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FAX TRANSMISSION
BIRD & BIRD
90 Futur Lane
To: DSS London ECAA HP
ve
+44 171-415 6000
Atten\Ref: Marilynne A Morgan Fax No.: ecole
Ron Pe I Fax No.: we Tt
28880 Beds
ce: Sarah Graham Fax No.: rm Om nde
George McCorkell FaxNo: wore
wrew. twelbiedscom,
From: Hamish Sandison
Client: BA/POCL
Account No: BPOCL.000! en
GE Came
Date: 25 November 1998 ential
Time: rood
Sesh
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Number of pages (including this page) : 2 ines valley
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LEGAL ADVICE: ROLE OF THE JOINT PROGRAMME LAWYER deanna
CIR Bares
I thought that you should see this letter from Joe Ashton. Please note the pororny
penultimate paragraph. Can we discuss this before our mecting with Catherine shrew
Churchard and Joe Ashton which is now scheduled for Friday November 27 at Asfandeeroa
10.30 am? Hi Rubin
Waker
‘Warmest Regards. tomar
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PC Duy
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i NSP Blundell
RW raweat
Compact
RT CAmaU
SNL Chater
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RE Femoen*
Orient
EC Office 2094 sens Leute, 1050 Brussels, Belglum Telephone +322-644 3416 Facsimile ¥322-644 2486
‘Hong Kong 20/F Priming Houne, 16 ike House Street, Central, Hong Kong Telephone +852-2530 O860 Fetnienle +052-2523 3130 ‘neta whan
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Te O18! 681 9038
Fux 0181 681 9278
Hamish Sandison nets area
Mesers Bird & Bird
Dat 25 Newember_1908..,
semaih Joeasbton: GRO H
Solicitor und Lege! Serviogs Director
CATHERINE CHURGIARD LLB
BYEAX
Dear Hamish
2 ‘ZO!
Tam writing to brief you, prior to this afternoon's mesting as to the views which POCT. takes
in relation to the issues raised by Robert Ricks in his letter to you of 23 November 1998,
Following the numbering of Robert Ricks’ letter, they are 2s follows:+
1 The only safe way of tenminating the con.racts is to serve notice making time of the
essence. Notices should not be served before 9 December 1998. A decision as te the
eptimum time for service of such noticcs can only be taken in the light of the state of
any further negotiations between the parties.
Any time of the essence notices must give ICL Pathway a reasonable time to comply.
tt follows that any notice period would have to give ICL Pathway in the region of 8-9
momths, 2s opposed to the 13 weeks suggested hy DSS.
There are several responses which ICL Pathway might make (o the service of time of
the essence notices. It might, for instence, (a) purport to teat the contracts as
repudiated and issue proceedings to recover damages, or (6) it might be induced to
return to the negotlating table and to adopt @ more reasonable stance in Option 1
heyotiations or (¢) it might seek to negotiste a consensual termination of the contracts
or (d) it might perform the contracts.
2. POCL remains willing at a} times to participate in any reasonable without projudice
negotiations with a view-to resolving its differences with ICL Pathway. It does not
consider that a standsti!l agreement having tho offoot of suspending the Programme,
hax any place in supporting such negotiations.
3. The service of time of the essence notices should not be preceded or accompanied by
any suggestion from the Authorities the! without prejudice negotiation might take
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~ fective end that ICL Pathway ere ebtiged to perform those contracts. It is
considered the adoption of such a position will drive ICL Pathway to be the party and
to suggest further negotiations and that ICL Pathway’s position in such asgotiations
would be weaker than if the further negotiations had first been proposed by the
Authoritles.
4. Jt is agreed that Ministers cannot indicate that they regard the contract at an end if
time of the cssence notices had been served and that public pronouncements can only
record that notlees have been given to IC. Pathway requiring them to perform by a
certain date.
5. toon is committed to cnsuring that the positions of POCL and DSS are as “Joined-
up” as is possible. However POCL and DSS may not have entirely corresponding,
ibterests and for that reason roust be seperately represented In any negotiations.
POCL would expect its side of the negotiations to be led by a lawyer instructed
ihdependently of DSS.
POCL is aware that you have previously taken a different view on the length of the tine of
the essence notices and may feel unable to suppor: our views on thet issue. Tn relation to that
issue, and aay other where there is a conflict belween DSS and POCT., POCL would ask you
to refrain from putting forward eny argument which could be seen as supporting the views of
one clieht at the expense of another. :
I hnd hoped to be able to discuss these issues prior to faxing this letter but that has not proved
diffeul. If you feel thet a brief chat about POCL’s views prior to the meeting would be of
assistange, It may be possible to reach Catherine Shurchard or me at the office of Mazilynne
Morgan whom we are duc to be meeting at midday. Alternatively either Catherine ord will
be attending this aftemeon’s meeting and doubtl-ss we would be ablo to speak briefly for &
fow minutes before it gets undesway.
JOE ASHTON
UARPONDEOT2 OLDOC
TOTAL P.B3