“At this stage [we] should not ask [Mr Woodman] to opine principally because he [is] likely to say that whilst under normal circumstances letting someone know that the scheme will change poses a significant risk in WCC finding out, under the circumstances where the [Prince of Wales] is about to let off a hand grenade desperate measures are required”
“We need to document the discussion to date on the non-build out and potential to resubmit. In particular we must try to document all disclosure on the matter in particular the discussion that [Mr Ward] had with [Sir Michael] and the consequent transfer of this information to Sir Simon Milton. CPC can then raise these matters as potential breaches under clause 7 and a possible red flag”
“the Mayor liked the presentation but “to be honest doesn’t like the scheme”
“we were naturally concerned about the potential for the Mayor’s views to add to the lobby opposing the scheme and so undermine confidence amongst the Members at [WCC]. [Ms Brown] was clear that the Mayor could not offer any views in public since this would affect his ability to take the formal decision in due course...”
“I think QD may now withdraw on the back of this. I am surprised at [the Mayor’s] view. He is clearly unpredictable”
“Took a week longer than we thought. This will help provided Bob [Woodman] is solid!”
“[CPC] are concerned in particular at the suggestion from [QD’s] other advisers of a “soft undertaking” being given to the Prince of Wales, by which we understand that [QD] has in mind indicating to his representative [Sir Michael] that QD has no intention of building out the scheme currently applied for”
“The Mayor is worried about the scheme and has said to a number of people at the GLA that it is ‘keeping him up at night’. … He does not like the design – it seems his concerns are focused on [Chelsea Bridge Road], although there is not full clarity on this … I asked for [Mr Dolphin’s] view of the outcome at Stage 2 if [WCC] continues to support the scheme. He said that officers would not envisage recommending refusal on design grounds and the Mayor would then be in a very difficult position. He had asked [Mr Dolphin] ‘why aren’t we saying no to this kind of thing?’ [Mr Dolphin’s] view is that if the Mayor is looking for an example to make a point about the need for better design, then this is probably not the scheme to pick”
“The potential for discussion with the Prince and/or his advisors was discussed after a resolution to grant consent by [WCC] for the current scheme. [Sir Michael] noted that this might be a way forward and that in the meantime the Prince might press His Excellency [Sheikh Hamad] for a private view on whether or not the scheme would be pursued if indeed it is supported by [WCC]. [Sir Michael] asked [Mr Ward] whether [QD] would commit not to build out the current scheme if it was consented. [Mr Ward] said that he was unable to provide any such commitment. … [Mr Ward] noted that in other schemes [QD] had introduced a mix of traditional and modern architecture … It was agreed that the parties would stay in touch as events unfold over the next weeks and months”. ii) Sir Michael’s note of the meeting said: “An update on Chelsea Barracks: good meeting with ... QD representatives. They will hopefully give an informal assurance that the design will be changed when planning permission has been received. Wafic Said telephoned to say that [Sheikh Hamad] had said that [the Prince of Wales] was right and that the design will be changed. Sheikh Hamad will write to [the Prince of Wales]”
“He [Mr Wilson] had just attended a further meeting with the Mayor and confirmed that the scheme “is occupying the Mayor’s thoughts”
“In this meeting [Mr Dolphin] further advised the applicant and consultant team that [the Mayor] has some major concerns with the proposal. The main problems were highlighted as being the repetition of the design, height, layout and elevation appearance of the proposals. [The Mayor] wanted more variety within the proposals. Various design suggestions were made, including adding variety to the elevations, height and layout of the site. Various options on how to progress were discussed. [QD] representatives concluded the meeting stating they would consider options for altering the scheme and would like the opportunity to present the application to the Mayor again, to which [Mr Dolphin] agreed”
“[Sir Michael] has had useful discussions with [QD]. There are signs that they are not wedded to the Rogers design. … The Qataris have said that to change the design approach before planning permission is granted would delay the whole scheme substantially. But they have given informal assurances that they will look again at it when planning permission has been given. Wafic Said has telephoned [Sir Michael] to report [Sheikh Hamad’s] view that YRH is correct about the development …”. ii) Sir Michael’s note of the meeting dated5th August 2009 (3 months after the event) said, as mentioned above, that: “[t]he Emir was surprised by the Rogers designs for Chelsea Barracks and said that he would have them changed”
“I [Mr Candy] informed [Mr Ward] that they could not withdraw contractually, and this would be a clear breach of contract, hence full payment to CPC group” and “[Mr Ward] also mentioned that [Mr Al-Saad] got a severe reprimand from the [Emir] post the [Emir’s] visit to the UK, regarding the architecture; this was the first indication that I got that the current RSH scheme would likely be withdrawn”
“The reason why [Mr Ward] keeps threatening to me in a nice way that they will FIGHT any claim for our money where value has not been created is that he will probably be sacked for signing another poor QD contract, so he is just defensive. Understandably!!!”
