Letters, Instructions, etc.

Transcription

1 Letters, Instructions, etc. Michael Dunn FRICS FCIArb LLB LLM T: and E: Delivering Professional Solutions to the Property Industry

2 Introduction The intention is to look at letter writing agenda and minutes of meetings instructions notes, records and internal memos certificates 2

3 Communications generally Architect s communications diverse in terms of topic formality people 3

4 Communications generally Things to consider? recipient (i.e. audience) client (existing / prospective) / contractor / planning authority / colleague subject matter technical / appointment / contractual purpose direction / informative / inquisitorial 4

5 Communications generally Things to consider? style formal e.g. a notice / personal /technical terminology use of capitals NEC 3 use of italics terms in documents e.g. the contract means post / / facsimile / special or recorded delivery 5

6 Letters: Structure Your Ref: xxx Our Ref: xxx Sender s Address References RPP Limited xxx 28 January 2011 Date ABC Construction Limited xxx For the attention of xxx Dear Sir We acknowledge Recipient s name and address NEW FACTORY AT XYZ Main Body Subject Yours faithfully Space for signature Closing For and on behalf of RPP Limited Name 6

7 Letters: Salutation and Signing Off Spectrum of formality listed below with corresponding sign off Most formal Dear Sir/Madam Yours faithfully Dear Mr/Ms Jones Yours sincerely Least formal Dear Susan Yours truly or Regards or Sue 7

8 Letters: Example 1 To a prospective client, offering services Dear [insert name] I was interested to hear that you intend to [insert nature of development]. I do not know whether you have already commissioned an architect for the work. If not, this letter is to let you know that I would be delighted to discuss the project with you. A copy of my illustrated brochure is enclosed and I hope you will find it of interest. You will see that this practice is experienced in carrying out work of the kind you appear to have in mind. If you consider that a meeting would be mutually beneficial, please let me know. I should make clear that I will not charge for any initial meeting. Yours sincerely Source: STANDARD LETTERS IN ARCHITECTURAL PRACTICE 4th ed D Chappell 8

9 Letters: : Example 2 To contractor, accepting tender and forming contract immediately Dear Sir [Insert project name etc] SPECIAL DELIVERY I am instructed to inform you that my client [insert name] accepts your tender dated [insert date] in the sum of [insert amount in words] for the above work in accordance with drawings numbers [insert numbers] and the bills of quantities [or specification] and the terms of the contract noted in the preliminaries section of the bills of quantities [or specification]. As agreed by telephone today, the date for possession will be [insert date], and consequently the date for completion will be [insert date]. Yours faithfully Copies: Employer Source: STANDARD LETTERS IN ARCHITECTURAL PRACTICE 4th ed D Chappell 9

10 Letters: Example 3 To quantity surveyor regarding defective work Dear Sir [Insert project name etc] The following defective work has been noted on the above site: [Insert list of defective work in sufficient detail to enable the quantity surveyor to identify it. Include items from previous months until the defects have been corrected] The above work is to be omitted from your next valuation. Yours faithfully Source: STANDARD LETTERS IN ARCHITECTURAL PRACTICE 4th ed D Chappell 10

11 Letters: Example 4 To contractor, requiring making good during the rectification/ maintenance period Dear Sir [Insert project name etc] As a matter of urgency, please carry out the making good as indicated on the enclosed instruction. The instruction is issued in accordance with clause Yours faithfully Copy: Clerk of works Source: STANDARD LETTERS IN ARCHITECTURAL PRACTICE 4th ed D Chappell 11

12 Letters: Example 5 Cantrell and Another v Wright & Fuller Limited [2003] EWHC 1545 (TCC) Dear Mr Cantrell New EMI Unit - Phase 1 I now write to enclose the final certificate as per the contract sum, variations and omissions. I believe this now discharges our obligations under the contract. I would respectfully remind you that you would be advised to check that the sub-contractors have been paid their due amounts before you make any final settlement. Yours sincerely C R Tanner 12

13 Meetings Examples design pre-start progress meeting Purpose outcomes agenda Minutes record issued 13

14 Meetings: Agenda Sports Centre Development Agenda for Pre Start Meeting To be held on 2 May 2011 at 11.00am in the site office Apologies 1. Personnel 13. Contractor s programme, form and updating 2. Production information 14. Progress reporting 3. Contractor s copy of contract documents 15. Role of the clerk of works 4. Insurances 16. Samples 5. Bond 17. Covering up work 6. Sub-contractors 18. Setting out 7. Employer s licensees 19. Services 8. Architect s instructions 20. Signboard 9. Clerk of works directions 21. Consultants and their roles 10. Oral instructions 22. Procedural matters not otherwise covered 11. Queries and information requests 23. Any other business 12. Further meetings and participants 24. Date, time and place of next meeting Based on an example agenda included in The Architect in Practice 9 th Edition Chappell & Willis 14

15 Meetings: Agenda Sports Centre Development Agenda for Progress Meeting to be held at site on xxx at 9.30am AGENDA 1. Apologies 2. Approval of Minutes of the Meeting held on xxxx (copy attached). 3. Matters Arising 4. Progress/Programme and Contractor s Report 5. Design/Information 6. Health and Safety/CDM 7. Any other business Date of next meeting

