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Case No: HT-12-270Neutral Citation Number: [2013] EWHC 3275 (TCC)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

TECHNOLOGY AND CONSTRUCTION COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 01/11/2013

Before:

THE HONOURABLE MR JUSTICE STUART-SMITH

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Between:

Squibb Group Limited Claimant

- and -

(1) London Pleasure Gardens Limited (2) London

Borough of Newham

Defendants

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

Mr James Pickering (instructed byPannone LLP) for the Claimant

Simon Hughes Q.C.(instructed by Trowers and Hamlins LLP) for the Defendants

Hearing dates: 14, 15, 16 and 22 October 2013

- - - - - - - - - - - - - - - - - - - - -

Judgment

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Mr Justice Stuart-Smith:

Introduction

1. The 2012 Olympics provided opportunities for the regeneration of tracts of land inEast London. In November 2010 various bodies, including the London Mayor andthe Mayor of Newham launched the Meanwhile London Project, the aim of whichwas to provide temporary uses for sites around the Royal Docks and Canning Town

pending longer-term regeneration and development. One such site was the PontoonDock Site in Silvertown, a 20 acre area of contaminated land situated between the

Excel Centre and Pontoon Dock DLR station [the Site].

2. A competition to develop the site was won by individuals who incorporated the firstDefendant [LPG] to be the SPV for carrying out their plans. The Site was owned

by the London Development Agency1, which granted a short term lease to LPG on 2

December 2011, expiring 1 November 2014. Initially it was hoped that commercial

investors would be attracted to invest in LPG, the idea being that the site would beopen for revenue-generating events before, during and after the Olympics, which

might generate a profitable return and fund the repayment of the costs of

development. However, the timescale became progressively squeezed and

commercial investors were not interested. This created a problem for the London

Borough of Newham [LBN] which had a broad strategic interest in the success of

the Olympics as a powerful stimulus for regeneration and improvement in the

Borough. It therefore decided to take on the role of funder and agreed to loan LPG

3,000,000. The purpose of the loan was to enable LPG to engage contractors to

carry out the necessary works on site. It remained the hope that revenue generatingactivities would fund the repayment of the loan.

3. The Claimant [Squibb] is a family owned building contractor which has carried outworks for LBN in the past. On this occasion it contracted with LPG to carry out

extensive ground works including capping the site. It is common ground that theworks were done properly and on time, such that the site was open by late June in

advance of the Olympics and substantial payment became due to Squibb from LPGunder the terms of the contract. Squibb was also persuaded to do some additional

works, which did not fall within the terms of the original contract, and for which itwas paid in advance. Unfortunately for all concerned, LPGs revenue generating

activities were not as fruitful as had been hoped, and LPG went into administration

shortly after the Olympics commenced leaving LBNs loan and Squibbs contractual

payments outstanding.

4. By this action, Squibb contends that LBN is liable to discharge the sums of moneythat fell due for the work it did pursuant to its contract with LPG. On 26 April 2013,

as subsequently varied on 29 August 2013, the Court directed that:

There shall be a trial of all liability issues. For the purposes of

the trial on liability issues only, there are to be assumptions

that: (1) there is a substantial net sum due to the Claimant

under the trade contract referred to in paragraph 7 of the

1The LDA ceased to exist in March 2012. Its interest in the land was transferred to the Greater London

Authority.

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Amended Particulars of Claim; and (2) the value of the SecondDefendants security as referred to in paragraphs 3J and 19A(6)

of the Amended Particulars of Claim has increasedsubstantially as a result of the Claimants works.

5. As originally formulated, Squibbs claim relied upon a number of assertions that areno longer maintained, including that LBN had been a party to the contract betweenSquibb and LPG. Squibb has progressively refined its case, including the addition of

a new allegation of breach of contract formulated by amendment on the first day of

trial and the abandonment of claims founded on tortious misrepresentation and unjust

enrichment. By the end of the trial Squibb advanced its claim on the basis of:

i) A collateral contract arising at the time of the conclusion of the contractbetween LPG and Squibb on 17 May 2012 [Issue 1];

ii) A contract or collateral contract on the basis of meetings that occurred on 5and 11 July 2012 [Issues 2(a) and 2(b)].

6. For the reasons set out in greater detail below, this judgment concludes that:i) No collateral contract arose between LBN and Squibb on 17 May 2012;ii) No contract or collateral contract arose between LBN and Squibb on 5 July

2012. On 11 July 2012 LBN contracted with Squibb on terms which required

the payment of 250,000 against the sum of 424,000 that was then due to

Squibb. The 250,000 was paid and LBN is under no obligation to make any

further payment to Squibb.

The Background

The Importance of the Site

7. The Site was recognised as a key site in its own right and as providing a means ofaccess between the Excel Arena and the Pontoon Docks DLR station for the many

people who were anticipated to visit during the Olympics. A report to LBNs Cabinet

dated 15 February 2012 recommended the making of the loan (then in the sum of 2.6

million) and stated as reasons for the recommendation that the project promises to

deliver something unique in terms of its scale, variety of entertainment and functions

and its year-round facility, on a scale not previously seen before in London

becoming an arts and entertainment destination world-famous for its experiences,innovation and authenticity delivering an estimated 1.6 million visitors in 2012

alone. In answer to thequestion Why now and why so fast? the report stated thatit is critical that this project takes place and is established ahead of the Olympic

Games. Being a meanwhile use, the site is only available for a maximum of threeyears so the clock is ticking this project will play a major role in the period

immediately leading up to, during and beyond the Olympic Games. The same pageof the report referred to the imperative to be operational by June this year both for

financial and Olympic reasons.

8.

A report for LBN by Navigant, who were instructed to carry out Financial DueDiligence, dated 13 March 2012 reported that:

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In considering the risk/return of the loan, it is important torestate that the principal reason for making available these

resources to LPG is to help secure Olympic regeneration andlegacy benefits for Newham. As such, the priority is to assist

LPG in delivering its business plansuccess will be deemed as

delivering the legacy and regeneration benefits and the capitalfacility will be repaid in full in 2012.

9. LPGs business plan, in a version dated 23 March 2012 , identified that the criticalmilestone was to achieve site operational status in time for the commencement of the

Olympics.

10. LBN agreed to enter into a funding agreement with LPG at the Cabinet meeting on 15March 2012. In a briefing document for the purposes of a delegated decision dated 27

March 2012, LBNs Major Sites Manager recorded that the Council was not making

the loan as an investment but instead to provide a key entertainments venue during

the 2012 games and beyond, regenerate the site pending its long terms [sic]regeneration and creation of jobs.

11. LBN recognised a compelling need to get the site over the line (i.e. to have it openand operational in time for the start of the Olympics on 27 July 2012) both for

financial and strategic reasons. Mr Pope, an executive director of LBN, said in his

witness statement that in early July 2012 LBN really wanted LPG to continue trading

to at least the Olympics, when it was thought that significant revenue could be

generated for LPG and because the site was part of the Olympic exit route from Excel.

Furthermore, the Council did not want to risk the BT Rivers of Music event2, which

was a London-wide festival not going ahead for prestige reasons, but also because it

was thought that further income would be generated from the event. I accept thatevidence.

The Loan Agreement and LBNs Role as Funder

12. LPG and LBN entered into the Loan Agreement on 30 March 2012. The loan wasonly to be used to finance the general working capital requirements of LPG requiredin connection with the works to the Site. The Loan Agreement identified various Key

Contracts (of which the contract between LPG and Squibb was one) which were to bedesignated as such by LPG and LBN and which were to be in a form as agreed by

[LBN]. It provided a mechanism for the drawing down of the loan which had the

effect that LBN had control of any payments that LPG wished to make over 10,000(later reduced to 2,000). In addition to the payment of interest, LPG agreed to pay

20% of its anticipated profits as a Royalty to LBN.

13. From the outset, loan finance was intended to be the primary but not the sole sourceof finance for the construction of the site. A briefing note compiled as at 16 June

2012 projected that the loan of 3 million would have been drawn down by the end of

June with other funding providing 454,000 in June generated largely from

sponsorship, car parking and bar sales. Projected income in July was 1.828 million,

the projected increase being due to the holding of events and the impact of spending

generated by the Olympics.

2Due to take place on 20/21 July 2012.

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14. In the event LBN increased its funding to LPG, providing a total of 3.3 millionbefore deciding in early August 2012 that no further support would be provided. By

then the project was over the line and the Olympics were under way.

