For The Avoidance of Doubt
All this 'he said - she said' is wearisome and usually unhelpful but once in a while we feel we must set the record straight and this one really does need outing for all to see.
As most people are now aware we made a deal with the Ruskin Museum way back in 2013, a legally binding contract accepted by us in both writing and in conduct. A contract that stands to this day because, though various offers and alternatives have been on and off the table, we've never formally ended it. A contract which gives us running and maintenance rights for K7 whilst the museum handles the display side.
One alternate version of this contract was proposed in the summer of 2019 and has since been touted several times as a good offer that we dismissed out of hand. The fact that we rejected it has been used to mislead the public into thinking we were being greedy or awkward so it's about time we told you what really happened. Earlier this year the following email was sent to the trustees following their first open letter. It was penned by Peter Roper-Hall in conjunction with the BBP team
Further to your open letter to some of the members of the Bluebird Project Team (BBP) of 17th September 2021, we feel bound to correct some glaring inaccuracies in some of the statements you have made.
In particular with the following statements:
“Having previously tried to negotiate an agreement in 2019 based around what BBP said they wanted and having that dismissed out of hand followed by a barrage of criticism and refusal to discuss the topic, Trustees concluded the latter course was their best option.”
Firstly you say that BBP dismissed your draft contract out of hand, which is correct. What you fail to make clear is the extremely valid reasons why we did so.
When members of BBP, members of the Campbell family, and representatives of the Ruskin museum met on 6th July 2019, it was agreed that we would put the past completely behind us and just focus on the excellent work [redacted] had done in brokering a way forward.
There was an excellent, fully satisfactory and, we believed, agreed plan at the end of the meeting that the Ruskin museum would have K7 for 270 days of the year and BBP would have K7 for the remaining 90 days. It was also made absolutely clear that any contract would need to be legally watertight such that neither party could interfere with the other's allocated time with K7 and we left that meeting believing that was fully understood and agreed.
In my working career I was involved in many contract negotiations on supply, sales and sponsorship agreements, both in the UK and internationally, as well as franchise agreements. Whilst I am not legally qualified, I worked very closely indeed with our legal counsel going through each of those contracts - line by line - to ensure they were fully robust and delivered exactly what was intended without ambiguity and especially without the opportunity for for the spirit of what was intended to be subverted by any of the parties.
So it was with a great sense of sadness and betrayal that we read your draft contract. It was crystal clear that the draft contract you sent was the polar opposite of what was agreed and discussed in the meeting in July 2019.
As was subsequently made clear in correspondence with the Campbell family and yourselves, clause 184.108.40.206 of that contract, far from guaranteeing that BBP would get K7 for their allocated period, it actually gave the clear opportunity for that to be totally denied. That was an absolute and clearly defined requirement so it was inevitable that the draft contract would be treated with the robust rejection that it received.
We can only draw two plausible conclusions for why you chose to draft such an ill advised clause into that contract. Either you naively assumed that BBP wouldn’t notice or recognise the loophole that you had incorporated and sign the contact, or it was a deliberate ploy to sabotage the process because the museum never intended to allow a contract that guaranteed that BBP would have the agreed 90 day time allocation which was agreed in the July 2019 meeting.
That was more than enough reason to robustly reject your draft contract, but you added insult to injury with clause 4.3 where you had made a provision to allow the Ruskin museum to run K7 in dynamic displays without any involvement from BBP.
After the incredible hard work, dedication, skill and time that BBP has put into recovering and restoring K7 there can’t be anyone else who could possibly understand K7 better so it would be frankly irresponsible to put her into the hands of anyone with less understanding or knowledge about her construction. You must have realised how inflammatory that clause would be so it suggested to us it was another way to sabotage the agreement.
So saying that BBP rejected your draft contract “out of hand” with out the clearly documented reasons why that happened is, at best, not being completely transparent nor does it acknowledge the Ruskins Museum’s role in ensuring that would happen.
You go on to say that BBP went on to refuse to discuss the topic.
Let’s look at the documented facts:
We agreed a follow up meeting on 19th October 2019. BBP were all geared up to attend that event and look at how we could make the agreements reached in the July 2019 meeting a reality. It was the museum who refused to go ahead with that meeting.
We subsequently wrote to the Campbell family and you outlining where our issues were with your draft contract and detailing fully why they were of legitimate concern to us. We also made clear our continuing desire to enact what was agreed in the July meeting. Despite requests, We have never had the courtesy of a written response to that communication.
