LONDON + BRISTOL « MANCHESTER LEEDS + GLASGOW + BRUSSELS «
F 17-Feb-00 15:41 Masons Solicitors
ICL Pathway Ltd
Forest Road
Feltham
Middlesex
TW13 TE
ADDRESSEE FAX NUMBER
NUMBER OF PAGES (INCLUDING THIS PAGE) 3
17 February 2000
Our reference
(GATSCHNOLO\CORKS WEEK 720904003, DOC
Myles Blewett Tony Oppenheim
DUBLIN + HONG KONG * GUANGZHOU + SINGAPORE:
gece [DMN
privileged and confidential information, If you ere’not.the person or organisation to whom it
NOTE: This fax transmission Is confidential and Intended for the addressee only. It may “ai
ia addressed, you must not-copy, distribute, o take uny action'in reliance upon it, If you
have recelvad this fax in error, plaasa nctify us !mmediately by telaphone or fax and return 4
tous in the post. We will reimburse your expenses.
Dear Tony
SERVICE LEVELS
As you requested yesterday, I attach a preliminary draft letter to Keith Baines.
T have discussed the basis of the letter in detail with Iain Monaghan and our
joint view is that it should be as short as possible at this stage, doing little more
than “formally” recording the disagreement.
There is no need, for dispute
escalation purposes, for a contractual “notice” as such, so we think it best the
letter come from you.
There are a number of reasons for keeping the letter short which I would like
to discuss with you, not least that I am concerned that proceeding, or
threatening to proceed, with a legal claim based on mistake is not the best way,
or indeed, the only way forward. I can see that the arguments based on
mistake operate at two levels: commercial and legal. If we can satisfy Keith
there has been a mistake, he might agree at the commercial level, in the
interests of the working relationship to rectify the position, or perhaps make
concessions in other areas. However, proceeding with a legal claim would be
much more difficult. On the evidence I have scen (and heard) so far, a claim
based on mistake at law justifying amendment to the Codified Agreement is
unlikely to succeed, not least because we would probably have to show that
POCL was aware of the mistake, yet kept silent and allowed the Codified
Agreement to be signed incorporating that mistake.
AA fill st of partner is evailable for irepection at any of the firs cfficea
FUJ00058510
FUJ00058510
1/4
MASONS
Solicitors
@ reivy Couoedl Agents
SOAYLESBURY STREET
LONDON EC1R OER
DX53313. Clerkenwell
www. madone.com
‘Maroorn (London, Bristal, Manchester, Leeds) ig regultied by the Law Society of England aned Walea generally ard in the conclu of investment business
‘Masons (Ginggow) is regulated by the Law Society af Scotland
FUJ00058510
FUJ00058510
¥ 17-Feb-00 15:41 Masons ‘Solicitors Myles Blewett>Tony Oppenheim 24
If we need to go further back, and rely on matters dating back to the time of
“drop down”, as you suggested yesterday, then the claim, depending upon how
it is formulated, may founder due to the full and final settlement provision
contained in the Letter Agreement, which settled everything before that.
It may be that onée we have put together the history of the relevant provisions,
and other documents, as discussed yesterday that a solid basis for a claim will
emerge, but it would be premature to formally‘threaten such a claim before
that. It may unnecessarily sour the relationship with POCL.
Holding back for.a time would also give us a chance to investigate what appear
to be inconsistencies in Pathway’s arguments. For example, how to reconcile
Pathway's intention to put forward a synthesised average fall back time for
EPOSS of 21.6 seconds (which is less than the average of the EPOSS
benchmark times.of 22.9 seconds), with the argument that fall back transaction
times were intended to be taken into account in the weighted average of
benchmark times for EPOSS, APS etc separately, to assess whether the
MAT/TRT had been achieved/avoided for each service separately. What the
21.6 second time would mean for EPOSS, taken on its own, is that fall back
would make it easier for Pathway to succeed against the MAT/TRT for that
service. It makes sense if you aggregate the values of “‘c” for EPOSS and APS
under Schedule B10, because there the figures would cancel each other out to
some extent (APS being on the plus side), but it doesn’t seem to work at the
level of the individual service. I should also point out that the fall back
transaction time intended to be put forward for EPOSS would fall foul of the
EPOSS service level schedule which requires the synthesised fall back
transaction time to be greater than the contracted transaction time.
The service review books for May and October 1999-set out various different
transaction types for APS and OBCS, unlike EPOSS for which there is only
one entry. [understand that the weighted average approach was intended to
apply to APS, OBCS and EPOSS (except for some of the OBCS transactions
which are based on actual measurements) so you would expect there to be one
entry for each of them, with perhaps a few additional entries for OBCS.
Incidentally, the 30 second weighted average figure for EPOSS which you
referred to appears in the October review book, but I have as yet been unable
to find it anywhere else. That too we need to look into.
We also need to clarify whether Pathway asserts that for the purpose of the
weighted average approach (as opposed to the very similar calculation for “C”
which we'discussed with Keith yesterday) the common intention of the parties”
was to use actual volumes for each transaction type for weighting purposes, or
the annual PIVOT/MIS volumes. This scems to-me to be another facet of the
argument, which has yet to be fully explored.
Finally, an alternative strategy you might wish to consider is putting forward a
document which highlights (diagrammatically if possible) the ambiguities
within the various service level schedules, at the same time proposing an
alternative, streamlined approach to service levels, incorporating advantages
for both parties. We might be able to combine this with the proposal put
forward yesterday.
FUJ00058510
oe FUJ00058510
¥ 17+Feb-00 15:41 Masons Solicitors Myles Blewett >Tony Oppenheim ara
Just 80 as you know, and depending on how you would like to proceed, if we.
enter a “dispute” scenario, 1 would like to discuss the issues with Rob
McCallough.
Yours sincerely
MYLES BLEWETT