1 Tuesday, 14 November 2017 5 (2.10 pm) 6 DR JOACHIM ENENKEL (sworn) 7 CHAIR OF THE INQUIRY: Good afternoon, Dr Enenkel. Can you 8 hear me? 9 A. Yes, my Lord, I can hear you. 10 CHAIR OF THE INQUIRY: You're going to be asked some 11 questions by Mr Mackenzie QC who is one of the Counsel 12 to the Inquiry. If you listen to his question and 13 answer it as directly as possible, and also relatively 14 slowly because we have shorthand writers who are noting 15 all of the evidence and they have to keep up. Do you 16 understand? 17 A. Yes, my Lord. I did understand. 18 CHAIR OF THE INQUIRY: Thank you. 19 Examination by MR MACKENZIE 20 MR MACKENZIE: Good afternoon. Can you hear me? 21 A. Yes, I can hear you. 22 Q. Can you state your full name, please. 23 A. My full name is Joachim Enenkel. 24 Q. And your current occupation, please? 25 A. My current occupation is I'm a civil engineer and CEO 115 1 president of construction group in South East Asia. 2 Q. Thank you. I would like to ask you various questions, 3 please, with reference to the written statement you have 4 provided to the Inquiry. I would like to go to that 5 statement first, please. 6 Now, I think the written statement you have provided 7 consists of questions by the Inquiry together with 8 answers you have provided; is that correct? 9 A. Was this a question? 10 Q. Yes. I'm just checking, Dr Enenkel, you have provided 11 a written statement to the Inquiry; is that correct? 12 A. Yes, I did. Yes, I did. 13 Q. Thank you. I think the Inquiry has also recently sent 14 you, perhaps by email, a copy with the Inquiry's 15 reference number on it and the Inquiry's page numbering; 16 is that right? 17 A. I think I understood you were asking whether the 18 reference paper and access to it has been provided to 19 me. Yes, recently I got this access. 20 Q. Thank you. Could I check, please, does your version 21 have the Inquiry reference number TRI00000161? 22 A. Just a few minutes ago I run through these documents and 23 can confirm that these are the answers which I have 24 given to your Inquiry. 25 Q. Thank you very much. 116 1 Now, what I'm doing, I have brought up your written 2 statement on the screens we have in front of us. So 3 that's now available for everyone to see who is present 4 in this room. 5 Now, I think the statement you have provided is not 6 signed or dated, but you have confirmed that this is 7 your statement. Could I also please ask you to confirm 8 that the answers are true to the best of your knowledge 9 and belief? 10 A. I do confirm that the answers are true and to my best 11 memory and recollection. 12 Q. Thank you. Now, I would like, please, to go to page 2 13 of your statement. Do you have that with you? 14 A. Yes. 15 Q. Thank you. On page 2 we start with by way of 16 introduction, we had asked about your experience and you 17 set all of that out. Thank you. 18 Could I just check, please, did you personally have 19 any experience in tram or light rail projects before the 20 Edinburgh Tram Project? 21 A. You were asking whether I had personally experience with 22 a tram-related project similar than Edinburgh; is this 23 what you were asking? 24 Q. Yes. 25 A. I have been involved in similar projects, one -- to name 117 1 one is the Taiwan high speed rail project in Taiwan, 2 where I was the project manager for design and 3 engineering. 4 Q. Thank you. 5 CHAIR OF THE INQUIRY: The Taiwan project, does that go 6 through the city streets or is it elevated and above the 7 streets or does it travel underground? 8 A. My Lord, I think you were asking whether the project is 9 similar to Edinburgh. The project I mentioned is 10 80 per cent elevated and 20 per cent F grade(?) and 11 tunnel works. 12 CHAIR OF THE INQUIRY: Thank you. 13 MR MACKENZIE: Thank you. Dr Enenkel, we have also seen 14 evidence that Bilfinger Berger had experience of a light 15 rail project in Montpellier, France and a light rail 16 project in Turkey; is that correct? 17 A. The one in France is correct. The one in Turkey, I'm 18 not aware personally. But the one in France I'm aware 19 of through an affiliated company. 20 Q. Thank you. Do you know whether Bilfinger Berger had 21 experience of any other tram or light rail projects? 22 A. I think you were asking whether Bilfinger had any other 23 experience. Bilfinger had other experience in rail 24 projects even in Germany, various larger or smaller type 25 projects, with continuous engagement in similar type. 118 1 Q. I'm trying to make a distinction between heavy rail 2 projects and light rail or tram projects. I just wonder 3 whether Bilfinger Berger had any experience in light 4 rail or tram projects in addition to those in 5 Montpellier and possibly Turkey. 