Gina Campbell emailed me on 27th January 2020 asking if we could have a chat on the phone. In the subsequent conversation she passed on a message from the trustees of the Ruskin Museum saying that the museum were totally unwilling to have any further involvement with BBP and asked me to relay that message to Bill Smith - which I did - as confirmed in my reply to Gina on 30th January 2020 on which you were copied.
That eMail also makes pretty much exactly the same comments I have reiterated above. It also confirms BBP’s willingness to continue a dialogue with the museum with the purpose of enacting a contract that makes good on the agreements reached in the July 2019 meeting.
It was then BBP who suggested a zoom conference on 5th November last year to look at how we could jointly make progress and move towards a mutually satisfactory conclusion.
That meeting was chaired by Jordan Aspin and I was also in attendance. Sadly that opportunity was completely wasted as not one single positive suggestion came from your side.
We tried again, on two occasions during that meeting, to suggest we go back to the agreement reached in the July 2019 meeting and progress from a point where there really was a basis for a mutually satisfactory agreement, but were just met with negativity from your side.
Instead you wasted the best part of two hours taking it in turn to just reiterate all the old gripes and history we have already heard so many times before. Another indication of the unwillingness of the Ruskin museum to demonstrate any desire to honour the proposals agreed in the July 2019 meeting or find a way to move things forward positively.
In addition to the above, there have been other advances made by BBP to the Ruskin Museum to build a continuing dialogue, but each one has been met with rejection by yourselves.
These clearly documented facts fully demonstrate that your assertion that BBP are unwilling to discuss the topic is totally unfounded and incorrect. In fact the opposite is demonstrably the case.
Let us also make abundantly clear that if the Ruskin Museum are prepared to properly honour the agreement that was reached verbally in the July 2019 meeting and give BBP unfettered access to K7 for the 90 days a year (as we would give the museum unfettered access for their 270 days allocation) that was agreed, we are ready, willing and very eager to sign up to a suitably worded contract.
We also note, from your open letter of 17th September 2019 that you don’t appear to want to go to mediation. Given what I’ve pointed out above that doesn’t surprise us in the least as we are certain these facts would not be favourably viewed by any mediator.
We also note with some consternation that in your last missive of 24th September you say that the museum is “unwilling to enter into any further mediation”. This would seem to imply that there has actually been some meditation. If there has then BBP have not been included, which would rather defeat the object.
So we are curious as to why you should have chosen to imply that and potentially mislead the public by posting this letter on your website.
We also note that you are asking BBP to refrain from making any comments in the media. Similarly that doesn’t surprise us since if they were aware of the truth about the museum's actions and behaviour since the July 2019 meeting and the verbally agreed plan from that meeting, it certainly wouldn’t paint the Museum in a good light either.
The saddest part of this for us is that if the museum had honoured what was agreed in the July 2019 meeting and hadn’t instead issued a draft contract, with the completely and blatantly unacceptable clauses the museum deliberately chose to put into your draft contract, K7 could very probably be in your museum now.
Finally you are suggesting that, if it comes to it, it is a choice that BBP have made to dismantle K7.
Nothing could be further from the truth. After all the incredible effort, skill, and time that was put into K7 to bring Donald’s legend back to life, it is the last thing we want to do.
However, if the museum force us into that position by refusing to honour what was agreed in the July 2019 meeting we have no doubt that will happen since why would BBP want to reward you for your complete and almost certainly deliberate failure to enact a satisfactory contract and give us nothing in return?
The reality is that it will be the result of the museum’s actions if it comes to that and we've no doubt the public will see that very clearly when in possession of the facts.
You have a clear opportunity to avoid such a completely unnecessary outcome - just sign up to a contract that honours the verbal agreements reached in July 2019.
Let us reiterate yet again BBP are totally committed to signing up to a satisfactory contract that honours that and will happily enter into whatever form of dialogue that would enable that to happen. The real question is are you?
We sent that off and awaited a response but when that response came it was in the form of a lawyer's letter that made a very ineffectual attempt to mitigate our very valid points. We won't publish that at this time as it's a legal letter but suffice to say it was very weak then ended with the the following paragraph,
'Finally, this letter is written to set the record straight. It is not written as an invitation for you to respond. In any event my client and I consider that this art of the history of this matter is now settled. We see no point in continuing to debate it. Hence, it is not our current intention to engage further with you on it.'
But it very much didn't set the record straight. It tried to leave the record as they wanted it. We emailed again.
Further to our eMail to you of 25th September and the subsequent reply from your lawyer of 7th October, which we are pretty sure you will have seen, but have attached for your convenience, we are compelled to write to you again as it states that it is important that the record is accurate.
