i.e. that there was at least some truth in it. M.Matière’s decision to re-open alternatives to Scunthorpe was consistent with his realisation of the change in strategy at EKJV. Although M.Matière’s evidence was that the message from M.Vignon simply reinforced his desire to be part of a JV with ABM, I reject that.

At this point in time, I conclude the position is as follows:

ABM submits that what happened in late May or early June 2020 was that Matière capitulated to EKJV entirely. In particular, it says Matière made plain it did not support the Scunthorpe proposal and did not support its own joint venture partner. In my view, that puts the position too high. Matière was riding both horses, and to that extent, did not capitulate to EKJV entirely. It tried to warn ABM of the risks it faced if it was too wedded to a factory at Scunthorpe and would have supported ABM if a deal satisfactory to EKJV could be reached.

A conversation between M.Martin and Mr Sanderson on 1 June 2020 should have reinforced the jeopardy that ABM genuinely faced. Mr.Martin had told him that he was working on a plan B (Footnote: ³) (and indeed, various plans) in case the job did not go to ABM. M.Martin pointed out that things had moved too slowly over the last six months, not all of it ABM’s fault, although he noted an apparent back-track by ABM on the £7.5m buy-back that had been discussed with Mr Swift. This was important, as Matière submitted, because the buy-back had been the very thing which had swung the decision back towards Scunthorpe at the start of April. M.Martin warned that his plan B would continue until something happened at Scunthorpe. This assessment of ABM’s prospects might not appear quite as terminal as Mr Lowery’s private email to which I have referred but, as M.Martin said, things happened above his head which made things impossible. I interpose to note that the internal ABM email containing this information was only disclosed by ABM during the trial and, by the end of the trial, no reason or explanation for the failure to have disclosed it sooner was provided.

There was a phone call between Mr Minihane and Mr Lowery later on 1 June 2020, after Mr Minihane had received Mr Lowery’s private thoughts in the email forwarded by M.Matière. The call is referred to in Mr Minihane’s subsequent email of 1 June 2020 to Mr Lowery, copied to M.Matière, where he described the discussion as having been positive and forthright. Amongst other things, he agreed to work to close the gap on price and expressed confidence in that happening. He said that a previous look at local casting had not reduced the cost but would be reviewed again. Mr Lowery’s email in reply did not suggest that ABM’s prospects were as bleak as he had expressed privately but did, at least, say the situation was at a “critical point and we need some significant movement in the week ahead”. He said he would “need to review our options for this package” if there was insufficient movement. Mr Minihane reported on further progress the next day.

Once again, I consider Mr Minihane was overly optimistic, to a high degree, about the prospect of ABM ever being retained on the Green Tunnels Project, let alone being retained on a basis that included production from Scunthorpe. His strongly expressed preference for a permanent factory at Scunthorpe, even in the face of the cost and other practical difficulties attached to it, is most surprising in light of his knowledge that Mr Lowery had privately expressed “serious concerns” held by EKJV about ABM and that it was actively looking at other options which did not include using ABM at all. If Mr Minihane did not believe there to have been “any threat” to the joint bid on 29 May 2020, he cannot possibly have been realistic to have retained that view on 1 June. I reject his oral evidence that he had conversations with each of Messrs. Gilbert, Swift and Lowery:

“all of whom also said that we were in pole position, or words to that effect.”

That is simply not reflected in the email from Mr Lowery and casts doubt on such other conversations as he may have had with others.

Mr Minihane’s over-optimism about ABM’s prospects was apparent in the way he rebuffed M.Matière’s warning in a WhatsApp exchange on 2 June 2020. M.Matière fairly commented on the email reply to Mr Lowery when he said, amongst other things:

“With all friendship and respect towards you, let me tell you that you are not in the right way when you try to over-push the permanent factory solution. This could have certainly been the right solution if the price gap was not what it is, and if Stanton-Bonna and Pacadar were not now in the loop…..We are not in the mood of what D.Lowery and E.Rossignol want at present time. Sean, in the name of our relations, I must warn you that we are not following the customer’s direction…they do not want this solution and we are now on a slippery slope if we do not follow what they want.”

Despite that broadly accurate summary of what I consider to be EKJV’s position at that time, Mr Minihane simply said in reply that he wanted he and M.Matière to be honest with each other, that the Scunthorpe proposal was a far better solution which would provide the best solution at the lowest risk and that he considered EKJV would accept this if it had the support of Matière, as had been agreed. I consider that Mr Minihane was completely misplaced in that opinion. The additional and express support from Matière in respect of Scunthorpe would have made no difference to EKJV’s own view. At a core level EKJV was antipathetic to working with ABM at all and there was simply no evidence satisfactory to EKJV that the financial gap could be bridged if the Scunthorpe factory was to be retained. As if that was not enough, EKJV was in the process of obtaining competitive prices from two other sources, as Mr Minihane now knew. Once again, the fact that Mr Minihane may not have known the precise extent of Matière’s role in Plan C is nothing to the point. He knew there was a Plan C and that EKJV was plainly implementing it.

In his witness statement, Mr Minihane blamed Matière for trying to re-open the issue of the Scunthorpe factory which he said had been ‘closed’ in April 2020 when the instruction from Mr Swift at EKJV to focus only on a permanent facility at Scunthorpe was received. I disagree with this. The issue of whether to have a permanent factory at Scunthorpe was never really ‘closed’ in April 2020. It could not have been ‘closed’ because its adoption was inextricably linked to the question of price, in respect of which there remained a significant gap. If it was ‘closed’, it was only briefly so, as different views on the pre-casting location were maintained and, by June, it looked highly unlikely that the pre-cast units would be manufactured at Scunthorpe, even if ABM was retained. Moreover, it was not Matière that was opening the issue of Scunthorpe. It was EKJV that was doing so. I reject Mr Minihane’s explanation of events.