“Up until really the end of May ... the concern was less to do with the contractual situation and more to do with what was right to do for the project”
“[Mr Ward] confirmed that he had no authority to do so at this stage but would be reporting back to Qatar. [Sir Simon] concluded by saying that if the application were promptly withdrawn, the Mayor would accept that “[QD] had done a big thing” and this should be helpful in the future”
“[i]n the same way the offer to withdraw may very well result in a planning refusal, as it is not consistent with the recent PR of QD’s ‘whole hearted commitment to this project’, as launched by QD”
“Both CPC and C&C want to work with QD and [Sheikh Hamad] both either in the corporate or private capacity, and hence we are optimistic that a fair resolution will be achieved”
“The media seized on [Sheikh Hamad’s statement in the FT, that he would get the warring [Chelsea Barracks] factions around the table and sort out a compromise, as a thinly coded signal that the scheme was being withdrawn which it is, on the orders of the Emir, but no one outside C&C and QD knows that is the reason. The media reaction has weakened the negotiating position with WCC, and therefore it could be argued that WCC revved it up but I find that hard to believe. …Now the [Sunday] Times has written the piece below [above] with a direct quote from someone “close to the developers”
“I am not on a hunt to get the bottom of this and I doubt that we ever would”
“… In the meetings I attended I made clear that withdrawal is not authorised. However, [Sir Michael] seemed to have taken his own interpretation from the high level meeting with [the Prince of Wales] earlier this month and so may already be regarding withdrawal as a certain outcome”
“We cannot promote this strategy. It is in direct conflict with the contract. If this is your chosen strategy QD representatives have to convince Sheikh Hamad”
“This is quite disappointing Chris, I am not sure I understand. You [have] pretty much gone back on what we discussed and agreed about [Mr Nick Candy’s] message to [Sheikh Hamad] when we sat together in QD’s conference room yesterday. Are you telling me that you do not think that the proposed strategy of withdrawal in returns of outline application and affordable off-site is not the best strategy you would recommend to PBGL or are you telling me this strategy is not best for CPC? And you do not want Nick to recommend to [Sheikh Hamad] to quickly approve it???”
“Even if WCC resolves to grant consent we have been advised by Deputy Mayor Sir Simon ..., that the GLA would likely direct refusal ...”
“in his view, the Mayor would refuse the scheme in its current form”, and that Mr Dolphin would give the same advice. Mr Woodman also commented that “[i]t seems clear that the scheme is, to say the least, high profile in political terms”, and that he had “asked whether [Sir Simon’s view] should be regarded as an off the record view and he said that it should”
“the point is from his [Mr Al-Saad’s] discussion with [the Emir] and [Sheik Hamad], there was nothing for me to be fixed. I was not changing anything based on that conversation”
“I think it's fair for him [Sir Michael] to have received the impression that hopefully the design would be changed. ... I’m not sure it's entirely fair for him to refer to an assurance about that, I have to say”
“I think it had progressed from a thought to an idea, maybe even got as far as a concept, but it hadn't got to a scheme”
“(1) If the Mayor considers that to grant permission on an application which has been notified to him under article 3 would be— (a) contrary to the spatial development strategy or prejudicial to its implementation, or (b) otherwise contrary to good strategic planning in Greater London, he may, within the period specified in article 4(1)(b)(i), direct the local planning authority to refuse the application. (2) Before giving a direction under paragraph (1)(b) above, the Mayor shall have regard to the following matters so far as material to the application— (a) the principal purposes of the Greater London Authority; (b) the effect that permission would have on— (i) the health of persons in Greater London, and (ii) the achievement of sustainable development in the United Kingdom; (c) national policies and such international obligations as the Secretary of State may notify to the Mayor for the purposes ofsection 41(5)(a) of the GLA Act 1999 ; (d) any regional planning guidance issued by the Secretary of State so far as relating to an area which includes or adjoins Greater London; …”
“Even within a plan-led system, the success or failure of strategic planning policies is ultimately determined through individual development control decisions. For this reason, the Mayor is to be consulted by the boroughs on a limited number of applications for planning permission that may raise issues of strategic importance. He or she will also have a power to direct refusal of such applications, which the Secretary of State considers should be used selectively as a matter of last resort”