6 A. The experience I was referring in (inaudible) other 7 projects in Germany is rather light rail and tram type 8 than heavy rail. Is this part of (inaudible) -- 9 CHAIR OF THE INQUIRY: We seem to be having some technical 10 difficulties just now in hearing you. We will see if we 11 can get that sorted. 12 MR MACKENZIE: Can you still hear me, Dr Enenkel? 13 A. I can hear you, yes. 14 Q. Thank you. I'll just repeat my last question because 15 I'm sorry, part of your answer broke up. I apologise. 16 If I may repeat the question, I was simply trying to 17 find out whether Bilfinger Berger had any experience in 18 light rail or tram projects in addition to those in 19 Montpellier and possibly Turkey. 20 A. My answer to this was Bilfinger had experience of 21 similar light rail or tram type projects, but it was in 22 Germany, in various German cities. 23 Q. Thank you. I would like to move on, please, to page 3 24 of your statement, and we can see in the letter (b) we 25 had asked between what dates you had responsibility for 119 1 the Edinburgh Tram Project, and you set out -- I'll just 2 read out what you say. Between 2003 and 2006 you were 3 a member of the executive management of Bilfinger's 4 construction subgroup. 5 Between 2006 and 2010, you were the Chief Executive 6 officer and member of the executive management of 7 Bilfinger's construction subgroup. And then between 8 2010 and 2015, you were the Chief Operating officer and 9 member of the group Executive Board of Bilfinger SE; is 10 that correct? 11 A. Yes, you're right. 12 Q. Again, sticking at letter (c) of your statement, the 13 reporting lines are set out. 14 Could I ask, please, how did Bilfinger Berger UK 15 report to Bilfinger Berger Germany, both before and 16 after contract close in May 2008? 17 A. Could you please repeat your question? It came 18 scrambled, some of it we could not understand. 19 Q. I'll try and shorten the question. How did Bilfinger 20 Berger UK report to Bilfinger Berger Germany? 21 A. The original responsibility for Bilfinger UK was with 22 Bilfinger's construction subgroup. 23 Q. How -- by what means was there reporting between 24 Bilfinger UK to Bilfinger's construction subgroup? Were 25 there regular written reports? Was the reporting done 120 1 in meetings or what? 2 A. The reporting was done through regular meetings. 3 Usually we called them (inaudible) tried to have one per 4 month. One per month. 5 Q. And were any records kept of these meetings? 6 A. There were usually minutes of meetings which have been 7 established by Bilfinger UK. Otherwise there could be 8 only handwritten notes. 9 Q. I would like to move to page 4 of your statement, and 10 the top of the page, letter (d), we asked when and why 11 you ceased to have responsibilities in relation to the 12 Edinburgh Tram Project. You explained that 13 a reshuffling of regional responsibilities within the 14 Bilfinger Civil Subgroup Executive Board (Germany) took 15 place at the end of 2008, and Dr Keysberg took over from 16 you at that time and continued to report to the Subgroup 17 Executive Board of Bilfinger Civil which was chaired by 18 you. 19 We then asked for generally about the relationship 20 between Bilfinger Germany and Bilfinger UK. If we go to 21 page 5 of your statement, please, you had provided 22 a diagram showing the different boards or bodies 23 involved. 24 What I would like to do, the copy we have is not 25 very legible in A4 size. So I would like just to go 121 1 through the different levels and hierarchy to check 2 we've got our understanding correct. 3 So I think the lowest level in the hierarchy is the 4 consortium, and we see a reference to Scott McFadzen, 5 Colin Brady, or later, Martin Foerder, who are 6 responsible for the project management on a day-to-day 7 basis; is that correct? 8 A. Yes, it is correct. 9 Q. Then one level up in the hierarchy we see a reference to 10 Bilfinger UK, who undertook the country management, and 11 we see a reference to Richard Walker or Scott McFadzen 12 as representing Bilfinger in the consortium. 