“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.”
“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.”
“I believe that they guessed how much they are owed and I think they are over in their estimation by around£35,000 .”
“You discussed things including work, but in the day-to-day work you were deceiving them, weren’t you? Yes.”
“Yes, that’s who sent it”
“The Subcontractor wishes to enter into a strategic alignment with the Contractor to assist the Contractor in the performance of the Stage One Services and the production of the Main Contract Proposals in connection with the Relevant Activity and, if the Employer decides to award Stage Two to the Contractor and the Parties are able to agree terms, the performance of certain Relevant Activity works for C2 and/or C3.”
“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 Confidentiality Agreement executed in and around the time of this Appointment.”
“a) Review and constructively challenge the current Scheme Design for the Pre-Cast Tunnels and associated Waterproofing. … c) Identify constraints and define methodology, programme and price based on constraints. … e) Identify interfaces and the impact this may have on the cost model, programme and methodology. f) Mobilisation Plan (Site).”
“The general approach 147. In approaching the interpretation of clause 4.2, the first, and most important, point to emphasise is that like any question of interpretation of a contract, an express clause in a contract requiring a party to act in “good faith” must take its meaning from the context in which it is used. That point has been made very clearly in many cases, including by Jackson and Beatson LJJ in Compass Group UK and Ireland Ltd (t/a Medirest) v Mid-Essex Hospital Services NHS Trust[2013] EWCA Civ 200 (“Compass Group”) at [109] and [150]- [151]. 148. The second, and related, point is that when considering the interpretation and meaning of an express good faith clause in context, cases from other areas of law or commerce, which turn upon their own particular facts, may be of limited value and must be treated with considerable caution. That point was made very clearly by Auld LJ in Street v Derbyshire Unemployed Workers’ Centre[2004] EWCA Civ 964 (“Street”) at paragraph [41], which was cited with approval by Jackson LJ in Compass Group at [110], “Shorn of context, the words “in good faith” have a core meaning of honesty. Introduce context, and it calls for further elaboration. Thus in the context of a claim or representation, the sole issue as to honesty may just turn on its truth. But even where the content of the statement is true or reasonably believed by its maker to be true, an issue of honesty may still creep in according to whether it made with sincerity of intention for which the Act provides protection or for an ulterior and, say, malicious, purpose. The term is to be found in many statutory and common-law contexts, and because they are necessarily conditioned by their context, it is dangerous to apply judicial attempts at definition in one context to that of another.” (Emphasis is that of Snowden LJ)
“175. … as an obligation to act honestly and with fidelity to the bargain; an obligation not to act dishonestly and not to act to undermine the bargain entered or the substance of the contractual benefit bargained for; and an obligation to act reasonably and with fair dealing having regard to the interests of the parties (which will, inevitably, at times conflict) and to the provisions, aims and purposes of the contract, objectively ascertained.”
“principles relating to good faith seem to fit a relationship between parties to a joint venture where mutual trust and commitment are crucial to the success of the venture – and often explicit in the terms establishing the relationship at the outset. (Indeed, irrespective of the formal legal analysis as to enforceability, one should not underestimate the importance of such expressions of trust, good faith and commitment to the relationship between the parties)…good faith and fair dealing are concepts that at root seem entirely appropriate to the very many joint venture relationships...”
“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 situation is “bizarre”, Ek asks me to work against our JV. Let’s hope ABM doesn’t find out.”
“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.”
“I was working somehow against ABM and ABM/Matière interest, the JV I mean.”
“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.”
“a potential of£20 /25 Million gross margin (fee) for you guys”
“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.”
“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.”
“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.”
“You have done nothing wrong.”
“Eiffage Kier Plan C sans ABM”
“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.”
“And it was my strong contention, as I laid out repeatedly to many people, that any alternative temporary/flying factory wasn’t suitable.”
“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.”
“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.”
“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.”
“all of whom also said that we were in pole position, or words to that effect.”
“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.”
“a total mess, changing every day… What was the direction to take.”
“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.”
“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!”
“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).”
“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.”
“…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.”
“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.”
“Losses of a chance appearing in the process of quantification do not fall within the loss of a chance doctrine. Loss of a chance proper, as it may be termed, has a more limited field. It comes in before we get to quantification; indeed it comes in at the causation stage. How is this? It is because there are situations where the law has recognised, and has treated, the loss of a chance as a form of loss, an identifiable head of loss in itself. To take Lord Hoffmann’s way of putting it in Barker v Corus (UK) Ltd “the law treats the loss of a chance of a favourable outcome as compensatable damage in itself”
“In adopting this approach the law does not depart from the principle that the claimant must prove actionable damage on the balance of probability. The law adheres to this principle but defines actionable damage in different, more appropriate terms. The law treats the claimant’s loss of his opportunity or chance as actionable damage. The claimant must prove this loss on balance of probability. The court will then measure this loss as best it may.”
“All the claimant has to show in such cases is that the chance is a real or substantial one. Having done so he must still show on a balance of probabilities that the defendant’s act has caused the loss of the chance.”
“Upon the judge’s findings, to which it will be necessary to refer in some detail, he was not obliged to assess the loss of a chance: he found on the evidence that stigma played no part in the failure to obtain employment. Had there been evidence in Kitchen that that claim against the original wrongdoer had no chance of success or in Allied Maples that the vendor would in no circumstances have renegotiated, the judges in those cases need not have applied the loss of a chance principle as they did.”
“We are in financial discussions with 2 large financial institutions with who ABM has had strong relationships and co-operation for many years”