On 1 June 2020, M.Vignon resurrected contact with Spantech who had earlier been asked about setting up a prefabricated concrete component factory. He asked for quotation details that had been given by them to ABM so that they could be compared with the offer to him. He said Matière was resuming full control of the project and would not be copying ABM into any communications, which Spantech acknowledged.

On 2 June 2020, M.Martin emailed M.Vignon to ask why he was not revisiting the Banbury or Bicester option. M.Vignon replied that M.Matière wanted a flying factory next to the project. Other possible sites were also investigated.

On 3 June 2020, M.Matière emailed M.Blanc to say that they needed to consider the Spanish solution (i.e., not working with ABM) or it risked losing the project.

On 3 June 2020, M.Vignon received rebar prices from SAMT Korail that had been provided direct to ABM previously. The request had been as agreed in confidence with M.Matière.

On 4 June 2020, on behalf of M.Matière, M.Vignon asked M.Martin of EKJV to investigate setting up a precast factory near the Green Tunnels sites, forgetting the Scunthorpe option until further notice. He identified the three locations he wanted EKJV to investigate. M.Martin said he didn’t have the resources to undertake the investigation but Matière should “feel free to propose us these solutions if you think it could be interesting for the project”.

All of these exchanges at the start of June 2020 show that Matière was privately (i.e. without ABM) promoting exercises to work directly with EKJV, without ABM in joint venture. As M.Vignon accepted, this was because M.Matière was concerned that Matière may not get the job at all. These exercises were being promoted with EKJV’s approval.

Between 9 and 12 June 2020, there were some direct email exchanges between M.Garnier and ABM in connection with mobilisation and pricing for the Scunthorpe factory. Matière was not involved in all these exchanges. There are also internal emails within ABM over the same period in respect of M.Garnier’s email of 12 June 2020. Mr.Garnier’s impression was that costs were rising, not falling, as he said of the factory prices that “the cost is not under control and confidence in your prices is being lower and lower…”. Internally, at the time, ABM did not appear to be concerned by EKJV’s position, even making jokey offhand comments about it, and thought it was simply part of a negotiation. However, in oral evidence, Mr Minihane accepted that M.Garnier was actually expressing a real concern about ABM’s prices and a loss of confidence in them. Mr Minihane was keen to blame the apparent rise in cost on the changing requirements from EKJV but that is to miss the point. What mattered was EKJV’s perception of ABM’s pricing.

M.Blanc sent an internal email within Matière on 12 June 2020 to say that confirmation that the factory “will be located in Scunthorpe” has been received from EKJV. ABM submits that confirmation should be treated with some care. I agree. There is nothing else to suggest it is correct. It may be that what is being reported here is that ABM’s confirmation that it planned to proceed with their factory in Scunthorpe, regardless of the factory’s cost, had now been received and acknowledged by EKJV.

In evidence, M.Vignon described this period as:

“a total mess, changing every day… What was the direction to take.”

He wrote to similar effect in an internal email of 25 June 2020.

I accept the situation was complicated and had been changing. Multiple strands of exchanges had indeed been taking place. Different lines of enquiry were being pursued concurrently and at different levels. The weight of double dealing must have been difficult for M.Vignon to manage and I consider that, in that respect, he lacked an overview of where things were heading. My impression is that EKJV was, largely, stringing ABM along at this time in June because it never really expected the substantial gap in ABM’s pricing to be bridged but was, at least, content to give it the opportunity to try. However, its primary focus and preference was in allowing, and encouraging, Matière to undertake investigations about alternative sites and alternative fabricators to ABM. Matière was willing to play its part in this respect.

ABM undertook some investigative work into alternative sites during June but my impression is that it did so without any enthusiasm and was more than content with the reported outcome that they would not produce the cost savings that EKJV was hoping for. Mr Minihane’s expressed expectation that Matière would now agree that Scunthorpe should be the only focus was optimistic.

Matière submits that it cannot have been a breach of the Consortium Agreement for it to have explored alternatives to a permanent facility at Scunthorpe if ABM was itself investigating alternatives. I do not agree. Matière’s investigations were premised on the basis that ABM would not be the manufacturer at all. I return to that point below. They were also undertaken in private.

The parties signed the Collaboration Agreement on 23 June 2020. One might ask why this had not been done sooner or why it was only being done now, given the state of play. Some pressure on ABM had apparently been applied by a Mr Stevenson at EKJV. That was because the very absence of a contractual document reflecting the joint venture was itself an indicator that ABM and Matière were not capable of functioning as a joint venture. However, shortly after the Collaboration Agreement was signed, Mr Stevenson, who was influential within EKJV, reported concerns from EKJV’s lawyers as to its adequacy, noting that, within it, there was no JV board mentioned, nothing about decision making and no mechanics for funding the JV. It was “talk in very general terms”. EKJV wanted to see a single JV entity with an obligation on both parts of the JV to fulfil the obligations of the other should one fail, and provision for risk sharing. It is worth mentioning here that ABM/Matière never subsequently satisfied EKJV’s requirements in this respect. Mr Lewis KC submitted that the fact Matière signed the Collaboration Agreement when it did was extraordinary on ABM’s narrative because it was directly contrary to the notion that Matière was undermining the joint venture. I do not agree. It is consistent with Matière keeping its options open.

Offer 8 was submitted by the ABM/Matière JV on 2 July 2020. It included an offer to buy back the factory. It included savings against the earlier offers.

Mr Minihane’s evidence was that, by around this time, things were back on track to a large extent, with contract discussions progressing and a lot of the senior leadership team involved. If he was right about this, then whatever Matière may have done before that was probably water under the bridge. But, as before, I consider his assessment of the position to be over-optimistic.