13 Then in the next level up in the hierarchy, we see 14 a reference to Bilfinger Civil Germany Subgroup 15 Executive Board consisting of four to five executive 16 members, ie Joachim Enenkel or Dr Jochen Keysberg, and 17 essentially at this level the body is giving strategic 18 direction, and I think this is the subgroup you were 19 a member of between 2006 and 2010; is that correct? 20 A. That's correct. 21 Q. Thank you. Then one level up again in the hierarchy, 22 please, we see a reference to Bilfinger SE Group 23 Executive Board consisting of five executive members, 24 and we can see that you joined this Board in late 2010, 25 and we can see this Board has an oversight role. 122 1 Then the next and last body in the hierarchy we see 2 is the Bilfinger SE Supervisory Board consisting of 12 3 non-executive members. Again, this Supervisory Board 4 has an oversight role. 5 I just wondered what is the difference between the 6 oversight role carried out by the Supervisory Board and 7 the oversight role carried out by the Group Executive 8 Board? 9 A. The Supervisory Board in a German publicly listed 10 company is simply overseeing governance and shareholder 11 interest, whereas the Group Executive Board, which is 12 the Executive Board, and there are the executive 13 members; but non-executive Board, the Supervisory Board, 14 has non-executive members which quarterly would come 15 together and discuss the business in general, the 16 governance and shareholder interests. The Group 17 Executive Board has continuous involvement oversight on 18 all its sub-groups, and this is based -- on the basis of 19 KPIs, which means key performance indicators. 20 Most of them financial key performance indicators. 21 Q. Thank you. Which board took important decisions in the 22 tram project? Was it the Group Executive Board or was 23 it one level down at the Subgroup of the Executive 24 Board? 25 A. It was one level down. The Bilfinger Civil Germany, the 123 1 subgroup. 2 Q. So was that the subgroup which took or approved the 3 decision to bid for the project? 4 A. The projects in excess of 50 million euro total contract 5 had to be recommended by the subgroup for bidding and 6 for finally signing contracts to the Group Executive 7 Boards, one level up, and the Group Executive Board 8 would, on the basis of consistency in business and KPI, 9 give an approval to bid or no bid, or to sign a contract 10 or not to sign a contract. 11 So this is between the Group Executive Board and the 12 Subgroup. Subgroup takes the decision to bid. It is 13 asking for approval by the group -- given by the Group 14 Executive Board. 15 Q. Thank you. After the contract was entered into, there 16 was a dispute between Bilfinger -- I should say the 17 consortium -- and tie. 18 Now, at some stage the consortium had to decide on 19 its strategy in the dispute. Is that something which 20 would have been decided or approved between the Subgroup 21 of the Executive Board and the Group Executive Board? 22 A. Could you please repeat the question? We did not fully 23 get it. 24 Q. Yes. I understand what you have just said in relation 25 to the decision to bid for the project and the decision 124 1 to enter into the contract. 2 What I'm wondering about is the period after the 3 contract was entered into, when a dispute arose between 4 the client, tie, and the contractor, the consortium. 5 Which Board within Bilfinger decided or approved on 6 Bilfinger's strategy in that dispute? 7 A. The answer is, first of all, all decisions are made by 8 the consortium and by the project management within 9 certain given frame of authorities. When it exceeded 10 these authorities, then the client went up to Bilfinger 11 UK. When there, they have as well governance within 12 a certain authority level. Once this was exceeded, then 13 it went up to the Bilfinger Subgroup. Bilfinger Civil 14 Germany, the Subgroup, and this -- in between these 15 three levels, decisions were taken, and each of these 16 three had a higher authority reporting to in (inaudible) 17 in regular meetings. 18 So depending upon the gravity of the issue, such 19 issues were conveyed up. Otherwise they would have been 20 decided at the level they were within the authority 21 given to them, letter of direction, power of attorney, 22 something like this. 23 Q. Thank you. I would like then to go to page 7 of your 24 statement, and if you go to page 7 and towards the 25 bottom at letter (e), I'll read out your answer. You 125 1 say: 2 "It is worthwhile to note that Bilfinger as 3 a contractor was driven by Risk Management and 4 consequent mitigation. As such all members of 5 Management, be it in Germany, UK or elsewhere, were 6 guided by the understanding, that risk should be only 7 taken which is reasonable and can be clearly identified, 8 addressed, managed, quantified, priced and consequently 9 embedded in the Delivery Scope of Services and the 10 Contract itself." 