The CMTC Contract

15. LPG put the Earthworks and Concrete Works out to tender. There was pre-contractmeeting on 2 April 2012, to which I refer later in the context of Issue 1. Squibbs

tender in the sum of 658,863.58 was formally accepted by LPG on 4 April 2012.Squibb was instructed to start mobilising on 10 April 2012, which was before the

contract documents were executed, on terms that LPG undertook to pay reasonable

costs up to 50,000 if the contract did not proceed. On 18 April 2012 LBN sent a list

of amendments that it required to be included in the contract. These included Step In

Provisions, which gave LBN the right (but not the obligation) to assume LPGs

obligations under the Agreement: if it did so, it would become liable to pay Squibb

outstanding and future sums under the contract. LBNs ability to propose

amendments derived from the provision of the Loan Agreement that Key Contractswere to be in a form agreed between LBN and LPG and not from to any term (or

proposed term) of the contract between LPG and Squibb.

16. The contract between LPG and Squibb [the CMTC Contract] was executed on orabout 15 May 2012, by which time works were well under way. The CMTC Contract

incorporated the JCT Construction Management Trade Contract, 2011 edition, with

amendments. LBN was not a party to the CMTC Contract but was the Funder.

Squibb undertook to carry out the works and LPG, as Employer, undertook to pay for

them. Payment provisions were agreed by an exchange of emails on 18 April 2012that were incorporated into the contract: the arrangement was that Squibb would

submit an interim application at each month end (the first being on 30 April 2012);the Construction Manager, Mr Chris Harnan, would issue an interim certificate by the

14th of the following month (the first being on 14 May 2012); and Squibb would

receive payment by the end of that month (the first payment being by 31 May 2012).

The contract documents did not mention LBN in relation to the payment mechanism.

Progress and Applications for Payment

17. Squibb submitted its first application for payment by an Interim ValuationApplication to the Construction Manager in the sum of 171,000 on 22 April 2012

[IVA1]. The Construction Manager issued a Certificate for Payment in respect of

IVA1 in the sum claimed on 9 May 2012. This was before the execution of theCMTC Contract but nothing turns on that. On or shortly before 30 May 2012 LBN

released the necessary funds to LPG; and LPG paid Squibb on 30 May 2012.

18. On 30 May 2012 Squibb submitted its second application for payment by an InterimValuation Application to the Construction Manager in the sum of 424,000 [IVA2].

The Construction Manager issued a Certificate for Payment in respect of IVA2 in the

sum claimed on 1 June 2012. In accordance with the terms of the CMTC Contract,

the sum of 424,000 became payable by LPG on 30 June 2012 (which happened to be

a Saturday).

19. Squibb completed its works on 22 June 2012. No issue has been raised on the qualityof its works; to the contrary, it appears that getting the site ready in time was a major

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achievement. On 28 June 2012 Squibb submitted its third application for payment byan Interim Valuation Application to the Construction Manager in the sum of 239,000

[IVA3]. The Construction Manager issued a Certificate for Payment in respect ofIVA3 in the sum claimed on 5 July 2012. In accordance with the terms of the CMTC

Contract, the sum of 239,000 became payable by LPG on 31 July 2012.

20. The payment of 424,000 was not made on 30 June 2012 and Squibb promptly startedchasing for payment. This resulted in the meetings on 5 and 11 July 2012 to which I

refer in detail in relation to Issue 2. Meanwhile, the site opened on 30 June 2012 and

hosted the Weekend Paradise Gardens Festival on that date. Future revenue-

generating attractions were to be the Bloc Festival on 6/7 July 2012 and the Rivers of

Music Festival on 20/21 July 2012, just before the opening of the Olympics on 27

July. These events did not generate as much revenue as had been hoped, for a number

of reasons. It is clear that, by the end of June, LPG was suffering from a cash-flow

crisis that put its future in jeopardy, with Squibb being LPGs largest trade creditor.

21. In the wake of the meetings on 5 and 11 July 2012, Squibb carried out further works(outside the scope of the CMCT Contract) on terms that it was paid in advance. Thedetails of how this came about are discussed under Issue 2 below. The agreed price

for the additional works was 60,000 plus VAT, which was paid by LPG on 13 July

2012 against Squibbs invoices dated 11 July 2012. LPG was enabled to pay these

invoices by LBN releasing the funds to LPG for that purpose. Also on 13 July 2012

LPG paid 100,000 against IVA2, again being enabled to do so by the provision offunds from LBN.

22. On 18 July 2012 Squibb provided its Final Account Valuation Application to theCMTC Construction Manager in the sum of 367,674.49. It was not certified by the

Construction Manager, for reasons that are contentious. Squibb says that it wasbecause LBN refused to give the necessary approval to enable the Contracts

Administrator to issue a certificate of payment. This issue has not been investigatedin the present hearing.

23. LPG made a further payment of 150,000 to Squibb against IVA2 on 30 July 2012,funded by LBN in the same way as before. No further payments have been made to

Squibb by LPG (or anyone else) since 30 July 2012 so that there remains certified bythe Construction Manager but unpaid (a) 174,650 under IVA2; and (b) 239,286

under IVA3. In addition, Squibb claims to be entitled to 376,674.49 under the Final

Account Valuation.

24. LPG went into administration in early August 2012 after LBN declined furtherfinancial support beyond the 3.3 million it had already provided.

Issue 1: Was there a collateral contract arising at the time of the conclusion of the

contract between LPG and Squibb on 17 May 2012?

The Issue

25. Squibb alleges that, at the same time as Squibb and LPG entered into the CMTCcontract, it entered into a collateral contract with LBN (or LBN gave an enforceable

contractual warranty) under which, in consideration for Squibb entering into theCMTC contract, LBN agreed (or warranted) that:

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i) It would cooperate and/or participate in, and not frustrate, hinder or prevent theperformance of the Payment Mechanism established by the CMTC contract;

ii) In the event that Squibb provided an interim valuation application or a FinalAccount Valuation, LBN would cooperate and participate in the process by

giving any necessary approvals and releasing any necessary funds to LPG toenable payment to Squibb and would not frustrate, hinder or prevent the

process by refusing to cooperate or to release the relevant funds to LPG to

enable it to pay Squibb.

Discussion

26. Squibb accepts that LBN did not at any time up to 17 May 2012 give any specific orexpress promise or assurance to Squibb that it would act in the way that is alleged to

have become its contractual obligation. It submits, however, that a promise or

assurance can be inferred from the circumstances of the case. First, Squibb alleges

that LBN was more than a funder whose interest was merely and wholly financial. Itmakes this submission on the grounds that LBN wanted the site to be developed for

wider reasons, such as legacy, regeneration, local employment, reputation and

supporting the Olympic project generally. Second, it relies upon the fact that Mr Les

Squibb was told at the pre-contract meeting that LBN would not allow the project to

fail. Third, it relies upon the understanding of Mr Squibb that when interim

valuations were certified by the Construction Manager, they would be passed to LBN

who would then be enabled to decide whether to release funds in order to pay Squibb:

reliance is placed upon the fact that LBN not only funded the project but could

exercise control over who was paid. Fourth, it relies upon the involvement of LBN inthe course of the negotiations leading to the execution of the CMTC.

27. These arguments do not justify a finding that LBN gave an implied assurance in theterms alleged, whether they are viewed singly or cumulatively:

i) First, although LBN had wider strategic interests in the success of LPGsproject, the structure that was put in place was entirely conventional and

involved LPG entering into direct contractual relations with Squibb, with LBNentering into contractual relations with LPG to provide finance to LPG on the

terms set out in the Loan Agreement. Although LBN was identified as theFunder under the CMTC, the contract did not refer to any obligations of the

Funder that could be relied upon by Squibb. In particular, the contractual

payment mechanism did not specify any role for the Funder: that wasdetermined as a matter of contract between LPG and LBN by the Loan

Agreement. There is no evidence that Squibb was privy to the terms of the

Loan Agreement. Even if it had been, there is nothing in the Loan Agreement

that could be said to support an inference in Squibbs favour that LBN would

undertake an open-ended obligation akin to warranting or guaranteeing

payment by LPG of sums falling payable under its contract with Squibb. It is

in my view unarguable that any commitment by LBN in May 2012 could have

extended beyond its commitment to LPG to fund it to the tune of 3,000,000.