“Where in his or her representations to the Borough, the Mayor identifies strategic issues of concern, he or she should where possible indicate how these concerns might be resolved. This should help to avoid frequent or unnecessary use of the Mayor’s powers of direction”
“There is no dispute that the Mayor and those acting on his behalf seek to use the pre-application and post-application process to ensure that applications which are ultimately referred to the Mayor are consistent with the London Plan and are unlikely to require the Mayor to exercise his power of direction. There is no dispute about the tendency for the volume of negotiations to increase as that prospect draws closer”
“Where consulted the Mayor should aim to supply his or her views as promptly as possible …”
“the scheme “is occupying the Mayor’s thoughts””, that “one point is emerging as the prime reason for the Mayor’s dislike of the scheme”, and that Mr Wilson’s reason for calling Mr Woodman was “to ask for a formal response from us on whether the client is willing to consider making any changes”on the scheme’s ‘repetitive nature’,and that“the discussions with the Mayor are on more of an ad hoc basis”. iv) On6th May 2009 , Mr Dolphin said that the Mayor did not like the proposal, or, in the words of the GLA’s own note, that “Boris has some major concerns with the proposal”, and “[t]he main problems were highlighted as being the repetition of the design, height, layout and elevation appearance of the proposals”
“They [that is the GLA officers] were clearly of the view that [the Mayor] wants to get the scheme refused probably by putting WCC under pressure unless we change the scheme”
“was it a case of the Mayor … ‘not being allergic to the scheme’ or was it a matter of the Mayor ‘not liking the scheme’ (such that he might direct it to be refused)”
“I spoke to [Mr Candy] after receiving this and he still wants to pursue the legal route. We should as a result actively try to protect our position. … I am hopeful we might also have an indication from the Mayor which we will need if the report comes out on Thursday and does not recommend a refusal”
“The Planning Consultant recommends to [QD] and [CPC] jointly”
“… by this time [about 10.30am], I had tried to speak to Ms MacQueen at WCC, but had been unable to do so, and by this time I had spoken briefly to Mr Woods to say that I expected the Planning Application to be withdrawn later that day. I was also aware of press reporting on the matter that morning. However, the Planning Application had not formally been withdrawn at that stage, and was not withdrawn until the afternoon of12 June 2009 ”
“Most basically, by using the obligation to perform in good faith as a principle of construction the courts are merely required to ensure that the parties have genuinely adhered to the bargain which they entered into. This will require an examination of the whole contract and the underlying intentions. Strict rights may not be adhered to, if in the context of the contract as a whole, this would subvert the character of the contract. Most cases that discuss the concept do so in terms of negatives, that is, what is not in breach of good faith. This makes sense, since it is the context of the contract read as a whole that will indicate what is appropriate and what is not.” 67. Viewed in this way, the implied obligation of good faith underwrites the spirit of the contract and supports the integrity of its character. A party is precluded from cynical resort to the black letter. But no party is fixed with the duty to subordinate self-interest entirely which is the lot of the fiduciary: Burger King at para 187. The duty is not a duty to prefer the interests of the other contracting party. It is, rather, a duty to recognise and to have due regard to the legitimate interests of both the parties in the enjoyment of the fruits of the contract as delineated by its terms. 68. In many ways, the implied obligation of good faith is best regarded as an obligation to eschew bad faith. This is borne out by the … succinct statement by Lord Scott of Foscote in Manifest Shipping Co Ltd v Uni-Polaris Shipping Co Ltd … [as to which see above]”
“In all matters relating to this agreement the parties will act with the utmost good faith towards one another and will act reasonably and prudently at all times”
