Tesco v Constain - Thomson Reuters

2002 WL 347140 Page 142002 WL 347140 (QBD (T&CC)), [2002] EWHC 482(Publication page references are not available for this document.)(b) & (c): Civil, Structural, M & E EngineersI will speak directly with Chris McCarthy.ExpensesAgreed.CopyrightAgreed in principle, but a clause in the formalappointment will need to be drafted to ensure thatthe client can still use and develop the schemedesign if for any reason another architect isintroduced after the completion of Stage D (orStage E, depending on (iii) above).TerminationYour proposed amendments are not acceptable as,in practice, your appointment would only beterminated for non-performance. In such a case, itwould not be equitable for you to receivecompensation for loss of profit. In this respect, theformal appointment will include a schedule ofinformation to be provided, a programme forproduction of information and response times, etc.Client/EmployerThe legal entity to be formed to cover the threedevelopers has yet to be defined but this shouldbecome clearer in the next few weeks.Formal appointmentThe RIBA Standard Form of Agreement will forma basis for your formal appointment, but amendedto reflect this particular project and itsrequirements. It will be completed after GMT isselected as the preferred developer and beforecommencement of the planning applicationenvisaged in the Stage 2 Brief for preparationbetween early February 1998 and end April 1998.I firmly believe that the terms now offered arevery generous and should provide the motivationyou need to focus on winning the competition. Thedevelopers are not at this stage prepared to enterany further negotiation. I am concerned that thediscussions on this issues [sic] have deflected yourefforts at a crucial time and we must get back ontrack to achieve the programme circulated on 21stOctober.39. From its terms Mr. Springgays memorandumdated 10 November 1997 seems to have beenintended to put a stop to further discussion of anypossible contract for the time being. That, it seemsto me, was the purpose of Mr. Springgay writing inhis concluding paragraph The developers are not atthis stage prepared to enter any further negotiation.At the same time it appears to have beencontemplated that, at some appropriate point, therewould need to be further consideration of a numberof questions. In particular, the question of whatexactly Ralph Erskine and HTA, respectively, wereto do in Stage E seems to have been an issue whichMr. Springgay and those for whom he was actingwished to revisit, as well as the questions how eachmember of the team envisaged would deal with theothers and how the total overall fee contemplatedshould be divided as between the various membersof the team. Other matters which Mr. Springgaysignalled in his memorandum would need to beconsidered further were the issue of copyright, tocover the possibility of the introduction of anotherarchitect after the completion of Stage D, theproduction of a schedule of information and aprogramme for production of information andresponse times so as to provide criteria by referenceto which it could be determined whether HTA andothers had been guilty of non- performance, andwhat amendments to the RIBA Standard Form ofAgreement should be made to reflect this particularproject and its requirements. Further, all of thesematters were to be revisited in the context ofseparate agreements between each member of theDesign Team and a legal entity yet to be formed.40. Mr. Hunt responded to Mr. Springgaysmemorandum of 10 November 1997 in a facsimiletransmission dated 13 November 1997. What hesaid was this:-As requested, this is a brief summary of what Isaid to you on the phone yesterday.1. Your memo of 10 November does not representan acceptable basis on which the design team canproceed. The issues are set out in my 5 Novemberfax, but the headlines are:2. Stage 2 submission. I have been unable to getagreement from team members to reduce thepackage from 203k to 110k as you propose. Ibelieve I will be able to get agreement to the 150k+package I proposed on 5 November. If you areunable to agree this please let me know by close ofplay tomorrow. I will then fax the teamimmediately, and let them know that you willnegotiate with them directly.3. Scale fee. It is disingenuous to suggest my 26August letter was misleading. The figure quotedunambiguously was 6%. (Note that a fee in excessof the 6.5% recommended for Class 4 buildings,(apartment blocks) as opposed to Class 3 (estateCopr. © West 2004 No Claim to Orig. Govt. Works