That sum was disbursed and there is no criticism advanced in these

proceedings of the manner in which it was disbursed by LBN to LPG. Any

suggestion that LBN contracted on 17 May 2012 in the terms alleged inrespect of sums in excess of 3,000,000 must therefore be unsustainable; yet

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that is a necessary constituent of the contract which Squibb must prove if it isto profit from this alleged contract;

ii) I accept that Mr Squibb was told at the pre-contract meeting on 2 April 2012that LBN was providing finance and would not let the project fail. I also

accept that Squibb would not have entered into the CMTC with a SPV such asLPG if it had not believed that there was a substantial source of finance

available to LPG. However, LBN was not present or represented at that

meeting and, whatever the precise terms of what was said, it cannot be taken as

an assurance by LBN that could provide support for the existence of a contract

arising as between LBN and Squibb;

iii) Squibb identified as the high point of its case on this issue the evidence of MrHamilton, its commercial director, that LBN not merely funded the project but

controlled who got paid. Two points may be made. First, there is nothing

unusual about a funder retaining contractual rights under its Loan Agreement

to control the drawdown of funds against proper criteria, such as beingsatisfied that the funds are to be used for designated purposes. That is what

the loan agreement in this case provided. Second, the suggestion that because

LBN had powers to decide whether to agree to drawdown therefore it was

obliged to fund all payments in favour of Squibb that might be duly certified

ignores the prospect that LBN may be entitled to withhold drawdown under

the terms of the Loan Agreement not least when the loan facility has beenexhausted;

iv) Squibb has not identified any particular steps taken by LBN in the course ofnegotiations other than LBNs proposing of amendments to the CMTC

contract, which Squibb duly accepted. Mr Squibbs evidence was that he hadno contact with LBN during the period of continuing negotiations between 2

April 2012 and 17 May 2012. During that time, Squibb agreed to enter intothe CMTC contract on the terms there set out, including the terms relating to

LPGs obligation to pay for the works. As I have said, LBNs ability to

propose amendments arose from its right under the Loan Agreement to agree

with LPG the terms of key contracts. Had those terms been unacceptable to

Squibb, it could have rejected or attempted to renegotiate them; but the fact

that they were presented to Squibb as having come from LBN does not support

the existence of a collateral contract or warranty such as that for which Squibb

now contends.

28. The terms of the contract for which Squibb contend are similar to those that arecommonly (but not always) implied into a construction contract, adopting the

approach and principles outlined atKeating on Construction Contracts 9thEdn. 3-045

to 3-049. Squibb is not able to draw any comfort from the fact that such terms are

often implied in those circumstances because the circumstances here are quite

different. Where such terms are implied in a normal construction contract it is

because they are necessary for the efficacy of the main contract and the proper

performance of the primary (express) contractual obligations. In such circumstances,no assurance or other statement is required. Here, however, Squibb wishes to make

the terms the primary and sole object of the contract. That requires an assurance tohave been given by LBN, as was the case in Shanklin Pier v Detel[1951] 2 KB 854.

While it is conceptually possible that the assurance could be implied rather than

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expressed, it would require clear and cogent evidence to establish an impliedassurance with suitable and sufficient clarity. On the facts of this case, no such

assurance (either express or implied) was given by or on behalf of LBN.

29. Squibb therefore fails on Issue 1.Issues 2(a) and 2(b): Was there a contract or collateral contract on the basis of meetings

that occurred on 5 and 11 July 2012?

The Issue

30. Squibb alleges that at a meeting held on 5 July 2012, which was attended by MrSquibb and Mr Hamilton for Squibb, Mr Pope and Mr Dodd for LBN and Mr Harnan,the Construction Manager, as a neutral observer, Squibb and LBN entered into a

contract, the terms of which were that Squibb would not bring legal proceedings andwould assist with any further works on the Site in consideration for payment to

Squibb in respect of the balance of monies still outstanding in respect of the Works,such payment to be made in tranches, the first of which was to be on 10 July 2012;

alternatively payment by LBN to LPG of such monies to enable it to forward such

monies to Squibb, such payment to be made in tranches. As an alternative analysis

Squibb alleges that it entered into a collateral contract or warranty with LBN under

which, in consideration for Squibb entering into a contract with LPG to carry out

further works, LBN contracted that it would pay Squibb for the outstanding balance in

respect of the CMTC Contract; alternatively that it would pay such monies to LPG to

enable it to forward such monies to Squibb. This is issue 2(a).

31. Squibb also alleges that on 11 July 2012 it entered into a further additional contractwith LBN pursuant to which Squibb agreed to forebear from bringing legal

proceedings (the promised payment on 10 July 2012 not having been made) and to

carry out additional works in consideration for payment in advance for the additional

works and payment by LBN to Squibb in respect of the balance of monies still

outstanding in respect of the CMTC works, such payment to be made in tranchesshortly after the completion of the additional works; alternatively payment by LBN to

LPG of such monies to enable it to forward them to Squibb. As an alternativeanalysis Squibb alleges that it entered into a collateral contract with LBN under

which, in consideration for Squibb agreeing with LPG to carry out the additionalworks, LBN agreed that it would pay Squibb for the additional works (immediately)

and for the outstanding balance under the CMTC contract; alternatively that it would

pay such monies to LPG to enable LPG to pay Squibb. This is issue 2(b).

32. It is convenient to consider issues 2(a) and 2(b) together since the factual backgroundto each is relevant to the other. Much of the background is not in dispute, but there

are significant disagreements between the witnesses about what happened at the

meetings on 5 and 11 July 2012.

The Factual Background to July 2012

33. Five witnesses gave evidence that is directly relevant to these issues. For Squibb, MrLes Squibb is the Managing Director of the Squibb Group. He left most of the

original contract negotiations to his commercial director, Mr Paul Hamilton. TheSquibb Group is a long-established and substantial family business with turnover

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measured in tens of millions and profit measured in millions of pounds per annum.Mr Squibb and Mr Hamilton are evidently competent to manage the business, and

they do so (no doubt with assistance from others). Mr Squibb had attended the pre-contract meeting on 2 April 2012 but had not been closely involved after that until

problems with payment emerged, when he took a closer interest in what was going on.

34. Mr Chris Pope OBE is Executive Director Resources and Commercial Developmentat LBN. As such he is responsible for running the backroom functions of the Council,

including human resources, finance, legal, procurement and property. He came to

local government by a slightly circuitous route after a career in the army, during

which he achieved the rank of Colonel and was awarded his OBE for services during

the Second Gulf War. He has a bachelors degree in Civil Engineering and a masters

degree in Defence Technology. Towards the end of June 2012 he became aware of

problems with cash flow on the LPG project and became directly involved on 4 July

2012 when he was asked to take a direct interest because it was thought that LPGs

board had become dysfunctional and out of control. As will appear later, there was a

suggestion that he might join the board of LPG as Managing Director and for a briefperiod he described himself as such, for which no satisfactory explanation has beengiven: he accepted in evidence and the evidence as a whole establishes that he did not

become a director, shadow director or employee of LPG. It also establishes that at allmaterial times he was acting on behalf of LBN and with a view to protecting LBNs

interests, even when giving advice to the LPG board or when purporting to write oract on behalf of LPG.

35. Mr Michael Dodd is an associate director of Navigant Consulting. He is a charteredaccountant, has other professional qualifications in the field of commerce, and has 25

years of project management experience. He started to work as a consultant to LBN

in April 2012. His role was to act as project manager for LBN, reporting to theCouncil on LPGs progress and any issues and risks affecting repayment by LPG orthe achievement of the LPG business plan. He had no authority to make decisions on

behalf of the board of LPG or to commit LPG to any contracts. At all material times

he was acting for and on behalf of LBN.

36. Although I have no doubt that Mr Squibb and Mr Hamilton are suitably experiencedin business matters, there was a clear sense when giving their evidence of something

approaching deference to LBN. This showed itself in two ways. First, Mr Hamilton

consistently referred to Mr Pope in his oral evidence as Mr Pope OBE. When asked

if this had any significance he explained that it meant that he was an e xtremely

important man. If Im going to sit in front of an Executive Director of Newham, whoalso happens to be an OBE for wonderful service to this country, Im going to believe

what he tells me, I have no reason not to. Second, some of Squibbs emailswere

surprisingly compliant given the nature of the case that it now advances. Mr

Hamilton explained his attitude to LBN when subsequent emails from Mr Pope did

not reflect what he now says had been discussed in the meetings. As he put it Whywould I the following day start panicking? Mr Pope OBE has told us what is

happening. He has written it down and sent us an email. Why am I going to doubtthat ?3 As I have said, Squibb had worked for LBN previously. As a local

contractor I am sure that it would hope to work for LBN in the future. There is adefinite sense in the evidence and correspondence of Mr Squibb and Mr Hamilton not

3T2/54-55

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wanting to rock the boat too much, while still hoping to obtain payment of thesubstantial sums they were owed for their work. Having seen the four men giving

evidence, I am not surprised at the slight imbalance between Mr Squibb and MrHamilton on the one side and Mr Pope and Mr Dodd on the other. Compared to Mr

Squibb and Mr Hamilton, the LBN witnesses appeared to me to be firm and forthright

in their manner in a way that did not easily acknowledge opposition; and theycertainly appeared to be more sophisticated than the Squibb representatives, reflecting

their professional qualifications and experience. While the importance of this

imbalance can easily be overstated, it is a feature that I bear in mind when trying to

decide exactly what happened.

37. The final participant was Mr Harnan. LBN challenged his impartiality as aConstruction Manager and as a witness but, in my judgment, the challenge failed.

