1 Wednesday, 24 January 2018 2 (10.00 am) 3 CHAIR OF THE INQUIRY: Yes, Mr McClelland. 4 MR MCCLELLAND: Yes, my Lord. The next witness is 5 Marshall Poulton. 6 My Lord, I should just perhaps observe that the 7 representatives of the City of Edinburgh are not here. 8 It may be that they're not intending to be here, but -- 9 CHAIR OF THE INQUIRY: Yes. Well, I think it's clear that 10 core participants can decide if they're coming or not. 11 It's 10 o'clock, so we will see if they arrive in the 12 course of the morning. 13 MR MARSHALL POULTON (affirmed) 14 CHAIR OF THE INQUIRY: Just have a seat, Mr Poulton. 15 There's water there if you wish it, in the course of 16 giving evidence. You're going to be asked some 17 questions, initially at least, by Counsel to the 18 Inquiry. If you simply listen to the question and 19 answer it as directly and concisely as possible, and if 20 you speak at a measured rate, so that the shorthand 21 writers can keep up with you. 22 Examination by MR MCCLELLAND 23 MR MCCLELLAND: Could you please state your full name. 24 A. William Marshall Poulton. 25 Q. You were the Head of Transport at City of Edinburgh 1 1 Council from April 2008 until May 2013; is that correct? 2 A. From April 2008 until August 2013. 3 Q. Until August 2013, thank you. 4 You also held the post of Tram Monitoring Officer at 5 the City of Edinburgh Council from January 2009 until 6 December 2010? 7 A. Yes. Certainly January 2009. The post started to ramp 8 down from about the August 2010, but officially, yes, 9 through to December 2010, although my role as TMO only 10 amounted to about 5 per cent of my working week. 11 Q. You should see some documents in front of you there, 12 Mr Poulton. Those should be the written answers that 13 you supplied to the Inquiry. Can you see those there? 14 A. Yes. 15 Q. Just for the record, the document references for these 16 are TRI00000115 and TRI00000123. 17 Now that you're under oath, can you confirm that the 18 answers you gave in those are truthful and should stand 19 as your evidence to the Inquiry? 20 A. Yes, they are. 21 Q. Is there anything in them that you no longer think 22 accurate or would like to clarify? 23 A. No, I'm happy with all the answers that I gave at that 24 time. 25 Q. Now, Mr Poulton, you have of course supplied these 2 1 written answers and you've attended today, but is it the 2 case that when you were first approached about assisting 3 this Inquiry, you were not keen on becoming involved? 4 A. No, I don't think that was the case. I think what 5 I said at the time was, given that my involvement in the 6 tram projects only amounted to 5 per cent of my working 7 week for that period of time, January 2009 to later on 8 in 2010, I thought with the answers -- quite 9 comprehensive answers I could give at the time would 10 have been sufficient. 11 Q. Well, were you asked in or around August 2004 by the 12 City of Edinburgh Council whether they could release 13 your contact details to the Inquiry? 14 A. August 2004? 15 Q. 2014. 16 A. August 2014? 17 Q. If we can perhaps have document TRI00000252, please. Do 18 we see here a letter dated 25 August 2014 addressed to 19 you? 20 A. Yes, I can. 21 Q. Do you recall that letter? 22 A. I don't, unfortunately. 23 Q. Well, if we just read through it: 24 "Dear Marshall, as you may know, the Scottish 25 Government has initiated a judge led Inquiry into the 3 1 Edinburgh Tram Project. The Inquiry will be chaired by 2 Lord Hardie. 3 The Council has been asked by Lord Hardie's Inquiry 4 team to provide details of individuals who may be able 5 to assist with specific queries in relation to the tram 6 project. The Council has provided your name as one of 7 the Council officers involved in the project. The 8 Inquiry team have also asked that we provide them with 9 your contact details. 10 I should be grateful if you would advise whether 11 you are willing to allow us to provide your home address 12 to the Inquiry team." 13 If we look to the next page in that document, do we 14 see there that's an email from you in response, 15 1 September 2014, and your response is that you were not 16 willing for your contact information to be released to 17 the Inquiry team? 18 A. I recall that. 19 Q. You recall that? 20 A. Yes. 21 Q. Why was that? 22 A. It was because I had left the employment of City of 23 Edinburgh Council in August 2013, and as far as I was 24 concerned, that would be all I would need to do. As 25 I said earlier, I felt that my role, very minor role in 4 1 the tram project, was very minimal and I didn't think it 2 was going to be worth anyone's time to get me called as 3 a witness. 4 Q. Okay. Thank you. 5 Now, you're a chartered civil engineer; is that 6 correct? 7 A. That's correct. 8 Q. And you have been since 1984? 9 A. That's right, yes. 10 Q. I think you're also a member of the Institution of Civil 11 Engineers? 12 A. Yes. 13 Q. To what extent over your career have you practised as 14 a civil engineer? 15 A. Basically since my first employment, from 1978, being 16 a civil engineer, although from -- from the early 1980s, 17 I would say I was more a traffic and transport expert in 18 that field, rather than general civil engineering and 19 construction management. 20 Q. Can you just expand a little bit on that by what you 21 mean as a transport engineer? 22 A. Yes. From -- I think it would be about 1981, getting 23 involved in public sector, primarily local government 24 for the best part of my career. I was -- I was taken on 25 by traffic and transportation matters such as transport 5 1 policy and planning, development control, road safety, 2 specialising in traffic signals, intelligent traffic 3 signals, and that's how I have built up my career; 4 leaving Glasgow, going down to London, before ending up 5 in Edinburgh as Head of Transport. 6 Q. Before joining the City of Edinburgh Council in 2008, 7 did you have any experience of supervising or overseeing 8 construction projects? 9 A. Before 2008? 10 Q. Before joining the Council? 11 A. No. 12 Q. You've supplied a CV to the Inquiry. We don't need to 13 go to it, but for the record, the reference is 14 CVS00000048. According to that, prior to joining the 15 City of Edinburgh Council, you were the Head of 16 Technology and Systems at Transport for London; is that 17 correct? 18 A. That's right. 19 Q. Your CV says that you were involved in the development 20 of London's traffic control centre and delivery of the 21 Olympic route network; is that correct? 22 A. Yes. The delivery of the Olympic route network was 23 effectively the technology along the route and the 24 Traffic Regulation Orders, not -- not the construction 25 of. 6 1 Q. In relation to the traffic control centre, what was your 2 role? 3 A. With regard to the traffic control centre, it was 4 setting the vision, long-term vision over a 20-year 5 period, and then working with a team, trying to deliver 6 the actual control centre itself, which was a temporary 7 one until it was going to be migrated over to the new 8 building, which was about three miles away in the centre 9 of London. 10 Q. Was the part that you were involved in to any extent 11 a construction project? 12 A. No. 13 Q. Before you were at Transport for London, your CV says 14 that you were the Head of Policy, Planning and Design at 15 the City of Edinburgh Council. Is that correct? 16 A. Policy, planning and design at Glasgow City Council? 17 Q. Yes. 18 A. Yes. 19 Q. According to the CV, you managed the design section for 20 all technical services, including roads and bridges? 21 A. Yes. 22 Q. Can you just explain briefly what that role entailed? 23 A. The role from recollection started in about 2003. It 24 was essentially policy and planning, but due to local 25 government cut-backs and a rationalisation of a number 7 1 of higher level tiers in Glasgow City Council, it was 2 decided to do -- not so much a re-organisation, but 3 a realignment of services, and it felt the design 4 side -- or I was asked if I would look after the design 5 side of the house which amounted to about 95 people from 6 memory. 7 Q. Did that role give you any insight into the design 8 elements of such things as roads and bridges? 9 A. Yes, it certainly gave me an insight into the problems 10 associated with the engineering and construction of 11 roads and bridges, but I had two very competent and 12 capable chief engineers underneath me, one being a chief 13 engineer for roads and one being a chief engineer for 14 bridges, and I left them to get on with the day-to-day 15 management, and I basically gave them the steer, the 16 direction and the leadership. 17 Q. Was it necessary for you to perform your role to 18 understand aspects of the engineering associated with 19 roads and bridges? 20 A. Not really. As I say, I had two very experienced 21 professional, very well-respected chief engineers which 22 I was very comfortable with, how they delivered the work 23 and managed the sections on a day-to-day basis. So 24 I didn't really need to get heavily involved in the 25 engineering. 8 1 What my Director had asked me to do was more on the 2 transport policy and the programming and setting the 3 vision and direction. If I remember rightly, it was for 4 the year 2020, and that was about 13, 14 years ago. So 5 it was setting the direction for the Council on 6 transport policy matters, rather than actual delivery 7 and construction of individual projects. 8 Q. Your CV makes no reference to the tram project or to you 9 having been the Tram Monitoring Officer; why is that? 10 A. I would say, as I mentioned before, it was mostly 11 because I felt it was -- it was insignificant and it 12 didn't really warrant mentioning. I've never been 13 involved in a tram project before that, and, as I say, 14 for the 18 months or so, I was doing this role for about 15 5 per cent of my time, I didn't think it really 16 warranted it, and I didn't want any prospective 17 employers to think that I was a tram expert by any 18 manner of means. 19 Q. If we can look, first of all, at your role as the Head 20 of Transport, which is the role that you were recruited 21 into at the Council in May 2008. 22 Was that a role in the Department of City 23 Development? 24 A. It was. 25 Q. Did you report to Dave Anderson who was himself the 9 1 newly appointed Director of that Department? 2 A. I did. 3 Q. Where did you come in the hierarchy of that Department 4 relative to Mr Anderson? 5 A. Mr Anderson was the Director of City Development, 6 looking after four, I would say, individual functions. 7 So I was the Head of Transport, one of four at that 8 level, reporting directly to Mr Anderson. Mr Anderson 9 looked after about 750 staff, from memory, and I think 10 I had in the order of about 150. 11 Q. So were you, with the other three Heads of Department, 12 essentially second in command to Mr Anderson? 13 A. Yes, the four of us were the next tier down. I think 14 Edinburgh City Council called it third tier. 15 Q. And if you were the Head of Transport, what were the 16 names of the roles for the other departments? 17 A. The other departments were Economic Development, 18 Corporate Property and Planning. 19 Q. What were your main responsibilities as the Head of 20 Transport? 21 A. As Head of Transport, I was duty bound to take forward 22 transport policy and programming, look at road safety, 23 development control, traffic signals, look after the 24 roads and structure section, as well as flood 25 management. 10 1 Q. If we have in mind the responsibilities that you had in 2 that role, what proportion of your time was taken up 3 with them, compared to the responsibilities that you 4 later took on for the tram project? 5 A. Well, from when I started employment with -- within 6 Edinburgh, from April 2008, certainly the rest of 2008, 7 it was 100 per cent spread across all those functions, 8 obviously varying degrees. 9 I did have some interaction with the tram, but it 10 wasn't as a TMO. It was more as the Head of Transport, 11 and it was making sure that whatever was happening on 12 the construction of the tram network generally on the 13 roads, not so much off-road, but on the roads, to make 14 sure Edinburgh was kept moving through that very 15 difficult construction phase. 16 Q. Now, the Infraco contract between tie and the 17 Bilfinger/Siemens/CAF consortium was signed in May 2008. 18 Were you involved in any of the Council's decisions 19 about that contract, prior to it being signed? 20 A. No. 21 Q. If we turn to the post of Tram Monitoring Officer, if we 22 could look first of all at the written response to the 23 Inquiry, which is TRI00000115. 24 If we could just look at the first page, what you 25 say there, just the final paragraph on that page -- 11 1 sorry, I should say, Mr Poulton, do you have that on the 2 screen in front of you? 3 A. I do, yes. 4 Q. I'll just start on this page and read over to the next: 5 "In joining City of Edinburgh Council in April 2008, 6 I had absolutely no experience in delivering or 7 assisting in any form of tram project. Indeed, at my 8 appointment to CEC I was very clear with my Director, 9 Mr Dave Anderson, that I was interested in accepting the 10 Head of Transport role on offer on the basis that I had 11 minimal involvement in the Edinburgh Tram Project. 12 Mr Anderson accepted my position and we both agreed that 13 my involvement would be no greater than 5 per cent of my 14 time and would be reviewed in the future." 15 Now, you say there you had absolutely no experience 16 of any form of tram project. Could the same have been 17 said of all the other officers in the Council at the 18 time? 19 A. No, because I would say that certainly, without being 20 accurate to the numbers, there were at least five to ten 21 people who had been involved in some form of the tram 22 project. In other words traffic management around the 23 utility diversions at the time, more than likely the 24 Final Business Case as it was prepared, I think from 25 memory, December 2007, and then there would have been 12 1 some knowledge regarding the process of getting 2 technical approvals signed off. 3 Q. So who were the individuals in the Council who had prior 4 experience of a tram project? 5 A. Well, prior experience in the sense of prior to me 6 starting, the -- the individuals concerned would have 7 been Duncan Fraser, there would have been Andy Conway, 8 there would have been a number of engineers, technicians 9 further down the line, their name escapes me, who would 10 have been doing the temporary Traffic Regulation Orders 11 for, at that time, closure of the roads or restriction 12 of the roads to allow the contractor to go in to move 13 the utilities. 14 There would also have been some financial experts 15 involved. Again, I don't think they would have had 16 experience of a tram project before that, but they would 17 have had X number of months' knowledge of what was about 18 to come up from financial or legal or even planning 19 perspective. 20 Q. So to be clear about your answer, are you saying that 21 these people had worked on a tram project other than the 22 Edinburgh one before they came to work on the 23 Edinburgh -- 24 A. I have no knowledge of their previous experience outwith 25 Edinburgh. 13 1 Q. Yes. So you don't know if any of them had worked on 2 other schemes? 3 A. No. 4 Q. Insofar as you know, the only experience they had of 5 a tram project was from working on the Edinburgh 6 project? 7 A. That's right. 8 Q. At the level of senior officers, which you were 9 represented and above, did any of those officers to your 10 knowledge have prior experience before the Edinburgh 11 project of working on a tram project? 12 A. I have no knowledge of that. 13 Q. Now, I think it's fair to say that many of the tram 14 project's problems and disputes concerned the civil 15 engineering works. Is it fair to say that your 16 qualification and background as a civil engineer gave 17 you a better basis than other Council officers for 18 understanding what the issues were? 19 A. I don't think a better basis on the engineering, 20 construction, and the risks around the project itself. 21 I think where my experience came in was, as I say, 22 trying to keep Edinburgh moving over that difficult 23 period of time. It was only over at least three 24 years -- three years of construction works, either for 25 moving utilities, the subsequent diversions around that, 14 1 and keeping Edinburgh moving, all the businesses and the 2 shopkeepers, et cetera. 3 I would like to think we did the job to the best of 4 our ability, but I have to put my hands up and say 5 things did go awry at times from the traffic perspective 6 and tailbacks. 7 Q. At your level of officer in the Council and above, were 8 there any other civil engineers, apart from you? 9 A. Not to my knowledge. 10 Q. Now, you said in your written response that you said to 11 Dave Anderson you were only interested in the Head of 12 Transport job if you had minimal involvement with the 13 tram project. Why were you so keen not to be involved? 14 A. For first thing, I'm not a one-project person. I think 15 my skill sets are -- I've got a broader portfolio from 16 that. So I never really wanted to be attracted back up 17 to Scotland with just one project. I could have gone 18 elsewhere for that. 19 As I say, when the job was advertised, Head of 20 Transport, and I read the job description in the 21 prospectus, that is what appealed to me, was the broad 22 range of functions, activities, to deliver for the City 23 of Edinburgh. 