Cleveland Bridge counsel attacks Multiplex's 'unlawful conduct'

The counsel for Cleveland Bridge used the penultimate day of the Wembley trial to depict Multiplex as a hard-nosed contractor whose conduct had "crossed the line into unlawfulness".

In his closing statement Hugh Tomlinson QC said Multiplex's refusal to honour a supplemental agreement that valued CBUK's work up to February 2004 at £32.66m was the "the clearest indication of its repudiatory breach of contract".

CBUK argues that this agreement was final and binding, while Multiplex asserts it was an interim figure for cash-flow purposes.

Tomlinson said the evidence heard in court had shown that the parties were trying to agree a final figure. He said that the "gaping hole at the heart of Multiplex's case" was that it offered no explanation of how it had moved from a position where it intended to agree a final figure to one that was for cash flow only.

He also said that under the agreement the parties were obliged to make "reasonable endeavours to negotiate a go-forward position" whereby CBUK would continue to work on site.

He said the steel subcontractor had believed this represented a substantial amount of work and money, which it anticipated receiving. However, he said that the facts of the case had shown that the negotiations had not progressed because Multiplex had no interest in them because it intended to hire Hollandia.

Tomlinson focused on evidence given by Matt Stagg, Multiplex UK head of construction, describing Stagg's explanation that the £32.66m figure was not a final and binding figure as "unsatisfactory".

He told the court: "Mr Stagg's evidence as to what he said about it being cash was very unsatisfactory. He moved backward and forward about whether he said it in one discussion or several. His version that he was demanding cash throughout is clearly inconsistent with everyone else's evidence."

He argued that CBUK had no reason to suspect that Stagg did not have the authority to name the £32.66m figure, an argument put forward by Multiplex during the case. Tomlinson said: "Stagg was the most senior Multiplex man in construction in England, if not in Europe. It's not a situation where it would come across that Stagg was acting improperly."

Tomlinson added that the so-called Armageddon plan, under which Multiplex would boot CBUK off the job and then force the company into insolvency, was "more than a mere contingency plan".

The closing statement set out four other related points:

• Multiplex sought during the trial to downplay the difficulties CBUK had encountered with late and incomplete design information. Tomlinson said Multiplex had tried to create the false impression that CBUK were "whinging poms", who had wanted to get out of a loss-making contract.
• Multiplex had made unreasonable complaints in the trial that CBUK had not submitted particularised claims. Tomlinson said the constant design changes made it difficult to fix the extra costs and expenses. He described Multiplex's attitude as at best "strict and formulaic".
• Multiplex tried to portray CBUK as dragging its feet over the supplemental agreement in order to prolong the cost reimbursable period. Tomlinson said that on the contrary CBUK was "pushing hard" for an agreement.
• The decision to unleash the Armageddon plan - to boot CBUK off Wembley stadium - which Multiplex argued was only one scenario that was decided upon at the last minute, was taken in early June 2004. Tomlinson said Multiplex had financial targets that relied upon hitting CBUK with substantial back charges that would force it into insolvency.