School of Law

Bar Vocational Course

2009/2010

STUDENT PRACTICE SESSION

Opinion Writing 4
Re: Brantwood District Council

Subject Areas
 Contract Law
 Sale of Goods and Services
 Information Technology

This session will look at the case of Re Brantwood District Council. This
is your second opportunity to receive written feedback from your tutor on
your opinion writing. This written feedback must be kept in your
Professional Ethics File.

Aims
The aims of this session are to:

[1] Further develop your skills of fact management so that you are able
to identify the salient facts in issue and any matters which may
arise from them.
[2] Further develop your skill in the devising of an effective structure
for an opinion

[3] Further develop your ability to write in an effective manner

(precise and concise) which is appropriate to an opinion

[4] Further develop your understanding of the need to provide practical

solutions for your lay client’s problems often outside the realm of
litigation and legal solutions

[5] Develop your familiarity and understanding of what your

examiners will be looking for when marking your opinions

[6] Entrench your knowledge of the appropriate format for an opinion

Objectives

By the end of this session you should have:

[1] Written an opinion, advising the professional and lay client on any
pertinent legal, evidential and procedural issues

[2] Considered and reflected on the structure of your opinion

[3] Considered and reflected on the content and language of your

opinion

[4] Critically appraised the opinion of a colleague in line with the

Opinion Writing assessment criteria

Preparation
1. Write a fully word-processed opinion for Re Brantwood DC

2. Email your fully word-processed opinion to your opinion writing

tutor.
Materials for session

1. Your fully word-processed opinion for Re Brantwood DC.

This exercise should take you approximately 8 hours to prepare

STUDENT PRACTICE SESSION PLAN

TIME TASK GROUP

Before start of session Email your word-processed

Opinion to your tutor.

00.00 – 01.50 You should attend at the start Large group.

of the timetabled slot, sign
the register, and hand your
word-processed Opinion to
your tutor. You should then
return at the end of the
session when your Opinion
will be returned to you.

Activities after session

1. Watch the Opinion Writing SPS04 podcast on the e-learning portal.

2. If you have any comments or queries, please post a comment on the
Opinion Writing discussion board on the e-learning portal.
RE BRANTWOOD DISTRICT COUNCIL

INSTRUCTIONS TO COUNSEL

£500

Chantry Martin & Co,

17 Settle Way
Cardiff
CF34 9PP
 RE BRANTWOOD DISTRICT COUNCIL

____________________________

INSTRUCTIONS TO COUNSEL
____________________________

Instructing Solicitors act for Brantwood District Council and Counsel is instructed
accordingly. Counsel has herewith:

1. Copy correspondence between the parties comprising letters dated 18th March
2009, 19th April 2009, 29th April 2009, 5th May 2009, 29th May 2009, 6th June
2009, 5th July 2009, 9th October 2009, 19th October 2009, 23rd October 2009.

2. Copy contract between the parties dated 13th September 2008.

3. Copy extract of report prepared by the Brantwood Food Hygiene Inspectorate

following their visit to Brantwood District Council’s headquarters in August
2009.

4. Copy statement of Shabbir Ahmed of Brantwood District Council’s in-house

legal department.

Counsel will see from the enclosures that a contract was entered into between
Brantwood District Council and Jupiter Cleaning Limited in September 2008 whereby
Jupiter undertook to carry out cleaning services at Brantwood DC office headquarters.
Counsel will note that the contract required Jupiter to ensure that the premises
remained at all times clean and hygienic.

There were problems with Jupiter from the start of their contract. It appears that
staffing was a problem for them, as there were occasions when their manning levels
fell below those required by the contract. Further, there were two occasions when it
was necessary for Jupiter to hire in casual help to fulfil their contractual obligations,
notwithstanding the restriction, contained in clause 4 of the contract, on sub-
contracting the performance of ‘the Services’ or part of ‘the Services’.
The issue of Jupiter’s performance came to a head in August of this year when an
unannounced visit by the Food Hygiene Inspectorate revealed that the areas set aside
by Brantwood for the storage of food had not been maintained in a condition fit for
that purpose. In particular, the inspectors found evidence of rat droppings and
concluded that this area ought not to have been used for food storage. On 5th October
2009 Brantwood DC was fined £20,000 by the Brantwood magistrates.