24 Yes, I knew there was a tram project about to come 25 online, but in my conversation with Mr Anderson, I made 15 1 it clear at that time that if he wanted some assistance, 2 I would be prepared to help out whatever way I can, but 3 I wanted to keep that to an absolute minimum, and I used 4 the figure of about 5 per cent. 5 Q. Because your recruitment to the Council was just before 6 the work began on the Infraco contract. Was it 7 realistic to expect that your -- if you were being 8 recruited as the Head of Transport, was it realistic to 9 expect that you were going to be able to limit your 10 involvement in the project in that way? 11 A. It was always going to be a tall order and I wasn't 12 under any illusions when I took the job. But as I said 13 originally, it was the broad range of functions and 14 activities I was wanting to deliver, and I knew that 15 there would be interaction with tie to deliver the tram 16 project, and I was more than happy to go along that 17 route. But I wasn't really wanting to get involved in 18 a day-to-day 100 per cent of my time involved in all the 19 reporting of the tram and overseeing which could have 20 been involved in the Tram Monitoring Officer role. 21 Q. The agreement you say you reached with Mr Anderson that 22 your involvement would be no more than 5 per cent of 23 your time, when was that agreement reached? 24 A. I had indicated that at the start, because I think he 25 asked a question at interview stage. But it wasn't 16 1 until later on that year, I would have said maybe late 2 autumn, that Mr Anderson approached me to say that, due 3 to difficulties with the tram project at that time, with 4 foreseen issues that could come up, he was wanting to 5 formalise the TMO role, and that's why there were -- 6 I think Mr Anderson had an internal governance review, 7 and I was formally appointed as TMO from January 2009. 8 Q. What I'm trying to understand is whether it was agreed 9 on your recruitment that any involvement you were to 10 have with the tram project would be no more than 11 5 per cent of your time, or whether that 5 per cent 12 figure was agreed later on. 13 A. No, that was agreed at the start. As I said, if that 14 was going to be part of the job description, and that 15 part of the work was going up to -- I don't know, for 16 sake of argument, say 80 to 90 per cent, I wouldn't have 17 been attracted up to Edinburgh. 18 CHAIR OF THE INQUIRY: So did your letter of appointment 19 confirm that that was the arrangement, that you would be 20 restricted to 5 per cent? 21 A. I can't recall, my Lord, but I would have said, no, 22 there was really no mention made of it in the 23 appointment letter. 24 MR MCCLELLAND: We will come to the appointment letter, 25 my Lord. We'll see it. 17 1 I think you say in your written answers that your 2 formal appointment as Tram Monitoring Officer came in 3 January 2009, so about eight months after you joined the 4 Council? 5 A. Yes. 6 Q. Had you de facto been the Tram Monitoring Officer before 7 you got that letter? 8 A. I wouldn't have said Tram Monitoring Officer. I would 9 have said I was interacting with the -- with tie and the 10 Tram Project Director for a number of issues such as the 11 movement of traffic through the area, et cetera. 12 I was invited -- I can't remember the actual dates, 13 but I was invited to some meetings effectively as 14 observer. 15 Q. You describe interaction with tie over traffic issues. 16 Are those things that fell within your remit as Head of 17 Transport? 18 A. Yes. One of the core business activities that I had was 19 traffic management in the City of Edinburgh. 20 Q. Before your formal appointment letter was sent in 21 January 2009, had your responsibilities started to 22 expand into a de facto Tram Monitoring Officer role? 23 A. I couldn't be accurate on that one, but yes, you could 24 see that that was the way things were going, that there 25 were more problems with the tram project being 18 1 experienced. I know, without being too accurate on the 2 timelines, but certainly about October 2008, certainly 3 November 2008, I started to get into more detail of the 4 standoff that was starting to occur with the 5 Princes Street works. In fact, my -- the amount of work 6 and duties I had to do over, I would have said, October 7 to December were quite -- were quite a lot, especially 8 looking at traffic modelling and options. 9 But again, that wouldn't have been a TMO role. It 10 was more myself and my staff doing the job as Head of 11 Transport. 12 Q. Could we have on screen, please, document CEC01053689. 13 We see this is headed up "Edinburgh Tram Governance 14 Report 23 October 2008". 15 A. Yes. 16 Q. Are you familiar with this? 17 A. Yes. 18 Q. If we just go to page 2, please. Just read from 19 paragraph 1.1: 20 "The purpose of this report is to brief the Director 21 of Finance and the Director of City Development on the 22 Governance framework set out at Financial Close of the 23 contracts for the Infraco and Tramco, to highlight 24 certain issues that Council Officers have over how the 25 Governance arrangements are working in practice and 19 1 a suggested action plan ..." 2 Then if we move, please, to -- if we just look down 3 at paragraph 3.6. This is under a heading about the 4 CEC/tie tram Operating Agreement. 3.6 says: 5 "Following examination of the operating agreement by 6 Council officers the following issues have emerged." 7 Then if we just read 3.7: 8 "The Council report of 20 December 2007, the tie 9 Operating Agreement and the Close Report governance 10 paper highlight the role of TMO ..." 11 I take that as Tram Monitoring Officer: 12 "... and that this should be the Director of City 13 Development or his nominated deputy. It has been 14 assumed that Marshall Poulton has been nominated as the 15 TMO. However, this arrangement should be formalised by 16 way of a letter from the Council to tie." 17 Now, that would suggest an assumption in 18 October 2008 that you were the Tram Monitoring Officer. 19 Did you share that assumption? 20 A. Yes, I couldn't have told you it was October 2008, but 21 certainly round about that time, I know there had been 22 discussions at Director level, I believe with the Chief 23 Executive, Tom Aitchison, at that time, that the TMO 24 role needed to get formalised. I wasn't involved -- 25 wasn't party to the decision-making process. However, 20 1 I knew there was some discussion about whether it should 2 be the Director himself, and it warranted that -- that 3 level. 4 Certainly from subsequent discussions, it could have 5 been later on in 2008 or early 2009, I know that 6 Mr Anderson again felt that he wasn't the best person to 7 do that TMO role, and it might be better from some 8 knowledge of engineering, construction and traffic, and 9 certainly reporting back to the internal group, it would 10 be better if it was the likes of myself that was 11 nominated as TMO. 12 Q. So these considerations that you describe Mr Anderson 13 taking the view that he wasn't suited and that you would 14 be better suited, were they taking place between your 15 appointment to the Council in April 2008 and the issue 16 of the formal letter in January 2009? 17 A. Yes. As I say, I think, from memory, certainly the 18 relationship I had with Mr Anderson, he was very upfront 19 and open about things, and he said it wasn't in his best 20 interest to -- or in the Council's best interests for 21 him to be taken away 100 per cent of his time, and that 22 the TMO role needed to be formalised, and he would be 23 prepared to be senior responsible officer, with myself 24 as TMO reporting to him, and I was happy with -- with 25 that arrangement. 21 1 Again, reiterating the fact that as long as it was 2 kept under regular review that it wasn't going to be 3 more than 5 per cent of my working week. 4 If there was an odd week where I was up at 5 10 per cent or 20 per cent, I wouldn't have any problem 6 with that, but I wouldn't have wanted that percentage of 7 my resource to be lost over a long period of time, six 8 months or a year. 9 CHAIR OF THE INQUIRY: I think -- sorry, if you look at 10 paragraph 3.7 of the document in front of you, it's 11 saying that the assumption was that you had been 12 nominated as TMO. So that's before the report and the 13 purpose of the report was simply to formalise that 14 position. 15 Had you in fact -- was that the position, that you 16 were the TMO before this? 17 A. Well, Mr Anderson couldn't go to a lot of the 18 meetings -- 19 CHAIR OF THE INQUIRY: I think the question is quite simple. 20 Were you or did you understand that you were the TMO 21 before this was formalised? 22 A. I knew at that time that I would be working into the 23 formalised role of the TMO. I didn't know when that 24 would happen, if it would be just before Christmas or 25 January 2009, my Lord. 22 1 CHAIR OF THE INQUIRY: We are moving at cross-purposes. 2 I think the suggestion is that they assumed that you had 3 been nominated, although it wasn't recorded formally. 4 Is that your understanding? 5 A. Yes. 6 MR MCCLELLAND: Had that been the case for some months prior 7 to the issue of the letter in January 2009? 8 A. As I say, from about October 2008, certainly through to 9 December 2008, I wouldn't have said I was heavily 10 involved in TMO duties. I would have said, as I was 11 mentioning, it was more around the Princes Street works, 12 and it wasn't the construction of. It was more the 13 traffic modelling, and to get something that would work 14 to keep Edinburgh moving as well as give the contractor 15 enough clear working space to get all the Princes Street 16 works done as quickly as possible over, from memory, it 17 took about ten months to do that work. 18 Q. Can you say when you first started acting as TMO? 19 A. Formally, January 2009. 20 Q. And informally? 21 A. Informally, from about the October 2008 date. 22 Q. Now, what you say in your written answers is that, as 23 far as you were aware, there hadn't been a Tram 24 Monitoring Officer before you? 25 A. That is correct. 23 1 Q. There's some suggestion that Dave Anderson's predecessor 2 as the Director of City Development, Andrew Holmes, had 3 been the Monitoring Officer for tie and TEL until he 4 left the Council at the start of April 2008. Do you 5 know if that's correct? 6 A. Since it was before my time, I couldn't answer that one 7 objectively. I know Mr Holmes had a lot of experience 8 in traffic and transportation matters, but I don't know 9 if he was actually doing any of the role at that time. 10 I think, and it's only one personal thought, I think 11 the sort of logic was Mr Anderson would have been 12 starting round about the March 2008, and he would have 13 been the natural successor to that. But I don't 14 actually know if Mr Holmes did any of that role at all. 15 Q. When you took up the post as Tram Monitoring Officer, 16 were there not files or papers handed over to you by 17 a predecessor? 18 A. No. 19 Q. We saw in the report that's on screen, there's 20 a reference to the tie Operating Agreement, stating that 21 the Tram Monitoring Officer would be the Director of 22 City Development or his nominated deputy. 23 Do you know if Mr Anderson took on these roles when 24 he first took up his post as the Director of City 25 Development? 24 1 A. I don't know that for a fact, no. I don't think he did. 2 But I don't know that for a fact. 3 Q. When he appointed you, did Mr Anderson make any 4 reference to having held these posts? 5 A. No, he made no reference to that. 6 Q. So it would seem to follow from that that, going back at 7 least as far as your start with the Council in 8 April 2008, the Council did not in fact have a Tram 9 Monitoring Officer? 10 A. That was my understanding. 11 Q. What were the consequences of that for the Council's 12 supervision of the tram project? 13 A. I don't think there were -- it was too onerous or had 14 too much of an impact at that time, because, if my 15 memory serves me correctly, the bulk of the work that 16 was getting done, certainly on the streets, was all 17 utility diversions at that time. 18 Q. Prior to your appointment -- we'll take that as the 19 formal appointment in January 2009 -- what exposure had 20 you had to the tram project? 21 A. Apart from being observer at a couple of Tram Project 22 Board meetings, apart from getting involved with not so 23 much the communities, but more Federation of Small 24 Businesses, shopkeepers, mostly around either 25 Princes Street or Leith Walk, it was to take on board 25 1 their issues that they were having at that time. 2 And again, if memory serves me correctly, 2008 was 3 really the start of the economic recession and a lot of 4 small shops in particular were finding it very hard to 5 trade at that time. Their first assumption was to put 6 it down to the utility diversions that were getting 7 done, but I think it was a bigger picture, and also, as 8 I say, from about the October 2008 to December 2008, 9 I was certainly spending quite a lot of my time on the 10 traffic modelling with the tie professionals to try and 11 get the best solution in place for Princes Street, both 12 from a contractor point of view, to give them clear, 13 safe working space, but also keep Edinburgh moving at 14 that time. 15 Q. You talked about attendance at meetings of the Tram 16 Project Board. I think what you said was that you were 17 invited to attend as an observer? 18 A. Yes. 19 Q. That's something that you say in your written answers. 20 In fact, a number of points, what you say is that you 21 attended the Tram Project Board on occasion in this role 22 as an observer. Is that how you would describe it? 23 A. Yes, that's how I would describe it, yes. 24 Q. Does "on occasion" not somewhat understate it? 25 A. It was on occasion as an observer. I think there was at 26 1 least one or possibly two occasions where Mr Anderson 2 had said to me he was double-booked for meetings, and 3 could I go along at short notice to a Tram Project 4 Board. 5 Q. The minutes that the Inquiry has from the Tram Project 6 Board suggest that you were actually a fairly regular 7 attendee at the Tram Project Board. 8 A. I was trying to build up my knowledge and understanding. 9 Q. If those minutes suggest that you attended 29 -- between 10 2008 and 2011, you attended 29 meetings of the Tram 11 Project Board out of a possible 40, does that seem about 12 right? 13 A. I have no actual knowledge of that, but if that's what 14 it's recorded as, then yes, I have no reason to dispute 15 that. 16 Q. That's slightly more than "on occasion", is it not? 17 A. Yes, I think the on occasion I was referring to was 18 between April 2008, start of my employment, to my point 19 of appointment as TMO. For the life of me, I can't 20 remember how many Tram Project Boards I would have 21 attended over that nine-month period from April 2008 to 22 December 2008. 23 Q. Well, if I was to tell you that the minutes suggest that 24 between April 2008 and December 2008 you attended the 25 Tram Project Board in April, May, July, September, 27 1 October, and December, does that seem about right? 2 A. Yes, that would be about right. 3 Q. So again, that's slightly more than occasionally, isn't 4 it? 5 A. Yes. 6 Q. As somebody who attended the meetings of the Tram 7 Project Board, you will have received the papers that 8 were circulated in advance of the meetings? 9 A. I did, yes. 10 Q. Did you read those papers? 11 A. From memory, the -- there wasn't the best governance in 12 place. The papers tended to come in very late until we 13 started to get the papers at least three days in 14 advance. So sometimes I was going along to meetings, as 15 was Donald McGougan, and others, and literally, you 16 didn't have time to read papers. 17 That was rectified, and there was, I think, a time 18 limit was set of getting papers to the various members 19 at least three days before the meeting. 20 Q. When was that three-day limit introduced? 21 A. Again, I couldn't be accurate on that. I would have -- 22 I would have thought maybe round about the autumn of 23 2008. 24 Q. Autumn of 2008. So prior to that, if you were getting 25 these papers late, were you and the other attendees at 28 1 the Tram Project Board not properly informed about the 2 issues that were up for discussion? 3 A. I would agree with that statement, yes. 4 CHAIR OF THE INQUIRY: What was the point of going? 5 A. Sorry, my Lord? 6 CHAIR OF THE INQUIRY: What was the point of your going to 7 the meeting? 8 A. As observer. 9 CHAIR OF THE INQUIRY: But why go if you haven't got the 10 information that's going to be discussed? 11 A. As I was saying, I was -- I was invited to go. I was 12 happy to go along as observer, happy to try and build my 13 understanding up of the dynamics around the table, and 14 to hear what the issues were from -- from people 15 directly. 16 MR MCCLELLAND: We see from the records that you first 17 attended the Tram Project Board in April 2008. 18 Presumably at that time, this problem with late papers 19 was -- existed at that time, did it? 20 A. Oh, I don't know about that. I recall going along to 21 the meeting. I can't remember if I got papers and when 22 I received papers at that time. 23 Q. Well, is your recollection when you first attended the 24 Tram Project Board that you had been well informed about 25 all of the issues? 