The true position was that, by July 2012, Mr Harnan had considerable sympathy with

Squibb, who he thought had done a very good job in carrying out the CMTC works to

an insane programme. When Mr Hamilton started to threaten legal proceedings for

non-payment, Mr Harnan took the view that the best way to calm Mr Hamilton andthe situation generally was to work with Squibb and to encourage them not to doanything provocative.

38. By 22 June 2012 LPGs cash-flow had necessitated the pushing back of payments,which (as LBN realised) gave rise to the risk that creditors would demand payment

and panic might set in4; or that suppliers might refuse to carry out necessary works

without advance payment5or even litigate and drive LPG into insolvency 6. When

Squibb was not paid its 424,000 by LPG on 30 June, it enlisted the support of MrHarnan who told Squibb on 2 July that he had had a go at LPG but that LPG was

blaming LBN. On 4 July 2012 Mr Hamilton emailed Mr Dodd (at his LPG email

address) pointing out that Squibbs invoice should have been paid the previous Fridayand requesting confirmation that the money would be in Squibbs bank account thefollowing day, 5 July. Mr Dodd reacted by forwarding the email to Mr Pope stating:

(I use an LPG email account when dealing with suppliers.)

This is the biggest invoice due. We7 had planned on paying

this post Bloc when we should have been liquid. It was due lastFriday so we were stretching it. There is not enough money

around to pay this.

Ive called Squibb to set up a meeting to discuss repaymentplan.

39. It is clear from this email that Squibbs invoice was one of those that had deliberatelybeen pushed back. Mr Pope replied, telling Mr Dodd that he was in the process of

renegotiating the Bloc arrangements to make them more advantageous to LPGs

finances under threat of cancelling the event altogether.

4B1/8255B1/8316B1/831

7

The use of the term we is ambiguous: although Mr Dodd was using an LPG email address, he explained thatthis was what he did when emailing suppliers. His reports in late June referring to the need to push backpayments had been made to Mr Pope and Ms Hindson at Newham.

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40. Early on 5 July, Mr Harnan sent an email to Mr Dodd asking for a meeting aboutSquibbs unpaid money. The purpose of the meeting was stated by Mr Harnan to be

in order to avoid Squibb entering dispute resolution proceedings (and possiblyissuing a winding up order on LPG). Mr Dodd spoke to Mr Hamilton and arranged a

meeting that afternoon. He then emailed Mr Pope, attaching Mr Harnans earlier

email to him, and saying that he wanted Mr Pope to be at the meeting. He suggestedmeeting at LBNs offices to more fully segregate the LBN from LPG entities in

discussions, the implication being that meeting at LBNs offices would emphasise

Mr Pope and Mr Dodds presence as being for LBN. Mr Dodd also wrote:

[Mr Hamilton] told me they were considering taking legal

action. I told him there was now a Newham MD and the

company was unable to pay his bill for at least a week. I

suggested we all meet.

The 5 July Meeting

41. It is not in dispute that the meeting occurred in the afternoon of 5 July 2012. By thenLBN appreciated that further groundworks were required. Mr Harnan attended the

meeting with Mr Squibb and Mr Hamilton. They were met in the lobby by Mr Dodd

and had a preliminary meeting before going on to meet Mr Pope. When they arrived,

the Squibb representatives were thinking in terms of issuing proceedings and pushing

LPG into insolvency. LBN knew this (having been told by Mr Harnan in his email

and by Mr Hamilton) and was keen to avoid it for two main reasons. First it would

stop the project in its tracks which would be embarrassing in the run up to the

Olympics8, not least because of the critical nature of the site in securing legacy and

regeneration benefits9; and, second, taking the company into insolvency would be

likely to have the effect that Squibb would not get paid and LBN would not recoup itsloan. During the main meeting, Mr Pope gave Squibb his LBN business card, and did

most of the talking. By the end of the meeting, Squibbs position had changed so thatMr Pope wrote the next day to Mr Dodd and others that they had managed to hold

them off for a short while. Beyond this, little or nothing is agreed.

42. Mr Squibb, Mr Hamilton and Mr Harnan made notes of the meeting which I find weremade during or immediately after the meeting. Neither Mr Pope nor Mr Dodd tooknotes.

43. Mr Popes evidence was that the purpose of the meeting was to provide anopportunity for him and Squibb to get to know each other better at a time when he hadonly recently become involved and was not clear what were LPGs financial position

or commitments. He maintained that the meeting was about him understanding where

Squibb were coming from and to really hear their side of the story. Although I can

accept that one of the effects of the meeting was that Mr Pope heard Squibbs side of

the story, that was not the context for or purpose of the meeting. Mr Popes evidence

on this point is contradicted by the chain of correspondence that preceded the

meeting, in which Mr Harnan first called for the meeting expressly to head off the

threat of proceedings or a winding up order and Mr Dodd had alerted Mr Pope to the

fact that there was no money to pay Squibbs bill for at least a week and that Squibb

8See Mr Popes evidence including reference to prestige events at [11] above.

9Accepted by Mr Pope at T2/142.22-143.2

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was considering taking legal action. It is also contrary to the evidence of Mr Doddwho accepted that the context for the meeting was the fact that Squibb was

threatening legal proceedings which would scupper the whole project and that, whenthey entered the lobby, Mr Squibb and Mr Hamilton were very much in bill collector

mode and they were there to get a payment. It is also contradicted by Mr Squibb, Mr

Hamilton and Mr Harnan, all of whom gave evidence that the purpose of the meetingwas to discuss Squibbs outstanding payments. Finally, it is contradicted by Mr

Popes own email on 6 July 2012, quoted above, where he (accurately) said that he

and Mr Dodd had managed to hold [Squibb] off for a while.

44. On the evidence I find that Squibbs purpose as it approached the meeting was to tryto obtain payment of its outstanding account, using the threat or reality of proceedings

if necessary, while LBNs primary purpose was to ensure that Squibb took no action

that would jeopardise the prospects of keeping LPG as a going concern at least until

after the start of the Olympics.

45. According to Mr Dodd, when he first met Mr Squibb and Mr Hamilton in reception,Mr Hamilton told him that they considered that LBN was obliged to pay Squibbbecause of the existence of the Step In provisions in the CMTC contract and he

explained that the right to Step In imposed no such obligations on LBN. I accept this

evidence, not least because Mr Dodds approach (on his evidence) was consistent

with the suggestion he had made that the meeting should be held at LBNs offices so

that the distinction between LBN and LPG should be segregated. I also accept MrDodds evidence that, throughout the discussions, he tried to explain what he saw as

some of the financial facts of life to Squibb, namely that it was in no ones interestsfor Squibb to litigate because, if it did, LPG would go under and there would be no

recovery for Squibb or for LBN; so, to that extent, Squibb and LBN were in the same

boat.

46. Although it is common ground that Mr Pope did most of the talking, his evidence wasessentially negative in the sense of denying that he gave any assurance to Squibb

about future payment, which became something of a mantra for him when giving his

oral evidence. He did, however, accept that he said at some stage that he was taking

over as LPGs managing director (which was, at best, premature and misleading) and

that he proposed to meet LBNs finance team within the next 72 hours in order to

obtain the balance of the original loan facility. He accepted that he had explained that

the Bloc event over the coming weekend was critical as it would demonstrate the

potential revenue stream and afford LBN comfort when installing any future bridging

loan facilities. He also knew before the meeting that there were further groundworksthat required to be done and that Squibb was the natural candidate to carry out those

additional works.

47. When asked why he thought that Squibb did not proceed with the threatened windingup proceedings, Mr Popes answer was that Mr Dodd had given his estimate of LPGs

likely ability to pay Squibbhe judged that LPG might or should be able to make a

payment that following week after Bloc and on that basis Mr Squibb and Mr

Hamilton were content. He rejected the suggestion that there had been an agreementnot to issue legal proceedings at the meeting, saying that his assessment at the end of

the meeting was that all parties were confident that they should be working together totry to ensure that LPG remained a going concern and that all parties got out of it what

they needed which, in Squibbs case, was payment and, in LBNs case, was getting its

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money back. He accepted that, at that time, it was implicit in all that was said thatLBN was the paymaster in that it had to authorise payments and, without funding

from LBN, the cashflow simply wasnt there to enable LPG to make payment. Theimportant difference between his evidence and that of the Squibb witnesses is that,

although he accepts that it was said that LPG should be able to make payment, with

some monies being paid the following week, he does not accept that any assurancewas given.

48. Mr Dodds evidence was to similar effect. His starting point was that Squibb were ina very bad moment when they realised that LPG didnt have any assets or cash

coming in immediately. There was discussion about a possible further bridging loan

from LBN being considered and a discussion about what LPG should be able to pay

in the foreseeable future, which was based on Mr Dodds knowledge of LPGs

cashflow and projections; but he regarded this as a sharing of information without any

promises being made or assurances given.