On 16th October 2009 Brantwood terminated Jupiter’s contract pursuant to clause 9 of

that contract. Jupiter now claim damages for lost profits on the contract at the rate of
£500 per week from Brantwood DC. Our clients cannot believe that Jupiter is entitled
any damages, and indeed are certain that it is they who are entitled to damages for
breach, including recompense of the amount of the fine (£20,000), together with legal
costs associated with the prosecution before Brantwood Magistrates Court (estimated
at about £7,500). In addition, Brantwood DC have had to employ another contractor
to undertake the works at a rate of £2,250 per week instead of the £1,750 payable
under the contract with Jupiter.

Unsurprisingly Jupiter dispute our clients’ entitlement to terminate the contract

pursuant to clause 9.

It also appears that there is a history of poor performance of the contract by Jupiter
and under the circumstances even if Brantwood were not entitled to terminate the
contract pursuant to clause 9, presumably Brantwood is entitled to terminate the
contract under either statute or common law for Jupiter’s breach.

Counsel is asked to advise generally on the question of the lawfulness of Brantwood

DC’s termination of the contract.

Brantwood DC anticipate that Jupiter may commence proceedings against them for
unlawful repudiation and Counsel is requested to advise on the likelihood of
Brantwood DC being held responsible for damages. Further, could Counsel consider
the prospect of waiting for Jupiter to commence proceedings or should Brantwood DC
commence proceedings so as to be the Claimant?

Chantry Martin & Co,

17 Settle Way
Cardiff
CF34 9PP
Brantwood District Council Brantwood House
Serving the Community 23 Swansea Drive
Brantwood
Switchboard (029) 7027 1676 Cardiff
Facsimile (029) 7027 1677 CF98 7YY

Jupiter Cleaning Ltd.

43 Ampleforth Avenue
Cardiff
CF21 6TH
18th March 2009
Dear Mr Morton

Ref: Cleaning Contract for Brantwood DC

It has come to our attention that the standard of your performance of our contract has fallen
short of that required. In particular, we have received complaints from members of our staff
that the Council Office reception areas are frequently left in a dirty condition over the weekend.
Carpets remain un-vacuumed, empty cups and glasses are not cleared away and surfaces
which should gleam (brass edgings and glass top surfaces) are left with smears and
fingerprints. The impression created for members of the public and others who have cause to
visit our premises is not, as I am sure you will appreciate, a good one.

We hereby give you warning, pursuant to clause 9 of the contract, that unless the standard of
your performance improves significantly, Brantwood will have no option but to terminate your
employment under the contract and recover damages from you for the losses suffered.

Yours sincerely,

Vincent Yip

Estate Services
Brantwood District Council
 JUPITER CLEANERS LTD
43 Ampleforth Avenue
Cardiff
CF21 6TH

Tel:- 029 2225 2222

Estate Services
Brantwood District Council
23 Swansea Drive
Brantwood
Cardiff
CF98 7YY

19th April 2009

Dear Sir

Re: Cleaning Contract for Brantwood DC

Thank you for your letter of 18th March. I trust that by now
you have noticed a significant improvement in the standard of
our performance under the contract. In particular, we have
recruited three new members of our cleaning team to work
exclusively at the Council offices. The staff shortage
experienced was due to the ‘flu epidemic in the area and has
now been addressed.

We trust we will now be in a position to render performance

fully in accordance with the terms of our contract. Should
you experience any further problems please feel free to
contact me on my direct line (029 2225 3131) and I shall
personally ensure that your problems are addressed and
resolved with the utmost priority.

Yours faithfully,

GM

George Morton
(Chief Executive)
 JUPITER CLEANERS LTD
43 Ampleforth Avenue
Cardiff
CF21 6TH

Tel:- 029 2225 2222

Estate Services
Brantwood District Council
23 Swansea Drive
Brantwood
Cardiff CF98 7YY

29th April 2009

Dear Sir

Ref: Cleaning Contract for Brantwood District Council

I hope you do not mind my bothering you about this internal

matter but, in light of the problems we have been experiencing
lately with manning levels, I wanted to seek your agreement to
hiring another cleaning agency to fulfil certain of the
obligations that Jupiter owes to Brantwood pursuant to our
contract of 13th September 2008.

I have in mind appointing Beckett & Co. for a short period of

4 weeks to cover the holiday period. The personnel at Beckett
& Co. will work strictly under our supervision and there will,
of course, be no financial implications for Brantwood. Please
confirm your consent to this application as soon as possible
and in any event within four working days.