29 1 A. Well, I started from memory on 8 April 2008. I can't 2 remember when the first Tram Project Board was in April. 3 As I say, I was invited along, but I can't recall if 4 I got papers or how timely those papers were received. 5 Q. Well, if -- I think the way you described it was that 6 this problem affected the Tram Project Board over much 7 of 2008. 8 A. I would have said, yes, at least, as I say, for the 9 first six months of my tenure -- I can't remember who 10 raised it, but it was certainly an issue that a number 11 of people had about the late issue of papers. 12 Q. What steps did you take to raise the issue? 13 A. I spoke to the Tram Project Board Director, Steven Bell, 14 to say that it was unacceptable to get sometimes papers 15 in on the day of the meeting itself, or it could have 16 been outwith normal hours the previous night. So he had 17 said he would take that on board and get the papers out 18 quicker. 19 Q. Why did it take so long to resolve it? 20 A. I can't answer that one. I don't -- I don't know. 21 Q. Why not? 22 A. If I hazard a guess, I would have said it was the amount 23 of information that was coming in quite late to 24 Steven Bell, to get all the information down on to 25 paper, and then get them circulated. 30 1 Q. I'm just trying to be clear about whether the reason it 2 wasn't resolved was because the attendees at the Tram 3 Project Board, including yourself, didn't raise it as an 4 issue soon enough, or whether the issue having been 5 raised with tie, tie didn't address it soon enough. 6 A. I think it was addressed by tie, but it took -- I don't 7 know -- at least two meetings to get it resolved. 8 I can't remember the dates of those meetings. As I say, 9 round about late summer or early autumn of 2008. 10 Q. Now, you use this term "observer" to describe your 11 attendance at the Tram Project Board. What do you mean 12 by that? 13 A. Basically, listening to what was said, the dynamics 14 around the table, trying to get a feel for governance, 15 trying to get a feel for issues, seeing what risks were 16 there; and I think more from my point of view was how 17 I was going to properly, competently fulfil the role of 18 TMO, because the way I saw the role, apart from this 19 5 per cent I have mentioned, it was more a role without 20 any -- any authority or teeth, and it was more 21 a reporting practice that the TMO role was going to have 22 in getting back to both the senior responsible owner, 23 Mr Dave Anderson, and to our Chief Executive, and also 24 as an interface with the politicians. 25 Q. So you've described there a sort of listening and 31 1 learning role; is that fair? 2 A. Yes. Listening, learning, understanding the issues and 3 understanding the dynamics. 4 Q. And over the course of your involvement in the project, 5 did the role change beyond one of listening and learning 6 into something more active? 7 A. Not really, because, as I say, it was -- it was a bit of 8 a frustrating role, because it was -- it was going along 9 to meetings, it was reporting, it was understanding what 10 tie were doing, what measures they were putting in place 11 for any -- either cost overruns or programme overruns, 12 and reporting back to the Internal Planning Group 13 meeting, which consisted of Mr Anderson, the SRO, and it 14 was chaired by Tom Aitchison, with the Director of 15 Corporate Governance, Jim Inch there, at that time. 16 Q. Did you ask questions at the meetings of the Tram 17 Project Board? 18 A. It was -- it was mostly presenting findings as they had 19 unravelled during the previous month, and then, yes, 20 I may have asked one or two questions in support of my 21 co-ordinating officer who was there certainly throughout 22 2008, Duncan Fraser. He was the hands on person that 23 I relied on to actually pull all the papers together. 24 Subsequent it was Andy Conway after that, after 25 Mr Fraser retired in -- round about spring or summer 32 1 2009. 2 So yes, I may have asked a couple of questions that 3 were coming up for any issues what was going to happen 4 the following month. 5 Q. It was just you described the role as being 6 a frustrating one. Isn't the Tram Project Board 7 an opportunity for you to raise any concerns or 8 questions that you had? 9 A. Yes. Yes. But mostly at the Tram Project Board, as 10 I say, the two main Directors, Mr Anderson, SRO, was 11 there, and Mr McGougan from the financial side of 12 things. So they were the ones who were taking a more 13 active part in the Tram Project Boards, even though 14 I was formally appointed in January 2009. 15 Q. Can we take it that if you were only asking one or two 16 questions, that that was all you needed to ask to get 17 the information you needed about the project? 18 A. Yes, I would say that's safe to assume that. 19 Q. You mentioned there Duncan Fraser and Andy Conway as 20 people that you were relying upon. Can you just explain 21 in what sense you relied upon them and what their roles 22 were? 23 A. Well, Mr Anderson, by way of the -- setting up the TMO 24 role, he was looking for brief monthly reports that 25 could be submitted to him and to Mr Aitchison at the 33 1 Internal Planning Group meeting, which was held once 2 a month. 3 So I relied on Duncan Fraser, who had a small team 4 and were actually based in the tie offices. So they 5 were the day-to-day, the realtime interface with all the 6 tie employees through all the functions, technical 7 approvals, and I actually left it with Duncan Fraser to 8 pull together the report that I would sign off and 9 present to the Internal Planning Group meeting on 10 a monthly basis. 11 Duncan was also in attendance. So it wasn't just 12 myself there. 13 Q. So when we see that some of the later reports to the 14 IPG, there's a section in them headed "TMO report", or 15 "Tram Monitoring Officer report", do we understand from 16 what you've said that those were actually prepared by 17 Duncan Fraser? 18 A. That's right. 19 Q. Did you add anything to what Mr Fraser was reporting? 20 A. I can't give you a specific example of anything, but 21 yes, I might have queried one of the bullet points. 22 I might have queried a phrase or might have added 23 something, but I can't think of anything specific 24 I could give you an example of. 25 Q. The IPG reports give a written report. Was that 34 1 expanded upon at the meetings of the IPG? 2 A. It was expanded on verbally. 3 Q. Who did that? Was that you or was that Mr Fraser? 4 A. It was usually a mixture. What I tended to give was an 5 introduction and quite a high level overview of issues 6 or risks or something that we needed to raise, and then 7 if Mr Aitchison or Mr Anderson or Mr McGougan or Mr Inch 8 was there, if they wanted to drill down in any degree of 9 detail on any of the questions, then usually I fielded 10 that over to Mr -- to Duncan Fraser. 11 Q. So what did you add to the process that Mr Fraser had in 12 place for reporting on these issues? 13 A. I would have said it was nothing technical. It was more 14 on the reporting, making sure that all our hierarchy 15 were being kept up to date as timely as possible. In 16 addition, the politicians, if I remember correctly, it 17 would be Mr Phil Wheeler, who was the Convener of the 18 Transport Infrastructure Environment Committee at that 19 time, before being replaced latterly by 20 Mr Gordon MacKenzie. So I was, as I say, I was 21 comfortable, competent in Mr Fraser's abilities as 22 a really professional and experienced engineer to cover 23 all the technical points. It was more on the overall 24 governance and reporting and making sure we were letting 25 the relative -- relevant people know. 35 1 Q. Did you scrutinise or probe what Mr Fraser was reporting 2 on, or did you just leave it up to him? 3 A. I did -- obviously, when the reports came in to me, 4 I would read them over, and if I had any questions, 5 I would usually ask Mr Fraser. We were both in 6 different offices at the time. I was in -- I was at the 7 City Chambers, and basically Mr Fraser was down -- 8 100 per cent of the time down at the Haymarket offices 9 in tie. So it was usually asking about his report over 10 the phone. 11 Q. Do you recall any issues that you were concerned about 12 where you raised concerns with Mr Fraser? 13 A. I can't recall any specific ones. 14 Q. If we just focus for a moment on your appointment as the 15 Tram Monitoring Officer, given what you've said about 16 your meeting with Mr Anderson when you were recruited, 17 and you communicating to him that you didn't really want 18 to be involved in the project, and I ask this without 19 meaning you any disrespect, Mr Poulton, was it not 20 rather surprising that you should be chosen for the role 21 of Tram Monitoring Officer? 22 A. I don't know. I think -- I think with the experience 23 that I had, and again with the different skill set that 24 Mr Anderson had, he wouldn't have been comfortable doing 25 a Tram Monitoring Officer role, or indeed personally 36 1 didn't want to do that, and I think he felt it was just 2 a natural devolvement down to -- or delegation down to 3 myself as having the broad -- the broad skill set. 4 Q. You referred earlier to that skill set and the 5 experience that Mr Anderson didn't have; can you just be 6 clear about what that was? 7 A. I can't speak for Mr Anderson, but generally I would say 8 that Mr Anderson is very good at economic development, 9 outward facing, trying to get inward investment into 10 whatever authorities he's working with, or organisation, 11 and that's where his skill sets lay -- in Edinburgh at 12 that time, notwithstanding the need to give clarity of 13 direction and leadership -- 14 Q. Was it because you were a civil engineer that you were 15 asked to take on this role? 16 A. Yes, I think it would have been. Civil engineer and 17 obviously coming in new, fresh pair of eyes, and I would 18 have thought, having -- without spoken to Mr Anderson in 19 any detail over it, it would have been the natural way 20 forward, would be giving myself that. 21 Q. We have seen the governance review from October 2008. 22 Why was it that the Council decided ultimately in 23 January 2009 to appoint somebody as a TMO? 24 A. I don't think that's for me to answer. I think it's 25 more the hierarchy. If I hazard a guess, I would have 37 1 said at that point in time, there was the beginnings of 2 some issues with the contract and the behaviours with 3 the contractor at that time. There were a lot of 4 difficulties, and I think there was the need to 5 formalise the role. 6 I wasn't party to the decision-making process. So 7 I couldn't answer in any detail. 8 Q. But for you to perform your role properly, would you not 9 have had to understand why the appointment was being 10 made? 11 A. It would certainly help. I don't think it was 12 absolutely essential. Yes, desirable. But as long as 13 I could see what the role was going to entail in the way 14 of the -- all the component parts of the Operating 15 Agreement, I was fairly comfortable with that, and being 16 helpful and wanting to assist the Council to deliver 17 this really worthwhile project. You know, I was keen to 18 assist in any way I possibly could, but at the same time 19 set out my stall to make sure I wasn't going to breach 20 this approximate 5 per cent. 21 Q. Do we take it from that that you didn't ask why you were 22 being appointed? 23 A. I didn't ask why, no. 24 Q. And nobody explained to you why you were being 25 appointed? 38 1 A. No. 2 Q. Was there a perception that up until that point, the 3 Council's supervision of the project had in any way been 4 inadequate or insufficient? 5 A. I wasn't aware of any discussions or anything like that 6 coming to me. 7 Q. Is it an inference that can be made if the Council 8 decides that it's necessary to have somebody in the role 9 of Tram Monitoring Officer, that that was perceived as 10 filling a gap which had existed beforehand? 11 A. Yes. I would say, and hindsight is always a great 12 thing, I would say there was an underestimation of the 13 role; in fact almost ten years down the line, I would 14 have said the TMO role should have been 100 per cent 15 filled. 16 Q. You mean it was a job that required somebody's full-time 17 attention? 18 A. Absolutely. 19 Q. When you were asked to take on the role, did you 20 consider at that time that you had the experience and 21 the time and the resources to perform it? 22 A. No. As I said earlier, my subject matter, experience is 23 traffic and transportation matters, general civil 24 engineering. With regard to electrics, I've got no 25 knowledge, experience of electrics with overhead 39 1 cabling, power supplies or anything like that, or 2 specifications, conditions of contract, no experience at 3 all on that line. 4 So I wouldn't have had the full gambit. I'm 5 a general civil engineer, but specialising in traffic 6 and transportation issues. 7 Q. You referred to expertise there. What about the time 8 and the resources that you thought would be needed to do 9 the role? 10 A. Again, I had spoken -- I can't remember when -- to 11 Mr Anderson, but he was well aware, through our monthly 12 one-to-ones, how much time I was devoting to the tram 13 and I kept referring back to this 5 per cent of the 14 time. 15 Also, I was informing Councillor Wheeler at the time 16 because, as you can imagine, the Convener of the 17 Transport Infrastructure Environment Committee has got 18 a very broad portfolio and a lot of things to deliver, 19 and that's where I was getting my drive and my steer 20 from as well as obviously through line management, 21 through the Chief Executive. At that time certainly in 22 Edinburgh we were -- we were getting a lot of pressure 23 from a variety of communities to look at -- through 24 traffic, road safety matters, 20-mile an hour zone, 25 safety around schools, and that's where the Convener 40 1 wanted me to concentrate in and give steer and direction 2 to my staff. 3 So as I say, it was a bit of a juggling act that 4 I had to do with my day-to-day work and my core business 5 activities. 6 I think I could always foresee that coming along. 7 That's why I used this arbitrary 5 per cent of the time 8 that, as I said earlier, I feel my skill sets are quite 9 a broad portfolio, and this is where I could give my 10 best and actually assist the City of Edinburgh Council, 11 both from Chief Executive level and politician level. 12 Q. If you didn't think that you had the experience and 13 knowledge to do the role, why did you not just say no? 14 A. I wanted to assist. And I don't think there would have 15 been anyone with the skill sets to know about all the 16 conditions of contract. But again, as I said earlier, 17 the role itself, it didn't have an awful lot of 18 authority. There were duties there, but it was more 19 reporting, and feeding on the information to the senior 20 responsible owner, Mr Anderson, or indeed, the 21 politician. 22 So the likes of the tram project, not so much the 23 off-road section, but when you get on-road, to me, civil 24 engineering, you need skill sets for roads matters, as 25 well as Traffic Regulation Order procedures, and from 41 1 what I would consider putting a rail system on a road, 2 it's a different skill set, and there aren't that many 3 people in the country that have got both skill sets 4 merged together. 5 Q. Can we put it this way: that whilst you might have 6 lacked the experience and knowledge for the role, you 7 were the best the Council had? 8 A. Not necessarily. I would have said there was maybe 9 two -- two others that would have had the experience, 10 and maybe a third who had the experience, but was coming 11 up through the hierarchy and had the potential to do the 12 job in two years or three years' time. 13 Q. Do you know why they weren't recruited to the role? 14 A. No, because we never -- we never -- I never had that 15 discussion with Mr Anderson. 16 Q. If we look, please, at document CEC02086935. 17 You see there this is a letter addressed to you, 18 5 January 2009, from Dave Anderson. This would appear 19 to be the letter appointing you. Do you recall 20 receiving this letter? 21 A. Yes, I do. 22 Q. Just reading from it: 23 "Following an internal governance review, it has 24 become apparent that a few outstanding matters need to 25 be formalised. 42 1 With that in mind, you are hereby appointed as the 2 'Tram Monitoring Officer' for the tram project on behalf 3 of the City of Edinburgh Council, in accordance with 4 operating agreement between the Council and tie Ltd." 5 Was it the case that the Council had simply 6 forgotten that this role of Monitoring Officer existed? 7 A. Unfortunately I can't answer that question. I think you 8 would have to address that to Mr Aitchison or 9 Mr Anderson. I know, again, through my one-to-ones with 10 Mr Anderson, but without deep probing, he felt that the 11 TMO role had to be formalised. 12 Q. Reading on, it says: 13 "As TMO you will be required to monitor tie's 14 activities as detailed in the operating agreement 15 attached." 16 What steps did you take to familiarise yourself with 17 the terms of the Operating Agreement? 