11 Now, in your experience was that a usual or an 12 unusual approach in the construction industry? 13 A. Are you referring to page 11, item 4? 14 Q. I'm so sorry. It's page 7. Do you have page 7 there? 15 A. Yes. 16 Q. Do you see the letter (e) where we asked: 17 "How (and by whom) was that done?" 18 A. You were asking whether this is a common approach of 19 a contractor. 20 Q. Yes? 21 A. If this was the question, the answer is yes. 22 Q. Thank you. Could I move on now to page 16, please. In 23 question 7 we see a reference to a meeting that took 24 place between the consortium and tie in Wiesbaden, 25 Germany. 126 1 Now, I think we have given the dates in the question 2 as 17 and 20 December 2007. I think in fact the meeting 3 may have taken place on Thursday the 13th and Friday 4 14 December 2007. 5 Do you remember attending a meeting around that time 6 in Wiesbaden in relation to the Edinburgh Tram Project? 7 A. I remember that once Willie Gallagher and a small team 8 visited Wiesbaden, and I welcomed him at the time, was 9 certainly a certain time at the beginning of the 10 meeting, and then maybe at the end of the meeting 11 present. 12 I remember that he was there, that I was some time 13 in the meeting. This is what I can remember. 14 Q. What was the purpose of you attending the meeting? 15 A. I believe, as a host, and as a CEO at the time of the 16 subgroup. It was for me courtesy to welcome him, and to 17 demonstrate support for his project. 18 Q. Did you get involved in any of the detailed discussions? 19 A. I don't fully remember, but I don't think that I would 20 have contributed to the detail -- to a detailed 21 discussion as I was not part of the detail. 22 Whether I was in the room when detail was discussed, 23 could be, but I don't think that I contributed in the 24 detail. 25 Q. Do you remember who else was present from Bilfinger 127 1 Berger? 2 A. I believe from Bilfinger Berger's side, surely 3 Richard Walker, Scott McFadzen, and for sure our lawyer, 4 our head lawyer, Christian Korf, and partially myself. 5 Q. What was the purpose of Bilfinger's head lawyer being 6 present? 7 A. Bilfinger, this is Bilfinger's subgroup. Bilfinger's 8 subgroup head lawyer, we take continuously safeguards in 9 a development of a project. And it's a contract lawyer. 10 It's not a civil or criminal lawyer. It's a contract 11 lawyer, commercial. 12 Q. Now, it may be suggested by another witness that at one 13 point in this meeting, yourself and Mr Gallagher left 14 the meeting to have a discussion. Do you have any 15 recollection of that happening? 16 A. Not that I remember. Not that I remember. If ever 17 I left with Mr Gallagher the room, maybe to the 18 restroom, but I don't have a recollection that I left 19 the room for a particular discussion. 20 Q. It might also be suggested by other witnesses that there 21 was a late night discussion, so not between regular 22 business hours, but discussions going on into the night. 23 Do you have any recollection of that? 24 A. Maybe there was a dinner, but not a discussion that 25 I recall which is connected directly to the contents. 128 1 If ever there was, I believe it was a dinner. 2 Q. Do you have any recollection of any discussion regarding 3 design and design risk? 4 A. Do you mean in Wiesbaden? 5 Q. Yes. 6 A. Not -- not to my -- not to my recollection. I don't 7 have a particular memory on this. Like I said, I was in 8 general, a very general sense involved, probably 9 hosting, trying to be friendly, but the detail was 10 discussed by our people. 11 Q. Thank you. Were any records kept by you or others of 12 this meeting? 13 A. If there are or if there were records, they should have 14 been kept by our colleagues from the UK, Richard Walker 15 or Scott McFadzen. So they certainly have put down 16 records for this meeting. 17 Q. Thank you. 18 I think the Inquiry sent you a copy of the Wiesbaden 19 Agreement recently. Do you have that before you? It's 20 an agreement -- 21 A. I was just earlier opening. 22 Q. I'm sorry -- 23 A. I have this in front of me, yes. 24 Q. Thank you. I'm just going to give the Inquiry reference 25 number. So it comes up on our screens. It's 129 1 CEC02085660. 