49. Mr Hamiltons evidence, which was endorsed by Mr Squibb, was that afterintroducing himself as an Executive Director of LBN Mr Pope said that he would beinstalled as Managing Director of LPG to safeguard the delivery of the project and to

guarantee that all required funding would be drawn down from LBN to ensure that all

current creditors would be paid. According to Mr Hamilton, Mr Pope said that LBN

would be making the final payment of their loan facility to LPG with the proviso that

Squibb be paid the full balance of outstanding sums to them (which at that stageamounted to 424,000); and he was going to meet LBNs finance team within 72

hours in order to obtain the remainder of the original loan. He said that the Bloc eventwas critical and that the success of the bar takings would determine the level of the

further loan that was needed. The central passage of his evidence in chief (which he

maintained in cross-examination) was that Mr Pope said that all outstandingpayments would be made by the time the next payment of circa 250,000 became due(as of the end of July 2012) provided we were committed to helping LBN get the

Project over the line without any legal wrangles, as further works would be necessary.

He also said that such payment would be made in a maximum [of] two tranches, with

the first being made on 10 July 2010. [Mr Squibb] confirmed during the meeting that

we were happy with this arrangement. [Mr] Squibb and I were therefore left in no

doubt that Chris Pope guaranteed to us that we would receive all outstanding sums in

a maximum of two tranches during the next 2 to 3 weeks, with the first payment being

made on Tuesday 10 July 2012. This was provided we took no legal action in respect

of our outstanding fees and were committed to undertaking any further works for

LBN. It is fair to say that had Chris Pope and Mike Dodd not [given] us these

assurances, we would have taken immediate action to recover sums due to us and we

would not have undertaken any future works. It is immediately to be noticed that, in

this passage, Mr Hamilton refers to Squibbs outstanding sums in terms which

clearly refer to the 424,000 that was then overdue for payment by LPG.

50. Mr Hamilton made a note of the meeting. Near the top it refers to LBNs loan to LPGbeing 3 million and that the outstanding commitment would be early next week. Itrefers to the Bloc event demonstrating a revenue stream and links that to mention of a

bridging facility from LBN, with an indication that the size of the bridging loan wouldbe dependant upon the size of the bar receipts. It records Tuesday 424k would be

paid, which in context is a reference to payment on Tuesday 10 July 2012. There is

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a reference at the bottom of the note to a proposal including scalpings and 6 stoneand black top pontoon, which may be a reference to the required further works.

There is no record of an agreement being reached or the terms of any such agreement;nor is there any mention of the 424,000 payment being paid in more than one

tranche.

51. Mr Squibb also made a note of the meeting. At the end of the note he recorded:4. LBN to pay 424k wk commencing 9

th July,

S[quibb]G[roup] to be paid direct from LBN to quicken

process.

5. Good news.

52. It was not suggested to either Mr Hamilton or Mr Squibb in cross-examination thatthe reason why they decided not to sue was that it had been explained to them that if

they did Squibb would recover nothing.

53. Mr Harnan made a note of the meeting which formed the basis for his evidence. Hisnote included the following:

3. Contract has step-in but no guarantee.

4. LBN lent 3m in April 12.

5. LPG has asked for management leadership. To put on a

sound footing. Chris [Pope] now MD.

6. Does not have cash to pay today!

7. Can meet most10

early next week, or LBN considering

further funding.

8. Most next week, next payment11should be on time.

9. LBN will make bridging available.

54. Mr Harnan expanded on points 6-9 as follows:Chris Pope assured Leslie Squibb and Paul Hamilton thatSquibb would be paid all outstanding sums if Squibb helped

LBN get the Project over the line by taking no legal action and

by helping LBN get the site ready for events, including the

2012 Olympics. He said that Squibb could not be paid all in

one go, but that they would be paid most of the outstanding

sum early next week. He also said that the next payment to

Squibb should be paid on time. My notes of the meeting [at

points 6, 7, and 8] confirm this.

10Mr Harnan confirmed that this was a reference to most of the 424,000 then outstanding.

11This was a reference to the sums due at the end of July 2012 under IVA3.

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There is no doubt in my mind that Chris Pope assured Squibbthat they would be paid all of their outstanding debt if they

cooperated with LBN and that most of the debt could be paidthe following week. The reason why I have written this down

twice at points 7 and 8 of my meeting notes . is because it

was discussed on two occasions. I therefore strongly disagreewith Chris Pope when he ways that he did not make such

assurances, as I remember his assurances well.

As well as [possible] venture capital funding, I also recall being

encouraged by Chris Popes assurances that LBN would be

providing bridging finance in the sum of 500,000 so that

creditors could be paid. My notes of the meeting confirm this

at point 9.

55. In cross-examination Mr Harnan confirmed that his note was accurate and covered allthe big points of the meeting but was not challenged on the detail of his evidence as

set out above.

6-10 July 2012

56. The day after the meeting, Mr Squibb emailed Mr Pope, thanking him for taking thetime yesterday to go through the current situation and giving us an insight into the

shenanigans of what has been going on there with regards to their financial

mismanagement. He continued:

I appreciate how busy you must be with having this dropped

on your lap but would it be possible to have an update with

regard to our payment on Tuesday as I am receiving more

pressure daily from our suppliers with regards to their

outstanding payments with some of our key suppliers currentlyputting our account on stop.

57. Mr Pope replied promptly from his LBN email address but signing himself asManaging Director of LPG, which he was not. He wrote the email in terms that

adopted the perspective of LPG although it is plain that he was acting on behalf of

LBN at all material times. His inexplicable adoption of an LPG persona only servesto confuse interpretation of what was going on. In his email Mr Pope wrote:

It was, similarly, good to meet you yesterday and I am grateful

for your forbearance as I try to understand the current financial

position of the company. The good news is that we have

managed to unscramble changes to the contract with Bloc. We

are also expecting final payment of our loan facility from

Newham Council. This means that we should be able to pay at

least 200k of your outstanding invoice. This is unlikely to be

before Tuesday as we have to allow the cash from this

weekends event to flow into the bank account.

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I appreciate that this is less than half of the full amount12

. Ihave called a board meeting on Tuesday morning to agree a

revised budget and business plan the outcome of which will bean agreed sustainable position on our cash flow. It is also

highly likely that we will ask Newham Council for a bridging

facility in the short term. Providing that they have the rightinformation, the Councils Finance Director has assured me

that the approvals process for the facility can be swift but in

any event it is likely that I will ask part of the sum to be paid

direct to you to avoid any delays in transfers between banks. I

would hope, therefore, that we are able to settle your invoice in

full (albeit in two tranches) next week. We just hope that Bloc

will be a roaring success as that will provide LPG with much

needed revenue and give Newham confidence to advance a

bridging facility.

Im sorry I cant be more definitive at this stage but I am verykeen to ensure that we treat all our suppliers properly, not least

because we will rely on themand potentially as we discussed

yesterday, Squibbto continue to contribute to this project. Asand when I am able to confirm payment amounts and times, I

will of course let you know.

58. Mr Squibb said that receiving an email from Mr Pope saying he would be paid200,000 the following Tuesday meant that he was more relaxed than before themeeting. When he replied he did not take issue with what Mr Pope had written, but

said:

Thank you for your encouraging response and we obviously

look forward to the payments next week as advised.

We fully appreciate the manner in which Newham Council,

Mike Dodd and yourself have worked to resolve thisunfortunate position and we certainly do not envy the situation

you have inherited, please rest assured we are remain fullycommitted to working you on the project in the future.

59. In the early evening of 9 July 2012 Mr Squib emailed Mr Pope again about the firstpayment which was anticipated for the next day:

Good evening trust you are well, rather than bothering you by

phone I thought I would best be served to send a quick email,

could you advise us of a contact name and number for the

individual tasked with transferring our first payment tomorrow,

as I dont want our accounts/office manager chasing you or

Mike unnecessarily when you have other matters to attend to.

12A clear reference to the 424,000 then outstanding.

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Moving forward would it also be possible to advise us who willbe making the second transfer and future payment i.e. LPG or

Newham direct

60. Mr Pope replied early the next morning, 10 July:As you know Bloc was halted early due to crowd safetyconcerns. LPG will not, therefore, have generated the level of

revenue expected. That said, the bar takings were high for theperiod that it was open (which is important in terms of

demonstrating revenue potential). We are just working through

the cash position at the moment and once we have a clear

picture well let you know payment details. As I said in my

previous email the Board is having an emergency budget

meeting this morning and we have a session with the council

this afternoon. Ill let you know how we get on.

61. Mr Hamiltons evidence was that this email concerned Squibb but that Mr Popesprevious assurances and Mr Dodds involvement gave Squibb comfort. Mr Squibb

replied that morning:

Thanks for coming back to me, it is rather disappointing that

we are still in limbo with regard to our payment and that we are

relying on bar takings when someone in LPG has clearly

received the money from the LB Newham, we are becoming

under increasing pressure from our suppliers who had accepted

part payment like us today and we have in turn made these

payments this morning or would suffer the loss of credibilityand confidence from our long term supply chain partners.