According to Mr Minihane, he had an important call with Mr Lowery of EKJV. He said he had a distinct recollection of it and that he had no doubt about what he was told. In the pleading, this call was expressed to have taken place on or around 3 July 2020 but in his witness statement he dated it on or around 13 July 2020. In his written evidence, Mr Minihane records being told by Mr Lowery on the call that M.Matière had earlier told Mr Lowery that the Scunthorpe factory “was all wrong and that Matière did not want to go ahead with it”. This is one of the particulars of breach which is pleaded against Matière. Mr Minihane says he recalls being “really disappointed” by what he had been told, because it meant M.Matière had been undermining him behind his back. In evidence he said was “to an extent shaken by it”. Mr Minihane said that Mr Lowery also expressed concerns that EKFB had over a project that ABM was working on at Luton. Mr Minihane commented that Mr Lowery was a “respectable, straight talking guy”.

There is an email between Mr Minihane and both M.Matière and M.Blanc recording a call between Mr Lowery and Mr Minihane on 3 July 2020 (the pleaded date). It makes no mention of what M.Matière was alleged to have said. Mr. Minihane says there would have been no point in challenging M.Matière about it so he did not do so. The email records optimism having been expressed by Mr Lowery on the price gap but that EKJV still required a Plan B using Stanton Bonna for its client (i.e. HS2) if ABM/Matière, the preferred option, was not selected.

Mr Minihane sent an email to M.Matière late in the day of 13 July 2020 (the date mentioned in the witness statement). It also makes no mention of any call with Mr. Lowery having taken place that day. The email records a conversation between Mr. Sanderson and M.Martin of EKJV. Mr Minihane said their good relationship was needed in order to redeem “this now-serious situation”. Mr Sanderson accepted in evidence that what M.Martin had said to him amounted to an explicit threat to the success of the proposal, which makes Mr Minihane’s description an apt one. According to the conversation, EKJV was concerned that ABM and Matière were not working together in true JV spirit. As a solution, Mr Minihane proposed a single line of communication with EKJV, via Mr Sanderson. Mr Minihane identified urgent actions, which (amongst other things) recognised it faced competition from Stanton Bonna. He said the proposed factory was “one of our key advantages” and, in relation to it, ABM would re-assess its price by including provision for buy back of the factory by bonding or by funding the residual cost.

M.Matière replied to Mr Minihane the next day. In respect of the factory, he was blunt:

“Let me put it black on white: EKBF doesn’t want to pay more in terms of factory installation than what is strictly necessary for the green tunnles jobs. That is to say that the idea of a permanent factory, of which a part only would be invoiced to them, must be forgotten. I am sorry to be brutal, but this is a message I got from Emmanuel Rossignol since last December, then from his Eiffage Guys, when I met them in February.”

M.Matière did not necessarily suggest that a factory at Scunthorpe was out of the question. What mattered was the price of the proposed solution. He identified that the costs of transportation from a close site, proposed by Stanton Bonna, would be compared to the costs of a remote site proposed by ABM, namely Scunthorpe. He asked if transport costs could be removed from the price. M.Matière made clear that the overall choice of what to do was that of Mr Minihane but said that it was that choice which would win or lose them the project. Mr Minihane accepted that M.Matière had set out his views with reasonable clarity. He also accepted that M.Matière was right to express the issue in terms of price, saying that “Price was constantly an issue on the table.”. That is an important point of common ground – the location of the manufacturing only mattered to the extent it fed into the price. It was for ABM to show EKJV that they would not pay more, overall, for the pre-casting at Scunthorpe than they would at a local facility. Mr Minihane agreed that the situation was such that, for the first time, he considered removing the cost of construction from the bid and ABM funding the cost itself.

I must now return to the pleaded allegation. I am not satisfied that M.Matière told Mr Lowery that the Scunthorpe factory “was all wrong and that Matière did not want to go ahead with it” as reported by Mr Lowery either on or around 3 or 13 July as alleged. I accept Matière’s submission that this statement, had it been made to Mr Lowery, would have featured somewhere in the many internal emails and WhatsApp messages passing within ABM at the time. Mr Minihane’s explanation for not challenging M.Matière as to whether he said it was not convincing given that, on his own evidence, he was shaken by what he had been told.

In any event, I am doubtful that the statement would have made any real difference even if M.Matière had made it. Mr Lowery and some others within EKJV already had real concerns of their own about Scunthorpe, which had been shared with ABM, and were actively considering a rival manufacturer who would not require the construction of a permanent factory.

By mid-July 2020, the over-arching position for the ABM/Matière JV was not back on track, as Mr Minihane suggested. On the contrary, there was a “now-serious situation” which needed to be redeemed. Internally, ABM did not consider their position to be back on track either. In an email sent by Mr Sanderson to Mr Minihane on 16 July 2020, following a call he had had with M.Martin, Mr Sanderson summarised the position thus:

“either, i. we’ve got a mountain to climb with Jeremie or ii. He’s a very clever player manipulating us to get the price down and get his ‘share price’ up or iii. no one knows what’s going on. I think that it’s probably a bit of each!”

In my view, ABM’s latest approach, of agreeing to finance the cost of the Scunthorpe factory itself, was effectively a last throw of the dice. Mr Minihane said it was ABM’s response to the wishes of the customer, as it undoubtedly was. It is a little surprising that there is no internal written record of the decision within ABM to change the approach but I am satisfied that such a decision was reached. However, the new approach created a different problem for ABM: how to finance it. I am satisfied that ABM did not begin to investigate this issue until August/September which is as Mr Minihane said in his witness statement. In oral evidence, he suggested that this might have started to occur much earlier, in July, but I do not accept this. There is no written evidence of communications between ABM and potential lenders at that earlier time. ABM did not pursue enquiries with the banks sooner, or as swiftly as it might, because it still remained a route that ABM did not want to go down. It may have suspected what later became apparent, namely, that finance was very difficult to obtain.

