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

Recitals A, B and C

“(A)

The parties wish to act on a basis governed by this Agreement as a co-operative enterprise in relation to the Project.

(B)

The terms of this Agreement will in the manner set out herein incorporate terms (referred to herein as Co-operative enterprise) by virtue of which the relevant parties will undertake pursuant to this Agreement to undertake the Scope of Work agreed by them in the execution of the Project.

(C)

This agreement sets out the terms and conditions upon which the parties have agreed that the Project shall take place.”

Clauses 1.1, 1.2 and 1.3:

“1.1

Eiffage Kier Joint Venture, (The Contractor), an unincorporated joint venture between Eiffage Genie Civil and Kier Infrastructure and Overseas Limited has entered an agreement with High Speed Two Limited for the design and construction of Lots C2 and C3 of High Speed Two (The Project).”

“1.2

The Contractor has agreed to appoint ABM Precast Solutions Limited and Matière SAS (Jointly acting as The Consultant) to provide specialist advice and support to the pre-construction phase of it’s obligations.”

“1.3

ABM Precast Solutions Limited and Matière SAS agree to act as a co-operative enterprise to undertake the duties of The Consultant, as the first part of a contract to design, manufacture & install the Green Tunnels.”

Clause 2.1

“2.1

This Agreement shall commence on the date when it has been signed by each and all of the parties (the “Commencement Date”), and shall continue, unless terminated earlier in accordance with this Agreement upon the termination of any associated Professional Services Contract.”

Clause 3.1

“3.1

ABM and Matière shall co-operate and collaborate with one another in accordance with the terms of this Agreement and in the course of their performance of their obligations pursuant to any associated PSC each of ABM and Matière shall act in good faith toward the other and use reasonable endeavours to forward the interests of the co-operative enterprise.”

Clause 4

“Nothing in this Agreement shall restrict the right of either ABM or Matière to continue to conduct its business activities or arrangements that existed on the Commencement Date or that otherwise come into being outside the scope of and/or without breaching the terms of this Agreement.”

Clause 6.1 and 6.2:

“6.1

ABM Precast Solutions Limited will apply for payment from EKjv in accordance with the provisions of the relevant Professional Services and will, when paid, be responsible to Matière SAS for payment of Matière’s fees at the rates detailed within the PSC.”

“6.2

Any invoice issued and sent as provided in clause 10.2 above will include VAT where required and will be a VAT invoice.”

Recital (b)

“The Contractor has agreed to appoint the Consultant to act as its strategic partner providing professional and specialist knowledge and judgement, assisting and advising the Contractor in the Preparation of Stage Two Proposals for Submission to HS2 for Pre-cast Concrete Double Arch Cut and Cover Tunnels including associated Waterproofing Earthworks in respect of the Project.”

Clause 1.1 and 1.2

The Contractor and the Consultant shall act as stated in this Appointment and in a spirit of mutual trust and co-operation.

The Consultant shall carry out the services set out at Schedule One of this Appointment (“the Services”), in a regular and diligent manner, and in accordance with the timeframe/s envisaged in Schedule One (where specified) or any timescale/s agreed with the Contractor in writing.”

Clause 1.3

In carrying out the Services the Consultant shall exercise all the reasonable skill and care to be expected of a professionally qualified and competent consultant (appropriate to the Services) experienced in projects of a size, scope and complexity similar to the Project.”

Clause 3.1

The Contractor shall pay to the Consultant the fee set out at Schedule Two of this Appointment (“the Fee”). The Fee is inclusive of all costs, expenses, disbursements and overheads but exclusive of VAT.”

Schedule 1

“SCHEDULE ONE – THE SERVICES

The Provision of Professional and Specialist Knowledge 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 for C2 and/or C3 in whole or in part and specifically the following in accordance with the Memorandum of Understanding and Confidentially Agreement executed in and around the time of this Appointment:

Review and constructively challenge the current Scheme Design for the Pre-Cast Tunnels and associated Waterproofing.

Integrate and contribute positively to the Innovation and Optimisation initiatives currently being carried out on the Project.

