Tesco v Constain - Thomson Reuters

2002 WL 347140 Page 152002 WL 347140 (QBD (T&CC)), [2002] EWHC 482(Publication page references are not available for this document.)housing and flats) would be appropriate for thisproject. 6% represents a reduction on this.)4. Ralph Erskine. I consulted him via JohannesTovat. His reaction: 203k package and 6% notnegotiable.More fundamentally he reinstated his position thatif he is to be the architect, it means that it is hisdesign, from concept to detail and execution. Wehave discussed how he achieves this in practice,working closely alongside an executive architect.Your proposal that the clients commitment shouldextend to only 50% of Stages E to L is notcompatible with this principle. Ralph said that ifthis is not resolved before close of play tomorrowhe will withdraw.5. Confirmation is required that if we win theteam will be formally appointed before being askedto proceed with any further designdevelopment/preparation of planning application;and that payment for Stage C will be due at thattime (early February anticipated).41. Mr. Hunts facsimile transmission dated 13November 1997 was clearly a flat rejection of whatwas proposed in Mr. Springgays memorandumdated 10 November 1997. Mr. Springgay and Mr.Hunt then spoke on the telephone on 14 November1997. The next day Mr. Hunt sent to Mr.Springgay a further facsimile transmissionconfirming the discussion. He said this:-To confirm our conversation yesterday. Weagreed to defer the deadline for resolution of theoutstanding issues to close of play on Monday. Tosummarise where we now stand:(i) I set out proposals on 26 August, and we havecommitted substantial resources since in the beliefthat these were accepted by the developers. (ii) Thecounter proposal in your 3 Nov. fax is notacceptable. (iii) We demonstrated our flexibilityand willingness to compromise in my 5 Novemberresponse. It is important to be clear that we mustreach agreement on all the issues covered by thisfax on Monday, and that although I hope we willalways be flexible in our search for win/winsolution, we cannot agree to further concessions.I hope our absolute commitment to working withyou to win this competition for our clients is not indoubt but that neither is our resolution, and Ralphs,to terminate our involvement if we cannot agree onMonday.42. Mr. Springgay and Mr. Hunt had a discussionon the telephone on the afternoon of 17 November1997. Mr. Hunts account of that conversation inhis witness statement dated 19 February 2002 wasas follows:-20.1 On Monday 17 November 1997 I wastelephoned by Paul Springgay who informed me ofthe terms which were going to be offered by theJVP in respect of the remaining outstanding issues.He was acutely aware of the deadline we had setand the need to conclude a deal on that day.Although he had a letter already drafted, heapologised for the fact that he was not faxing theletter but explained that Paul Phipps had asked tohave sight of the final wording, and was notavailable. However, he provided his assurance thatPaul Phippss agreement was not in doubt.Accordingly our conversation was conducted onthe basis that the JVPs offer was firm, and that PaulPhippss agreement was taken as read.20.2 The key issues were that the Stage 2 BidSubmission fees would be agreed at 150,000together with a success fee of 150,000 and that thearchitectural and master plan fee was to beincreased to 5.5%, i.e. the figure that we hadinsisted on in my letter of 5 November 1997. Asregards the extent of the appointment it wasconfirmed that Ralph Erskine/HTA team would beappointed for 100% of the development stages C toE, and a guaranteed minimum of 50% of Stages F-L for the remainder of the project with the prospectof this being extended to 100%. This was subjectto termination as before for non- performance, i.e.confirmation that termination would only occur fornon- performance as per Trench Farrows letter of10 November 1997.20.3 I was pleased that the JVP had understoodthat the threat made in my letter of 15 November1997 to terminate our involvement if we did notreach agreement by 17 November 1997 wasabsolutely serious, and that they had responded bythe deadline.20.4 I was satisfied that that [sic] the negotiations,culminating in the improved terms now beingoffered were an acceptable basis for the Designteams appointment and that the negotiations hadcovered all the issues necessary to conclude anappointment of the Ralph Erskine/HTA team.Accordingly, I told Paul Springgay that weaccepted the terms, that we now had a deal onwhich we were prepared to go forward, and that weaccordingly withdrew our threat to pull out of theproject. This was a watershed moment in theproject and I was delighted that I had achieved myobjectives in relation both to the Design teamsremuneration for preparing the submission, and forHTA/Ralph Erskines appointment in the event ofCopr. © West 2004 No Claim to Orig. Govt. Works