CALLOWAY PRICE LLP — ATTENDANCE NOTE

Matter: Tidewell Fabrication Ltd — Brisamar Logistics SA (Valencia conveyor system) Matter no: 2025/0412 Fee earner: Sarah Adeyemi (Partner) Date: 15 May 2025, 14:00–15:10 (70 minutes) Attending: Sarah Adeyemi (SA); Daniel Mercer, Managing Director, Tidewell (DM); Priya Nair, Project Manager, Tidewell (PN) joined at 14:20

1. Background as instructed

DM confirmed the chronology: contract signed 4 November 2024 at €1,240,000; amended and restated 20 January 2025 at €1,288,000 with practical completion re-baselined to 25 April 2025; Bay 3 floor slab found out of tolerance 18 February 2025 (Levantina survey 18 mm over 3 m vs 5 mm tolerance); first delay notice 21 February 2025; Brisamar said proceed at risk 24 February; 400A power supply due 7 February but only energised 18 March 2025; second notice 9 March, rejected 11 March; invoice 0417 for €257,600 issued 24 March, due 23 April, unpaid; termination letter received 2 May 2025; Tidewell left site 9 May 2025 after joint inspection on 8 May.

DM: Tidewell has been paid €901,600 to date (instalments 1 and 2 plus the amendment adjustment). Outstanding: invoice 0417 (€257,600) and the final 10% (€128,800) which was never invoiced. Tidewell also has unrecovered costs on CO-3 (sub-frame, roughly €41,000 actual cost) and prolongation costs it estimates at €55,000.

2. Key issues identified

2.1 Validity of termination. Clause 12.1 requires written notice specifying the breach and a 21-day cure period before termination for a remediable breach. No such notice was served; the 2 May letter terminates with immediate effect. Late completion is plainly capable of remedy. SA's preliminary view: termination was wrongful and amounts to a repudiatory breach which Tidewell can accept, or Tidewell can treat the letter as a termination for convenience under clause 12.3 (30 days' notice, payment for work done plus 10% demobilisation). Need to elect carefully; advise within two weeks.

2.2 Extension of time. Both notices appear to be within the 14-day period in clause 9.2. Floor slab is Brisamar's responsibility under clause 6.2; power supply under clause 6.4. Need a delay expert to quantify the critical delay and separate out Tidewell's own delays (DM accepted delivery was six days late and that Velden's software had defects in April).

2.3 Liquidated damages. Brisamar claims €45,080 (seven weeks from 21 March). LDs under clause 10.1 run from the practical completion date, not mechanical completion, so the calculation is wrong on its face. With an extension of time the exposure should be small.

2.4 Withholding of invoice 0417. Clause 3.5 requires notice five business days before the due date (23 April). The withholding notice came on 2 May, after the due date. Interest at 4% over base runs from 23 April.

2.5 Brisamar's survey. Brisamar has asserted its own survey shows the slab within tolerance but has never produced it. Request it in pre-action correspondence.

3. Advice given

3.1 Do not respond substantively to the termination letter yet. SA to send a holding letter reserving rights by 19 May 2025. Full response to the termination, including Tidewell's election under 2.1, to be sent by 30 May 2025.

3.2 Preserve all documents: site diary, progress reports, e-mails, Velden commissioning log, photographs, delivery notes. PN confirmed the site diary and photographs are held on Tidewell's SharePoint; SA to send a litigation hold notice.

3.3 Instruct a delay expert now. SA proposed Dr Helena Voss of Meridian Forensic Scheduling; DM agreed. Instruction letter to go by 20 May; report targeted for end of June.

3.4 Governing law England and Wales, exclusive jurisdiction English courts (clause 15). Pre-action: clause 16.1 negotiation (20 business days) then the Pre-Action Protocol for Construction and Engineering Disputes. Target letter before claim: 15 July 2025.

3.5 Limitation is not an issue (six years from breach). No urgency on issuing proceedings beyond commercial pressure on cash flow.

4. Settlement

DM indicated Tidewell would settle for payment of invoice 0417 in full plus €60,000 towards CO-3 and prolongation, and a walk-away on the final 10%. SA advised that this range is realistic given the expert position but that Brisamar's completion costs with a replacement contractor could be used against Tidewell if the termination were held valid. Revisit after the expert's preliminary view.

5. Actions

Ref | Action | Owner | Due
1 | Holding letter reserving rights | SA | 19 May 2025
2 | Litigation hold notice to Tidewell and Velden | SA | 16 May 2025
3 | Instruction letter to Dr Voss | SA | 20 May 2025
4 | Collate site diary, progress reports, photos, Velden log | PN | 23 May 2025
5 | Advice on election (repudiation vs clause 12.3) | SA | 28 May 2025
6 | Full response to termination letter | SA | 30 May 2025
7 | Letter before claim | SA | 15 July 2025

Time recorded: 1.2 hours (SA).