16 Meetings: Minutes Structure - introduction: Project Location Title (of meeting) Date Time Present 16

17 Meetings: Minutes ITEM DESCRIPTION Action by Date 1. APOLOGIES 2. APPROVAL OF MINUTES OF THE MEETING HELD ON XXX 2.1 XXX 3. MATTERS ARISING 4. PROGRESS / PROGRAMME AND CONTRACTOR S REPORT 5. DESIGN / INFORMATION 5.1 xxx 6. HEALTH AND SAFETY / CDM 7. ANY OTHER BUSINESS 8. NEXT MEETING 9. DISTRIBUTION 17

18 Instructions Instructions direction / command / order RIBA standard pro forma Under the terms of the above-mentioned contract, I/We issue the following instructions: SBC 05 clause 3.10 The Contractor shall forthwith comply will all instructions issued to him by the Architect/Contract Administrator... Examples Variations to the Works postponement removal of defective works 18

19 Instructions Importance of wording Simplex Concrete Piles Ltd v The Borough of St Pancras (1958) 14 BLR 80 architect s letter accepted quotation no qualification e.g. no adjustment to the Contract Sum 19

20 Notes & Records File notes / records importance? status? Mr Recorder Toulson QC s said the architect s assessment of an extension of time was fundamentally flawed in a number of respects no logical analysis in a methodical way of the impact of Relevant Events he made an impressionistic rather than a calculated assessment he misapplied the provisions of the Contract allowance for Relevant Events bore no logical or reasonable relation to the delay caused John Barker v London Portman Hotel (1996) 50 ConLR43 20

21 Certificates What is a certificate? When the architect certifies, he is recording for the parties his professional, personal and objectively arrived at opinion that the fact (sic) situation recorded by the certificate is accurate at the time the certificate was issued. Thus, the certificate must be one which clearly expresses the relevant opinion of the Architect in a form that shows that the opinion is that of the Architect, is the one which the contract calls for and which addresses and only addresses the matters called for. Cantrell v Wright & Fuller Ltd 21

22 Certificates Cantrell and Another v Wright & Fuller Limited [2003] EWHC 1545 (TCC) Letter written by architect Dear Mr Cantrell New EMI Unit - Phase 1 I now write to enclose the final certificate as per the contract sum, variations and omissions. I believe this now discharges our obligations under the contract. I would respectfully remind you that you would be advised to check that the subcontractors have been paid their due amounts before you make any final settlement. Yours sincerely C R Tanner 22

23 Certificates The Employer took issue with the architect s final account and as a consequence the validity of the architect s Final Certificate. The matter went first to arbitration and then to the courts. The Judge s comments in Cantrell v Wright & Fuller Ltd on the architect s documents were as follows: the certificate was in a form identical to the immediately preceding interim certificate. the sum certified did not state that it was the product of the completed adjustment process required by clause the requirement that the certificate was to be paid within 14 days clearly indicated, in context, that the certificate was an Interim Certificate. 23

24 Certificates Judge s comments in Cantrell v Wright & Fuller Ltd the covering letter referred to the certificate as "the final certificate" whereas the conditions carefully define the certificate as being the "Final Certificate" using capital letters. the covering letter also referred to the certificate as being "as per the contract sum, variations and omissions". This wording would appear to differentiate the certificate from one certifying the "Adjusted Contract Sum. the covering letter suggested that Mr Cantrell check that all nominated subcontractors have been paid in full before "you make any final settlement. The language suggests that the Architect was envisaging a less formal procedure and that the certificate was not the Final Certificate. 24

25 Certificates Judge s comments in Cantrell v Wright & Fuller Ltd the covering letter uses the words "before you make any final settlement". This suggests that the sum certified was intended to be one about which the parties would be having further discussions. the Architect suggested in sending the final certificate: "I believe this now discharges our obligations under the contract". Had the certificate been the Final Certificate it would have been more natural for the Architect to have positively asserted: "This Final Certificate now discharges our obligations under the contract". 25

26 Final Thought In early December 2003 Mr Bullen sent an to one of his colleagues, in which he expressed reservations about Mr Mell: "Have been thinking about Ampleforth I don't think the replacement PM is up to the job!!! Have not decided how to play this with Jim Fletcher as yet because I do not want to prolong my involvement with the project I'll let you know how it goes." In the light of Mr Talabani's evidence on this point, the terms of his of 26 th August 2004 is surprising: "The only thing holding up executing the contract docs is Shires appointment. I suggest we issue a letter of intent for the whole value up to the end of the job. Then Shires can go fuck themselves." The Trustees of Ampleforth Abbey Trust v Turner & Townsend Project Management Limited [2012] EWHC 2137 (TCC) 26

27 Final Thought All of this does, of course, emphasize the vital point that the duty of a professional man, generally stated, is not to be right, but to be careful. Royal Brompton Hospital NHS Trust v Hammond and others (No 7) (2000) 76 ConLR

28 Questions Delivering Professional Solutions to the Property Industry 28