Identify constraints and define methodology, programme and price based on constraints.

Identify and agree extent of indirect scope of works including all expected attendances.

Identify interfaces and the impact this may have on the cost model, programme and methodology.

Mobilisation Plan (Site)….”

Recitals A, B and C

The parties to this Agreement wish to establish the framework to govern their respective rights and obligations in relation to the Project in respect of which they wish to co-operate.

The parties wish to act on a basis governed by this Agreement as a consortium in relation to the Project and to enter as a consortium into the Main Sub-Contract.

The terms of this Agreement will in the manner set out herein incorporate terms (referred to herein as Consortium Contracts) by virtue of which the relevant parties will undertake pursuant to this Agreement to undertake the Scope of Work agreed by them in the execution of the Project”.

Definitions

“Main Sub-Contract

a contract or a series of contracts to be issued by EKFB JV to each of ABM and Matière (either together in the form of the Consortium on such basis of joint and several liability as is set out in the relevant contract or to each individually) in accordance with the processes contemplated by the provisions of this Agreement providing for the supply of the Production Elements by ABM and of the Installation Elements by Matière (and where applicable other contractors) in respect of a 6.5km “cut and cover” tunnel on the HS2 project in respect of which EKFB JV is principal contractor.”

“Production Elements

Those elements of the supply of goods and services under the Main Sub-Contract to be supplied by ABM in relation to the Project pursuant to any Consortium Contract or by such other means as the parties may agree in accordance with this Agreement as specified in the relevant Scope of Work and/or contract documents but anticipated by the parties to consist (in outline) of (1) the construction of a factory facility for the manufacture of precast concrete elements by ABM, (2) the production of precast concrete elements and reinforcement bars including rebars for cast in situ for the Project, (3) the transportation and delivery of the same to site for the purpose of the Project and (4) such ancillary goods and/or services as may be agreed between the parties.”

“Project

The project in relation to which the parties will collaborate in accordance with this Agreement, comprising the Production Elements and the Installation Elements to be provided pursuant to the Main Sub-Contract, comprising the following steps:

putting forward a joint offer to EKFB JV for the award of the Main Sub-Contract;

negotiating with EKFB JV to agree the terms of the Main Sub-Contract;

entering into and performing the Main Sub-Contract; and

performing where applicable any Consortium Contract.”

Clause 2.1 and 2.2

“2.1

This Agreement shall commence on the date when it has been signed by each and all the parties (the “Commencement Date”).”

“2.2

This Agreement shall continue, unless terminated earlier in accordance with this Agreement, until the date on which the Main Sub-Contract and any and all obligations arising thereunder together with any Consortium Contract and any and all obligations arising thereunder have been discharged by the performance by the respective parties to the same of their obligations arising under the same to the extent necessary for the Project to have been deemed completed in accordance with the terms of the Main Sub-Contract and/or any Consortium Contract, and the period for which any right of retention any party has in respect of any payment to be made pursuant to any such Main Sub-contract or Consortium Contract has expired, at which point this Agreement shall terminate automatically without notice.”

Clause 3.1 and 3.2

“3.1

ABM and Matière shall co-operate and collaborate with one another in accordance with the terms of this Agreement in relation to the Project and/or where applicable any Other Project.”

“3.2

Each of ABM and Matière agrees with the other that it will not (directly or indirectly, alone or with others):

3.2.1

seek to enter into any contract or engagement in relation to the Project or its subject matter.

3.2.2

pursue any opportunity arising in relation to the Project or its subject matter.

3.2.3

make any communication with EKFB JV in relation to the Project or its subject matter

save under and in accordance with this Agreement for so long as this Agreement remains in force.”

Clauses 3.3 and 3.4

“3.3

In the course of their performance of their obligations pursuant to this Agreement each of ABM and Matière shall act in good faith toward the other and use reasonable endeavours to forward the interests of the Consortium including in relation to bids for Other Projects where the Consortium has agreed to make a bid.”