We fully agree, but the reply most certainly does not adequately respond to the issues raised at all and also that there would be no further correspondence.
Clearly that is a totally unsatisfactory situation so it is our duty on behalf of BBP to respond appropriately.
We have also copied the trustees, and your lawyer along with the members of the BBP team you addressed in your original communication.
Taking his points one by one.
1.1 It was made perfectly clear both before the July 6th 2019 meeting verbally to [Redacted] and during that meeting by ourselves - on more than one occasion - and by Bill Smith - also on more than one occasion, that any contract would have to be absolutely watertight.
This was clearly such that BBP would be guaranteed to be able to take K7 from the museum for up to 90 days per annum without hindrance. If the period was to be less than 90 days it would be at the sole discretion of
Most importantly, it was paramount that there should be no room for any ability for any other party or parties to deny that access for it to be a watertight agreement
Equally any satisfactory contract would bind BBP to guarantee that K7 would be returned to the museum without any hindrance by BBP for the remaining 270 days.
Nobody could have left that meeting without it being perfectly clear that any contract that did not deliver that would never be accepted by BBP.
Our understanding of clause 220.127.116.11 is that it clearly gives the ability for the steering committee to outvote BBP and thereby potentially deny BBP access to K7 ever again.
This is absolutely fundamental to everything which followed so please either confirm that we are incorrect and that this clause could never be used to deny BBP access to K7 for their 90 days per annum or acknowledge that what you drafted could.
People change, attitudes change, which is why this needed to be a watertight agreement. So the key issue here is not about whether that clause would be invoked for that reason - it is whether it could be. If it could, this could never be a watertight agreement and therefore not what was made clear in the July 19 meeting and clearly unacceptable to BBP.
As for there being nothing in the draft agreement that is contrary to that previously discussed and agreed - there most certainly is. As stated above nobody could have left that meeting not understanding that the agreement had to be watertight as outlined above. This is alluded to in the minutes in [Redacted] summary where he states:
“Bluebird Project Limited are happy to hand over Bluebird if the legal contract is right with them having access for up to 90 days of the year”
It must have been crystal clear to everyone in that meeting that a clause like 18.104.22.168 in any contract would never have been “right” or accepted by BBP.
As for having the boat for up to 90 days, the way this clause is constructed the actual period would also be wholly at the discretion of the steering committee. Had it said BBP could have K7 for up to 90 days - the exact period each year to be at the sole discretion of BBP - that would not have raised a concern with BBP, though the part of that clause that mentioned approval of the steering committee certainly still would have.
1.2 Then deals with ownership. There was a period from July 2019 where BBP were prepared to consider passing title, as the minutes reflect:
“If all terms of the contract are agreed Bluebird Project Limited will donate all the parts belonging to them on Bluebird and volunteer hours to Ruskin Museum”
Since all the terms of the contract were certainly not agreed - for a number of reasons - that offer was withdrawn following the issuing of the draft contract.
This brings us to the question as to what legal right do the Ruskin museum have to make such demands.
The Ruskin Museum only legally own what was gifted to them by the Campbell Heritage Trust - namely the wreck of K7 which BBP recovered. That is fully confirmed in the letter from Short Richardson & Forth to Healys dated 23rd April 2019.
This is also clearly recognised in the minutes to the July 19 meeting in the paragraph quoted earlier:
“If all terms of the contract are agreed Bluebird Project Limited will donate all the parts belonging to them on Bluebird and volunteer hours to Ruskin Museum”
We therefore completely fail to understand by what logic the museum feel they have the right to demand ownership of materials and labour they clearly don’t own.
Furthermore, how can the museum therefore justify making such an unacceptable demand a condition of further discussions with BBP. The museum had their chance, but the glaring problems with their draft contract made this no longer an offer BBP would or could then sensibly consider.
We therefore also don’t understand how your lawyer can justify saying that it was BBPs fault that negotiations failed when it is abundantly clear that the museum failed to honour what was discussed and agreed in the July 2019 meeting and then refused to continue discussions with BBP unless BBP gave them title to property they don’t own.
We would also point out that BBP didn’t reject the draft contract in it’s entirety as you implied, BBP only made clear they were no longer willing to pass ownership of the parts they owned, but did not say they were not willing to continue discussions. Quite the opposite in-fact. The eMail from Bill Smith of 16th September makes clear BBP were happy to continue to work together with the museum.
Furthermore, as pointed out already in correspondence with the museum, the 270/90 day split does not need ownership to be 100% with the museum. The museum could already have had K7 on display without any change in ownership if they would agree to a suitably worded contract.