Offer 9 was made on 24 July 2020. This was premised on the basis that ABM would fund the Scunthorpe factory. This change was a primary source of the cost reduction within the offer. In the email which sent Offer 9, Mr Sanderson said that ABM was negotiating with external lenders to partially fund the project but, as I have said, there is no evidence that that was actually taking place. Mr Sanderson explained that ABM required the support of EKJV and that substantial advance mobilisation funding was essential to ensure the success of the project. Offer 9 introduced the concept of a Factory Utilisation Charge.

There was an exchange at the end of July in which EKJV (through Mr Lowery) expressed concern (to, amongst others, Mr Minihane) that Offer 9 was seeking to unravel a prior agreement on the Fee. Mr Lowery described it as a backwards step in the process and Mr Minihane suggested internally that this was “Not great”. Others within ABM were more optimistic. They considered that, if a decision to replace them with Stanton Bonna was such an easy option, then EKJV would never have been that upset about the Fee. M.Matière appeared to share Mr Minihane’s view and urged ABM to resolve the Fee issue urgently. He said the JV was no longer a leader but was, more and more, a challenger for the Project.

In early August, Mr Lowery was in direct contact with M.Matière. The clear impression from the Teams exchanges is that they were discussing EKJV working with Matière alone, since the exchange was said to be highly confidential. That must have meant confidential from ABM. I reject M.Matière’s evidence that their discussion was all on the hypothesis that Matière would only be directly retained to ensure there were no tunnel collapses such as had occurred at Gerrards Cross. The discussion was about Matière being retained for all of that for which it was bidding within the ABM/Matière JV. Mr Lowery said he would be warning Mr Minihane that an alternative option was being looked at but that he would not say what that option was. Mr Lowery did want Mr Minihane to understand the seriousness of the position before a final decision was reached. On 5 August 2020, M.Matière also referred Mr Lowery to Article 3.2 of the MOU signed between the three companies (itself not a binding clause) and Article 24.4 of the Collaboration Agreement it had signed with ABM. These provisions were both relevant to the question of what obligations each of EKJV and Matière owed to ABM. Of those provisions, M.Matière said they could then “be optimistic” but it must be kept confidential.

At the same time Mr Minihane had some direct Text/SMS exchanges with Mr Lowery between 4 and 6 August 2020. As he indicated to M.Matière that he would, Mr Lowery warned Mr Minihane that time was running out on the Joint Venture Agreement and that the “noise from Luton” was not helping. (This was a reference to the issue on the project between ABM and Kier at Luton airport, considered below.) Mr Lowery indicated that things were not looking good for ABM and that the board at EKJV had asked to present an alternative package to the ABM/Matière JV for the Green Tunnels Project. He gave the reasons for this, which included contract/commercial issues and quality as big driver issues. Mr Minihane said that was “certainly disappointing”.

M.Matière and Mr Minihane then exchanged direct emails, following Mr Minihane’s call with Mr Lowery. M.Matière had expressed concern at the messaging from EKJV and said that they needed to be very careful. In reply, Mr Minihane reported that he was told by Mr Lowery that ABM/Matière remained the preferred option but that other options were being looked at. He told Mr Lowery that the issue with Kier at Luton had been resolved.

My analysis of this period is that, whilst Mr Lowery was speaking separately to both Matière and ABM, he was giving a clear (and honest) warning to ABM that the position of the ABM/Matière JV was precarious. EKJV was in a better commercial position to contract with Matière and Stanton Bonna than ABM believed to be the case. Matière, in the meantime, continued to ride both horses, retaining sufficient flexibility to contract with EKJV directly or via the JV. Whilst the prospect of Matière working with EKJV without ABM was contrary to the joint endeavour envisaged in the agreements between ABM and Matière, those discussions would not have been possible without the encouragement and agreement of EKJV, namely Mr Lowery. At this time, ABM was not actually in a position to follow through on Offer 9 as it had not begun to contact any lenders to see how the factory at Scunthorpe could be funded.

Mr Minihane spoke with Mr Lowery on 12 August 2020 and emailed M.Matière and M.Blanc to report on it. Mr Lowery told him that an alternative option was being considered by the board and would be discussed the following week. Concerns remained about timing, the status of the JV and maintaining price and fee level.

Offer 10 was made on 14 August 2020. It was the last one submitted by ABM/Matière. Other information was provided later.

As I detail further below, at around this time questions about the ABM/Matière JV structure were still being discussed and remained unresolved. Similarly, discussion over the detailed terms and conditions of the proposed subcontract between ABM/Matière JV and EKJV were still ongoing. There were exchanges about this on 17 August 2020.

Whilst the decision of the board was awaited, Mr Minihane emailed M.Matière and M.Blanc on 17 August 2020 to say he did not really understand what was going on. He posited that either EKJV had another offer and was setting the JV up to fail in getting the Green Tunnels Project or that EKJV did not know what they were doing and were under pressure to award ABM/Matière the work. M.Blanc replied that EKJV certainly had another offer from a company that had all the facilities they want, in order to compare with ABM. This was, presumably, a reference to Stanton Bonna. M.Matière added that he had already told Mr Minihane that EKJV was in serious discussions with other competitors.

