Tesco v Constain - Thomson Reuters

2002 WL 347140 Page 72002 WL 347140 (QBD (T&CC)), [2002] EWHC 482(Publication page references are not available for this document.)period expended in integrating Ralph ErskineArchitects into our team. I assume (unless I hear tothe contrary) that the same applies to directexpenses incurred in producing the presentation(e.g.printing).The consultant teams input at no cost is made onthe understanding that terms will be agreed inprinciple before 26 September along the lines ofmy 26 August fax (copy attached).3. Progress report.My partner Ben Derbyshire had a long andproductive conversation with Erskine yesterday,and is now en route to meet him. His enthusiasmand commitment appears to be growing. We thinka joint Erskine/Derbyshire presentation of thevision, with sketches of initial design concepts,would be ideal but it is too early to say how good achance we have of delivering this.22. From the terms of numbered section 2 of thefacsimile transmission dated 17 September 1997 itappears that at that time HTA was not seekingnecessarily agreement to what was set out in thefacsimile transmission dated 26 August 1997, butsimply that terms will be agreed in principle alongthe lines of my 26 August fax. In the context, andgiven the sparse lines of the facsimile transmissiondated 26 August 1997, the agreement in principlebeing sought can only really have amounted to anindication that, if the Phase 1 submission wassuccessful, HTA and the other architects involvedwould at least be paid their costs of working onPhase 2, and if the Phase 2 submission wassuccessful, be paid some fee with a profit element.It does not appear that either of the addressees ofthe facsimile transmission dated 17 September1997 responded to it, or that their failure to do soprompted any action on the part of HTA until afterit was known that success had been achieved inPhase 1.23. Mr. Hunt did return to the subject of themaking of an agreement to retain HTA and theother firms involved in the GMV project in afacsimile transmission dated 2 October 1997addressed to Mr. Phipps, to Mr. Richard Cherry,and to Mr. Cook of Moat. That facsimiletransmission was in the following terms:-We have very much enjoyed working with you onthe project, and are delighted that the team has beenshortlisted. It goes without saying that we are keento work with you in whatever capacity you judgemost helpful. Clearly we need to establish anaction plan for Phase 2 as soon as possible, and asagreed with Richard I will set out some thoughtsfor discussion with you, hopefully before the end ofthis week.First, in view of the need to get in place a highcalibre team to undertake a substantial piece ofwork at short notice, it is essential that weformalise the basis on which the design team isworking. I enclose a copy of my 26 August faxsetting out my proposals, and also of my 17September fax confirming our understanding.Since those faxes English Partnerships have twicemoved the goalposts, such that the Stage 2 designperiod has been almost doubled. I have not lookedat the cost implications in any more detail, but100K now looks a more likely figure to cover thecost of design team time (compared with 32K to52.5K previously estimated) and even this mayprove to be inadequate when we look closely atwhat we need to do to win.Before we get into detail. I would be grateful toyou for your in principle confirmation that the basisoutlined in my fax is acceptable to you. In additionHTA/Erskine have incurred expenses totallingaround 7K (mainly travel/accommodation/andproduction of submission document) and I wouldbe grateful for you [sic] confirmation that we maynow invoice you for this and procedures for doingso.I know that Richard and Paul are meetingtomorrow, and I would be grateful for your urgentresponse to this fax following your meeting so thatI can mobilise the design team.24. From the terms of the facsimile transmissiondated 2 October 1997 it appears that Mr. Hunt wasthen envisaging a need at some point for details ofthe terms of the appointment of HTA and the otherarchitects involved in the GMV project to beconsidered, but that in advance of that time hewanted confirmation in principle that the sort ofbasis of payment contemplated in his facsimiletransmission dated 26 August 1997 was acceptable.25. Mr. Phipps replied to Mr. Hunts facsimiletransmission dated 2 October 1997 in a letter dated9 October 1997 written on the printed stationery ofTaywood. After noting the contents of thetransmission Mr. Phipps went on, so far as ispresently material:-Firstly, I note that you are proposing an overallfee of 100,000 to cover the cost of the design teamthrough Stage Two, and I must confess to beingslightly surprised that this has increased bearing inmind that the time has been almost doubled.Copr. © West 2004 No Claim to Orig. Govt. Works