18 A. It was quite a lengthy document, from memory. So read 19 all the -- tie's obligations, our obligations, and what 20 was required to familiarise myself with all the 21 component parts of it. 22 Q. Reading on: 23 "It should be noted that as governance arrangements 24 develop in the next few months this role may be subject 25 to change." 43 1 What did you understand about that at the time of 2 your appointment? 3 A. Time of appointment to the TMO role? 4 Q. Yes. 5 A. Basically it was around the fact that, again, without 6 wanting to labour the 5 per cent point, it was -- 7 Mr Anderson said: are you able to take this on as per 8 our verbal agreement, we'll now formalise that, and see 9 where it takes us. 10 I said yes, no problem with that, as long as we have 11 regular reviews, you know, whether it was on 12 a six-monthly basis or annual basis, that was left open 13 to discussion as we were going on. 14 But as I say, I was -- I was happy to do the role, 15 support the Council, support the politicians with that, 16 but again, I didn't want it to turn into a 100 per cent 17 job. At that point in time I'd have been flagging up 18 that to Mr Anderson, that: the job has now changed and, 19 as I said to you at point of appointment with CEC, that 20 I really wouldn't want to be doing this job for X number 21 of months, and certainly not years, as a 100 per cent 22 TMO. 23 That -- that's effectively what happened when 24 Mr McCafferty was appointed, not so much as a TMO -- 25 I think he was the programme manager -- 44 1 Q. That's in 2011? 2 A. That was -- yes, that was formally when he started the 3 role, that's correct. Just after mediation, from 4 memory. 5 Q. The Chairman asked you earlier whether the agreement on 6 5 per cent of your time being used for the TMO role was 7 recorded in the letter of appointment, and do we see 8 there that it's not referred to in the letter? 9 A. Yes, that's right. 10 Q. The best we've got, if we can put it that way, is 11 Mr Anderson saying that the governance arrangements may 12 be subject to change, the role may be subject to change? 13 A. That's correct. 14 Q. Then reading on, it says: 15 "I would be grateful if you could provide me with 16 a brief monthly TMO update report that details all the 17 pertinent information. This could be incorporated into 18 future tram IPG reports." 19 You described earlier the reports that you asked 20 Mr Duncan Fraser to prepare. Is that how you fulfilled 21 that part of the role? 22 A. That's right. 23 Q. When Mr Anderson referred to "all the pertinent 24 information", what did you understand "all the pertinent 25 information" to mean? 45 1 A. Pertinent information would be cost overruns, programme 2 overruns, what tie would have been doing to mitigate 3 those overruns. What would -- what was the revised 4 programme going to be; what did it mean to CEC; was it 5 going to delay any other projects; could we accelerate 6 other projects because of delays in anything to do with 7 the tram, whether it was either MUDFA works, which would 8 have been, I think from memory, getting close to 9 a conclusion by the time I was formally appointed TMO, 10 and what -- what we needed to do to brief the 11 politicians. 12 Q. So you referred there to reporting information on cost 13 overruns, programme overruns, what tie were doing to 14 mitigate them, and what was the revised programme going 15 to be and so on? 16 A. I think in addition to that I would add that we had -- 17 we had a small team of planners down at tie offices, 18 engineers, mostly to do with the temporary TROs. 19 Legal expert who wasn't based at tie, but went down 20 on a regular basis. So anything to do with these issues 21 that were maybe dragging out or technical approvals, 22 I would -- I would report back through the TMO monthly 23 report to Mr Anderson. 24 The only thing -- I would maybe flag up issues and 25 risks, and that would be -- ask Duncan Fraser to do 46 1 that. 2 It wasn't project risks. Those project risks would 3 be the responsibility of the Tram Project Director, 4 Steven Bell. 5 Q. So all of these issues that you've described being as 6 within the category of pertinent information that 7 Dave Anderson wanted, would we see all of your reports 8 on those issues in the IPG papers? 9 A. Yes, you would. 10 Q. So if we were to read the IPG papers, does that give 11 a full picture of your reports on these issues? 12 A. Yes. 13 Q. If we could look, please, at document CEC01182449. We 14 see here this is a letter from Dave Anderson to 15 David Mackay at tie, dated the same day as your letter 16 of appointment, 5 January. It just explains to him that 17 you've been appointed as the Tram Monitoring Officer. 18 In the second paragraph it says: 19 "For completeness, I have attached a copy of the 20 main duties highlighted in the operating agreement." 21 We see also at the bottom of the letter, just below 22 Mr Anderson's signature, that this letter was copied to 23 you. Do you recall seeing this letter? 24 A. I do recall seeing it now. I couldn't have remembered 25 before, but I know that apart from formalising my role, 47 1 I know he did inform tie. I thought it might have been 2 the CEO, but it's obviously the Chairman he's informed. 3 Q. If we just go to page 2, we see there a document headed 4 up, "Edinburgh Tram Monitoring Officer". Obligations 5 from tie to the Tram Monitoring Officer." 6 Then there's a list of bullet points. You can take 7 it from me, Mr Poulton, that these are more or less cut 8 and pasted from the Operating Agreement itself. If we 9 could move, please, to page 4. Sorry, to page 3. We 10 see at the top there the bullet point reads: 11 "tie will supply to the Tram Monitoring Officer 12 copies of all relevant tie and other board papers in 13 connection with the governance arrangements." 14 Did you receive these from tie? 15 A. Yes, I did. 16 Q. And what did you do with them? 17 A. They would either go to the IPG, the Internal Planning 18 Group meeting, or I would have discussed them with the 19 SRO and the need to inform the Convener of the Transport 20 Infrastructure and Environment Committee. 21 Q. Did you read them? 22 A. Yes. 23 Q. If you had any concerns about what you read, did you 24 raise them? 25 A. Yes. 48 1 Q. As far as you recall, did these papers give rise to any 2 concerns? 3 A. There was a number of concerns, mostly round cost 4 overruns, programme overruns. There was some -- 5 sometimes repetition of issues which ran on from one 6 month to the next month. Sometimes we weren't getting 7 clear mitigation measures and plans that were likely to 8 be put in place to mitigate the cost overruns or, 9 indeed, programme. 10 Q. So was that a problem of a lack of information that you 11 were getting? 12 A. The flow of information improved over a period of time, 13 and I don't think I could be definite exactly when, but 14 certainly my recollection was CEC, for the best part of 15 2008, were in a bit of a void of information. It 16 improved in 2009, and that may have been one of the 17 reasons as part of the internal governance review to try 18 and formalise the TMO role. It certainly became better 19 in 2009, the flow of information, the timeliness of 20 receiving papers that I referred to earlier. But there 21 was certainly quite a lot of repetition of information, 22 and it seemed to drag on sometimes two months or three 23 months without trying to nail an issue one month and 24 have an action plan and clear actions to close out by 25 the next month's report. 49 1 Q. I think you said there that throughout 2008, there was 2 a problem for the Council in not getting enough 3 information from tie. Is that correct? 4 A. That's correct. 5 Q. Is it possible that if the Council had put a Tram 6 Monitoring Officer in office from mid-2008, that problem 7 wouldn't have existed? 8 A. It certainly would have certainly helped having a TMO 9 been appointed for 100 per cent of his or her time. 10 I don't know if it would have solved the problem because 11 the problems or issues as they were arising throughout 12 the contract seemed to just get bigger and bigger. So 13 I don't know if the TMO role, even though it was 14 100 per cent of the time, because of the lack of teeth 15 in the TMO role, it would have made that much of 16 a difference. 17 Q. You've referred to two issues there, the lack of time 18 and the lack of teeth. But if the problem was simply 19 a lack of information, is the TMO role not equipped with 20 the ability to relay to tie the Council's concerns about 21 the lack of information? 22 A. Yes, I think it was, but it took -- it took some time to 23 get that clear message across and to do something about 24 it. As I say, it did improve over a period of time, 25 without me being specific on a month or a season. 50 1 Q. Once you were in office in January 2009, did you take 2 steps to improve the information flow? 3 A. Yes. And I had -- again, just very roughly, through 4 2008, although I wasn't doing the TMO role, I was 5 speaking to the Tram Project Director. It may only have 6 been once a week or once a fortnight, but from 7 January 2009 it was certainly on a weekly basis, whether 8 it was by phone or whether it was actually going down to 9 his offices and building up a relationship, and 10 improving the relationship, just to make sure we were 11 getting -- from a TMO perspective, that we were getting 12 the proper reports as timely a manner as possible, and 13 they were including the relevant information that we 14 needed to inform the hierarchy and politicians. 15 CHAIR OF THE INQUIRY: Mr McClelland, can you find 16 a convenient point? 17 MR MCCLELLAND: We can stop there, my Lord. 18 CHAIR OF THE INQUIRY: We'll adjourn now for 15 minutes to 19 give the shorthand writers a break, and you can get 20 a cup of tea or coffee if you want. 21 A. Thank you, my Lord. 22 CHAIR OF THE INQUIRY: We will resume again at 11.35. 23 (11.19 am) 24 (A short break) 25 (11.36 am) 51 1 CHAIR OF THE INQUIRY: You're still under oath, Mr Poulton. 2 MR MCCLELLAND: Mr Poulton, before the break you said that 3 you thought the Tram Monitoring Officer role was one 4 which really required 100 per cent of somebody's time. 5 A. Yes. 6 Q. Was that a view that you held when you took up the 7 office? 8 A. No. No, I gradually came to that view. 9 Q. You've described the reporting functions that you saw 10 yourself as having as the Tram Monitoring Officer. 11 Essentially there's a link between CEC and tie; is that 12 correct? 13 A. That's correct. 14 Q. Was that the core of the TMO's function or did you see 15 the TMO's role as expanding into issues beyond that? 16 A. I didn't see it expanding beyond anything else than was 17 in the Operating Agreement. 18 Q. If we just think about the governance structure of the 19 project from the perspective of the Council, there were 20 perhaps two main bodies relevant to that, being the Tram 21 Project Board and the Chief Executive's Internal 22 Planning Group. You attended both of these; is that 23 correct? 24 A. That's right. 25 Q. At the Tram Project Board there were two Directors of 52 1 the Council who were members of that Board? 2 A. That's right. 3 Q. And they were in that capacity therefore receiving 4 reports that were made about the project to the Tram 5 Project Board? 6 A. That's correct. 7 Q. What did your role as TMO add to the reporting that they 8 were receiving at the Tram Project Board? 9 A. It was maybe more reinforcement of issues rather than 10 additional issues, although the Tram Project Board, just 11 by the nature of who was on there, could see a bit into 12 the future and were aware of various direct discussions 13 with the contractors, so could give a bit more 14 information. 15 Q. So was this a channel of communication, if you like, for 16 information to go to the Council above and beyond what 17 was going to the Tram Project Board? 18 A. Yes. 19 Q. How did you decide what matters to look into or report 20 that were above and beyond what was before the Tram 21 Project Board? 22 A. Basically I would have put my report into the SRO, 23 Mr Anderson, and let him make the decision. He would 24 maybe have to discuss that with Donald McGougan, but 25 basically I was just forwarding on my thoughts, 53 1 concerns, any issues that I could foresee passing on to 2 him. Sometimes we discussed it at the Internal Planning 3 Group meeting, and there might have been off-line 4 discussions on how to take things forward to the Tram 5 Project Board. 6 Q. What did you see as the purpose of the meetings of the 7 Internal Planning Group? 8 A. The purpose of it was to highlight any big issues such 9 as cost overruns, programme overruns, but what the 10 impact to the city would be, either on any projects that 11 were likely to come online, events, or the political 12 aspects of it. 13 Q. Was it at least part of the function of the IPG to 14 support Mr McGougan and Mr Anderson in their work as 15 members of the Tram Project Board? 16 A. Yes. 17 Q. If, through the IPG or through discussions with 18 Mr Anderson, issues were identified for investigation 19 with tie, how did you implement those directions? 20 A. If it was an action for me, I would have been 21 undertaking it directly. If it was an action for me to 22 report back to, say, the Tram Project Director that was 23 likely to lead to some advanced work being done, 24 reporting before the Tram Project Board, I would have 25 got back to Steven Bell regarding that. 54 1 Q. Yes. So if the request from the Directors of the IPG 2 was we need more information about this or that, how 3 would you have got that information? 4 A. Yes, well, that was left to me to act upon that and get 5 the message across to Steven Bell, that I would give him 6 an idea of what was required, when it was required. 7 Q. So you would look to Mr Bell to be the source of 8 information that you needed? 9 A. Yes. 10 Q. You referred earlier to Duncan Fraser as being in tie. 11 Was he part of that process? 12 A. Yes, very much so. He was an integral part of the team, 13 well respected part of the team, and I relied on him 14 actually just by his co-location with the tie 15 individuals, where he could easily access people, more 16 easily than I could, being slightly remote. 17 Q. So on what matters did you rely on your direct contact 18 with Mr Bell, as opposed to your route through 19 Mr Fraser? 20 A. It would be high level issues, such as, as I say, cost 21 overruns, programme overruns, what the mitigation 22 measures were going to be. So that I could -- if not 23 get the information back, that I could ensure that he's 24 got that message, so that he can relay that to the Tram 25 Project Board. So the relevant people around the table 55 1 would know, because the component part or the 2 composition of that Board was obviously Mr Anderson, 3 Mr McGougan, and there were four, I think, four elected 4 members as part of the Board. 5 Q. So if there was a feeling within the IPG that there was 6 a shortage of information, would it be primarily through 7 you discussing things with Mr Bell that you would 8 address that, or would you also address that through 9 Mr Fraser? 10 A. It depended the level of concern or the activity. Then 11 I would either go directly to Steven Bell, or if it was 12 not as important or as urgent, then I would -- I'd maybe 13 relay that to Duncan Fraser. 14 Q. Over what period was Mr Fraser in tie? 15 A. I would have said from when I started my employment, 16 April 2008, he would have been there for the best part 17 of a year. He retired some time round about spring 18 2009, from memory. So I don't know how long he was 19 there before I started, but about a year. 20 Q. So -- and after Mr Fraser left, did you have a direct 21 route into tie? 22 A. Well, as soon as -- the succession plan was as soon as 23 Duncan Fraser was going to retire, I was going to 24 appoint Andy Conway as Duncan's successor. So there was 25 continuity there. 56 1 Q. So after -- was there a seamless transition from 2 Mr Fraser to Mr Conway as -- 3 A. Yes. 4 Q. -- a source for you of information within tie? 5 A. Yes, that continuity was there because Andy Conway was 6 already working directly to Duncan Fraser. So he knew 7 what all the big issues were. So it was as seamless 8 a transition as it possibly could be. 9 Q. In your written answers you refer to somebody called 10 Max Thomson as somebody you'd asked to help carry out 11 the main monitoring duties on a day-to-day basis. How 12 did Mr Thomson fit in? 13 A. Mr Thomson worked directly to me in the City Chambers, 14 and it was more I asked him to keep a record of all the 15 various meetings, the actions, the financials, as part 16 of the reporting process. 17 Q. So did Mr Thomson have a role himself in actively 18 seeking out information from tie? 19 A. He could do, but in general he either got his 20 instructions, actions from myself or for -- or from 21 Duncan Fraser. 22 Q. Okay. If we can stand back, was it effectively the case 23 that you had two routes of communication through which 24 to obtain information from tie, one being your direct 25 contact with Mr Bell, and the other being your contact 57 1 with Mr Fraser, followed by Mr Conway, who were based 2 within tie's offices? 3 A. Yes, that's right. 4 Q. Was there anybody else involved on your behalf in this 5 transfer of information? 6 A. No. 7 Q. I think, just before we broke, we were looking at the 8 document on screen which was the letter from Mr Anderson 9 to Mr Mackay. If you just bring that up on screen 10 again, please. It's CEC01182449. 