“3.4

Each of ABM and Matière agrees for the avoidance of doubt without prejudice to clause 3.2 that outside the scope of the Main Sub-Contract there are opportunities for them respectively, alone or together, to do further work and enter into further arrangements or contracts in connection with the HS2 project, and agrees that the terms of this Agreement are not intended to and shall not restrict either ABM or Matière from being free to pursue such opportunities and/or to enter into further agreements in respect of the same alone, together and/or as members of any other consortium or venture.”

Clauses 5.1 to 5.5

“5.

Proposals and the Project

5.1

The parties agree that the terms of this Agreement shall apply to the Project and shall be subject to further negotiation in accordance with the terms of this clause 5.

5.2

Each of ABM and Matière shall consult with the other and negotiate in good faith with the other (by way of their respective Key Personnel at all levels within their respective organisations and by way of the Board) and use its best endeavours to make available all reasonable personnel and facilities in order to achieve agreement of any documents to be submitted to EKFB JV in reply to its invitation to tender and otherwise in respect of any information, tendering or due diligence process or procedure required in respect of the award of the Main Sub-Contracts and/or any other contracts or appointments relating to the Project. No document or communication of any nature shall be issued on behalf of the Consortium or either of ABM and/or Matière in respect of any such process or procedure save where the same has been agreed in writing by the respective Project Managers of both ABM and Matière.

5.3

On receipt of any Draft Main Sub-Contract, each of ABM and Matière shall consider the same, disclose the same where applicable to the other, provide the other with its comments on the same, and each of ABM and Matière shall then discuss and negotiate in good faith with the other without delay with a view to formulating an agreed response to the same. The parties agree that such negotiations may include, without limitation:

5.3.1

any amendments required to the terms of the said Draft Main Sub-Contract (including any Scope of Work);

5.3.2

any provisions where applicable of any Consortium Contracts (including any Scope of Work); and

5.3.3

any variations, additions or amendments to the terms of this Agreement reasonably required by either party as a consequence (whether directly or indirectly) of the terms of the said Draft Main Sub-Contract and/or any amendments to the same proposed by either party.

5.4

Each of ABM and Matière shall consult with the other and negotiate in good faith with the other (by way of their respective Key Personnel at all levels within their respective organisations) and use its best endeavours to make available all reasonable personnel and facilities in order to achieve agreement of any documents to be submitted to EKFB JV by way of response to any Draft Main Sub-Contract. No document or communication of any nature shall be issued on behalf of the Consortium or either of ABM and/or Matière in respect of any Draft Main Sub-Contract save where the same has been agreed in writing by the respective Project Managers of both ABM and Matière.

5.5

While the parties shall act at all times in good faith and shall negotiate in good faith with one another nothing in this Agreement shall oblige either party to execute any document or enter into any agreement of any nature (including, without limitation, any Main Sub-Contract and/or any Consortium Contract) save where it has agreed to do so by way of agreeing the terms of any documents and/or communications to be issued on behalf of the Consortium and/or either party pursuant to clause 5.3 and/or 5.4.”

Clause 23.1.1 and 23.1.3

“23.1.1

in the event that EKFB JV at any time withdraws any offers or proposals in respect of the Main Sub-Contract and/or confirms at any time that the Main Sub-Contract will not be awarded to the Consortium.

…

23.1.3

in the event that the Main Sub-Contract is not awarded to the Consortium and/or not executed by the parties to the same for any reason.”

Clause 31.4

“31.4

Subject only to any amendments which may be agreed following the date of this Agreement between the parties in respect of the form of the Consortium in accordance with the terms of this Agreement, ABM and Matière hereby agree that they do not intend to share profits and losses (whether the same be calculated on a gross or net basis). Each party shall be responsible for the performance of their Scope of Work allocated to it in accordance with the terms of the Consortium Contract applicable to it and to be solely entitled to the proceeds of, and solely responsible for the costs of and in relation to, the input it provides save only in so far as the parties agree in accordance with the terms of this Agreement for their respective contributions towards any costs of and relating to the Consortium and/or the Project.”