POL00039924
POL00039924
Btalgneor and May’ _ 11-12-1998 17:33 PAGE 1/3 RightFAxX
M REGO COMPANY: POST. OFFICE COUNTERS
SLAUGHTER AND MAY
35 Basinghall Street, London, EC2V. SDB.» Teleohone
me GRO
FAX TRANSMISSION
Date * 23rd November, 1998 ° DEC Feet PAbBree © CA983450.165
In reply please quote = JRT Total pages (ine this)
From . Jeff Triggs Writer's telephone
To Ross Newby, Treasury Receiving fax number ' G RO :
Sarah Mullen, Treasury
Copy to Mena Rego, Post Office Counters Limited, London
Horizon
Mena Rego has asked me to forward to you the attached, principally for the message in
the final paragraph about the time of the essence notice leading to termination. I
THIS FACSIMILE 15 CONFIDENTIAL AND MAY CONTAIN LEGALLY PRIVILEGED INFORMATION. IF YOU ARE NOT NAMED ABOVE AS
AN ADDRESSED IT MAY. BE UNLAWFUL FOR YOU TO READ, COPY, DISTRIBUTE, DISCLOSE OR OTHERWISE USE THE INFORMATION
IM THIS FACSIMILE. IF YOU ARE NOT THE INTENDED RECIPIENT OF THIS FACSIMILE PLEASE TELEPHON§ QR FAX US IMMEDIATELY.
A list of the partners and their orofessiona Loualteatons is available for inspection at the above address, ‘
8 17:33 TX/RX NO. 0292 POL
POL00039924
POL00039924
Slaughter and May 11-12-1998 17:32 PAGE 1/2 _ RightFax
Tod GRO} J EVANS COMPANY:POST OFFICE COUNTERS
SLAUGHTER AND: MAY
35 Basinghail Street, London, EC2V 508 -
FAX TRANSMISSION . : °
Date 23rd Novembjeir lope Gocypent ember CA9B3450.139-
O& 1? 17:
Total pages (inc, this)
RO I
In reply please quote = JRT
From * Jeff Triggs ~ . Writer's telephone
To . Robert Ricks, Treasury Solicitor : Receiving fax number H
Copy to Mena Rego, Post Office Counters Limited, London
Jonathan Evans, Post Office Counters Limited, London
Catherine Churchard, Post Office Legal Services, a G RO
Croydon :
David Sibbick, Director Post DTI -
Ross Newby, Treasury .
Sarah Mullen, Treasury
‘Horizon - Termination
Thank you for copying to me the Solicitor General's advice. Although I do not agree
that the POCL approach is necessarily slower than the DSS approach I would hope that all are - ~
now agreed that itis safer. . ne
I do think that we should all aim to bring this legal debate to a close and I would nor
like to be responsible for prolonging it. That is why’ J do not propose to comment in detail on
the Solicitor General’s advice. However, there i is one aspect of his advice which J believe it is
crucial to clarify in the interests of both public sector parties.
It was generally agreed in conference that perhaps the worst of all worlds would be to
“ give a time of the essence notice which sets an unreasonable period and thereby enables
Pathway successfully to sue for anticipatory breach of contract. That would be an
unforgivable error. I therefore agree entirely with paragraph 16 of the Solicitor General's
advice.
. However, I think the reasoning in paragraph 17 is dangerously misconceived. It seems
to suggest that because the Authorities are entitled to terminate by giving twelve months
THIS FACSIMILE 15 CONFIDENTIAL AND MAY CONTAIN LECALLY PRIVILEGED INFORMATION. 17 YOU ARE HOT NAMED ABOVE AS
AN ADDRESSEE IT MAY BE UNLAWFUL FOR YOU TO READ, COPY, DI:
BUTE, DISCLOSE OR OTHERWISE USE THE INFORMATION
IN THIS FACSIMILE, IF YOU ARE MOT THE INTENDED RECIPIENT OF THIE FACSIMILE PLEASE TELEPHONE OR FAX US IMMEDIATELY.
Allist of the partners and their orofessional qualifications i¢ availahle far intnwctinn a1 the showe sudeare
11/12
98 17:32 TX/RX NO. 0446 Pol
POL00039924
POL00039924
I.