The EKJV board met, although the date of the meeting is not clear. It was probably on 19 August 2020. There is no first-hand account of what was discussed but Mr Lowery reported to M.Matière on the outcome. I conclude that the board was asked to review comparisons between the Green Tunnels work being undertaken by ABM/Matière JV on the one hand and by Matière and Stanton Bonna (under separate contracts) on the other. Mr Lowery’s presentation, which was key, was a recommendation for the pre-cast manufacturing to be undertaken by Stanton Bonna and for the installation to be done by Matière. The board agreed with that recommendation. One outcome was that HS2 Ltd agreed to add Stanton Bonna as a preferred subcontractor. Another was that Mr Lowery asked M.Matière for details of the Collaboration Agreement between Matière and ABM. He was plainly interested in checking how Matière could safely extract itself from its JV obligations. M.Matière obliged by providing a copy of the agreement. He had also been contacted by M. De Guinaumont from Eiffage, who was Mr Lowery’s own boss.

M.Matière says that, in this period, he tried to get EKJV to change its position. He says he wanted to be loyal to the joint venture and resolved to push the bid but would ensure Matière was well placed if it failed. ABM says this is all untrue and that M.Matière was positively deceiving ABM and undermining its bid. In fact, M.Matière did, at least, suggest to M. De Guinaumont the possible co-ordination of the works using ABM and another for the fabrication works. There is evidence that M.Matière was concerned about Matière’s possible legal liability to ABM once it had notified it was unsuccessful, which might have explained why Matière expressed support for ABM at least to some degree. Ultimately, though, Matière expressed itself to be at the side of EKJV whatever its chosen scope was.

In my view the EKJV board’s position at this time was now conclusively and, absent anything totally unexpected, irreversibly against ABM playing any part in the Green Tunnels Project. That is to say that an ‘in principle’ decision was taken at that board meeting not to employ the ABM/Matière JV even though the formal letter of termination was sent a month later. M.Martin, who had not been at the board meeting, told Mr Sanderson of ABM that he, personally, had not been in favour of the Stanton Bonna option and that ABM should continue to “fight like a lion” to keep the work. In my view, the moment for that had essentially passed.

On 26 August 2020, M.Matière had private exchanges and a call with M. De Guinaumont. Mr Minihane had learned of the board’s approach (as reported to him) and was contemplating legal action against EKJV. He was told to await the final decision. All this was reported to M. De Guinaumont.

On 25 and 26 August 2020, ABM made presentations to Nat West and the Bank of Ireland in respect of the funding it was seeking for the factory. On 7 September 2020, the Bank of Ireland sent out its indicative terms and conditions but no offer. There seems to have been no equivalent from Nat West. Mr Minihane claimed to have lost interest in Nat West but it is more likely that Nat West was not interested in ABM. At all events, Mr Minihane said in evidence that the Bank of Ireland was its best opportunity for funding. It is clear that a considerable amount of due diligence would have been required in order to secure a formal offer from the Bank of Ireland. Internally within ABM, Mr MacConmara, who was ABM’s CFO, said he would draft a note of what needed to be confirmed or done.

On behalf of Matière, Mr Lewis KC forcefully criticised ABM for not disclosing any such note. Indeed, he submits that I should draw adverse inferences from ABM’s failure to do so, namely that the note was unhelpful to ABM. (A similar approach was taken in relation to other documents too.) I agree it is odd that no such note has been disclosed given that the email suggested one would have been prepared. I would, in any event, have expected some form of document to be created in response to the terms offered by Bank of Ireland had ABM been of a mind to pursue that route. No explanation was given for what happened in respect of any note. Mr MacConmara was not called as a witness. ABM submits that the absence of documents alone does not justify the allegation that disclosure has not been properly performed. That is true. However, it is unnecessary for me to make findings about non-disclosure in this particular context because I am satisfied that, if there had been evidence to suggest that ABM got close to being able to satisfy the Bank of Ireland’s requirements for funding, such a document would have been disclosed. There is no evidence to show that ABM had begun to get to that point. There never was a binding offer of funding capable of acceptance in place.

Separately, ABM was also investigating an advanced payment bond from Nationwide, which had also been discussed with the Bank of Ireland. Nationwide was not interested in providing this without a cross indemnity from Matière, which was not realistic. Thus, the suggested route of an advanced payment bond seems to have foundered.

On 9 September 2020, Mr Minihane sent an email to Mr Lowery, but copied to many others, with a view to persuading EKJV to stick with the ABM/Matière JV. He said ABM could start very quickly, preserving the contractual dates, and that any alternative proposal would be unable to satisfy that critical requirement. There was a veiled threat that advice had been taken. The email was signed by both him and M.Matière but had not in fact been approved by M.Matière. Mr Minihane had scanned M.Matière’s signature without his agreement. In reply, M.Matière expressed his displeasure about that and told him they may not be winners if Mr Minihane did not stay calm. Ironically, M.Matière privately sent his confidential reply to Mr Lowery.

On 9 September 2020, Mr Scott of ABM prepared a timeline for the commencement of work, including work on the pre-cast factory, which he shared with Mr Gilbert (but not Mr Lowery). Without, it seems to me, any real basis he said that “we are now extremely close to agreement”. Cold water was poured over the proposed timeline by Mr Gilbert of EKJV in his reply. In a further reply, Mr Scott (adopting drafting prepared by Mr Minihane) said that ABM/Matière was working with its “funding partners” to provide step in rights for EKJV if the need arose. Mr Minihane accepted this was clumsy wording but it was, in reality, simply untrue, not least because Matière was not involved with funding partners at all. Mr Scott also said ABM was in final discussions with two large financial institutions regarding factory funding. That statement was also not borne out by the contemporary evidence, as I have noted. Mr Minihane did not accept it was gross exaggeration but, in my judgment, he was wrong not to. Optimistically, given the long history, the email also said that funding of the factory within the subcontract (i.e., paid by EKJV) could also be discussed. There is force in Mr Lewis KC’s suggestion that the resurrection of this suggestion reflected ABM’s realisation that it was going to face real difficulties in obtaining its own funding for the factory.