I have to make a report this afternoon to my board of Directors

on the status of the project at 15.30pm so if in the meantimeyou have any further news could you give me a call

62. No payment was forthcoming during the day, and in the evening Mr Hamiltonemailed Mr Pope and Mr Dodd:

Good evening, we fully appreciate [you] are continuing to

employ your best efforts in resolving the sorry situationhowever despite best intentions we are still without paymentfor the works carried out and completed.

As we have always advised we are happy to work with you,

including carrying out further works on site to ensure the future

of the project, however we have a board of directors, suppliers

and sub contractors who have certain expectations and

requirements from us.

Are you available to have a meeting tomorrow to discuss and

agree a sensible and achievable way forward.

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11 July and beyond

63. A further meeting was arranged for 11 July. It took place on site and was attended byMr Squibb and Mr Hamilton for Squibb and Mr Dodd for LBN. According to MrHamilton, Mr Dodd explained that the only way that LBN would be able to release

monies to Squibb in the short term would be by employing Squibb to carry outadditional works on site and to pay for them up front and before they were carried out.

He asked Squibb to quote and said that once the price was agreed he would get money

directly from LBN in order to pay them for the additional works and would be able to

obtain funding from LBN to part pay outstanding invoices in two 100,000 tranches

over a two week period and would ensure that the money was released to LPG on the

proviso that it was paid to Squibb.

64. Mr Hamiltons note of the meeting includes Will certify and pay 150k + VATminimum. 60k difference and 2 weeks difference. The note also includes

*Payment dates definitive* *Guarantee from LBN if LPG default on agreed

[payment] schedule*

65. Mr Squibbs evidence in chief was to the same effect as Mr Hamiltons. However, incross examination he said that Squibb had said it had to receive payment up front for

the additional works and part payment of some of our old money, that they would

not do any more work unless they got those two assurances, and that they had in fact

received monies in accordance with those assurances when the 187,000 had been

paid. His note of the meeting recorded:

1. Apologies on behalf of LBN for non payment.

2. Help now required from SG to enable BT event to go ahead.

3. Pay upfront for all works.

4. New stage payments agreed/ PH has schedule.

M Dodd guaranteed that all payments will now be on time.

M Dodd states that LBN will guarantee all future payments on

site and this has become standard practice on site to maintain

the [] works and security of the site.

66. It was common ground that Mr Dodd confirmed that the Rivers of Music Festivalcould not go ahead without the additional works being carried out. But he did not

accept that he had given any assurance or promise that Squibb would be paid by LBN

if LPG failed to pay. Although he agreed he had said that LBN funding could be

given to LPG with conditions attached to it, he resolutely denied having undertaken tofund any works. At the same time, he agreed that Squibb had refused to do any

further works unless it was paid up front for those works.

67. After the meeting, Mr Hamilton sent Mr Dodd a quote for the additional works. AtMr Dodds direction, Mr Hamilton then sent the quote to the LPG directors whoaccepted it after Mr Dodd had expressed LBNs satisfaction that it was reasonable.

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Mr Hamilton also followed up the meeting by a further email to Mr Dodd in which hesaid:

Good to meet up with you earlier and as we said we appreciateyour, Chris Pope and London Borough of Newhams assistance

in resolving the outstanding issues.

Moving forward we would appreciate a letter of comfort along

the following lines which I would assume come from a directorof LPG or LB Newham to allow us to show our suppliers and

subcontractors.

1. Confirm payment of 150,000.00 - 200,000.00 + VAT foragreed and certified interim valuation number 2 into our

account by close of business Thursday 12 July 2012.

2.

Payment of the remaining sum due under the agreed andcertified interim valuation number 2 (either 203,875 or

153,875 + VAT) into our account by Thursday 26 July

2012.

3. Payment of agreed and certified interim valuation number 3(199,405.00 + VAT) into our account by Thursday 9

August 2012.

4. Payment of agreed and certified final account (some to bedetermined) into our account by Thursday 30 August 2012.

5. We would also request a guarantee from LB Newham thatif LPG defaulted on any payment as per the above schedule

(unless agreed with Squibb) that LB Newham would

honour the outstanding payment within a further 7 days.

Something along those lines would be acceptable.

68. Mr Dodd replied within an hour:As discussed LPG should be able to pay to Squibb this week

100k total plus the works invoiced for zone 6 works as

discussed under 60k + VAT.

Next week LPG would pay 100k total cash on Wednesday.

This money will be sent to LPG by Newham with the condition

that it be paid into Squibb.

LPG would thereafter be able we believe to manage 100k cash

to Squibb each week average until Squibb account is paid out.

Kerry or Robin in their capacity as LPG Directors will confirm

the acceptability of this cash flow by email reply to Paul

Hamilton copying me.

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Newham is unable to guarantee payments by LPG but can tieany funding to LPG to specific conditions such that funds be

paid onto Squibb.

Thank you once again for the constructive attitude shown by

Squibb on this project.

69. 12 July 2012 came and went with no payment to Squibb. In the late afternoon MrSquibb emailed Mr Pope expressing bitter disappointment that Squibbs payment wasnot forthcoming and complaining that this was the fourth time that agreements had

been made and not adhered to. He asked that someone come back that day to let them

know where they stood so that they could take the appropriate action. Mr Dodd

replied that LPG had put the invoice in for payment the following day. On 13 July

2012 LPG paid Squibb 187,000.

70. On Tuesday 17 July 2012 Mr Hamilton emailed LPG, with a copy to Mr Dodd, sayingthat Squibb was due another tranche of 100,000 and requesting confirmation that thiswas in hand and funds would be released. LPG forwarded the email to Mr Dodd

saying that as discussed last week LPG would not be able to cover another 100k

this week and asking how to proceed. Mr Dodd replied:

Let them know by [Wednesday close of play] what you can

pay them. Its an average 100k per week they are looking for

and there may be some slack. Id like them to finish work on z6

for which they have been paid before this conversation

happens.

71. No payment was made on 18 July 2012 and it does not appear that LPG contactedSquibb as suggested by Mr Dodd, as Mr Hamilton sent an email to LPG, copied to MrPope and Mr Dodd, at 8.35pm expressing bitter disappointment and no little

frustration that, despite a number of attempts to contact LPG, Squibb had had no

response at all. The email carried a clear threat of the possibility of proceedings,while stating that this was not Squibbs preferred option. Mr Dodd replied that

evening:

I hope we can discuss in site tomorrow with LPG at 9.30. Im

confident that LPG can pay something even if they cant meet100,000.00 by Friday. I can advise you of the current position

at LPG and of imminent Newham lending to LPG and impacton repayment, as conditions can be imposed on any loans that

involve averaging 100k per month to Squibb

72. On 18 July 2012 Miss Hindson, LBNs Director of Corporate Finance, was copiedinto Mr Hamiltons last email. She responded to Mr Pope informing him that LPG

only had 50,000 in the bank and so could not pay Squibb any more until after the bar

takings from the weekend (when the BT Rivers of Music festival was happening) or

we have provided cash. She requested At the very least try and postpone till

Monday. Mr Pope forwarded her email to Mr Dodd marked as low priority.

73. On the morning of 19 July 2012 Mr Hamilton met Mr Dodd on site. He followed upthe meeting with an email to Mr Pope and Mr Dodd:

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Further to my email direct to LPG last night I have had ameeting with Mike Dodd this morning and whilst he was open

and honest in explaining the situation to me, LPG havedefaulted on the revised payment schedule agreed last week

(100,000.00 to be paid to us this week) and are simply not in a

position to pass us any of our owed sums until Tuesday nextweek at the earliest. In fact all that LPG could pay would be a

sum of 50,000.00

Whilst we understand an open venue generates funds, in

essence we consider that LPG are insolvent and are trading

illegally as they are continuing to hold events which cost

money to produce, organise and start as well as paying other

contractors and staff who are working on site out of money that

is un-deniably owed to us.

We simply cannot allow the situation to continue and therefore

give formal notice that we are instructing our solicitors to

commence legal proceedings against LPG and any other

beneficiary of the site (LBN) in the form of a High Court

injunction to stop the site being used for its function or any

other use.

74. LBNs immediate response to this email was to distance the Borough from LPG andthe problem. Mr Dodd replied to Mr Hamilton:Further to the below and recognizing thesentiments outlined it

is worth clarifying that neither Chris nor I are employed by

LPG and our role in respect of LPG matters is wholly onLBNs behalf. Note that LBN is owed 3M by LPG and is a

preferred creditor. LPG needs to agree any payment profile.

The conversation that needs to occur which I suggest we

arrange for tomorrow PM is with Robyn or anther LPG

Director with LBN as an observer.