“The phrase 'good faith' is used in a variety of contexts and its meaning varies somewhat with the context. Good faith performance or enforcement of a contract emphasises faithfulness to an agreed common purpose and consistency with the justified expectations of the other party; it excludes a variety of types of conduct characterised as involving 'bad faith' because they violate community standards of decency, fairness or reasonableness.” [96] At para 93 French J expressed the matter thus: “In a statutory setting a requirement to act in good faith, absent any contrary intention express or implied, will require honest action and fidelity to whatever norm, or rule or obligation the statute prescribes as attracting the requirement of good faith observance. That fidelity may extend beyond compliance with the black letter of the law absent the good faith requirement. In ordinary parlance it may require adherence to the 'spirit' of the law. This may attract the kind of penumbral judgments by courts of which Professor Stone wrote. That is not necessarily a matter for concern in the case of civil proscriptions. They are evaluative judgments which the courts are authorised and required by the legislature to take. A good faith provision offers a warning that game playing at the margins of a statutory proscription or obligation may attract a finding of liability. There is nothing in principle to prevent the legislature protecting a rule by attaching an uncertain risk of liability to conduct in the shadow of the rule.” [97] Mr Pymont did not suggest that these statements by French J (and the material referred to by the learned judge) were not a useful attempt to describe the concept of “good faith”
“continuing to press ahead with the current application” would “involve a face-off with the [Prince of Wales]”
“CPC avoided alerting QD to the fact that it believed that a withdrawal would be a breach of contract until the last possible moment, by which stage QD was already likely to withdraw, but, at the same time, created documents which falsely recorded that it had done so”
“This will help provided Bob is solid”
“good and probably stood a better chance than the current scheme”
“We do not think the Mayor has given any such indication. Bob cannot recommend anything to QD, as it must be a joint instruction under the [SPA]…”
“6.1. Subject to Clause 8 (Event of default) the Buyer [QD] shall pay the Deferred Consideration to the Seller [CPC] by way of deferred consideration for the Sale Interests. 6.2 Subject to Clause 6.3, 7.4 and Clause 8 (Event of default), the Deferred Consideration shall be determined and payable in accordance with the provisions of Schedule 4. 6.3 The Deferred Consideration payable to the Seller shall not exceed£81 million in aggregate. 6.4 Where: 6.4.1 an Appeal has been unsuccessful or the Buyer is not obliged to pursue an Appeal and the Seller chooses not to exercise its right to elect to pursue that Appeal (unless in each case the circumstances in paragraph 5(n) of Schedule 4 concerning the change to the City Council committee applies and the Buyer is obliged to resubmit the Planning Application pursuant to paragraph 5(n) of Schedule 4 whether or not an Appeal is pursued and Planning Permission is secured for that resubmitted Planning Application irrespective of the outcome of the Appeal); 6.4.2 an Accelerated Payment Event has occurred and payment has been made pursuant to Clause 7.4; 6.4.3 a Default Payment has been made pursuant to Clause 8.2(a) or Clause 8.4(a); or 6.4.4 a defence of a Legal Challenge has been unsuccessful and pursuant to paragraph 2(bb) of Schedule 4 Planning Counsel has advised that the successful Legal Challenge identifies issues so fundamental that a new planning application is required, then the Buyer shall have no further obligation to pay any Deferred Consideration (save in respect of any amounts that are payable but unpaid) and the obligations of the Buyer and the Seller under Schedule 4 shall cease to apply and Schedule 4 shall cease to have any further force or effect provided that the provisions of this Clause 6.4 are without prejudice to any rights of the Seller against the Buyer for breach or non performance of any obligation under this Deed. 6.5 Subject to Clause 8 (Event of Default), each Deferred Consideration Amount (if any) due to the Seller shall be paid within ten Business Days after the Payment Date in respect of such Deferred Consideration Amount by delivery to the Seller’s Solicitors for the account of the Seller of an electronic transfer to SJ Berwin LLP Client Account at Barclays Bank plc, 1 Churchill Place, Canary Wharf, London E14 5HP, Account number: 10644994, Sort code: 20-36-47, Swift Code: BARCGB22, IBAN Code: GB33 BARC 2036 4710 6449 94, Reference C20900.24 for the amount of that Deferred Consideration Amount or by such other means as the Seller shall notify in writing to the Buyer, provided that such notification shall only be effective on: (a) the date specified in the notification as the date on which the change is to take place; or (b) if no date is specified or the date specified is less than five clear Business Days after the date on which notice is deemed to have been served, the date falling five clear Business Days after notice of any such change is deemed to have been given.”