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

Given the nature of the dispute, it is particularly important that I should set out my views of the factual witnesses who were called to give evidence and my conclusions on the core of their evidence. I should also make brief observations on those who were not called as witnesses.

The first witness for Matière was M.Blanc. M.Blanc is the Managing Director of Matière and has worked for the company for the whole of his professional career. In the period relevant to the dispute he was the Financial Director or CFO. He gave his evidence with the assistance of an interpreter but most of the time he spoke in English and showed a pretty good command of the English language. ABM invited me to treat his evidence with great care because he had spent his entire working life with Matière and was close to M.Matière. In my view, his evidence was not pivotal but I am inclined to agree that I should not accept the entirety of his evidence as accurate.

The second witness for Matière was M.Vignon. By professional training he is a civil engineer. Originally retained by Matière as a consultant, acting as liaison between EKJV, Matière and COWI, the tunnel designers, he became a direct employee of Matière in August 2021. When he made his witness statement, he was the Project Manager for Matière and, as the subsequent review of the facts will show, he was at the heart of the facts giving rise to this dispute. He was located in offices with EKJV until lockdown in March 2020 so was privy to information in the form of grapevine talk and chat that would not necessarily have been known about had he been remotely located. By the date of the trial, he was no longer working for Matière although the circumstances in which he left were not specifically explored. Much of the conduct of which ABM complains is attributable to things said and done by M.Vignon, in the form of lies, deception and double-dealing. M.Vignon did not deny much of this. As ABM submits, he accepted, repeatedly and inevitably, that he had behaved badly over a long period of time by lying and deceiving ABM and that it was very much to his credit that he did so. Nonetheless, ABM submits that, even so, he was not always a truthful witness when giving evidence, pointing out that his witness statement was not, itself, accurate, full or true and his conduct, now accepted to be improper, impugns the quality of his evidence. My own view was that M.Vignon was a compelling witness in the hearing. I agree with ABM that he found giving evidence traumatic and emotional. He was both disarmingly frank and ashamed by what he had done. His shame was most acute in respect of his relationship with Mr Sanderson of ABM, a man with whom he went to the pub and socialised. There was this exchange:

“You discussed things including work, but in the day-to-day work you were deceiving them, weren’t you? Yes.”

Having left Matière, he was no longer a ‘company man’ and had no reason to cover up or hide what he had done. That probably explains the shift between his written and oral evidence. Compared to many witnesses I have seen, he was also refreshingly unprepared. He skimmed documents presented to him in the witness box that he had not seen before or could not recall and, in my judgment, gave candid answers about them even where they caused him embarrassment.

In light of his evidence, there were two central questions of fact for the Court to determine. Firstly, was M.Vignon’s conduct known about and endorsed by his employer, Matière, and, in particular, by M.Matière? Secondly, was M.Vignon’s conduct (with or without the encouragement of Matière) initiated by him, or was it reactive to suggestions and requests from EKJV? At this point, it suffices to say that, on both of those two central questions, I unhesitatingly accept M.Vignon’s evidence that he acted with the knowledge and endorsement of M.Matière and the company itself; but he did so at the behest of EKJV.

The third and final witness for Matière was M.Matière himself. He was the CEO and is now the President of the company that bears his name. It is a family business established by his grandfather in 1932. He describes the business as international, employing about 500 employees and with a turnover of €130m in 2023. In his witness statement he described the award to him of both the “Ordre National du Merite” and the “Legion d’Honneur”, the latter having been the result of more than 20-years’ public service for the benefit of the French nation. He explained that both of these high-level awards are only conferred following a thorough assessment of moral value and professional and personal conduct.

I regret to say that, notwithstanding the awards to which he referred, I did not find much of M.Matière’s evidence helpful or credible. He was, in many respects an unsatisfactory witness prone to giving long speeches made up of self-serving statements. This was usually to avoid giving plain and simple answers that would have assisted the Court and would have aided his credibility. Generally, I can place only limited reliance on his evidence save where it is consistent with the documents. In the unusual circumstances of this case, which requires me to evaluate conflicting evidence from two witnesses called by the same party, I prefer the evidence of M.Vignon to that of M.Matière where their evidence is in conflict.

