Case No. 0LS79020

135. On the balance of probabilities, I find that, if it had received non-negligent advice, the Trust would have acted in accordance with advice and done what was necessary, for its part, to procure a signed contract.136. Mr Fraser submitted, to the contrary, that the Trust would have acted no differently than it did but would have continued to issue further letters of intent and avoid confrontation with Kier. 137. Some reliance was placed on the evidence of Mr Talabani that he had given to Mr Bryan oral advice that the Trust should simply refuse to issue further letters of intent and that Mr Bryan had refused to countenance such a course. However, I reject Mr Talabani’s evidence on this issue, for reasons set out above.138. Mr Fraser also relied in particular on the following passage from the cross-examination of Mr Bryan:“Q. You’ve got the Trust’s and the school’s best interests, obviously, at the forefront of your mind. If Turner & Townsend had said to you, ‘We’re feeling lucky, let's call their bluff’, and you’d said, ‘What might happen?’, and they’d said, ‘Kier might leave’, you would have said, I assume, ‘I’m not prepared to run that risk’. Is that fair?A. Yes, that’s fair.Q. Because it would, we agree, be taking an irresponsible commercial risk, wouldn’t it? A. Quite so.” Mr Fraser submitted that this way of putting the matter to Mr Bryan was entirely realistic. Kier did indeed threaten to leave the site, albeit not in connection with any failure to issue further letters of intent. And in his second witness statement Mr O’Callaghan said, with reference to the possibility that the Trust might have refused to issue a further letter of intent or to make a payment due to Kier, “I do not believe that Kier would have responded at all well to that type of approach … Kier would have had to suspend the works until either a valid letter of intent was issued or payment was made. … The inevitable consequence would have been further delays to the programme.”139. I do not consider that this evidence will bear the weight placed on it. The reasons for my view are essentially those already mentioned in connection with breach of duty. There was no requirement for a confrontational approach of the sort assumed by the questioning of Mr Bryan or the statement of Mr O’Callaghan. Mr Bryan and the Trust would, in my view, have been very willing for TTPM to pursue the kind of focussed and professional approach that would have addressed matters with urgency but without the sense of confrontation or threat implied in cross-examination of Mr Bryan. Further, when considering Mr Bryan’s evidence and his likely conduct, it is as well to remember that Mr Bryan held the belief (in which, I find, he had been encouraged by Mr Talabani and which must naturally have tended to make it seem less urgent to procure a signed contract) that the provisions of the intended contract applied incrementally to the works proceeding under the letters of intent and, therefore, that the Trust’s position would be protected if the works continued under a series of letters of intent. Moreover, as I have set out already (paragraph 114), talk of “calling Kier’s bluff” has relatively little anchorage in the actual facts of the case.140. A distinct question arises in respect of Shire’s claim for additional fees. It is clear that both TTPM and the Trust were reluctant to allow Shire to hold them over a barrel, so to speak. But I do not accept that it is likely that the Trust would have allowed this to be the matter that prevented execution of the contract. If the situation had been reached where the Trust could clearly understand that all matters both of substance and of form relating to the contractual issues had been signed off and the last outstanding matter was Shire’s fee claim, it would probably have done what was necessary to resolve that claim, including paying the claim in full, provided it had understood that the contractual terms would only apply if the contract were executed. It was one thing for TTPM to take the view that Shire should not be paid, because that would be capitulation without even the assurance that a contract with Kier would result. It would be quite another to maintain a refusal to pay when the consequence was that no contract could be achieved with Kier. The objection that the project had a “zero contingency” is of little weight; the amount in question is only about £10,000 in excess of what the Trust did in fact pay; the agreed variations to the agreed price had resulted in savings of some £30,000; and the Trust’s financial position was healthy. If Shire’s fee claim had been the outstanding issue, TTPM would properly have advised the Trust of the overriding importance of obtaining a contract and the Trust would probably have been willing even to pay Shire in full; although evidence in re-examination and with the benefit of hindsight must be viewed with caution, I accept Mr Bryan’s evidence to this effect in re-examination as being plausible in the light of the totality of the evidence.