I look forward to hearing from you,

Yours faithfully

GM

George Morton
(Chief Executive)
 JUPITER CLEANERS LTD
43 Ampleforth Avenue
Cardiff
CF21 6TH

Tel:- 029 2225 2222

Estate Services
Brantwood District Council
23 Swansea Drive
Brantwood
Cardiff CF98 7YY

5th May 2009

Dear Sir

Ref: Cleaning Contract for Brantwood DC

In circumstances where I have not received a reply to my

letter of 29th April, I assume you have no objections to my sub-
contracting part of the works on the terms set out in my
letter referred to above.

Yours faithfully,

GM

George Morton
(Chief Executive)
 JUPITER CLEANERS LTD
43 Ampleforth Avenue
Cardiff
CF21 6TH

Tel:- 029 2225 2222

Estate Services
Brantwood District Council
23 Swansea Drive
Brantwood
Cardiff CF98 7YY

29th May 2009

Dear Sir

Ref: Cleaning Contract

I write to inform you that it is our intention to appoint

Beckett & Co. for a further period of one week to make good
staff shortages caused by an outbreak of food poisoning at our
offices. We trust that, as previously, you will have no
objection.

Yours faithfully,

GM

George Morton
(Chief Executive)
Brantwood District Council Brantwood House
Serving the Community 23 Swansea Drive
Brantwood
Switchboard (029) 7027 1676 Cardiff
Facsimile (029) 7027 1677 CF98 7YY

Jupiter Cleaning Ltd

43 Ampleforth Avenue
Cardiff
CF21 6TH
6th June 2009
Dear Mr Morton

Ref: Cleaning Contract

We refer to your letter of 29th May and would draw your attention to clause 4 of the contract
dated 13th September 2008 whereby you may not sub-contract any part of the works.

In the circumstances we cannot give you the permission that you seek and require you to
perform the contract in accordance with its terms.

Yours sincerely,

Vincent Yip
Vincent Yip
Estate Services
Brantwood District Council
Brantwood District Council Brantwood House
Serving the Community 23 Swansea Drive
Brantwood
Switchboard (029) 7027 1676 Cardiff
Facsimile (029) 7027 1677 CF98 7YY

Jupiter Cleaning Ltd.

43 Ampleforth Avenue
Cardiff
CF21 6TH
9th October 2009

Dear Mr Morton,

Ref: Cleaning Contract

It is with regret that I must give you 7 days notice under clause 9 of our contract. As you are
aware, in consequence of your breach of contract in failing to keep the premises in a clean and
hygienic condition, Brantwood was prosecuted under relevant food hygiene legislation and
fined a total of £20,000.

This breach was not an isolated breach. You are aware that following your request for our
permission to sub-contract part of your services, I refused consent but, notwithstanding that,
you sub-contracted part of the services to Beckett & Co. in breach of contract. I therefore give
you 7 days notice under clause 9.

Yours sincerely,

Vincent Yip
Vincent Yip
Estate Services
Brantwood District Council
Brantwood District Council Brantwood House
Serving the Community 23 Swansea Drive
Brantwood
Switchboard (029) 7027 1676 Cardiff
Facsimile (029) 7027 1677 CF98 7YY

Jupiter Cleaning Ltd

43 Ampleforth Avenue
Cardiff
CF21 6TH
19th October 2009
By Fax
Dear Mr Morton

Ref: Cleaning Contract for Brantwood DC

I refer to my letter to you of 9th October and pursuant to that I hereby terminate our contract.

You will receive Brantwood’s claim for compensation in due course.

Yours sincerely,

Vincent Yip
Vincent Yip
Estate Services
Brantwood District Council
 JUPITER CLEANERS LTD
43 Ampleforth Avenue
Cardiff
CA21 6TH

Tel:- 029 2225 2222

Estate Services
Brantwood District Council
23 Swansea Drive
Brantwood
Cardiff CF98 7YY

23rd October 2009

Dear Sir

Ref: Cleaning Contract for Brantwood DC

My staff inform me that you have blocked their access to your

premises for the purposes of cleaning. I assume that this is
in purported furtherance of your wrongful attempts to
terminate our contract.