11 If you could go to page 3, please. If we just look 12 at the third and fourth bullets there, please, the first 13 reads -- sorry, these are the summaries of the 14 obligations on tie from the Operating Agreement. 15 The third reads: 16 "tie shall liaise with the Tram Monitoring Officer, 17 the Council, and any other bodies which the Council may 18 specify, regularly and shall report to the Council on 19 a four-weekly and annual basis with regard to financial 20 matters and progress generally on the Project in 21 a format acceptable to the Council." 22 What was your understanding of the manner in which 23 that reporting obligation was fulfilled? 24 A. Yes, that was fulfilled, as I said, with like any 25 project and relationship, it was improving over time. 58 1 I think I mentioned earlier, I felt through the part 2 of -- all of 2008 that I was there, maybe the reporting 3 wasn't at its best. There was a bit of void, and maybe 4 it was very light on content. 5 Added to that, it seemed to be there was a bit of 6 repetition, but that definitely did improve. It might 7 be because of this, or certainly from memory 8 Mr Aitchison and Mr Mackay had a get-together -- I can't 9 remember the date. It must have been late 2008 or into 10 2009, where they agreed to work as a team and get better 11 reporting and lines of communication opened up. So 12 I would have said certainly into 2009, I felt that 13 reporting was better. 14 Q. That passage refers there to a four-weekly reporting. 15 Do we understand that to be done via the reports to the 16 Tram Project Board? 17 A. Yes. 18 Q. If we have in mind those reports to the Tram Project 19 Board, and the lines of communication that you were 20 talking about a moment ago, were there any other routes 21 of information flow between tie and the Council? 22 A. Not -- not formal routes. That tended to be the formal 23 route with regard to reporting, but if there was any 24 issue that cropped up, I don't know, strong winds and 25 barricades come down, whether it was noticed on site or 59 1 whether it was noticed by maybe some of our inspectors, 2 there would be that form of contact, not on a daily 3 basis, but just on an ad hoc basis. 4 Q. If we could look, please, at your written answers, which 5 is TRI00000115. Page 4, please. 6 You referred earlier in your answers here to 7 Dave Anderson being the SRO. If we can just look there 8 at question 13. Your answer there is: 9 "My responsibility in this role ..." 10 That's the Tram Monitoring Officer role: 11 "... was limited. As mentioned before the sole 12 responsibility for the Tram Project in CEC lay with 13 Mr Dave Anderson who was the SRO. My main duties 14 included advising Mr Anderson ..." 15 Can you clarify, first of all, what you meant by 16 "SRO"? 17 A. Yes. SRO is a term out of the Prince 2 methodology. It 18 refers to the senior responsible owner from a project 19 management perspective. 20 Q. What did you understand to be the functions of the 21 senior responsible owner? 22 A. That SRO would basically take ownership of the projects, 23 so be responsible for its delivery, its final outturn 24 cost, its programme, its main reporting to keep all the 25 clients up to speed with information. And it's a fairly 60 1 common -- it's only one project management tool, but 2 it's quite commonly used throughout the civil 3 engineering industry. 4 Q. If I can quote from a document which we have, I don't 5 think we need to go to it, but for the record the 6 reference is GOV00000003, which is a publication by the 7 OGC, entitled "Project organisation roles and 8 responsibilities. Achieving Excellence in Construction 9 Procurement Guide". 10 At page 5 it describes the senior responsible owner 11 as being: 12 "A formal appointment in the part of the business 13 that requires the finished project, with sufficient 14 seniority to understand the business drivers and to make 15 decisions on behalf of the business." 16 Does that tie in with your understanding of what 17 that role involved? 18 A. Yes. As I say, there are quite a number of project 19 management tools out there in the market, and we more or 20 less adopted a pragmatic approach to the Prince 2 21 methodology. So that's why we referred to Mr Anderson 22 as the senior responsible owner. So it's quite similar 23 to the OGC methodology. 24 Q. The way you put it in your written answers up on screen, 25 you describe Mr Anderson as having the sole 61 1 responsibility for the tram project within the Council. 2 Do you really mean by that that none of the other 3 Council officers or directors had any responsibility for 4 the tram project? 5 A. Well, again, going back to the Prince 2 methodology, 6 it's quite clear there that they're trying to appoint 7 one person as the owner. So adopting that methodology, 8 that's who I saw as being solely responsible. 9 Having said that, CEC were obviously the project 10 sponsors. So there's a number of clients that the SRO 11 would have to report to and update them. 12 Q. What you said there was that you saw Mr Anderson as 13 holding the SRO role. Did he, as far as you know, hold 14 the role in the sense of having been formally appointed 15 to it? 16 A. I wasn't aware if there was any formal appointment 17 because, again, if we split it down into being very 18 accurate, usually in Prince 2 the SRO would actually be 19 the asset owner at the end of the day. So it would have 20 been Lothian Buses or TEL who should really have been 21 the SRO. But I don't know if Dave Anderson was formally 22 appointed, but he did assume the role and 23 responsibilities of the senior responsible owner. 24 Q. As I understand Mr Anderson's evidence to the Inquiry, 25 it's to the effect that there was in fact no SRO for the 62 1 tram project in the form that one would normally expect 2 to see. 3 A. Yes. 4 Q. Do you agree with that? 5 A. Yes, I wouldn't disagree with Mr Anderson. 6 Q. He also said that the way the project was structured, 7 the senior person responsible for administration of the 8 contract was the Chief Executive of tie. Do you agree 9 with that? 10 A. Sorry, could you repeat that? 11 Q. Yes. The way the project was structured, the senior 12 person responsible for administration of the contract 13 was the Chief Executive of tie. 14 A. That's right. The project administration, yes, is 15 definitely under CEO of tie. 16 Q. Could we have a look, please, at document CEC01053908. 17 We see here, Mr Poulton, that these are the minutes 18 of the Tram Project Board for 17 December 2008. If we 19 could go to page 6, at item 6.1, this reads: 20 "The Boards noted the revision to the DARs ..." 21 I think delegated authority rules: 22 "... and the appointment of Stewart McGarrity as the 23 interim SRO of the project, replacing Neil Renilson." 24 Were you aware that these individuals held the role 25 of SRO? 63 1 A. No. I wasn't, and I just note from when you were 2 scanning through the document that I was only there at 3 that meeting in part. So I don't recall that -- that 4 6.1 note. 5 Q. Whether you were at the meeting or not, presumably you 6 saw the minutes? 7 A. Yes. And as I said earlier, I think in the true terms 8 of the Prince 2 methodology, it would generally be the 9 asset owner that would be the SRO. But as I say, from 10 the pragmatic use that we were operating under within 11 CEC, Mr Anderson was the senior responsible owner. 12 Certainly I would agree with what you said. The CEO of 13 tie was the owner of the project administration. 14 Q. Was the term SRO in common use within the Council to 15 describe Mr Anderson in relation to the tram project? 16 A. Yes. 17 Q. The point that you made there about the asset owner, was 18 it not the case that the asset owner of the tram system 19 would be the Council? Whether TEL were going to be 20 responsible for the operation of the system, isn't the 21 asset held by the Council? 22 A. Yes, I think it was. As I say, I wasn't involved in 23 those high level discussions, but, you know, from the 24 project management methodology, that's the way we were 25 looking at things, that CEC were the sponsors of the 64 1 scheme, and tie were in effect clients' representative 2 with -- doing all the contract management and project 3 administration. 4 Q. I just remind you what the OGC guidance said about it, 5 that the senior responsible owner role should be 6 a formal appointment in the part of the business that 7 requires the finished project. 8 Would you have understood that in those terms to 9 refer to the Council, so the SRO should have been 10 a Council position? 11 A. Yes. 12 Q. If the SRO was in fact somebody outside of the Council, 13 in either TEL or tie, would you regard that as being 14 inconsistent with the guidance? 15 A. I wouldn't really have a view on that. As I say, it's 16 really above my level of understanding. 17 CHAIR OF THE INQUIRY: Why is that? Are we not simply 18 talking about an interpretation of Prince 2? 19 A. Yes, but as I say, my Lord, the way we were working on 20 it with regard to the internal governance, we referred 21 to Mr Anderson as the SRO and from January 2009 myself 22 as the TMO, to try and simplify things. 23 MR MCCLELLAND: Moving on from that, Mr Poulton, you 24 describe in your answers a role that you had in relation 25 to the project budget. 65 1 A. Sorry, project -- 2 Q. The project budget. Could you just clarify what your 3 role was in relation to the project budget? 4 A. Very little involvement in that. It was -- it was not 5 much involvement at all. That wasn't my area of 6 expertise or looking at the various options. 7 Q. I don't think we need to go to it, but on page 5, 8 question 22, you say that your SRO, Mr Dave Anderson: 9 "... asked me on highlight any issues with regard to 10 overrun of the tram project and indeed work with 11 Mr Alan Coyle to ensure budgets were being adhered to." 12 A. That's correct. 13 Q. Can you just expand on what your work involved in 14 relation to the budgets? 15 A. With regard to the budgets, I put great faith in the 16 professionalism of our finance section, who was very 17 well led by Donald McGougan and very well supported by 18 Alan Coyle. So I left all the budgeting, the financial 19 reporting, up to Alan. He would come back to me to give 20 me a briefing before we went to the IPG meeting. 21 Q. So in relation to budget matters, was your role simply 22 to report anything that Mr Coyle told you about budgets 23 and to report back to the IPG? 24 A. That's correct. 25 Q. Where in your view did responsibility lie within the 66 1 Council for taking any action about cost overruns or 2 delays? 3 A. The way I saw it, that would be taken jointly at the IPG 4 meeting with regard to either a decision, if it was 5 delegated authority, or indeed if it needed to go for 6 political sign-off, then it would go to the Transport 7 Infrastructure and Environment Committee. 8 Q. Within the IPG, would you identify particular attendees 9 of that meeting as having responsibility for taking such 10 action? 11 A. Yes, I would have -- I would have said, from memory, 12 there would be about six or seven, maybe even eight 13 people attending the meeting, but the decision-makers 14 who we were putting our recommendations to would have 15 been Mr Aitchison himself, Mr Anderson, Mr McGougan, and 16 Mr Inch, Director of Corporate Governance. They would 17 be the decision-makers. 18 Q. Now, you mentioned there Mr Inch, the Council's Director 19 of Corporate Services. He was asked in his evidence to 20 the Inquiry about the role of the Tram Monitoring 21 Officer, and I'll just read out to you passages from his 22 evidence. I would like to know from you whether you 23 consider them to accurately describe the role as you 24 understood it. 25 If we could start, please, with Mr Inch's statement, 67 1 which is TRI00000049_C. 2 If you could go, please, to page 83, paragraph 194. 3 Just reading from the top of that, Mr Inch says: 4 "My views on governance changed over time. 5 Initially, because I hadn't really been involved in the 6 initial set-up, it appeared to me from a distance, that 7 it was working well ... the main players were the 8 Council's staff, the Tram Monitoring Officer, the TPB 9 and tie/TEL." 10 Would you agree that as the Tram Monitoring Officer 11 you were a main player in relation to the project 12 governance? 13 A. Absolutely not. 14 Q. If we go, please, to page 87, paragraph 203, Mr Inch 15 says: 16 "I am aware that a report by Ian Stirton, Chief 17 Internal Auditor, to the Audit Committee on 18 31 January 2008, 'Updated Local Code of Corporate 19 Governance' noted one of the core principles of good 20 governance as 'the decision-making process will be 21 informed, transparent, subjected to effective scrutiny 22 and demonstrate effective risk management'. The CEC 23 officers who were responsible for ensuring that this 24 principle was met in relation to the tram project were 25 the Director of City Development, Director of Finance 68 1 and the Tram Monitoring Officer." 2 Do you agree with that? 3 A. I agree with the core principles of good governance. 4 With regard to the principle was met, I would have said 5 it was the Director of City Development, Director of 6 Finance, with the Tram Monitoring Officer informing 7 them. But I was not a decision-maker. I was reporting, 8 as I said earlier, I felt the TMO as written and as 9 performed lacked teeth. I did not see myself as 10 a decision-maker, more information giver. 11 Q. If we could move, please, to page 90, paragraph 207, 12 just about seven lines from the top, it says: 13 "With regard to whether one officer or officers in 14 CEC were responsible for ensuring that the tram project 15 was delivered on time and within budget, there was no 16 one officer with that responsibility. The constants 17 were the Director of City Development, Director of 18 Finance, Council Solicitor, Tram Monitoring Officer, and 19 the TPB being the key people and organisations engaged 20 in the monitoring of the tram and the development of the 21 tram project." 22 Again, would you agree with that? 23 A. As I've mentioned earlier, I saw my role as information 24 provider, and I would have said the constants were 25 Director of City Development, Director of Finance, the 69 1 Council Solicitor, TPB, with the Tram Monitoring Officer 2 there being available to update the group as required. 3 Q. If you were the person gathering information in relation 4 to those issues, do you accept that it was your 5 responsibility to gather sufficient information for 6 those Directors to take appropriate action about the 7 various matters that Mr Inch has discussed? 8 A. Yes. 9 Q. I'm just going to read from Mr Inch's -- the transcript 10 of Mr Inch's evidence, if I can get my iPad to 11 co-operate with me. 12 We don't have that available on screen, I don't 13 think, but I'll read it out for you. From page 9 of the 14 transcript, line 15, there's the following, and this is 15 in a question and answer format. Mr Inch is asked: 16 "Can I move on, please, to the role of the Tram 17 Monitoring Officer. I think that's quite different to 18 your role as Monitoring Officer of the Council; is that 19 right? 20 "Answer: Yes. It was very specifically Monitoring 21 Officer in relation to tram activity. So it was very 22 much narrower than the Monitoring Officer. It wasn't 23 a statutory role. It arose out of the development of 24 tie -- the tie monitoring ..." 25 Then he corrects himself: 70 1 "... Tram Monitoring Officer had responsibilities in 2 relation to the technical operation of the project. And 3 to ensure that standards were maintained and to address 4 any issues that would arise -- dispute that would arise 5 between the various parties involved in the development 6 of the tram." 7 So Mr Inch is there suggesting that the Tram 8 Monitoring Officer role concerned issues of technical 9 operation and addressing issues of dispute that would 10 arise between the parties. Do you agree with that? 11 A. I don't agree with the exact words that are there. The 12 first thing, it was the Tram Monitoring Officer role was 13 there to report to obviously the hierarchy. It didn't 14 have responsibilities. It had duties, not 15 responsibilities. As I say, I can't remember about the 16 technical terminology that's used there. For the life 17 of me, I can't see that under the Operating Agreement, 18 but I may be wrong. 19 Q. That's what I was going to ask, whether Mr Inch's 20 understanding of the Monitoring Officer was different 21 from the one you took from the terms of the Operating 22 Agreement. 23 A. The Operating Agreement, from memory, was about five or 24 six pages long. It was quite specific on a lot of 25 things, and I cannot recall the technical aspect of it 71 1 being there. 2 Q. Then reading from page 16 of the transcript, from 3 line 18, Mr Inch says this: 4 "Well, the Tram Monitoring Officer would have been 5 to report on difficulties that were arising in relation 6 to the delivery of a project on time and on budget." 7 I think you would accept that? 8 A. Yes. 9 Q. "So just from the point of view of a need to report, the 10 Tram Monitoring Officer had opportunity to report 11 because that was part of the Tram Monitoring Officer's 12 role. Consequently, and it may not have been 13 Andrew Holmes, it may have been his nominee who had that 14 responsibility ..." 