2 Could I ask you, please, to look at page 5. Do you 3 see clause 3.3 which begins: 4 "The BBS price for civils works includes ..." 5 Do you see that clause? 6 A. Can you please repeat your question? 7 Q. Yes. Do you have the clause before you? 8 A. Yes, I have. Yes, I have. 9 Q. Thank you. Could you please just take a minute to read 10 for yourself what is set out there in clause 3.3 and 11 then it continues as well over the page. Just take 12 a minute to read it yourself. 13 (Pause) 14 Do you recollect discussing any of these matters at 15 this meeting in Wiesbaden? 16 A. I think I won't have gone into detail, you know, when it 17 is referred here to kinematic envelope, I don't think 18 I have discussed these items or what could have been 19 a general statement. What is written in the upper part, 20 construction costs arising from the normal development 21 and completion of designs based on the design intent for 22 the scheme as represented; I believe general statements 23 certainly have been made, but particular statements and 24 developing an appendix, I do not recollect that I was 25 party of this. 130 1 Q. Thank you. I would like to move on, please, back to 2 your statement. At page 22 of your statement, and in 3 letter (c) you, in your answer, explain: 4 "It is the business model of an experienced 5 Contractor (see graphic) to categorise risks and further 6 only assume risks already which can be identified, 7 managed, assessed, quantified and priced." 8 Then at page 23, if we can go to that, please, to 9 look at the graphic, do you have a legible copy before 10 you? 11 A. Yes. 12 Q. In short, we can see different risk categories 1, 2, 3 13 and 4. What was your view at the time as to which risk 14 category the Edinburgh Tram Project fell within? 15 A. The Edinburgh Tram Project fell under risk category 3. 16 Q. Why? 17 A. Because it was a design and construct, respectively the 18 design was to be novated. Hence parts, if there was 19 more than 10 per cent of the projects indicated become 20 a lump sum, it would automatically get into a risk 21 category 3. 22 And finally, the size of the project, if a project 23 exceeded the certain size, and the Edinburgh tram with 24 about 200 million British pounds exceeded a certain 25 size. So through size, through complexity, through 131 1 design development, it became part of risk category 3. 2 Q. If the project fell within risk category 4, does that 3 mean Bilfinger would not bid for it? 4 A. That's true. If it was risk category 4, we would not 5 bid this project. 6 Q. Did you have any concerns before entering into the 7 contract as to whether the risk for Bilfinger was too 8 high? 9 A. At the time, I did not have the concern that the risk 10 was too high for us, but I was aware that this is a risk 11 category 3 project which needs continuous attention. 12 Q. Was there any discussion within Bilfinger before 13 entering into the contract about withdrawing from the 14 project? 15 A. There were discussions withdrawing from the project, but 16 this was in very early phases, when we were selecting 17 our system partner. There were suggestions whether to 18 team up with Siemens or to Bombardier. If we would have 19 teamed with Bombardier, we would probably have dropped 20 the bid. Since we teamed with Siemens, we continued to 21 bid for the project. 22 Q. Thank you. 23 A. This is the only one I recollect. Otherwise I don't 24 think that we had -- we are spending money and resources 25 to bid the project to finally withdraw. 132 1 So we certainly were looking with all safeguards to 2 make a successful project. 3 Q. Thank you. 4 Could I turn now back to your statement, please, to 5 page 37. In question 35 we had asked about the Pricing 6 Assumptions contained in Schedule Part 4 of the Infraco 7 contract, and we had asked in sub-question (a): 8 "To what extent were the Pricing Assumptions and the 9 terms of Schedule 4 discussed with you?" 10 You explained in your answer that: 11 "Such Pricing Assumptions were surely discussed 12 within Bilfinger's specialist departments ... and should 13 be confirmed to be reasonable to the Executive 14 Management. On such basis I would have concluded and 15 accepted." 16 So in short, Dr Enenkel, was Schedule Part 4 of the 17 Infraco contract considered by Bilfinger Germany? 18 A. Could you please repeat the last part of your question 19 related to Schedule 4? 20 Q. Of course. Was Schedule 4 considered and reviewed by 21 Bilfinger Germany? 