75. A meeting duly took place between Mr Hamilton, accompanied by Mr Squibbsfather, and one of the directors of LPG and Mr Dodd on the morning of 20 July 2012.

It was held at LBNs offices. Mr Pope passed the door but did not join the meeting,

giving Mr Hamilton the impression that he was distancing himself from the problem.

According to Mr Hamilton, a new schedule for payments was agreed, with 50,000 to

be paid by 23 July, 150,000 by 27 July and 150,000 by 6 August 2012, which

would have cleared the outstanding balance from the 424,000. His note of the

meeting refers to 50,000 being paid on Monday (23 July) and 100,000 on Friday

(27 July) with a total of 300,000 being paid by 6 August 2012. The note also records

that Mr Dodd was producing a business case to ensure money into company andwe will get paid by LBN/LPG. Mr Dodds evidence is that any agreement was

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between Squibb and LPG and that he did not either agree dates for payment or saythat LBN would pay the debts if LPG did not. He was copied into the email sent by

Mr Hamilton after the meeting which, according to him, [confirmed] the instalmentplan of payments that [LPG] had agreed [it] would make to Squibb.

76. On 27 July 2012 LBN released a further 300,000 to LPG. LPG paid 150,000 toSquibb on 30 July 2012. No further payment has been made to Squibb. On 6 August2012 Mr Hamilton emailed Mr Pope asking if the next tranche of 150,000 would be

paid that day. Mr Pope replied that LPG was now in administration and that he had

forwarded Mr Hamiltons email to the administrators. In reply, Mr Hamilton asserted

that at the meeting on 20 July 2012 there was an express agreement that the 150,000

would be paid to them by LPG and if not directly by LBN, and as such we fully

expected to receive the 150,000.00 today. This was the first time that Squibb had

looked to LBN to pay directly. Mr Pope replied that he was not aware of any

agreement relating to LBN making payments to Squibb and that Mr Hamiltons email

did not mention it.

Discussion

77. Squibb submits that the evidence of Mr Hamilton and Mr Squibb about the meetingon 5 July should be accepted and relies upon the independent support of Mr Harnan

and the content of the three contemporaneous notes. A number of points arise on the

three notes. First, none makes reference to the carrying out of further works; and,

until the first morning of trial, it was Squibbs case that the parties entered into

negotiations for the carrying out of further works on or about 11 July 2012. As

against that, Mr Pope knew by 5 July 2012 that further works were required and thatSquibb was the natural candidate to carry them out. Second, the notes prepared by Mr

Squibb and Mr Hamilton refer expressly to 424,000 and appear to support thesuggestion that the whole of that sum was to be paid in the week commencing 9 July

2012. But Mr Harnons note is explicit in saying that only most could be met thenext week; and his reference to the next payment being on time is consistent with

an understanding that the 424,000 would be discharged by the end of July when

IVA3 fell due for payment. Third, only Mr Squibbs note refers to LBN paying

Squibb direct, and that is said to be to quicken the process by removing the need for

the money to pass through LPGs bank account rather than by reference to any

independent obligation to pay Squibb directly. Fourth, Mr Harnans points 6 and 7

naturally carry the meaning that LPG did not have enough cash to pay on 5 July but

could meet most of the 424,000 early next week or LBN would consider further

funding. This is not consistent with an assurance that LBN undertook either toprovide the necessary funds or to ensure that the necessary funds were forthcoming.

78. Taking the issue in stages, I find as a fact that the conversations on 5 July 2012centred on the 424,000 that was then due and outstanding and that nothing was said

that could reasonably have been understood by Squibb as an assurance by LBN that

all sums falling due under the CMTC contract would be paid. I make this finding

because of the content of all three notes, with two referring expressly to the 424,000

and nothing else and Mr Harnans being properly understood to refer to the dischargeof the 424,000 by the end of July. It is also the only possible interpretation of Mr

Hamiltons evidence that what Mr Pope guaranteedwas that Squibb would receiveall outstanding sums in a maximum of two tranches in the next 2 to 3 weeks, since

no sums other than the 424,000 were due for payment within that timescale and Mr

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Pope would certainly not have said that Squibb could look forward to acceleratedpayment of the rest of the sums earned under the CMTC contract.

79. The real issue, therefore, is whether Mr Pope or Mr Dodd said anything in relation tothe 424,000 which gave rise to an obligation on LBN to fund payment of that sum to

Squibb or to pay it directly if LPG did not do so. In answer to Squibbs reliance uponthe evidence of Mr Squibb, Mr Hamilton and Mr Harnan, LBN relies upon the

evidence of Mr Dodd and Mr Pope and upon a number of features of the case which,

it submits, tell against a finding in Squibbs favour. First, it submits that Mr Pope was

feeling his way and was therefore intrinsically unlikely to have made a binding

commitment to Squibb. Second, it points to the fact that LBN had shown itself to be

wedded to formal processes when contracting and that its corporate governance would

simply not permit Mr Pope to enter into contractual relations in the course of such a

meeting without any formalities being observed, then or later. Third, it submits that

the post-meeting emails are inconsistent with any binding agreement having been

reached at the meeting. Fourth, it submits that if LBN was going to undertake direct

obligations in relation to the CMTC contract, the logical approach was for it toimplement the Step In provisions of the contract, which would at least give it ameasure of control. Fifth, it points to the procedural history which shows that the

importance that now attached to the meeting is of very recent origin, starting with theprovision of further information in June 2013 and only being alleged to give rise to a

binding contract by amendment on the first day of trial.

80. While I accept that Mr Pope had only recently had any direct involvement, I find thathe was fully aware of the compelling need (as LBN saw it) to persuade Squibb not toissue proceedings that could jeopardise the project in the run up to the Olympics. I

also find that LBN employed two strands in the conversation, each of which was

intended to influence Squibb. The first was Mr Dodds facts of financial life, so thatSquibb should be persuaded that it was not in their (or anyones interests) to issue

proceedings; the second was to provide information about projected cashflow which

might influence Squibb to hold off because of the prospect that payment would be

forthcoming. The LBN witnesses referred to an open and honest exchange of

information, which included a review of LPGs prospective ability to pay based on Mr

Dodds knowledge of its cashflow and projections. As at 5 July,it was hoped that the

Bloc Festival would provide substantial revenues. I accept that it was regarded as

critical by LBN both for the immediate inflow of projected revenue and, in the longer

term, as demonstrating the potential revenue stream for the future; and I find that it

would have formed a significant part of the information provided by Mr Dodd. I also

have no doubt that Mr Dodd and Mr Pope would have gone as far as they properly felt

they could in portraying LPGs prospects in a favourable light despite the current

difficulties. On the basis of the notes of the meeting and the evidence of the witnesses

called by Squibb I find that Squibb were told that LPG was expected to be able to pay

the 424,000 by the end of July and that there should be a substantial payment,though not of the whole sum, in the week commencing 9 July, with 10 July being

earmarked as the expected date for payment.

81. To my mind, it is right to balance the lack of formality and the terms of thesubsequent emails against the apparent clarity of recollection of the witnesses on bothsides. In particular, Mr Squibbs first email on 6 July is barely consistent with the

existence of a firm agreement that payment would be made on 10 July, since it

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requests an update with regard to our payment on Tuesday, which would notobviously have been required if there was a firm agreement in place. Mr Popes reply

was curious in purporting to come from LPG, but it was inconsistent with a concludedagreement such as Squibb now alleges. The unscrambling of the Bloc contracts and

the expediting of the final payment of the loan facility meant only that LPG should

be able to pay 200,000 of the invoice; and the rest of the email is couched inuncertain terms. Instead of protesting that LBN was moving the goalposts (which

would have been the natural response had there been a firm agreement on 5 July) Mr

Squibb replied thanking Mr Pope for his encouraging response and thanked Mr

Dodd, Mr Pope and LBN for their efforts. To similar effect, while the email

exchanges on 9 and 10 July indicate that Squibb had been hoping for a substantial

payment on 10 July, they do not provide support for Squibbs present case that there

was a binding agreement placing primary obligations upon LBN.

82. The non-implementation of the Step In provisions does not take matters further. It isclear from Mr Dodds report with recommendations dated 22 June 2012 that taking de

facto control was seen as being at least as advantageous as implementing the Step Inprovisions for cogent reasons that are there set out.

83. The procedural history is of some interest and shows a developing appreciation andassertion of the significance of the 5 July meeting. It raises the question whether the

procedural development is based upon an improving understanding of the true

position or a progressive distortion of the true position but it does not answer thequestion.

84. I have come to the conclusion that in the course of the meeting on 5 July 2012 LBNtold Squibb that LPG should be able to discharge at least a significant proportion of

the 424,000 in the week after the Bloc Festival and that 10 July 2012 was earmarkedas the date when LPG should be able to make payment. The prospect of payment in

tranches was clearly stated, and Squibb was told that LPG should be able to dischargethe 424,000 by the end of July 2012. These things were said in the context of a

review of LPGs projected cashflow which included as a critical element of the

projection the projected revenues from the Bloc Festival. I am, however, not satisfied

that either Mr Dodd or Mr Pope said that payment would definitely be forthcoming or

that either of them said anything which could reasonably be interpreted as

guaranteeing that payment would be forthcoming from LPG or, failing that, LBN.

