Letters, Instructions, etc.

Delivering Professional Solutions to the Property Industry

Michael Dunn FRICS FCIArb LLB LLM
T: 02079 976 520 and 01274 693 622
E: m.dunn@rpp.co.uk
www.rpp.co.uk
 Introduction

The intention is to look at

 letter writing
 agenda and minutes of meetings
 instructions
 notes, records and internal memos
 certificates

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 Communications generally

Architect’s communications
 diverse in terms of
 topic
 formality
 people

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 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

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 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 / e-mail / facsimile / special or recorded delivery

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 Letters: Structure
Sender’s Address
RPP Limited

Your Ref: xxx xxx

Our Ref: xxx References

28 January 2011 Date

ABC Construction Limited
xxx Recipient’s name and
address
For the attention of xxx

Dear Sir
Subject
NEW FACTORY AT XYZ
We acknowledge …
Main Body

Yours faithfully Closing

Space for signature

For and on behalf of RPP Limited Name

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 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

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 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

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 Letters: : Example 2

To contractor, accepting tender and forming contract immediately

SPECIAL DELIVERY
Dear Sir
[Insert project name etc]
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

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 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

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 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 2.38.2.
Yours faithfully
Copy: Clerk of works
Source: STANDARD LETTERS IN ARCHITECTURAL PRACTICE 4th ed D Chappell

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 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”

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 Meetings

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

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 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’ 9th Edition Chappell & Willis

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 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
8. Date of next meeting
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 Meetings: Minutes

Structure - introduction:
 Project
 Location
 Title (of meeting)
 Date
 Time
 Present

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 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

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 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

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 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

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 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

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 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

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 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 sub-
contractors have been paid their due amounts before you make any final
settlement.
Yours sincerely
C R Tanner”

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 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 30.6.2.
 the requirement that the certificate was to be paid within 14 days clearly
indicated, in context, that the certificate was an Interim Certificate.

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 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 sub-
contractors 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.

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 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".

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 Final Thought

In early December 2003 Mr Bullen sent an email 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 email of 26th
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)

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 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 148

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 Questions

‘ Delivering Professional Solutions to the Property Industry’

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