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

The rest of the trial concerned the Counterclaim. ABM’s principal pleaded case was that Matière was in breach of the Agreements in two material respects. The first concerned a factory at Scunthorpe. To manufacture the pre-cast concrete, ABM planned to build a bespoke factory at Scunthorpe. That plan formed part of the original proposal which was pursued by ABM and Matière together and with EKJV. It was also included in the bid which was made to HS2 Ltd. ABM complains that Matière subsequently undermined that plan in a variety of ways which I will, in due course, consider. It is said that the actions in undermining the plan for the Scunthorpe factory was a breach of Clause 3 of the Consortium Agreement. Separately, the same conduct is also said to be a breach of Clauses 3.1 to 3.3 of the Collaboration Agreement. The second pleaded allegation is that in late 2019, or early 2020, Matière gave a slide presentation in respect of the Green Tunnels Project to a company by the name of Stanton Bonna, a key competitor of ABM. That was said to be a breach of Clause 3.1 of the Consortium Contract.

Those are the two breaches which ABM contends give rise to the claim for loss of chance, which is ABM’s primary claim.

Separately, ABM contends that Matière was in breach of Clause 3.2 of the Collaboration Agreement in two respects. Firstly, that shortly after termination of the 2019 Professional Services Contract, Matière alone entered into a new professional services agreement with EKJV to continue exactly the same work as had been the subject matter of the original Professional Services Contract with the ABM/Matière JV. Secondly, that Matière subsequently entered into a subcontract with EKJV, without ABM, for installation work relating to the Green Tunnels. These breaches are not pleaded as having given rise to the loss of a chance. Instead, they are relied on in support of ABM’s claim for an account of the profits arising from the installation works contract that Matière undertook. The claim for the account is ABM’s secondary claim.

In opening, Mr Lewis KC, for Matière, made clear his intention to hold ABM to its three pleaded breaches. That was because, on Matière’s case, the evidence in the proceedings, and the criticisms of Matière, ranged wider than the pleaded breaches described above. For his part, Mr Streatfeild-James KC, for ABM, made no application to amend the pleading at any point during the trial. Instead, during closing submissions he sought to explain why the issues fell within the scope of the existing pleading. Thus, the Court was not pressed during the trial to make a ruling, one way or the other, as to the scope of the pleadings and whether, if amendments were required, permission to make them should be given. The decision not to seek a definitive ruling was no doubt a sensible one. There was no suggestion that Matière was prejudiced by those complaints which ABM was now making. The evidence was all there in the witness statements, documents and ABM’s written opening and the trial was subsequently conducted without difficulty. If pressed, I would likely have considered that the pleading did need to be amended to encompass some of the particular allegations that ABM was maintaining, not least because these were allegations of breach of good faith for which specificity should be required. On the other hand, it is likely that permission would have been given. In the event, no contemporaneous ruling was sought and the question now seems to me to be moot, since I have made my findings on the basis of all the evidence adduced.