15 Mr Inch is obviously talking about an earlier 16 period: 17 "... but nominally it was the Director of City 18 Development who would determine who that Tram Monitoring 19 Officer was." 20 Then the question: 21 "Tram Monitoring Officer was intended to be the eyes 22 and ears of the Council in terms of monitoring the 23 project; is that a fair way to put it? 24 "Answer: That's correct. It was a key element in 25 the governance of the project." 72 1 Do you accept that description of the Monitoring 2 Officer as being the eyes and ears of the Council? 3 A. Yes, I would accept that. That statement, as I say, the 4 only issue I would take would be the technical aspect of 5 it. I would have thought that would have been -- 6 I can't for the life of me remember it in the Operating 7 Agreement. I don't see it being part of it, and I would 8 have thought that would have been part of tie's 9 responsibilities, the project administration contract 10 management and technical aspect of it. 11 Q. Okay. If I could just look briefly at the statement of 12 Dave Anderson, which is TRI00000108, at page 116, 13 question 153(b). He was asked -- I'm going to start on 14 this page and read over the page: 15 "By what means did CEC exercise oversight and 16 control over tie? Which Council officer was responsible 17 for ensuring that CEC exercised effective oversight and 18 control over tie?" 19 His answer: 20 "There were controls at various levels. 21 Marshall Poulton, Head of Transport fulfilled the role 22 of Tram Monitoring Officer. This covered the technical 23 transport engineering aspects of the project ensuring 24 that the work carried out delivered a structurally safe 25 and sound tram system and that the quality of the road 73 1 reinstatements was satisfactory." 2 Now, just pausing there, did you recall that as part 3 of your role? 4 A. Could you go back to the -- the first part of that? 5 "There were controls at various levels." 6 I agree with that. 7 "Marshall Poulton, Head of Transport fulfilled the 8 role of Tram Monitoring Officer." 9 I agree with that. 10 "This covered the technical transport engineering 11 aspects ..." 12 No, it did not. 13 The Head of Transport and Technical Approvals for 14 certain equipment such as traffic signal equipment, 15 would have been my responsibility as Head of Transport, 16 not as the Tram Monitoring Officer. 17 So it's maybe a play on words, but I think it needs 18 to be clarified. The TMO did not have the technical 19 approval sign-off. Yes, the Head of Transport did. 20 It's maybe a fine split. 21 Q. So you accept that from a personal point of view, it was 22 your responsibility -- 23 A. On certain aspects such as traffic signals. It's only 24 the road authority that can accept that under the 25 legislation. That cannot be delegated to an -- or arm's 74 1 length company such as tie. 2 If it was for the thickness of concrete, the type of 3 steelwork that's there, the overhead lines, that in my 4 opinion would all be the responsibility of tie under the 5 contract management and project administration. 6 Q. Okay. Just reading on, the next page, Mr Anderson says: 7 "Alan Coyle fulfilled a supervisory role in relation 8 to the financial monitoring and budget aspects of tie 9 reporting back to the Council on expenditure against 10 budget profile." 11 I think that was consistent with what you said. You 12 would agree with that? 13 A. I agree with that. 14 Q. Then down at the final paragraph in that answer, 15 Mr Anderson says: 16 "I was the Council Officer responsible for ensuring 17 oversight of tie in relation to construction progress. 18 Donald [McGougan] fulfilled the role of oversight on 19 finance and budget monitoring." 20 You agree with that? 21 A. I agree with that, yes. 22 Q. We have seen there some different ideas about what the 23 role of Tram Monitoring Officer involved. Did you 24 consider at the time that there was a clear 25 understanding within the Council about what the role 75 1 entailed? 2 A. I was fairly clear about the role of TMO because it was 3 clearly laid out in the Operating Agreement. 4 Maybe my -- maybe I would have some reservations 5 about the governance and the reporting system round 6 about it. It seemed to be a bit cumbersome at times, 7 duplicated and to me there were no clear terms of 8 reference. 9 So the TMO role, I was fairly clear on. It was well 10 laid out in the Operating Agreement. But as I say, 11 maybe the overall governance led a bit to be desired of. 12 Q. Okay. If we could close that document down, please, and 13 look at CEC00863074. You see that this is headed up 14 "Tram Monitoring Officer Weekly Report Week Ending 15 8 March 2009". We can see, if we just go to the second 16 page, that this is a two-page report from Steven Bell, 17 the Tram Project Director. Do you recall receiving 18 reports of this nature from Mr Bell? 19 A. I recall receiving reports. I can't remember that one 20 in detail. 21 Q. But does the general format of the report seem familiar 22 to you? 23 A. Yes, it is. 24 Q. It appears from the records available to the Inquiry 25 that reports of this form started around this time, the 76 1 start of March 2009, and ran broadly weekly until the 2 end of October 2010. Does that seem about correct to 3 you? 4 A. Yes, that would tie in with my timelines of it. As 5 I said earlier, I felt there was a void in information 6 flow through 2008, and then after this meeting between 7 David Mackay and Tom Aitchison, then things started to 8 get better on the flow of information, and yes, that 9 would tie in with my timelines. 10 Q. Okay. If we just look at the second page of that 11 document, please, down at the bottom, the heading, 12 "Reporting and Governance", and it reads: 13 "Daily reports have been provided giving greater 14 daily detail to the TMO from 3 March onwards. These 15 continue." 16 What did these daily reports involve? 17 A. If I'm not mistaken, this was primarily to do with the 18 Princes Street works. As I alluded to earlier, there 19 was a lot of work that I did with the traffic modelling 20 team from tie, from about October to December. 21 Then when Princes Street got up and running, after 22 quite a lot of discussions between various parties, we 23 finally got the contractor to do the work and this was, 24 as I say, focusing in on Princes Street and all the 25 other -- not the technical aspects, but more making sure 77 1 pedestrians could get about safely, visually 2 handicapped, disabled, et cetera. Signing was good. 3 What had been received in the way of reports from 4 Federation of Small Businesses, small shops, et cetera. 5 So this -- these daily reports, as I say, my 6 recollection of it, it was really to keep tabs on 7 Princes Street and the way things were going. Not so 8 much about the programme of doing the Princes Street 9 works itself. It was more the impact on the surrounding 10 area, traffic, most definitely pedestrians, to make sure 11 it was safe. 12 Q. The dispute between tie and the consortium around 13 Princes Street came to a head in around February 2009. 14 And these written reports start in March 2009. 15 Was there a connection between the two? Did the 16 reporting to you as TMO pick up in some way as 17 a consequence of that dispute arising? 18 A. Yes, I can't remember all the details of the dispute. 19 I just know that it was a tough time from everyone 20 involved, but we finally got there, and, yes, this 21 was -- I would say, as a consequence of Princes Street 22 getting started and making sure we were keeping on top 23 of it, to try and get that phase of the works 24 constructed, finished as efficiently as possible, and 25 most definitely before November of the -- of that year, 78 1 because of the Christmas festivities starting in about 2 mid-November. 3 Q. These written reports, an example of which is up on 4 screen, they're all very brief. They're all two or 5 maximum three pages. 6 What did they add to other reporting that was taking 7 place? 8 A. They would give the overall picture of what was 9 happening, especially in and around the city centre, the 10 impact on roads, events, et cetera, because Edinburgh is 11 an event city. The two biggest months of the year are 12 August and December, for summer festival and winter 13 festivals, but there are events happening throughout the 14 year. 15 So this was a way of keeping in touch on a daily 16 basis of all the things that were happening in and 17 around the area, as well as obviously trying to make 18 sure the programme to -- I think it was ten months it 19 was -- Princes Street was due to be closed. 20 Q. You're talking there, as I have understood it, 21 essentially about traffic management issues. But the 22 reports do seem to go beyond matters of transport? 23 A. Yes. This -- you asked what this would do. As I say, 24 this would help inform us of the overall picture, whilst 25 Steven was giving me this additional information to 79 1 comply with the -- tie's obligations as part of the 2 Operating Agreement. 3 Q. If you were getting the papers for the Tram Project 4 Board on a month-by-month basis, they ran to sort of 5 100, 200 pages? 6 A. Yes. 7 Q. Just what I'm trying to understand is what these 8 two-page reports added to what was already being 9 reported in that forum. 10 A. Well, this was taken primarily for our own Internal 11 Planning Group, and also back to the councillors on 12 that, and then I -- if I recall, Steven would have maybe 13 not just put that directly into the Tram Project Board, 14 but certainly there would be a version of it. 15 Q. Did you rely on these reports as an alternative to the 16 Tram Project Board reports? 17 A. No, I would see that as being in addition to. 18 Q. In addition. We saw earlier that you made reports to 19 the IPG, and we see those in the written reports to the 20 IPG. 21 To what extent did these reports that you were 22 getting from Steven Bell inform what you were telling 23 the IPG? 24 A. These would form the basis of what was going to the IPG. 25 Q. Did you literally just do that, pass on the information, 80 1 or did you add anything to the process, for example your 2 views or advice on what was being reported to you? 3 A. Yes, I would give it -- I wouldn't just use it myself as 4 a post box, but I would be reading that over many -- 5 making any comment that I thought was appropriate, and 6 incorporating that into the IPG report. As I say 7 generally that would be done through Duncan Fraser or 8 latterly Andy Conway. 9 Q. If you felt there was a shortage of the information 10 given to you which you needed to rectify before you 11 reported to the IPG, were you able to pick up the phone 12 to Mr Bell and ask what you thought needed to be asked? 13 A. Yes. 14 Q. Did you generally get the information from him that you 15 were looking for? 16 A. Mixed, I think would be a fair description. Sometimes 17 yes, but sometimes he had to go away and think about it 18 or source other information and come back a few days or 19 maybe a week later. 20 Q. That's perhaps understandable. He might not have all of 21 the answers at his fingertips, but generally speaking, 22 whether he was able to do it immediately or after 23 a period of time, did you get the information that you 24 were looking for? 25 A. Yes, mm-hm. As I said earlier, far better than what 81 1 I felt was the void in information in 2008. It was -- 2 that gap was plugged, I think, in 2009. 3 Q. There's a reference in some of the IPG reports to Tram 4 Monitoring Officer briefings for councillors. I think 5 it's Council group leaders. What was your role in 6 relation to those? 7 A. Again, that was -- it tended to be support. I'm there 8 to advise the Council Leader meetings that took place on 9 an ad hoc basis where I was generally there supporting 10 the Chief Executive, and usually the CEO of tie was 11 present also. 12 So really just there in a supporting role. 13 I wouldn't be presenting. I wouldn't be presenting any 14 findings or anything like that. That would be done, 15 I recall, there were none done in Willie Gallagher's 16 time, but it was more Richard Jeffrey's time, going 17 along with Tom Aitchison. 18 Q. Was it your impression that the Council members were 19 satisfied with the briefings they received? 20 A. I would say they were not satisfied with the briefings. 21 Q. What was done about that? 22 A. It was reported back to tie that they would have to 23 improve the reporting, the quality of it, but the 24 timeliness of it as well. 25 Q. Was that done by you as the Monitoring Officer? 82 1 A. It was done by a number of people. Certainly it was 2 raised by Dave Anderson. I can recall Donald McGougan 3 saying it, and then I would reinforce it, just to 4 reinforce the message, at whatever meeting I was at with 5 tie. 6 Q. What do you recall were the matters about which the 7 Council members were dissatisfied? 8 A. Lack of clarity. Repetition of issues. Things dragging 9 on two months or three months. No clear indication of 10 the mitigation measures that were likely to be put in 11 place and when they would be delivered. And sometimes 12 the vagueness of information. That was the general 13 comments, I think, that were coming back from elected 14 members. 15 Q. I think we can all understand that there are 16 circumstances where a clear answer is something that can 17 be given, but there are also circumstances where things 18 are perhaps difficult, and it might not be possible to 19 provide a clear answer? 20 A. Mm-hm. 21 Q. Did you form a view yourself about whether the concerns 22 the councillors had were in one or other of those 23 categories? 24 A. Yes, I felt the claims by the councillors were very 25 valid, and there was, if not an action plan, there were 83 1 certainly some actions that tie had to do, Steven Bell, 2 and as I say, Richard Jeffrey, had to meet, and they did 3 take that on board and improve the reporting. 4 Q. As the Tram Monitoring Officer, do you consider you did 5 everything you could to improve the flow of information 6 between -- or that the Council members were getting from 7 tie or from the Council? 8 A. Yes, I thought I did everything that I professionally 9 could to improve the situation. 10 Q. Was it your view that after you'd taken those steps, any 11 concerns about reporting were properly and fully 12 addressed? 13 A. I felt they were -- if not fully addressed, they were -- 14 certainly all the points were taken on board and 15 addressed as best they could at that point in time. 16 CHAIR OF THE INQUIRY: How did it come about that the 17 councillors were dissatisfied with reports because of 18 the lack of clarity and the repetition, things dragging 19 on and the lack of engagement and remedial measures, how 20 did that arise if you were performing your functions as 21 Tram Monitoring Officer? Should you not have picked 22 that up and headed it off before it got to the 23 councillors? 24 A. Yes, my Lord, and that's what did happen. You know, 25 I was trying to pick up as much as I possibly could, 84 1 present it to Dave Anderson, Donald McGougan, 2 Tom Aitchison, and it was -- I think the frustrations 3 that I felt coming from the elected members tended to be 4 round the Tram Project Board on a monthly basis, and as 5 I say, it was just the feeling that I got from elected 6 members that was just this frustration of it was delay 7 upon delay and there was no clarity on what was 8 happening, and I could only report on what was coming 9 directly from tie. 10 MR MCCLELLAND: If you could move on now, please, to 11 document CEC02086935. 12 Sorry, my mistake. The document I intended to go to 13 was CEC01315172. What we have here, Mr Poulton, is the 14 Operating Agreement between City of Edinburgh Council 15 and tie. This one is dated 12 May 2008. So put in 16 place at Infraco financial close. 17 Is this the agreement that -- the terms of which you 18 familiarised yourself with on appointment as the Tram 19 Monitoring Officer? 20 A. Yes. 21 Q. If we could go, please, to page 3, we see down at the 22 bottom of the page the definition of Tram Monitoring 23 Officer. The definition is: 24 "... the Council officer nominated by the Council to 25 monitor tie in relation to the Project." 85 1 That's a broad definition. There's no -- the scope 2 of the monitoring function, if I can put it that way, is 3 not limited in any way in that definition. Do you 4 accept that? 5 A. I do, yes. 6 Q. If we could move next, please, to page 10, 7 paragraphs 3.4 and 3.5. 3.4 reads: 8 "The Council will nominate a Council officer to act 9 as a liaison point for day-to-day communication between 10 the Company and the Council." 11 Who performed that role? 12 A. The company being -- 13 Q. Sorry, company being tie. 14 A. As far as I'm concerned, that would be the TMO. 15 Q. Well, if we read on, paragraph 3.5 says: 16 "The Council will appoint a Tram Monitoring 17 Officer ..." 18 So it appears from that that two different roles 19 were envisaged. 20 A. Yes, if it was the -- if it was a Council Monitoring 21 Officer, that would have come under the jurisdiction of 22 Jim Inch, Director of Governance Services, and the 23 Council will appoint the TMO, which was done on early 24 January 2009. 25 Q. Were you aware that the Operating Agreement provided for 86 1 these two different roles? 