I have received your letters of 9th and 19th October 2009. I do

not accept that Jupiter was responsible for the rat droppings
found by the inspectors in August. It is impossible to keep
rats out of that storage shed, as I advised Mr. Tim Osborne of
Brownlow Foods several times. There is a broken airbrick,
which lets rats into the shed from outside, and no amount of
cleaning will rectify that. I also told John Poulter in your
Works Department about the broken airbrick but it would appear
he did nothing.

I do not accept that Jupiter is in breach of any of its

obligations under the contract and demand that you retract,
with immediate effect, your purported termination under the
contract which was wrongful and without justification. In the
event that you do not, I reserve the right to claim from you
compensation for loss of profits on the performance of the
contract at the rate of £500 per week.

Yours faithfully,

GM

George Morton
(Chief Executive)
PROPOSED PROCEEDINGS

NAME: Shabbir Ahmed

ADDRESS: Brantwood District Council,
Brantwood House, Brantwood
OCCUPATION: Chief European Legal Counsel
DATE OF INTERVIEW: November 4th 2009

_______________________________________________

DRAFT WITNESS STATEMENT

OF SHABBIR AHMED
_______________________________________________

I, Shabbir Ahmed will say as follows:

1. I am Chief European Legal Counsel employed by Brantwood District Council.

I am in charge of putting in place, overseeing and terminating, if necessary,
any contracts entered into by Brantwood DC. I was responsible for putting the
contract for cleaning services at Brantwood DC headquarters out to tender and
for awarding the contract to Jupiter Cleaning Limited. The contract was
awarded to Jupiter as they were the most competitive on price and have a
national reputation for cleaning contract work. In addition, they are a locally
based firm and I felt that, for this reason, they would give Brantwood DC good
service.

2. I became aware early in the contract that Jupiter Cleaning Limited was having
difficulty in fulfilling the contract. Their staffing levels fell below what was
required on a number of occasions and at least twice, in breach of a
contractual restriction, they sub-contracted part of the works to Beckett & Co.,
another cleaning agency.

3. Their levels of hygiene were not what I would have expected. There were
occasions when glass surfaces were left dirty overnight and brass and other
shiny surfaces were left with fingerprints and other smears on them.
Generally, the offices had an unkempt feel about them and I did not get the
impression that Jupiter Cleaning Limited was up to the job.

4. Further, there were real problems with members of their staff. We received
complaints about noise levels on several occasions. The contract says that
they should not make use of machines that make loud noises whilst cleaning
during the hours 09.30-5.00, which are the normal working hours in the
Council. Loud noises obviously disturb staff who are trying to work. Despite
this, Jupiter’s staff would use industrial vacuum cleaners and would sing
loudly during office hours.

5. On 19th August 2009, the Brantwood Food Hygiene Inspectorate paid a

surprise visit to the offices. This was the first visit we had had in four years.
 It was intended to catch us unawares so that we did not have the time to
prepare for the visit.

6. I was not in the office on the day of the visit but I have since heard that the
inspectors closed the kitchens down completely. There is a food storage area
behind the kitchen at the back of the building at ground level which is used for
storing powdered foods such as powdered egg and flour. Rats’ droppings
were found among the bags of food and the inspectors considered that the
kitchens were too unhygienic for the use of preparing food for human
consumption. Brantwood DC were subsequently prosecuted for this breach of
the hygiene regulations and we had no option but to plead guilty. Brantwood
was fined £20,000 by the Brantwood magistrates.

7. I spoke to George Morton of Jupiter Cleaning Limited in July 2009 and he told
me that he, on more than one occasion, had warned Brownlow Foods, the
catering company employed by Brantwood DC, not to leave the door to the
storage shed open. Brownlow Foods deny ever having been warned to keep
the doors closed and I believe them.

8. I cannot believe that Jupiter are blaming Brownlow Foods. It is not they who
are responsible for cleaning the premises - that responsibility lies with the
cleaning company and had they fulfilled their obligations under the contract,
the inspectors would never have found any rat excrement. Consequently
Brantwood DC would never have been fined.

9. I drafted the letters dated 9th and 19th October 2009 terminating the cleaning
company’s employment. I believe that they are in breach of contract and that
Brantwood DC have a right to terminate the contract pursuant to clause 9.

Shabbir Ahmed
………………………………….
Shabbir Ahmed

4th November 2009

Extract from report of Food Hygiene Inspectorate
22nd August 2009
…

While inspecting a small concrete storage bunker behind the kitchens at ground level,
I noticed small green pellets. I took a closer look, concerned lest they were old frozen
peas left to fester and discovered to my disbelief that they were rats droppings. I
could not tell how old they were and therefore could not say whether they had been
there for days or weeks or months or merely a matter of hours.

