Tesco v Constain - Thomson Reuters

2002 WL 347140 Page 132002 WL 347140 (QBD (T&CC)), [2002] EWHC 482(Publication page references are not available for this document.)current Stage, and the cost of printing drawingsgenerally, will be reimbursed.CopyrightCopyright in all documents and drawings willremain the property of the relevant architect orconsultant.TerminationTermination by either party at one months noticeis accepted. If the services of a member of thedesign team are terminated, the developers will paya sum equal to 20% of the portion of theconsultants fee which would have been chargeableif the commission had not been terminated. Thepayment reflects loss of profit which would havebeen earned, and of the other benefits of reputationetc. which the consultant would have received.Client/EmployerClarification as to what legal entity(ies) willformally appoint consultants, and how the liabilityof the various developers will be reflected inworkable appointment and payment arrangements.Formal AppointmentThe parties undertake to enter a formal agreementon the RIBA Standard Form of Agreementincorporating the above, and to complete this nolater than Friday 12 December 1997.37. It is plain from the terms of Mr. Huntsfacsimile transmission dated 5 November 1997 thatwhat was proposed in Mr. Springgays letter dated 3November 1997 was not acceptable to him. It isalso plain that, at least in respect of work to becarried out after Stage 2, Mr. Hunt was inviting theDevelopers to deal directly with BM, rather thanthrough HTA.38. Mr. Springgay replied in his turn to Mr. Huntsfacsimile transmission of 5 November 1997 in amemorandum dated 10 November 1997. Theevidence of Mr. Springgay, Mr. Richard Cherryand Mr. Phipps, which again I accept, is that Mr.Springgay did not show Mr. Cherry or Mr. Phipps adraft of the memorandum before it was sent, but hedid send each of them a copy under cover of amemorandum to them and Mr. Cook dated 13November 1997. When asked about the terms ofthe memorandum dated 10 November 1997 each ofMr. Cherry and Mr. Phipps said that he wasperfectly content with what Mr. Springgay hadwritten. The text of the memorandum dated 10November 1997 was as follows:-Further to your fax of 5.11.97, I have discussedyour points with the client and the following is ourresponse (your refs.):Generalii) I confirm we are fully authorised to act for thedevelopers.iii) Monthly invoices are agreed, based onpercentages of pre-defined stages having beenachieved. The developers fully intend to paypromptly and do not consider it necessary toincorporate an interest clause.1 & 2: Stage 2 submissionThe 110,000 fixed fee must stand, but thedevelopers are prepared to increase the successbonus to 200,000. However, this bonus will onlybecome due upon exchange of an unconditionalcontract with E.P. and payment will be phased asmy previous letter of 3.11.97. I would suggest thatthis should not be an issue as, once contracts areexchanged, you will be receiving almost immediatecash flow through the detailed design appointment.3. Subsequent appointments(a) Architecture & Masterplanningi) the proposed fee of 5% must stand. Your letterof 26th August was misleading in any event in notpointing out that the RIBA Scale fee of 6% was infact for projects only up to 5m in value.iii) The developers share my confusion over therespective roles of Ralph Erskine and HTA duringStage E. Please provide a workplan showingexactly how this will work and the respective feesfor each stage (C, D & E) proposed for RalphErskine and HTA.With respect to our commitment at this stage, theprevious proposal (100% up to Stage D; min. 50%for Stages E-L) must stand. This may be amendedto 100% for Stage E once we fully understand howthis stage will work in practice.iv) The Cole Thompson involvement can beeffectively managed and we are keen to secure theirparticipation along the lines discussed.v) At this stage, we envisage a separatecontractual relationship between the developer andeach consultant, hence why we must understand therelationships and the fee splits.Copr. © West 2004 No Claim to Orig. Govt. Works