2 A. No, I was under the impression it was just for the TMO. 3 Q. So when you familiarised yourself with the terms of the 4 Operating Agreement, did it occur to you that somebody 5 else was required to fulfil 3.4? 6 A. Yes. 7 Q. What enquiries did you make to find out who was 8 performing that role? 9 A. From memory, I took that back to Dave Anderson, who 10 informally said: yes, that's actually would come under 11 the jurisdiction of Jim Inch. I left it with him, but 12 I didn't hear anything back from that. 13 Q. If you were the Monitoring Officer for tie, would it not 14 be helpful for you to know who the Council officer was 15 who was to be the liaison point between tie and the 16 Council? 17 A. Yes. It would. 18 Q. Did you find out who it was? 19 A. No, I didn't ever find out if that was actually formally 20 appointed. 21 Q. Right. 22 The fact that we have got two different roles in 3.4 23 and 3.5, would you agree that it suggests the Tram 24 Monitoring Officer role was seen as being something more 25 than and different to a simple liaison point between the 87 1 Council and tie? 2 A. Yes, the way it's written here, yes. I would agree. 3 Q. I think you've said that the bulk of your role was in 4 reporting or passing on information? 5 A. That's right. 6 Q. Was there a lack of clarity about whether you were 7 performing the role under 3.4 or the role under 3.5? 8 A. Well, I was always clear it was the role under 3.5. 9 Q. Thank you. 10 Now, reading on in paragraph 3.5, it says: 11 "The Council will use all reasonable endeavours to 12 procure that the Tram Monitoring Officer will be 13 a member of the Tram Project Board and a director of 14 TEL." 15 I think I'm right in saying that you were neither of 16 those? 17 A. I was certainly not a Director of TEL. And I would say 18 not so much a member of the TPB as I was invited along. 19 Q. Why was that? 20 A. It was to make sure that there was completeness in 21 the -- in the reporting. As I say, I didn't really 22 speak at the Tram Project Board. I basically sat in 23 the -- 24 Q. I'll just stop you there, Mr Poulton. I didn't make my 25 question clear. Why is it, if the Operating Agreement 88 1 says that the Council is to use reasonable endeavours to 2 procure the Tram Monitoring Officer is a member of the 3 Tram Project Board and a Director of TEL, did that not 4 happen? 5 A. I couldn't answer that one. I would say that's up to 6 Mr Anderson or Mr McGougan to answer that one. 7 Q. When you familiarised yourself with the terms of the 8 Operating Agreement, did you yourself query that? 9 A. No, because I -- I basically was performing all the 10 functions of finding out about the delays, the reason 11 for the delays, how could we stop the delays affecting 12 the programme, cost overruns, et cetera, in the full 13 knowledge that I was attending the TPB. If I had a vote 14 or not was not important to me, and I didn't have a vote 15 at the Tram Project Board. 16 Q. I think earlier on you said that one of your 17 frustrations with the role was that it didn't have any 18 teeth? 19 A. Mm-hm. 20 Q. If you'd held office on these Boards, would that not have 21 given you more influence and power to address 22 frustrations? 23 A. Yes, in hindsight, yes, that could have been done. 24 Q. That didn't occur to you at the time? 25 A. Not at that time, no. 89 1 Q. If you look, please, at page 7 and clause 2.17. This is 2 in the list of clauses setting out tie's obligations 3 under the Operating Agreement. This clause provides 4 that: 5 "tie shall continue to apply principles of good 6 corporate governance and to adopt and adhere to the 7 Council's Code on Corporate Governance (approved by 8 Council on 29 June 2006) as it may be amended from time 9 to time." 10 Were you familiar with that code? 11 A. No. 12 Q. Were you aware of tie's obligation under this agreement 13 to adhere to its terms? 14 A. I was aware of the heading but not aware of the details. 15 Q. When you were familiarising yourself with the terms of 16 this Operating Agreement, did it occur to you to take 17 steps to familiarise yourself with the terms of that 18 code? 19 A. No, not at that time. 20 Q. If we could look at that code just now, please, which is 21 CEC02084254, and what we have here, Mr Poulton, is, 22 first of all, the Council report which appends the code 23 of guidance. Paragraph 1.1 reads that the purpose of 24 the report is: 25 "To propose a revised 'Code of Guidance' to ensure 90 1 best practice in the monitoring and corporate governance 2 of the Council's Companies ..." 3 If you were performing the function of monitoring 4 tie, do you agree that it would be helpful for you to 5 know what such a Code of Guidance said? 6 A. It would have been very helpful, and certainly I would 7 have expected members of the IPG to draw this to my 8 attention, especially from Mr Inch or possibly 9 Alan Coyle. I may not have expected it from Mr Anderson 10 because he may not have been aware of this either, 11 because it was before his start. 12 So either Mr Inch or maybe Mr McGougan should have 13 informed me about this. 14 Q. But given the Operating Agreement, the terms of which 15 you familiarised yourself with, explicitly refers to 16 this Code of Guidance, why would it have had to be 17 brought to your attention by somebody else? 18 A. It wouldn't have -- it wouldn't by necessity have to be 19 brought by somebody else, but it would have been helpful 20 had this been brought to my attention. 21 CHAIR OF THE INQUIRY: Did I understand you to say that 22 Mr Anderson may not have been aware of this code because 23 this pre-dates his appointment? 24 A. That's essentially what I'm saying, but I can't answer 25 for Mr Anderson. Maybe he was aware of it. 91 1 CHAIR OF THE INQUIRY: I just wonder about the principle of 2 that. Are you seriously suggesting that a Director of 3 the City of Edinburgh Council upon appointment should 4 only be aware of things that appear on the day of his 5 appointment and subsequently, or should he not 6 familiarise himself with all policy documents which are 7 relevant to his duties? 8 A. No, I would agree, my Lord. I think you should 9 familiarise yourself with all the documents. At times 10 you don't have the benefit of having a historical 11 knowledge. So people that were there around that time 12 in decision-making positions, you know, such as Mr Inch 13 and Mr McGougan, you know, I would expect things like 14 that just to be drawn to attention: could you refer back 15 to report, and read through it and familiarise yourself 16 with it. 17 CHAIR OF THE INQUIRY: As Mr McClelland has pointed out, the 18 Operating Agreement mentions this code. So anyone 19 reading the Operating Agreement and understanding it 20 would or should go and look at the code. 21 A. That's true. 22 CHAIR OF THE INQUIRY: And that would apply to you as much 23 as to Mr Anderson? 24 A. Yes. 25 CHAIR OF THE INQUIRY: Why didn't you do that? 92 1 A. Maybe it was an oversight on my part. Because I can't 2 recall actually having read through that document, which 3 was two years before I arrived at Edinburgh. 4 MR MCCLELLAND: We should perhaps remind ourselves, 5 Mr Poulton, that the short letter of appointment that 6 Dave Anderson sent to you in January 2008, telling you 7 that you were the Tram Monitoring Officer, explicitly 8 said that you were to monitor tie's activities as 9 detailed in the Operating Agreement. 10 A. Mm-hm. 11 Q. One would expect that the sender of that letter would, 12 before doing so, have familiarised himself with the 13 terms of the Operating Agreement. Do you agree? 14 A. I would agree with you. 15 Q. Yes. As the recipient of the letter -- well, you've 16 said yourself that you did in fact familiarise yourself 17 with the terms of the Operating Agreement? 18 A. I did with the Operating Agreement, but as I say, 19 putting my hand on my heart, I can't recall going into 20 a historical document like that. 21 Q. Well, you call it a historical document, but it's one 22 that forms the basis of a present obligation on tie? 23 A. Yes, mm-hm. 24 Q. You couldn't have understood tie's obligations unless 25 you'd looked at that document. 93 1 A. Well, as far as I was concerned, I did make myself aware 2 of all the obligations of tie in the Operating Agreement 3 that I was reading through, prior to paras 3.7 or 3.17. 4 Q. Okay. If we can just look at the code. The code itself 5 starts at page 6. Just go to page 6, please. We see 6 there it's headed up, "CODE OF GUIDANCE". Just reading 7 the final two paragraphs on that page: 8 "The Code falls into two parts. The first part "A" 9 deals with what the Council will have in place to 10 determine the Council's relationship with the company. 11 The second part "B" deals with what the Council expects 12 the internal regime of the company to consist of in 13 order to provide good corporate governance." 14 Then it carries on: 15 "Significant funding is funding which the Council 16 gives to a company without which that company would not 17 be able to continue to operate or otherwise meet the 18 objectives for which Council funding is provided." 19 Would you accept that tie falls within that 20 description? 21 A. Yes, I would. 22 Q. If we go on to page 7, please, we see the heading there, 23 "Company Monitoring Officer". 24 "The Council requires that all companies in which it 25 has an interest are monitored on behalf of the Council. 94 1 The Council will appoint a Company Monitoring 2 Officer for each Company. The Council will inform the 3 Company who is to be the Company Monitoring Officer. 4 The overall purpose of the Company Monitoring Officer is 5 to ensure that the Council's interests are being 6 safeguarded." 7 Just pause there. That's a description in fairly 8 broad terms, is it not? 9 A. It is. 10 Q. "The company will assist the Company Monitoring Officer 11 to achieve this purpose." 12 Then just missing the next two paragraphs: 13 "The Company Monitoring Officer will ensure that the 14 requirements contained in the Operating Agreement and/or 15 Funding Agreement between the Council and the Company 16 are implemented. 17 The Company Monitoring Officer will ensure that the 18 Company is at all times adhering to best practice in 19 relation to corporate governance of shareholding 20 companies as informed by The Combined Code: Principles 21 of Good Governance and Code of Best Practice (based on 22 the Cadbury and Greenbury Reports). 23 The Company Monitoring Officer will ensure that the 24 other requirements of this Code are fulfilled." 25 You said you didn't read the code itself, but were 95 1 you aware of this conception of the role of the 2 Monitoring Officer? 3 A. Yes, I was aware of the conception of that, and as 4 I said earlier, Mr Inch, the Director of Corporate 5 Governance, he was the Council Monitoring Officer, and 6 my understanding of tie's obligations and the Operating 7 Agreement and how I was reporting to the Operating 8 Agreement were not called into question at all. 9 Q. The passages that we've just read there, to what extent 10 did you consider that to have been the scope of your 11 role as the Monitoring Officer? 12 A. Yes, I think I was adhering to the broad terms of that. 13 Q. We saw the passage that said the overall purpose of the 14 Monitoring Officer is to ensure that the Council's 15 interests are being safeguarded. Do you accept that as 16 the Tram Monitoring Officer, you had a responsibility in 17 those broad terms to ensure that in relation to tie and 18 the tram project, the Council's interests were being 19 safeguarded? 20 A. Yes, I think through the regular reporting, the accurate 21 reporting, timeliness of the reporting, that this was 22 adhered to at all times. I was endeavouring to do my 23 best to ensure the Council's interests were being 24 safeguarded, and that can be seen through the reports 25 that were filed. 96 1 Q. Can we look, please, again at the statement of Jim Inch, 2 which is TRI00000049_C. 3 At page 66, paragraph 159. Just reading from about 4 seven lines down, there's a passage that begins "The 5 Tram Monitoring Officer was approved". Do you see that? 6 A. Yes. 7 Q. "The Tram Monitoring Officer was approved as being the 8 Director of City Development or his nominee. The 9 nominee changed from time to time, there was 10 a suggestion that had there not been a nominee there 11 would have been a conflict and I will come back to that. 12 With regard to their duties and responsibilities and how 13 they carry these out, that's a matter of record. There 14 is a listing of the duties and responsibilities of the 15 Tram Monitoring Officer in the documentation. The role 16 was to deal with that interface between tie and the 17 Council. It was confused a bit by the TPB because, 18 clearly, the Tram Monitoring Officer was meant to have 19 that responsibility and it changed over time. There is 20 no simple answer to this. The Tram Monitoring Officer 21 was the individual who had the responsibility for 22 dealing with issues arising from the tram but that 23 became a little confused later on with the introduction 24 of the TPB and then, latterly, the Tram Subcommittee. 25 The Tram Monitoring Officer was still operating, but the 97 1 role of that person changed as the project developed." 2 Now, what's your comment on what Mr Inch says there? 3 A. Yes, I wouldn't disagree with what he's saying there. 4 The responsibilities and duties were changing over time, 5 and as I say, that was one of the reasons I had insisted 6 there would be this regular revisit by Mr Anderson to 7 myself as a TMO when I took the position in January 2009 8 that, as I say, we would have a look at this on 9 a six-monthly basis, and I think it was into late summer 10 or early autumn in fact. I think it was August of 2010 11 that there were problems with the contract per se and 12 the delivery and the cost of it. We looked at the TMO 13 role. Mr Anderson approached me and said we need to -- 14 in his opinion, he said, we need to make the Tram 15 Monitoring Officer effectively 100 per cent of the time; 16 do you want to do that role? 17 I referred back to the original conversations we 18 had, and I said: no, I don't think I'm the best person 19 from a skill perspective to do that role, nor indeed 20 would I want to do that role, but I suggested my 21 engineering manager, who has got the proper skill set, 22 and motivation to do that, and that went to 23 Mr McCafferty. Obviously it was discussed with him and 24 it was agreed that I would continue as Head of 25 Transport, doing the job I was appointed to do, with 98 1 delivering my core business activities. 2 Mr McCafferty would be seconded out of the section, 3 and I would backfill that position for the time that 4 Mr McCafferty was there, and went back to substantive 5 post. 6 Q. I think it's right to say Mr McCafferty was appointed 7 some time in 2011? 8 A. Yes. The discussions had started late 2010, and 9 obviously there was a bit of downtime on the tram 10 project at that time, and then if memory serves me 11 correctly, there was a political decision by the Liberal 12 Democrats to enter into mediation. That was the motion 13 that was put forward before Christmas 2010, and then 14 mediation happened in -- whenever it was, March 2011, 15 and Mr McCafferty took that role 100 per cent 16 thereafter. 17 Q. Up until those steps were taken to change the nature of 18 the Tram Monitoring Officer role, do you agree with 19 Mr Inch that up until then there was confusion about 20 exactly how the Monitoring Officer role fits within the 21 rest of the governance for the project? 22 A. I would agree. 23 Q. But it took until late 2010 for that confusion to be 24 addressed? 25 A. Correct. 99 1 Q. Why was it not addressed any sooner than that? 2 A. I can't answer that one, unfortunately. As I say, it 3 really is up to Mr Inch, McGougan, Mr Anderson to answer 4 that, I think. 5 Q. Okay. If we just put the Code of Guidance back up on 6 screen, please. That's CEC02084254. Now, you described 7 earlier on that, at least at an early stage, there were 8 some concerns about the standard or quality of reporting 9 from tie. 10 A. Correct. 11 Q. Were you aware of powers that the Council had over tie 12 in relation to reporting by virtue of both the Operating 13 Agreement and this Code of Guidance? 14 A. As I say, just aware of the headline of this Code of 15 Guidance, but more the Operating Agreement, hence the 16 reason I went back to tie to get the reporting improved. 17 Q. If we could look at page 11 of the code, please. 18 Now, this is in a section of the report dealing with 19 the funding agreement and compliance with the funding 20 agreement. What it says is that: 21 "The Council shall have the right to audit all 22 appropriate records held by the Company concerning the 23 operation of the Company and the Company shall ensure 24 all records are available to the Council's nominated 25 auditors and Company Monitoring Officer." 100 1 Were you aware of that obligation on tie? 2 A. Yes, I was aware of that through -- I think it was 3 Alan Coyle that mentioned to me about nominated 4 auditors. 