I realised that the kitchens would have to be closed immediately but, before ordering
their closure, I wanted to see whether any other flagrant infringements of food
hygiene regulations were being perpetrated. I was, at this stage, conscious that a
prosecution was likely, as the presence of rats in food preparation and storage areas is
not a minor transgression of the legislation, but is a very serious infringement indeed.

I went into the kitchen and found a number of other causes for concern. In particular I
found kitchen equipment with remnants of dried on food and kitchen tiling harbouring
in the cracks dirt that was visible to the naked eye. Of even greater concern was
blood from fresh meat dripping over fresh vegetables stored temporarily on the floor.

I immediately ordered the kitchen to be closed and made my report to the

Inspectorate.

…
THIS AGREEMENT IS MADE THE 13TH DAY OF SEPTEMBER 2008
BETWEEN:

Brantwood District Council (‘Brantwood’) whose registered office is at Brantwood

House, 23 Swansea Drive, Brantwood, Cardiff CF98 7YY

and

Jupiter Cleaning Limited (‘Jupiter’) whose registered office is at 43 Ampleforth

Avenue, Cardiff, CF21 6TH

IT IS HEREBY AGREED AS FOLLOWS:

1. Brantwood hereby employs Jupiter to carry out the services (‘the Services’)
listed in clause 2 below at the offices of Brantwood at Brantwood House, 23
Swansea Drive, Brantwood, Cardiff CF98 7YY (‘the Premises’).

2. Brantwood will permit access to the Premises to Jupiter and its staff for the
purposes of performing the Services.

3. The Services include keeping the Premises clean and hygienic including, but
not limited to, the following:

(i) vacuuming all carpets;

(ii) mopping and brushing all hard floor surfaces;
(iii) wiping and disinfecting all table and other flat surfaces;
(iv) keeping the premises free of dust and cobwebs;
(v) removing and disposing of all litter, paper cups, papers and other
unwanted items of debris left at the premises;
(vi) emptying all bins;
(vii) cleaning telephone mouthpieces;
(viii) washing windows; and
(ix) cleaning lavatories;

4. Jupiter shall not sub-contract the Services or any part of them to any other
person without the consent in writing of Brantwood which consent shall not be
unreasonably withheld.

5. The Services shall be performed daily throughout the year save for four days
over Christmas and two days over Easter. The Services shall be carried out in
two shifts daily, one shift between 07.00am - 15.00pm (the First Shift) and the
other from 15.00pm - 20.00pm (the Second Shift).

6. No loud noises may be made by Jupiter during the currency of the First Shift,
and in particular Jupiter must not use machinery that makes a noise likely to
disturb employees of Brantwood during normal working hours.

7. Jupiter will carry out its obligations hereunder using reasonable skill and care.
8. In consideration of the Services, Brantwood shall pay Jupiter the sum of
£1,750 per week plus VAT, payable monthly in arrears on the 28th day of each
month.

9. Brantwood may, without prejudice to any other of its rights or remedies,

summarily determine Jupiter’s employment under this contract in respect of
the whole or any part of the Services if Jupiter:

(i) fails forthwith upon notice from Brantwood to remedy any default
notified to Jupiter in writing by Brantwood;

(ii) fails within 7 days of notice in writing from Brantwood to proceed

with the Services to the reasonable satisfaction of Brantwood and in all
respects in accordance with the contract;

(iii) fails forthwith to remove, at the request of Brantwood any employee to

whom Brantwood objects or whose presence on the Premises
Brantwood reasonably fears may contravene the conditions of this
contract;

(iv) fails within 7 days notice in writing from Brantwood to comply with
any of the obligations on the part of Jupiter herein contained; and

(v) fails within 7 days of notice by Brantwood adequately to explain any

default committed by Jupiter in the performance of its obligations
hereunder and provide such assurances as Brantwood may reasonably
require that such default will not recur.

10. This contract is terminable at will by either party on four (4) weeks notice, to
be given in writing.

Signed Print Name

Shabbir Ahmed Shabbir Ahmed

………………………. ……………………….
Brantwood District Council Brantwood District Council

Signed

GM George Morton
………………………………… …………………………………
Jupiter Cleaning Limited Jupiter Cleaning Limited