Bearing in mind the purpose and dynamics of the meeting, I am confident that Mr

Dodds emphasis upon the facts of financial life will have influenced Squibb and that,

having had those facts spelt out to them, the prospect of a substantial payment thenext week (though by no means assured) was comforting. I strongly suspect that

there was an element of Squibb hearing what they hoped to hear rather than exactly

what was said. LBN would not have discouraged that, since it suited LBNs intended

purpose of holding Squibb off; but I find that Mr Dodd and Mr Pope were too

experienced and savvy to give solid assurances or to guarantee that Squibb would bepaid, either by LPG or by LBN, at a time when the results of the Bloc Festival were

unknown and the scope of any further funding by LBN was undecided.

85. Furthermore, although LBN may well have mentioned the need for further works toget LPG and the site over the line, and also that they would have encouragedSquibb to understand that the best prospect of recovering full payment was for LPG to

continue as a going concern, I reject the suggestion that LBN offered an assurance of

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payment in return for Squibb forbearing and agreeing to carry out further works.Accordingly, although forbearance and continued cooperation were held out as likely

to increase the chance of payment over what would happen if Squibb sued orwithdrew cooperation, LBN did not at any stage give an assurance of payment as a

quid pro quo for that forbearance or continued cooperation.

86. I have reached these conclusions primarily on my assessment of the witnesses (and,where appropriate, their notes of the meeting) including my assessment of the

imbalance to which I have referred previously; but I am also influenced by the terms

of the emails which followed the 5 July meeting which, even allowing for that

imbalance, provide support for LBNs case rather than for Squibbs.

87. It follows that I reject Squibbs case based upon the meeting of 5 July 2012.88. By 11 July 2012 the landscape had changed, not least because the Bloc Festival had

been a financial failure and Squibb had not been paid anything in the wake of the 5

July meeting. LBN saw the need to get the site over the line to be as compelling asever and was by now exercising substantial de facto control over LPG in its efforts to

protect its own financial interests and the reputational issues that rested on the project.

For its part, Squibb was coming under increasing pressure from its suppliers and had

made payments in anticipation of receiving payment on 10 July. Both sides were

therefore under even greater pressure than had been the case on 5 July 2012.

89. In support of its case that there was a contractually binding agreement concluded atthe meeting on 11 July 2012, Squibb relies upon the evidence of Mr Squibb and Mr

Hamilton and their respective notes. It also relies on the emails that were sent after

the meeting, which it says evidence the fact of an agreement having been made. LBN

resists the claim on the basis of Mr Dodds evidence and, at least in part, in relianceupon Mr Squibbs evidence that the agreement was limited to payment of part only ofSquibbs old money. It takes points on the content of the notes prepared by Mr

Squibb and Mr Hamilton; and it submits that the subsequent emails support its casethat there was no concluded agreement rather than Squibbs case that there was.

90. On all of the evidence I have concluded that Mr Dodd did give an assurance thatSquibb would be paid 150,000 by close of business on 12 July and another 100,000

of its old money (i.e. the 424,000) the following week. That assurance was givenby Mr Dodd when trying to influence Squibb to do the additional works (for which it

would be paid in advance) and not to take proceedings; and it worked. The context

for the assurance was that Mr Squibb told Mr Dodd that Squibb would not do anymore work unless they got the two assurances (payment up front for the additional

work and part payment of some of their old monies). Mr Squibb meant what he said;

and after the failure of the Bloc Festival, it was implicit that the monies to fund the

two payments would have to come from LBN since the next big revenue-generating

event was not until 20 July 2012. I accept the evidence of the Squibb witnesses that

Mr Dodd said, either expressly or by necessary implication, that LBN guaranteed the

payment of the two payments.

91. I am not satisfied that Mr Dodd gave any guarantee beyond the two payments of150,000 and 100,000 that were to be made on 12 July and the following week,

although I find that Mr Dodd did say that he hoped and anticipated that LPG would beable to discharge the balance of the 424,000 by the time that IVA3 fell due (or words

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to that effect). There was discussion of IVA3 being made on time and of paymentsbeing made at the rate of 100,000 per week, but Mr Dodd did not give any binding

assurance on either of these points.

92. In reaching these conclusions I have had regard primarily to the evidence of thewitnesses and the notes prepared by Mr Squibb and Mr Hamilton, both of which referto LBN guaranteeing payment. I do not think that Mr Squibb and Mr Hamilton would

each have noted this point if Mr Dodd had not given them a clear understanding to

support it. It may be questioned why Mr Dodd went further during this meeting than

he and Mr Pope had gone on 5 July in putting LBNs weight into the balance. He

may not have set out with the intention to do so, but I am satisfied that the pressure

upon him to keep Squibb in line at a time when further works were required and the

last prediction of payment had not been fulfilled, pushed him further than he would

have wished to go or than he now accepts that he went. If he had not done so, Squibb

would not have undertaken the additional works. Although it is true that other

contractors could have been contacted, and that Squibb still had to quote for the

works, time was short, other contractors did not have Squibbs familiarity with thesite and might not be available in time, and Squibbs pricing and work had beensatisfactory to date. There was therefore every reason for Mr Dodd to want to keep

Squibb involved.

93. I have paid close attention to the exchange of emails immediately after the meeting.The reference to 150,000 in point 1 of Mr Hamiltons email together with thereference to 150,000 in his note of the meeting, supports my finding that 150,000

was the sum discussed and in respect of which the assurance was given by Mr Doddat the meeting. My interpretation of the balance of the email is that in numbered

points 1-4 Mr Hamilton was setting out matters which had been discussed at the

meeting, although LBN had only given an assurance or undertaking to the limitedextent that I have identified. That was the schedule of projected payments to whichMr Squibb had referred in his note, although the schedule had not been recorded in

writing during the meeting. Mr Hamiltons statement that Squibb would appreciate a

letter of comfort reflected the fact that Squibb had left the meeting with nothing in

writing and wanted to strengthen its hand for its dealings with its suppliers. The

request for a guarantee from LBN was, save to the limited extent outlined above, a

request for something that had not been achieved at the meeting and was an additional

negotiating step; and it was a request for confirmation in writing, which Squibb did

not yet have.

94. Mr Dodds reply backed away from the figure of 150,000 which he had agreedduring the meeting. His statement that LPG should be able to pay Squibb is

equivocal, but is not inconsistent with his having agreed that LPG would make the

payment and his assurance that LBN would be funding it if necessary (which would

mean that it should be able to pay). His statement that next week LPG would pay

100k total cash on Wednesday is unequivocal and supports the finding that he hadgiven such an assurance during the meeting. The rest of the email is consistent with

my finding that he gave no assurance beyond the initial 150,000. His reference tothe directors of LPG confirming the acceptability of the cashflow reflected his

appreciation that, although LBN was now in de facto control of LPG, he was notformally a director.

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95. Some further support for Squibbs case is to be found in LPGs email to Mr Dodd on17 July 2012: it shows that 100,000 per week had been the sum discussed earlier

between Mr Dodd and LPG as being payable. Squibbs case is also supported by MrDodds email to Mr Hamilton on the evening of 18 July 2012 which clearly

recognises that 100,000 was the anticipated payment.

96. I therefore conclude that the evidence supports Squibbs case that there was anagreement on 11 July 2012 by which LBN committed itself to ensure payment by

LPG of 150,000 on 12 July and 100,000 the following week against Squibbs

outstanding balance of 424,000 under IVA2. LBNs assurance was the price it paid

(together with the agreement to pay up front) for the carrying out of the additional

works and for Squibb not taking action that would jeopardise LBNs efforts to get

LPG and the site over the line and into what was hoped would be more profitable

waters. LBN intended Squibb to act on the assurances and it did so. The agreement

was reached with the giving of good consideration on both sides and was of sufficient

seriousness to give rise to binding contractual relations.

97. The subsequent email exchanges and the meeting on 20 July 2012 are not relied uponas giving rise to separate enforceable contracts. It is not necessary to refer to them in

detail save to say that they do not support Squibbs case that there was a binding

contract with LBN over and above the agreement that I have identified above.

98. In the event, Squibb was paid 100,000 and then 150,000 against IVA2, rather thanthe other way round. That does not affect the conclusion that Squibb was paid what

had been agreed on 11 July 2012. Any further claim available to Squibb was against

LPG and not against LBN.

99. It follows that I reject Squibbs case based upon the meeting of 11 July 2012 becausethe sums that were agreed to be paid were paid on 13 and 30 July 2012.