We would also remind you that [Redacted] encouraged you to put the issue of ownership to one side and continue with discussions with BBP in his eMail to you and Gina of 13th October 2019.
So our next question is why were the museum so fixated on gaining ownership of property they currently don’t own and don’t need to own, thereby denying themselves the opportunity to have had K7 in the museum satisfying the public’s desire to see her and generating income for the museum.
With regards to Bill’s email to you of 16th September 2019, Bill did give the lack of a proving trial as a reason not to accept the draft contract as it was written, but it was most certainly not the only reason as he made perfectly clear in his subsequent email to you of 9th October 2019.
We had also made our concerns known in phone conversations with [Redacted] (as chair of the July 19 meeting) and fully expected him to share that with the trustees.
[Redacted] reply to the concerns raised was it was only a draft contract but we expressed our profound disappointment that the museum should see fit to include such unacceptable clauses in the first place and what message that had sent.
Your lawyer also states that “no response was made then or subsequently to the issues of which you now complain”.
As well as passing our concerns verbally to the chair of the July 19 meeting we also supplied a revised summary document which provided the key elements of a backbone for an agreement and that certainly made absolutely clear how the wording of clause 22.214.171.124 needed to be rewritten.
We sent this to [Redacted] initially on 19th December 19. He confirmed that he fully agreed with its content but noted that ownership wasn’t covered.
We therefore added a final paragraph which just reiterated the position we had made clear already and re-emphasised that a fully satisfactory agreement which gave the agreed 270/90 allocation to each party could be reached without any change to the current shared ownership position.
This also acknowledged that the exact ownership position had not been legally defined, but that ownership was unquestionably shared between the two parties.
We sent this revised document to [Redacted] on 20th December 19 and also asked him to forward it to the trustees or let us know if he wanted us to do so.
We reiterated this request to him on 23rd December 19.
We sent it again on 1st January 2020 to both [Redacted] and Gina Campbell.
We then texted [Redacted] on 2nd January asking him if he had forwarded the document to the trustees and if not to let us know so we could forward it on directly. From a subsequent conversation we understood that he had.
We then wrote to Gina on 30th January 2020 after she had advised that the museum had asked her to contact us to say they were now refusing to enter into any further discussions with BBP and to ask to relay that message to Bill Smith.
In that correspondence we fully documented the issues we made [Redacted] verbally aware of with clauses 126.96.36.199 and 3.4.
We also made it clear that we still firmly believed an agreement based on the 270/90 day split, which was agreed in the July 19 meeting was fully possible and that ownership needn’t change for that to be viable. We also reiterated that we continued to be more than willing to continue discussions with the museum despite their stated refusal to deal with us.
We also copied you into that eMail and made a comment that we was doing so so there could be no doubt that the museum had been made directly aware of the document and it’s content by ourselves. We have still never had an acknowledgment or reply to that document directly from the trustees.
We fail to understand how your lawyer can interpret that as being us refusing to negotiate. He seems to be confusing the museum demanding ownership of property they and BBP’s legal representatives have stated they don’t own as being reasonable, and us exercising our perfect right not to accede to such demands as us being unreasonable.
The truth is that the boot is firmly on the other foot and it is the museum who are adopting an unreasonable position and it is solely for that reason that dialogue was ended on this matter despite our continuing offers to resume discussions.
Furthermore the emails your lawyer shows as demonstrating that the museum was perfectly willing to continue discussions with BBP all predate the point at which the museum unilaterally advised us that they were no longer willing to have any further dialogue with us (as covered in our email to Gina of 30th January 2020) so do not demonstrate anything that contradicts our observations.
We are not aware that at any point prior to Peter Roper-Hall's phone conversation with Gina and the subsequent eMail on 30th January that BBP made any suggestion that they were unwilling to continue discussions. As already clearly documented, it was the museum who adopted that stance not BBP so our original comments remain fully valid.
That being the case your lawyer certainly hasn’t demonstrated that our comments weren’t valid as far as we are concerned and we remain very concerned therefore that you have made statements to the contrary in your open letter.
As for 1.2.2 - K7 is not like an old car from the 1950s, there is no “Haynes Manual” to explain how to restore or maintain her.
The rebuilding of K7 required extraordinary specialist knowledge and ability and nobody else could possibly have greater knowledge than the team that recovered and rebuilt K7. Furthermore BBP have invaluable experience of running K7 on water which no one else now has.
Therefore putting her in the hands of any third party who could not possibly have the depth or breadth of understanding that BBP have would be frankly irresponsible.