Tesco v Constain - Thomson Reuters

2002 WL 347140 Page 162002 WL 347140 (QBD (T&CC)), [2002] EWHC 482(Publication page references are not available for this document.)winning the competition.43. I confess to some confusion as to why at thispoint, and in relation to work in Phase 3 for whichseparate appointments for CTA and BM werecontemplated, HTA was seeking to act not only onits own behalf, but also on behalf of Ralph Erskine,but not on behalf of BBMK, which had initiallybeen introduced to the GMV project by HTA. Thisconfusion was not allayed by any evidence which Iheard, and the matter remains a mystery to me.44. Mr. Springgay in a supplementary witnessstatement dated 25 February 2002 commented onparagraphs 20.1 of Mr. Hunts witness statementdated 19 February 2002 as follows:-3.1 This deals with my phone conversation withMr. Hunt on 17 November 1997, which I deal withat paragraph 26 of my first statement. Mr. Huntsays that I informed him of the terms which weregoing to be offered. What I was actuallydiscussing was in principle heads of terms and Icovered the issues which I subsequently committedto writing in my memo to Mr. Hunt of the samedate (which was finally sent on the following day)For the avoidance of doubt, if that is what is beingimplied by Mr. Hunt, I did not read out to him onthe telephone the memo which I subsequently sentto him, nor did I suggest to him that I was doing so.3.2 Further on in the paragraph, Mr. Hunt saidthat I provided my assurance that Paul Phippsagreement to the draft memo was not in doubt.This is not true. I said that I believed Mr. Phippswould find the contents of the memo to beacceptable but would need to seek and await hisapproval. The conversation was not conducted onthe basis that what I said was any sort of firm offer,nor that Paul Phipps agreement was taken as read.45. Both Mr. Hunt and Mr. Springgay were crossexaminedas to the accounts of the conversationbetween them on 17 November 1997 which I haveset out. It emerged from the cross-examination thatit was not in dispute between them that Mr.Springgay had indicated during the conversationwhat provision in respect of what matters wasintended to be proposed in the memorandum, andthat Mr. Hunt was not contending that thememorandum or some part of it had been read outto him, rather than summarised. Mr. Springgaytold me that at the end of the conversation Mr.Hunt had not said what he said he had said, but thathe would wait to see the memorandum and wasconfident that he would be able to secureagreement from the Design Team to what wasproposed. I shall indicate my findings of fact onthe difference between Mr. Hunt and Mr.Springgay as to what was said on 17 November1997 later in this judgment. Mr. Springgay told methat he was expecting to hear further from Mr.Hunt after Mr. Hunt had received thememorandum, but he did not do so. It was not indispute that Mr. Hunt did not respond to thememorandum.46. Following the conversation on 17 November1997 Mr. Springgay sent to Mr. Hunt by facsimiletransmission on 18 November 1997 amemorandum dated 17 November 1997. Thememorandum was marked as being copied to Mr.Phipps, Mr. Richard Cherry and Mr. Cook of Moat.It was sent under cover of a facsimile transmissionsheet upon which was written the message:-Bernard, I finally obtained Paul Phipps agreementto the attached this morning. There is stillobviously some flesh to put on the bones but theseare the main points.47. The terms of the memorandum dated 17November 1997 written by Mr. Springgay to Mr.Hunt were as follows:-Further to my memo of 10 November, yoursubsequent fax of 13 November and our discussionthis afternoon, the Consortium will agree to thefollowing revisions to the heads of terms:-Stage 2 SubmissionsIncrease the design team fees to 150,000 with asuccess bonus of 150,000 (as your fax of 27October). The success bonus had previously beenincreased to 200,000 in recognition of a 110,000Stage 2 fee.Architectural & Masterplan FeeThe fee for a full design to be increased to 5.5%.Extent of AppointmentThe Ralph Erskine/HTA team will be appointedfor 100% of the development for Stages C-E(subject to termination as before for nonperformance).For a minimum of 50% of thedevelopment they will also be appointed for StagesF-L inclusive, with the possibility of this beingextended to 100% of the development. The formalagreement will make it a condition that RalphErskine maintains the Lead Designer rolethroughout Stages C-E. As requested in our memoof 10 November we still require a workplan toshow how you will interface with Ralph Erskineand the proposed fee split between HTA and Ralph.Copr. © West 2004 No Claim to Orig. Govt. Works