The first witness for ABM was Mr Minihane. He is a director of ABM which he founded with two other partners in 1993. By qualification he is a civil engineer. I saw him in the witness box for more than a day. He is, if I may say so, a clever and commercially astute man. However, I did not feel I got as much assistance from his evidence as I might have done. Concessions that ought to have been more freely made were, instead, limited and tightly circumscribed. There were many instances of this but I will give just two. When it was put to him that an email from Mr Lowery should have been taken seriously given his leadership role in EKJV, Mr Minihane simply replied: “Yes, that’s who sent it”. When it was put to him that he deliberately omitted from a paragraph in his witness statement an important matter from his account of a telephone call, a proposition which I considered to have been justified and which omission called for an explanation, he merely said: “There is no reference in that paragraph to the factory proposal. I think you are correct. Yes, you are correct”.

A central question in respect of his evidence was whether, as he sought to portray, the ultimate failure of the joint venture bid came as a huge surprise to ABM or whether there were sufficient warning signs to him of it looming, even if he had not known the full extent of what Matière had been doing behind ABM’s back. On that central question, I was not able to accept his evidence. If he was as surprised as he claimed to have been, I conclude that he had not been remotely realistic about the position.

The next witness for ABM was Mr Sanderson. He is a consultant for ABM. His role was that of business development and the winning of business in a marketing and sales capacity. Management of the preparation for the bid was within his remit. His oral evidence was limited but he struck me as an honest witness. For example, he accepted that, in a conversation he had with M.Martin of EKJV on 8 September 2020, there was an implied threat to the success of the joint bid and that he may have had misplaced optimism of where ABM stood in relation to it.

The third witness for ABM was Mr Buckley. He is both a civil engineer and QS. He worked as a consultant for ABM in relation to the Green Tunnels Project, dealing mainly with M.Vignon at Matière. His cross examination was limited in time but he was the person who gave evidence about Matière having made a presentation to Stanton Bonna, which is one of the pleaded breaches. I make findings about that below.

The final factual witness for ABM was Mr Gormley. His cross examination was also brief and did not really bear on the central issues of liability.

From this list it will be readily apparent that neither party called any witness from the main contractor joint venture. There were numerous individual participants within EKJV who played a role, often a key one, in this story. These include Mr Swift, the delivery director; Mr Gilbert, the commercial director; and Mr Lowery, the managing director and leader of the senior leadership team. In the Contract Data annexed to the contract with HS2 Ltd, Mr Lowery is described as the JV Project Director with responsibility for leading the delivery of Stage 2 and was to be the main contractor’s focal point of contact for the Project Manager. In the narrative which I set out below, Mr Lowery played the most influential role and, in the end, it was his recommendation which the EKJV board followed. Others within EKJV who were also involved were M.Martin, M.Garnier and M. Rossignol.

The fact that neither party called any of the members of EKJV as witnesses means I have to make important findings about what they did or said without them having an opportunity to comment on those matters. I was left with the impression that EKJV was itself dysfunctional at least as regards the subject matter of this trial. In particular, different individuals sometimes pulled in different directions and purported to speak on behalf of the whole of the joint venture when I very much doubt that was the case. Views also changed over time. Some individuals were plainly more supportive of ABM’s participation in the bid than others, who had serious reservations about it. Again, the nature of this case requires me to reach conclusions about these matters despite the individuals not giving evidence. I must also form a view as to the collective mind of EKJV at any given time, insofar as there was one. As I have indicated, that is largely whatever was Mr Lowery’s position.

The dysfunctionality within EKJV to which I have referred has another consequence. The relevant communications between each of Matière, ABM and EKJV, whether by email, text or correspondence, were extensive. Lines of communication ran between various different individuals each with their own particular agendas. As ABM submitted in a wider context, there is no single, simple account of what was happening. Simply reciting each and every strand of exchange would, undoubtedly, provide a comprehensive narrative but does not give a clear impression of what was happening in overview. For that reason, I have not sought to recite every exchange but have tried to focus on the main events wherever possible.