22 A. I would -- I would expect so. That it was considered 23 because, after all, it was part of the contract. So 24 there will be reviews. There surely were reviews 25 related to this Appendix 4. 133 1 Q. Thank you. 2 Now, I think the Inquiry has recently sent you 3 a copy of Schedule Part 4. Do you have that before you? 4 A. Yes, I have this now in front of me. 5 Q. Thank you. I think you will see that the schedule 6 contains a number of Pricing Assumptions; is that 7 correct? 8 A. Yes. 9 Q. Thank you. We know that any departure from one of those 10 Pricing Assumptions would result in what was called 11 a Notified Departure and a client change; is that 12 correct? 13 A. I believe this is the understanding, yes. 14 Q. Thank you. 15 So in short, if any of those Pricing Assumptions 16 turned out not to be correct, that was going to result 17 in a change and the client having to pay more; is that 18 correct? 19 A. I believe this is correct, to pay more or less. 20 Q. Can you remember whether there was any discussion within 21 Bilfinger before the contract was entered into of the 22 number and value of changes that were likely to arise? 23 A. I cannot fully recollect, but what I can recollect, 24 there were discussions. To what extent a design which 25 is still to be developed may trigger potential changes 134 1 in a very old city like Edinburgh. But we have -- and 2 you may refer then later to the number of Notified 3 Departures, but at that time we probably considered 4 a few handful of Notified Departures which will be 5 managed and which are probably common to a project, an 6 inner city project of this type. So there has been 7 general discussions, but when you aim to look at the 8 many Notified Departures, we never anticipated such 9 a number. 10 So we anticipated a few, but not the volume which we 11 finally experienced. 12 Q. Before I leave the question of Schedule Part 4, 13 could I just check, please, do you remember yourself 14 reading Schedule Part 4 before the contract was entered 15 into? 16 A. It would have been very unusual for me to read this 17 information in this detail. This is why we had our 18 specialist department who would have read and confirmed 19 to me that this is sufficient and adequate. 20 Q. Thank you. I would like please to go to page 40 of your 21 statement. Question (c) asked about Bilfinger's 22 position or strategy in relation to the dispute. 23 You explain in the second part of your answer that: 24 "As a publicly listed company, the understanding of 25 Bilfinger was that by no means items which are duly owed 135 1 to Bilfinger (more likely than not) can be foregone, 2 except Executive Management (in Germany) accepts to 3 drop. This implicitly meant that disputes will have to 4 be pushed through all levels ... and if not successful 5 to be pursued in court." 6 Are you able to explain that answer a little, 7 please? 8 A. I believe what is meant by my answer in the first 9 paragraph, we tried to avoid any dispute if possible. 10 But if unavoidable, we would seek internal and external 11 legal advice on the likelihood, of course depending on 12 the gravity of the subject, but on the likelihood to 13 pursue. 14 The second paragraph clearly says nobody in 15 Bilfinger, if there was a clear -- let's call it a clear 16 receivable, duly owed to Bilfinger, none of Bilfinger, 17 not even the executive management, could drop such a -- 18 such a receivable, and would have to pursue. 19 Q. We looked earlier at the hierarchy within Bilfinger and 20 we looked at the diagram, you'll remember. Did any of 21 the Boards in that hierarchy have the power to drop sums 22 which Bilfinger may have received advice were due to 23 them? 24 A. The answer is: if whatever there was was duly owed, then 25 the legal advice given was it is more likely than not to 136 1 be successful even in court, so none of the executive 2 managers could drop. 3 If in the Executive Board, that's the second -- the 4 second last level, decided unanimously, then maybe or 5 perhaps it could be dropped. But in my experience 6 I never experienced that. 7 None of the Bilfinger managers could drop a duly -- 8 a receivable which is due to Bilfinger. So we could 9 not. 10 Q. Thank you. 11 Now, we have heard evidence that the dispute was 12 settled or resolved in 2011 following a mediation at 13 Mar Hall in Scotland. 