M.Matière messaged Mr Lowery on 10 September 2020 to inform him that he had participated in the official ABM/Matière letter that was being issued. He offered his help as required. Mr Lowery thanked him and agreed that Mr Minihane’s earlier email had not been a good move. He recorded that progress with the other option was going very well. The official letter itself, dated 10 September 2020, was addressed to Mr Lowery. It recorded that ABM and Matière had become increasingly concerned that negotiations were not progressing as necessary to reach a satisfactory conclusion. It said that the Professional Services Contract had contained an agreement for exclusive discussions to be undertaken in good faith but that EKJV was understood to have been in parallel negotiations with another supplier. It said that ABM/Matière JV was acting in good faith. It identified that EKJV was considering using Stanton Bonna as an alternative supplier, either as subcontractor or on a supply only basis. A meeting was requested.

Mr Lowery replied on 14 September 2020 expressing disappointment that negotiations had not progressed. He (rightly) identified significant fundamental contractual and financial matters where agreement had not been reached. He pointed out that it had not been possible to demonstrate that ABM/Matière (but ABM in reality) had the financial means to deliver the proposal, which was to the detriment of the programme. Mr Minihane drafted a reply and asked M.Matière to agree it. In reality, it was all too late.

By now, EKJV had established with sufficient certainty that it was in a position to go with its alternative option. It could therefore implement the ‘in principle’ decision which had been reached at the board meeting a month earlier. A formal termination letter was issued to ABM/Matière on 18 September 2020. It was signed by Mr Lowery. A number of reasons were given for the termination. It said:

“EKFB are now some five months into Stage Two of our Main Works construction contract. However, EKFB have been unable to agree terms with your organisations in respect of the above opportunity and there remain unresolved differences between us on fundamental matters, including (by way of example):

•

Your latest revised proposed financing, title and bonding arrangements for the construction of a dedicated pre-casting facility.

•

Clarity and agreement on your recent proposal regarding adjacent reinforcement facility;

•

Your commitment to a properly integrated, full delivery and risk sharing arrangement between ABM/Matière;

•

Agreement of subcontract terms, including (but not limited to): options X1, X5, X7, X14, X18.

•

Concerns on the technical delivery capability arising from the failed fire test.

•

Concerns on operational delivery arising from a recent EKFB JV partner contract.

In the circumstances, we have not been able to agree terms with you in relation to the opportunity and EKFB are not satisfied that your proposal demonstrates that you have the available resources and/or the financial and technical means to delivery the opportunity (and ultimately the works required).”

ABM submits that I should treat the termination letter with some care because, on 5 August 2020, M.Matière had identified for Mr Lowery some of the contractual provisions which may be relevant in this context which Mr Lowery had then reflected in the language he had used. ABM also says the termination letter is curious because of its lack of detail. The reasons given for termination, it says, are slight, insignificant and in places just plain wrong. ABM says the reasons, particularly in respect of the fire testing and Luton Airport, amounted to scraping the barrel and that the letter was no more than a device adopted, with M.Matière’s assistance, to achieve what EKJV wanted to achieve.

These are ‘high’ allegations to make against Mr Lowery, the senior Director at EKJV who Mr Minihane had described in evidence as a “respectable, straight talking guy”. Whilst I accept that Mr Lowery’s language may have drawn on the contractual provisions to which his attention had previously been drawn by M.Matière, that is unsurprising since they were the appropriate ones to have in mind. He would have wanted to ensure his letter was framed by the appropriate criteria. I am satisfied that Mr Lowery would not have included reasons within the letter that he did not genuinely consider to be fair reasons for EKJV to have brought the relationship with ABM/Matière JV to an end. This is not a trial of EKJV’s entitlement to terminate the relationship. Nor does it matter whether Mr Minihane or ABM agrees with the reasons, or their adequacy. It suffices to say that EKJV was entitled to take those matters into account in reaching its own decision.

Although I have concluded that EKJV was entitled to take the listed items into account, I intend to deal with the fire testing and Luton Airport points separately below and to reach my own conclusions in respect of them. In the same vein, I will now address one of the other points raised by Mr Lowery in his letter, namely the failure to commit to a properly integrated risk sharing agreement within the ABM/Matière JV. As I mentioned above, on 29 June 2020, shortly after the Collaboration Agreement was signed, EKJV’s legal team pointed out various deficiencies in the legal structure and risk sharing arrangement between ABM and Matière. ABM pushed back on these points in an email on 30 June 2020. These issues were never resolved. Mr Minihane’s evidence is that EKJV’s legal team may in fact have comprised individual lawyers from each of the joint venture partners and not all of them were working collaboratively. Mr Milne of Kier appeared to think less was required than the lawyers referred to in Mr Stevenson’s email.

In an email dated 14 August 2020, lawyers within Lupton Fawcett, acting for ABM/Matière, discussed what they considered was needed to resolve “the current impasse”. They identified the remaining issue which needed to be resolved: the difference between the model adopted by EKJV and the cost sharing approach of ABM/Matière. They said this issue remained problematic, because EKJV had not felt that the resulting structure lead the ABM/Matière parties to have sufficient commitment to the joint delivery of the project, adding:

“If one party gets into trouble in the delivery of its portion of the Project, EKFB feel that our structure fails to provide sufficient incentive to the other to ride to its rescue.”

A solution proposed to Mr Milne of Kier had resulted in a preliminary indication that it would be acceptable but Mr Milne was than occupied with a crisis elsewhere. The lawyers summarised the position thus:

“…the next task, provided all remains as anticipated, will be to establish what we have to do in relation to the creation of a joint venture company, how that can be used as a medium to achieve a deal which has the same essential characteristics as that set out in the attached Collaboration Agreement, and how much time we have to get there. After that there is the job of getting there.”