Toney
CA983450.139 . 2 : 23rd November, 1998
- notice this means that a time of the essence notice giving Pathway less time than.it. needs to.: «
Period for termination for convenience. it has no relevance to what is a reasonable time to
and May 11-12-1998 17:32 PAGE 2/2- . RightFAx I
J- EVANS COMPANY:POST OFFICE COUNTERS :
SLAUGHTER AND MAY
achieve-Operational Trial might be reasonable.
That is misconceived in two respects. First, the period of twelve months is a notice
complete Operational Trial. Secondly, termination for convenience requires twelve months
notice plus the payment of.a specified amount by way of compensation. Currently. the
relevant formula would require a payment to Pathway of an amount up to almost £400
million. The fact that the Authorities can terminate on twelve months notice if they pay
Pathway £400 million should not be used as an argument for saying that a period shorter than
what is ‘required is a reasonable period. .
In fact, 1 understand that the current date which both Pathway and the Authorities
think is the most likely date for completion of Operational Trial is 30th September, 1999.
The “POCL approach” (on current information) is therefore that a time of the-essence
notice expiring on 1st October, 1999 should be Served. For the avoidance of doubr, a decision
to serve a time of the essence notice with a shorter period would not represent the POCL
approach. ,
Ishould add chat it would be quite reasonable, in the circumstances, for ministers co
conclude that the time of the essence route is the most appropriate even if it is ministers’
unequivocal wish to terminate, That conclusion rests on an assessment of the likelihood of
Pathway failing to meet the deadline. Although-I quite understand that the Solicitor General
does not feel able to comment on this question, POCL believes it to be highly. unlikely that
Pathway will complete Operational Trial by that date if all currently proposed concessions are
withdrawn. In other words there i is every likelihood that the time of the essence notice will
lead to termination.
Please feel free to give this letter such further circulation as you consider necessary.
Yours sincerely, ‘ .
Jeff Triggs
11/12 '98 17:32 TX/RX NO. 0446 P02 .
POL00039924
POL00039924 _
= =
Slaviehter and May "11-12-1998 12:01 “PAGE 1/2 RightFax yale
TO: GRO _}M REGO COMPANY:POST OFFICE
AY DEC 1995
SLAUGHTER AND MAY
35 Basinghalt Street, London,
Telex I
FAX TRANSMISSION
Date * 23rd November, 1998 Document number ~— CA983450.024-
In reply please quote §= JRT
From * Jeff Triggs ‘Writer's telephone
To Mena Rego, Post Office Counters Limited, Receiving fax number I
. London
Copy to Robert Ricks, Treasury Solicitor
Jonathan Evans, Post Office Counters Limited, London H I ‘
Catherine Churchard, Post Office Legal Services,
Croydon :
Horizon - Termination Options
Thank you ‘for your call this afternoon reporting on certain discussions at the working
group meeting. .
As you know, there are a number of different termination options. We believe the best
is likely to be to serve a time of the essence notice of a reasonable period. One particularly
bad option would be to give a time of the essence notice which was not reasonable because it ©
required operational trial to be completed in a time period which we all know is impossible,
or highly unlikely. Accordingly, serving a time of the essence notice expiring in July when we
all know that operational trial is highly unlikely to be completed before 30th September
would be an extraordinarily foolhardy thing to do (and would be contrary to the advice of
counsel to the Law Officers).
Indeed I would even prefer to pursue the somewhat discredited schedule CS route
rather than serve an invalid time of the essence notice.
What is more, given the view that it is unlikely that Pathway will continue working on
THIS FACSIMILE IS CONFIDENTIAL AND HAY CONTAIN LEGALLY PRIVILEGED INFORMATION. (F YOU ARE NOT NAMEO ABOVE AS
AM ADDRESSEE IT MAY BE UNLAWFUL FOR YOU TO READ, COPY, DISTRIBUTE, DISCLOSE OR OTHERWISE USE THE INFORMATION
IN THIS FACSIMILE, IF YOU ANE NOT THE INTENDED RECIPIENT OF THIS FACSIMILE PLEASE TELEPHONE OR FAX US IMMEDIATELY.
A list of the partners and their professional qualiications i available for inspection at the above addross. “o
POL00039924
POL00039924
Toner and May 11-12-1998 12:01 PAGE 2/2 RightFAx
TO: GRO I M REGO COMPANY:POST OFFICE
SLAUGHTER AND May
CA983450.024 23rd November, 1998
the programme throughout the period there reall
y is very little, if anything, to be gained by
stipulating July rather than October. ,
Regards,
41/12 '98 12:01 TX/RX NO. 0280 P02