14 Now, I know that Dr Keysberg was present at that and 15 not you. But did you have any views at the time on the 16 Settlement Agreement reached? Was it a good deal, a bad 17 deal for Bilfinger or what? 18 A. I can only recollect in a very distant manner, but I do 19 remember before such an agreement, a settlement was 20 reached that our departments, which I was referring in 21 my answers a few times, had to confirm that this is 22 a fair settlement. 23 So in such a case, I surely noticed fair settlement 24 on the basis of our departments giving confirmation. 25 The detail and the content, I cannot recall. But 137 1 I recall when there was a settlement, our people 2 regarded this as a fair settlement. 3 Q. Thank you. I have one final question, Dr Enenkel. We 4 have heard a suggestion that Bilfinger decided to 5 withdraw from the UK market and that influenced 6 Bilfinger's approach to the dispute. Do you have any 7 comments on that suggestion? 8 A. I don't have a particular comment, but as far as 9 I remember, we have been involved in the M80 project 10 which was in the neighbourhood of the Edinburgh tram. 11 To us the UK market was a vital market as any other 12 market in Europe. So I do not recollect that we 13 announced withdrawal from the market. 14 MR MACKENZIE: Dr Enenkel, thank you. I have no further 15 questions, but please stay on the line. 16 Questions by CHAIR OF THE INQUIRY 17 CHAIR OF THE INQUIRY: Dr Enenkel, there's one matter 18 I would like to ask. Could you go to your statement, 19 please, at page 27. It's TRI00000161_C. Do you have 20 that? 21 At paragraph 20 it says: 22 "An internal Weekly Report by Steve Reynolds, 23 Parsons Brinckerhoff, dated 29 February 2008, noted that 24 "in separate discussions with Richard Walker he has 25 mused that if TIE understood the likely true cost of 138 1 building the scheme then it would be cancelled. This is 2 not idle chat - it is Richard's view of the strategy he 3 has adopted to retain as much flexibility pre-contract 4 with a view to securing substantial variations 5 post-contract. On a related note, Richard has also 6 informed me that he and his manager (from Wiesbaden) 7 have seriously discussed withdrawing from the bid'." 8 So there are two parts to this. First of all, were 9 you aware of the suggestion that there was a conscious 10 strategy by Richard Walker to retain as much flexibility 11 before the contract, so that he could secure the 12 contract and then add on additions after the contract? 13 Were you aware of that strategy? 14 A. My Lord, you were asking whether I was aware of the 15 attitude of Richard Walker, and probably arrogance. 16 I think Richard Walker as a personality, I don't 17 know whether you have met him, but as a personality he 18 is probably somebody who is a bit overwhelming in his 19 speeches. 20 But as a hard worker, I don't think that he was -- 21 that he was making suggestions that whatever is to be 22 agreed, might later be overturned. I would not believe 23 that. 24 CHAIR OF THE INQUIRY: You're not -- sorry. 25 A. If it is David, I was not aware. 139 1 CHAIR OF THE INQUIRY: Finally, I think you've been asked 2 about the second part. Were you aware or have you 3 seriously discussed with Richard Walker about 4 withdrawing from the -- from the bid? 5 A. My Lord, the only time when we discussed whether or not 6 to pursue the bid was the discussion and the decision 7 about the system partner, whether it was Siemens or 8 Bombardier. At the time I made very clear if it was 9 Bombardier, we would not pursue the bid. 10 CHAIR OF THE INQUIRY: Thank you very much. 11 I don't think there are any questions from anyone 12 else. 13 Thank you very much, Dr Enenkel, for coming from so 14 far to join us by video link. I'm grateful to you for 15 your assistance. 16 Technically, you're still under citation, and it 17 would be possible to ask you to give further evidence. 18 Hopefully that will not be necessary. 19 In the meantime, thank you very much. That 20 concludes today's evidence. 21 A. My Lord, thank you very much. And I wish you the best. 22 CHAIR OF THE INQUIRY: Thank you. 23 (The witness withdrew) 140 1 INDEX 2 PAGE 3 MR SCOTT MCFADZEN (sworn) ............................1 4 5 Examination by MR MACKENZIE ...................1 6 7 DR JOACHIM ENENKEL (sworn) .........................115 8 9 Examination by MR MACKENZIE .................115 10 11 Questions by CHAIR OF THE INQUIRY ...........138 12 13 MR SCOTT MCFADZEN (continued) ......................141 14 15 Examination by MR MACKENZIE (continued) .....141 16 17 Questions by CHAIR OF THE INQUIRY ...........172 18 19 20 21 22 23 24 25 177