In short, the position was unresolved. Mr Minihane claimed it was a “shock” to him to see this issue raised in Mr Lowery’s termination letter but I reject that evidence. Only two days before, he had replied to the lawyers in Lupton Fawcett saying:

“I might underline to you that EKFB has been muttering various points of discontent in concluding a contract with us, of which the continued delay in closing a ‘suitable’ jv is one important element.”

My conclusion is that, over time, Mr Minihane had not sufficiently appreciated what was being sought by at least some lawyers within EKJV. To them, it was not a mere question of drafting. What was missing was any agreement between ABM and Matière that reflected legal allocation of risk sharing (including liability for losses) on a properly integrated basis. There was, as yet, still no legal entity in place sufficiently to satisfy EKJV. The Collaboration Agreement had not clearly addressed these matters sufficient to satisfy EKJV. In particular, Clause 34.1 confirmed that ABM and Matière did not intend to share profits and losses but that each should be responsible for the performance of their own scope of work. The concerns that EKJV had were never displaced.

I am satisfied that EKJV was entitled to pray in aid the failure by ABM/Matière to reach agreement on these issues for some months.

There are two further points to make about this topic. The first is that no complaint is made that Matière alone contributed to the failure to resolve this issue to EKJV’s satisfaction. The second is that much has been made by ABM of the point that Matière’s failure to support the building of a factory at Scunthorpe meant that the ABM/Matière JV presented as dysfunctional. However, the failure to resolve the integration of the JV was a rather more fundamental point.

Returning to termination more broadly, Mr Sanderson had originally said he was not aware of any explicit threat to the ABM/Matière proposal in the period prior to termination but accepted in cross examination that this was an over-optimistic perception. Mr Minihane said he was surprised and shocked to have received the termination letter. If so, it is a reflection of how far he had overplayed his hand in the negotiations. In truth, I doubt he was that surprised.

It is worth restating that, at the date of termination, ABM had still not raised finance to construct the Scunthorpe factory. There is no evidence that the terms of the indicative offer from Bank of Ireland had been followed up, still less satisfied. In that respect, at the date of termination ABM was not even in a position to actually deliver on the ABM/Matière offer which had been made. ABM certainly lacked the means to be able to satisfy EKJV that it would obtain funding for the construction of the Scunthorpe factory.

ABM submits that, for at least the whole of August and September, M.Matière was acting for Matière’s own advantage and to the disadvantage of the ABM/Matière JV, and that he had done so dishonestly by deceiving ABM and Mr Minihane about what he was doing. I accept the thrust of that submission, in that Matière was seeking to ride both horses simultaneously, one of which was entirely inconsistent with the essential purpose of the ABM/Matière JV. M.Matière did so without letting Mr Minihane know what he was doing. But, as I have earlier indicated, these actions were all performed with the encouragement and acceptance of EKJV and I do not believe it would have made any difference to the ultimate outcome if M.Matière (and Matière) had not acted in this way. Moreover, the ‘in principle’ decision not to appoint the ABM/Matière JV had already been reached in mid-August so Matière’s conduct after that date was causally irrelevant to ABM’s central complaint.

It was not long before EKJV entered into a direct arrangement with Matière, as had been envisaged in the earlier discussions between Mr Lowery and M.Matière. Thus, on 29 September 2020, M.Vignon reported internally that he had had a discussion with EKJV about a new Professional Services Contract. He reported that EKJV would be proposing one shortly. Thereafter, he said there would be discussion about stage 2 i.e., installation. The draft Professional Services Contract was sent by EKJV on 9 October 2020. It bore the same title and subject matter as had been agreed between EKJV and Matière/ABM JV in 2019. M.Blanc said in evidence that the new draft PSC was to be deployed for a limited purpose, namely to enable Matière to provide help to EKJV for a short period in respect of particular problems that had been identified. There is nothing in the draft agreement to suggest this and I do not accept it. The new PSC was dated 26 October 2020.

On 27 May 2021, ABM submitted its Final Account to EKJV on behalf of itself and Matière.

Much later, on 29 November 2021, EKJV entered into an agreement with Matière UK Ltd. It was in the form of the NEC3 Engineering and Construction Subcontract: Option C for the installation of the Green Tunnels for the C2 and C3 sectors of the HS2 Project.

Unsurprisingly, samples of the concrete for the Green Tunnels Project had to be cast and then subjected to a fire test. Casting began on 13 February 2020. Unfortunately, problems were experienced with the casting process. The framework (or mould) was opened on 14 March 2020 and showed multiple defects in the cast block. On 18 February 2020, Mr Sanderson of ABM reported the difficulties that ABM had experienced in relation to the casting. The decision was taken to suspend production, which he described as “regrettable”. EKJV (and Mr Lowery, in particular) wrote to ABM/Matière JV to complain, recording that production of the precast units had been suspended. EKJV asked for ABM/Matière JV to come back with details as to why the casting had failed, whether it would affect the Green Tunnels design and what actions were being taken to deliver the fire testing on time. EKJV made clear that it held ABM/Matière responsible for this incident since the concrete mix design resulted from a professional service that EKJV had commissioned. It was necessary for EKJV to warn that any consequence that EKJV itself suffered would be laid at ABM/Matière’s door. M.Vignon reported internally on this issue on 19 February 2020. He said it came at a bad time for ABM, given their negotiations over the prefabrication factory.

As reported in an email from ABM on 3 April 2020, casting of the fire samples was completed on 27 March 2020. (This was right at the start of the pandemic.) The issues with the concrete itself had therefore been overcome. In reply to ABM’s email, the Project Manager from HS2 was complimentary about that successful achievement, given the major logistical challenge that ABM had faced as a result of the pandemic. He said he would inform HS2’s management. The casting issue had caused delay to the start of testing of about 3 weeks, as M.Vignon accepted. The testing itself was delayed by about 5 weeks, as M.Vignon also accepted, but was ultimately successful. There were no further issues with the quality in relation to the test pieces.

This part of the story matters because M.Vignon’s evidence was that the need to suspend casting of the fire test blocks caused a deterioration in the perception of ABM within EKJV. I accept that evidence even though the specific issue was ultimately overcome, causing a delay of just over a month. The question over ABM’s technical delivery capability arising from the failed fire test was one of the items listed by Mr Lowery in his termination letter of 18 September 2020. Mr Sanderson said that neither M.Martin, nor M.Garnier, nor anyone else he dealt with, ever mentioned the failed concrete casting, so reference to it in the termination letter came as a surprise to him. That may be so, but Mr Lowery had clearly not forgotten it. Whilst not directly referring to the fire testing, EKJV had previously expressed serious concerns about ABM’s ability to manufacture and deliver, for example in Mr Lowery’s email on 29 May 2020, which was forwarded to Mr Minihane and Mr Sanderson.

Mr Minihane sought to explain in evidence how the failure had come about and why it was not really ABM’s fault. Whilst recognising that the failure had been disappointing, ABM submits that it is in the nature of a test that it might fail. Those points seem to me to be irrelevant. What mattered was EKJV’s perception of the issue, namely that the fault for the failure lay with ABM. Whilst HS2 Ltd was complimentary of the steps taken to resolve the casting issue, that seems to have been a recognition of the challenges created by the pandemic, rather than absolving ABM of responsibility for the initial failure. In any event, it did not impact on EKJV’s own perception of ABM’s technical delivery capability, as the termination letter shows.

The negative perception which this issue caused had nothing to do with Matière.

Another concern regarding ABM arose at about the same time. ABM (alone) was working on a contract for VolkerFitzpatrick and Kier (one of the JV members) at Luton Airport. Kier had apparently been unhappy with ABM’s work on that job. M.Vignon heard personnel from Kier expressing dissatisfaction, saying that they did not want to have ABM working on the Green Tunnels Project.

A payment dispute had arisen in respect of Luton, with each side blaming the other for past delays. Volker/Kier said that, contrary to ABM’s assurances, it had become clear that ABM was not able to meet the programme. In a letter dated 22 July 2020, Volker/Kier noted ABM’s refusal to commence work on remaining panels until such time as its price increases were agreed to. Volker/Kier clearly felt they were being held to ransom and said they would not allow the stalemate, which had started in February 2020, to continue. They said that ABM’s refusal to recommence work would be treated as a repudiation.

Volker/Kier sent ABM another strongly worded letter dated 27 July 2020 in which ABM’s claimed increases were described as “speculative, unwarranted and grossly exaggerated”. Relations had clearly deteriorated quite badly over a long period.

When he finally appreciated what damage the dispute at Luton was causing to the Green Tunnels Project, Mr Minihane moved to resolve it. (He had had earlier warnings but had not seen their significance). On 31 July 2020, he also sent an email to Mr Lowery, headed “Quality” because he understood Mr Lowery had heard about legacy issues on other contracts including Luton. Mr Minihane’s explanation sought to minimise their significance.

As recorded earlier, on 5 August 2020, Mr Lowery had said that the “noise from Luton” was not helping ABM’s position. Mr Minihane tried again to put the dispute into context for Mr Lowery, saying that the new order for the units which unlocked the issue was worth only £87k. He said it was overblown and was commercial, not quality based. However, he accepted in cross examination that he did not explain to Mr Lowery that ABM had sought a price increase of over 100%. Nor did he report that a threat of repudiatory breach had been alleged. I accept the submission that Mr Minihane sought to downplay the ambit of the dispute generally and did not give Mr Lowery the full context. In submissions, ABM contends that there is almost no evidence to show that anyone held a negative opinion about ABM resulting from Luton (or the fire test, considered above). I do not agree. The negative view resulting from Luton was held within Kier and then shared. The very fact that Mr Minihane needed to explain the position to Mr Lowery in an email headed “Quality” demonstrates that it was a concern which had been raised with ABM and needed answering.

Mr Minihane got the person at Kier on the Luton Airport job to speak to the Kier person on the EKJV board to say that there was now no issue and that the parties were working together. However, I conclude that the position remained that, rightly or wrongly, ABM’s stance on the project at Luton Airport had caused long-term damage to EKJV’s perception of ABM. The damage occurred over a long period of time because, as I have said, ABM’s refusal to fully perform until its financial demands were met had begun months earlier, from February 2020. It was noticeable that, in describing the dispute with Kier in his witness statement, Mr Minihane did not record that the stand-off had started in February. The ultimate resolution of the dispute did not wash away the negative perception created by ABM over that whole period. In the termination letter of 18 September 2020, Mr Lowery referred to “concerns on operational delivery arising from a recent EKFB JV partner contract”, which was an obvious reference to Kier in relation to the Luton Airport contract.

Once again, none of this was Matière’s responsibility.

ABM submitted that the fire testing story and the Luton Airport story cannot have played any material part in reducing the prospects of ABM/Matière JV being awarded the subcontract by EKJV because ABM had for some time been named by EKJV, along with Matière, as a strategic partner in the PSC in 2019, and was listed by HS2 as an approved subcontractor in April 2020. Close consideration must have been given to select and identify ABM in those ways and, it suggests, such acknowledgment would not have lightly been undermined. However, both events manifested themselves at a similar time (February 2020) and the evidence shows that, whatever may have been the earlier perception of ABM, they both played a part, over time, in reducing the prospects of ABM/Matière JV being awarded the subcontract by EKJV.