5 Q. Okay. Then if we could go, please, to page 13. This is 6 in a section of the code dealing with how a company 7 demonstrates good corporate governance. Under the 8 heading there, "The Board", the last two paragraphs: 9 "The Board will be responsible for ensuring all 10 reports required by the Company Monitoring Officer under 11 the Operating Agreement and/or the Funding Agreement 12 will be delivered to the Company Monitoring Officer 13 complete and on time. 14 If these reports are not satisfactory to the 15 Company Monitoring Officer either in form and/or 16 content, the Board will be responsible for ensuring that 17 the difficulty is resolved to the satisfaction of the 18 Company Monitoring Officer and/or the Council without 19 delay." 20 Were you aware of those powers and the role of the 21 Company Monitoring Officer enforcing them? 22 A. Yes, and that's why, you know, I brought these things to 23 the attention of the IPG. I can't remember the dates, 24 but it would certainly be later on in 2008 and into 25 early 2009, and then something was done about it. 101 1 Q. Then if you could look at page 14, please. This is 2 a checklist of items to be sent to the Company 3 Monitoring Officer. The first heading is "Board 4 Papers": 5 "Five working days before Board Meeting the Agenda 6 and Board papers to include ..." 7 Then item (g): 8 "Any other matter requested by the Company 9 Monitoring Officer." 10 So it would appear -- and to be clear, Mr Poulton, 11 tie were obliged by clause 2.17 of the Operating 12 Agreement to comply with this code. So it would appear 13 that tie were subject to fairly significant obligations 14 of reporting to the Council. Would you accept that? 15 A. Yes. 16 Q. And that you as the Monitoring Officer had primary 17 responsibility for enforcing those obligations? 18 A. Yes. And I reported those back to the IPG. 19 Q. On the face of it, these powers would appear to be 20 sufficient for you to get any information that you 21 thought either that you needed or others in the Council 22 needed? 23 A. That's right. 24 Q. Was it your perception that you ultimately got all that 25 you wanted or needed in terms of information from tie? 102 1 A. I couldn't put my hand on heart and say we got 2 everything that we needed. Our Legal section headed by 3 Nick Smith, Finance by Alan Coyle and myself, we got 4 together on a regular basis and I'd be confident that 5 near enough everything was -- was provided over a period 6 of time. 7 Q. Yes. To the extent that there was a shortfall in the 8 information that you received, when compared to when you 9 wanted, do you agree that these powers would have been 10 sufficient for you to get what you needed from tie? 11 A. Yes. 12 Q. If we could look, please, at document CEC01315172, which 13 is the Operating Agreement. Just go briefly to page 4, 14 please. We see there clause 2 headed up, "tie's 15 Obligations", and then clauses 2.1 to 2.32, which run 16 over the following pages, essentially list obligations 17 owed by tie to the Council. You'll be familiar with 18 those obligations? 19 A. Yes. And that's why I was saying about tie's 20 obligations to administer the project. 21 Q. If we could just look briefly, please, at your 22 statement, which is TRI00000115, question 21, you're 23 asked: 24 "What activities of tie, and if appropriate TEL, did 25 you consider to fall within your monitoring duties?" 103 1 You answer that, and question 22 is: 2 "To what extent did they include the obligations of 3 tie and TEL listed in clause 2 of the respective 4 operating agreements?" 5 What you say in your answer is: 6 "No direct obligations with regard to tie and 7 certainly not TEL." 8 I understood from that answer that you did not 9 consider it to be your responsibility to monitor tie's 10 compliance with the obligations in clause 2; is that 11 correct? 12 A. I think that was my mistake there. 13 Q. Could you please clarify your obligations in relation to 14 that? 15 A. Yes. My obligations were to undertake the -- all the 16 aspects of the Operating Agreement with regard to tie, 17 but not to TEL. 18 Q. Yes. 19 So it was your responsibility to monitor tie's 20 compliance with all of the obligations in the Operating 21 Agreement? 22 A. It was. 23 Q. If we could go back to the Operating Agreement, please, 24 which is CEC01315172, at page 4, clause 2.1: 25 "tie hereby agree to provide the Services to the 104 1 Council throughout the duration of this Agreement in 2 order to assist in, carry out, promote, manage and 3 administer the Project." 4 The services are set out in more detail at page 16. 5 So if we could just go there, please. There's a list 6 there of services that tie were to perform for the 7 Council. 8 If we just see, for example, item 3, tie were to: 9 "Provide efficient and effective project management 10 services for the Project including cost, financial 11 programme, risk, contract and change management." 12 Paragraph 8, tie were to: 13 "Provide and demonstrate to the Council that 14 appropriate site management services are in place to 15 ensure quality is delivered." 16 Was it your understanding that it was part of your 17 role to monitor tie's performance of these services? 18 A. Yes. 19 MR MCCLELLAND: I note the time, my Lord. It might be 20 a convenient place to stop. 21 CHAIR OF THE INQUIRY: We will adjourn for lunch and resume 22 again at 2 o'clock. 23 (1.01 pm) 24 (The short adjournment) 25 (1.58 pm) 105 1 CHAIR OF THE INQUIRY: You're still under oath, Mr Poulton. 2 Yes, Mr McClelland. 3 MR MCCLELLAND: Thank you, my Lord. 4 This morning, Mr Poulton, we discussed the Council's 5 Operating Agreement with tie. I think in your answers 6 you made reference to a similar Operating Agreement that 7 the Council had in place with TEL. In your written 8 answers to the Inquiry, you say that you didn't perform 9 the role of Monitoring Officer of TEL, and that you 10 didn't know who did perform that role, is that correct? 11 A. That's correct. 12 Q. In terms of monitoring the tram project, would it not 13 have made sense for the same person to monitor both 14 these companies? 15 A. I think -- I really think that's for Mr Aitchison to 16 decide if that would have been a better approach, rather 17 than split the job. 18 Q. Would it have made a difference to you to know that you 19 were monitoring both companies, rather than just one of 20 them? 21 A. Yes. I wouldn't have been doing the job. 22 Q. What do you mean by that? 23 A. I wouldn't have accepted it because I -- as I said 24 earlier, I was appointed to do Head of Transport job. 25 That's what attracted me up from London and that is what 106 1 I would have been doing. 2 Q. Would it have been helpful for you to know which Council 3 officer was monitoring TEL? 4 A. No, because at the time, when I stopped becoming TMO, 5 I didn't think there was any relationship. It was too 6 early in the day to have TEL Monitoring Officer there. 7 I don't think it would have made any difference at all. 8 Q. Does it not suggest it would be more joined-up thinking 9 for -- were the Council's Monitoring Officer of tie to 10 have known who the Monitoring Officer was for TEL? 11 A. Yes, that certainly would have been a way forward. 12 Q. But you didn't seek out that information? 13 A. No. 14 Q. Now, in December 2009 there was a change to the 15 governance of the project, in particular in relation to 16 the role of TEL. Do you recall that? 17 A. No. As I say, I wasn't really involved in anything to 18 do with TEL at all. I was kept out of all discussions. 19 Q. Okay. If we just briefly look at the TEL Operating 20 Agreement, please, which is CEC00645838. 21 If we just look at clause 2.4, please, which is on 22 page 6. We see there that 2.4 reads: 23 "TEL shall be responsible for the management of tie 24 and ensuring that all appropriate steps are taken to 25 deliver the Project in accordance with the terms of the 107 1 tie Operating Agreement and the Memorandum of 2 Understanding between the Parties and tie dated of even 3 date with this Agreement." 4 That suggests that TEL's role involved an overlap 5 with your role in the sense of ensuring that tie was 6 complying with the terms of the tie Operating Agreement; 7 do you agree with that? 8 A. I would agree with that. That's why I was saying 9 earlier on, there was a bit of overlap with terms of 10 reference and lack of clarity. 11 Q. If we look at page 5 of that agreement, just at the top, 12 we see the reference to Tram Monitoring Officer as 13 meaning the Council officer nominated by the Council to 14 monitor TEL in relation to the project. 15 You can take it from me, Mr Poulton, that in the 16 previous Operating Agreement for TEL, the name of that 17 role was the company Monitoring Officer. So with this 18 new agreement in 2009, we have the name of the role 19 being changed to be the same name as the role that you 20 held, being Tram Monitoring Officer. 21 Does that and the fact that TEL were involved in 22 ensuring tie's compliance with its Operating Agreement, 23 are those not indications that there was intended only 24 to be one Tram Monitoring Officer responsible for 25 monitoring both tie and TEL? 108 1 A. It would certainly appear like that. 2 Q. Was there anything said to you about your role changing 3 to include the monitoring of TEL? 4 A. Absolutely not. 5 Q. If you were not told that your role involved the 6 monitoring of TEL, did you become aware from the time of 7 this agreement in December 2009 of anybody else being 8 appointed by the Council to be the Monitoring Officer of 9 TEL? 10 A. No, I wasn't informed of that. 11 Q. What you say in your written answers is that 12 David Anderson gave you a very clear instruction that 13 you were not to monitor TEL; is that correct? 14 A. That's correct. 15 Q. When did he say that to you? 16 A. I can't remember the exact date. 17 Q. Would it have been when you were appointed as Monitoring 18 Officer -- Tram Monitoring Officer or perhaps later on 19 when this new agreement was put in place with TEL? 20 A. I think it was closer to the new agreement being put in 21 place. 22 Q. Did he not at that time explain to you who was to be the 23 Monitoring Officer of TEL? 24 A. No. I don't recall that. 25 Q. Could we have document, please, TIE00084642. Do we see 109 1 that that's a letter addressed to you, Marshall Poulton, 2 Head of Transport, dated 8 June 2010, and if we scroll 3 Council we will see that it's from David Mackay, the 4 Chairman on behalf of the TEL Board. 5 If we just read the paragraph, the second paragraph 6 there, he says: 7 "As required by clause 2.24 of the revised Operating 8 Agreement between TEL and the Council ..." 9 Between TEL and the Council: 10 "... this letter is to formally advise you that the 11 TEL Board now consider that it is reasonably expected 12 that the full scope of Line 1a cannot be delivered 13 within a budget of GBP545 million and by October 2012." 14 Now, if Mr Mackay is reporting to you under 15 a provision of the TEL Operating Agreement, does that 16 not suggest that Mr Mackay at least took you to be the 17 Monitoring Officer for TEL? 18 A. I can't answer for Mr Mackay, but as I say, Mr Anderson 19 was very clear that I shouldn't get involved in TEL and 20 from memory, when I received this, this was passed up 21 the line to Mr Anderson, and also to Alan Coyle and 22 Mr McGougan. 23 Q. If I was to suggest to you that, despite what was said 24 in the TEL Operating Agreement about there being 25 a Monitoring Officer for TEL, that nobody was formally 110 1 appointed to that role, but everybody carried on, on the 2 assumption that you held that role, would you agree with 3 that? 4 A. I can't answer for others. All I can say is that I was 5 given a very clear instruction: do not get involved in 6 TEL. 7 Q. But you're not in a position to tell us that anybody 8 else was performing the Monitoring Officer function at 9 TEL? 10 A. No, I wasn't aware of anybody else undertaking that job. 11 CHAIR OF THE INQUIRY: Did you tell Mr Mackay that you 12 weren't anything to do with TEL? 13 A. My Lord, I can't remember the conversations at that 14 time. I think, and it's only my thought, I think when 15 I passed this up the line to Mr Anderson, and 16 Mr McGougan, this was all relayed back to Mr Mackay at 17 that time. 18 CHAIR OF THE INQUIRY: Would you not expect it to be put in 19 writing that -- here is a formal letter, telling you 20 that TEL aren't going to meet the budget or the time; 21 would you not expect, as it's addressed to you, why did 22 you not, in addition to giving it to your boss, do an 23 email or a letter to Mr Mackay to say: I have passed 24 this to Mr Anderson, this is nothing to do with me. 25 A. Because -- I passed it up the line because obviously it 111 1 was going to involve the scope of the project end up 2 changing, and the fact that I was given a very clear 3 instruction by Mr Anderson not to get involved in the 4 TEL role, my Lord. 5 MR MCCLELLAND: Moving on from that, Mr Poulton, do you 6 recall -- 7 MR MARTIN: Forgive me, my Lord, but one of the difficulties 8 about the system we have here is that we can't see the 9 entirety of the document. My learned friend can happily 10 move on, but I wonder if it would be possible to have 11 the document reduced back to its full size, please, so 12 we can look at it before he moves on. Thank you very 13 much. 14 CHAIR OF THE INQUIRY: Do you want to see the bottom as 15 well? 16 MR MARTIN: Yes. Thank you. 17 CHAIR OF THE INQUIRY: Is that enough for you? 18 MR MARTIN: I'm obliged, my Lord. I simply wanted to look 19 at it. Thank you. 20 MR MCCLELLAND: Do you recall, Mr Poulton, that in mid-2010, 21 proposals were discussed by the IPG for changing the 22 remit of the IPG and the role of the Tram Monitoring 23 Officer? 24 A. Yes, I was aware of the discussions at that -- at that 25 time. 112 1 Q. If we could go to document, please, CEC00242752. We see 2 there that this is the report to the IPG of 3 4 August 2010. 4 If we could go to page 33, please. This is a draft 5 paper by Dave Anderson which is appended to the IPG 6 report. We see at paragraph 1.1, it says: 7 "This report reviews the composition and terms of 8 reference of the Tram Internal Planning Group (IPG) and 9 recommends several minor revisions." 10 Then if we could go, please, to page 34, 11 paragraph 3.5, it says: 12 "Future Remit and Key Objectives. 13 It is proposed that the remit of IPG should in 14 future be focused more explicitly to address the 15 following objectives: 16 To provide Council management scrutiny and 17 oversight of the tram project and identify high level 18 risks against the programme timetable and budget that 19 may need to be discussed at the Tram Project Board or 20 taken up with the senior management within tie Ltd; 21 To identify, manage and mitigate any programme 22 level risks to the Council and the city resulting from 23 a failure by the project to achieve its objectives, 24 including risks arising from commercial and legal 25 disputes and financial pressures arising from programme 113 1 delays and scope changes." 2 To what extent did you regard that as a change in 3 the remit of the IPG? 4 A. It wasn't significant changes. I think it was just more 5 clarification on what was required. 6 Q. These two bullet points I have just read out, it was 7 your understanding that those things were within the 8 function of the IPG prior to this paper? 9 A. Yes, very similar to the points in the Operating 10 Agreement, but clarified. 11 Q. What you say in your written answers, when asked about 12 this, we don't need to go there, but for the record, the 13 reference is TRI00000115, and it's at page 61. You said 14 that the IPG had to be more robust in following through 15 their decisions and recommendations. What did you mean 16 by that? 17 A. I can't recall the details of it. I think it was more 18 around terms of reference being clear and getting direct 19 issues back to tie, but I can't remember the detail of 20 it. 21 Q. If in your written answers you said the IPG needed to be 22 more robust in following through its decision, was it 23 your view beforehand that it hadn't been effective 24 enough in implementing what it saw as appropriate for 25 the project? 114 1 A. Yes, I think that's fair. 2 Q. Can you give any particular examples to illuminate what 3 you mean? 4 A. No, sorry. I'm at a loss to think of any actual 5 examples. 6 Q. If we can look, please, at page 35 in the document on 7 screen, paragraph 3.7. The heading is "Role of TMO": 8 "The role of the Tram Monitoring Officer will be 9 critical to the effective functions of the Tram IPG. 10 The TMO will act as a key link between the Council and 11 tie Ltd ensuring that the project is professionally 12 implemented and that competent arrangements are in place 13 to ensure the Council's interests are fully represented 14 and protected." 15 If we could just pause there, does that describe the 16 role of the TMO as you understood it from when you were 17 first appointed to it? 18 A. Yes. 19 Q. The passage then says: 20 "The role of the TMO is described at Appendix 2." 21 If we could go to page 39. At the top of that page 22 it says that: 23 "The TMO will be responsible for monitoring the Tram 24 Project on behalf of the Council. In particular, the 25 TMO will oversee the Programme, Project Management, 115 1 Financial, Commercial and Legal aspects of the project, 2 ensuring the Council's interests are represented 3 appropriately." 4 To what extent did you regard that as a change from 5 the role that you'd performed up until then? 6 A. The change is more around the project management, 7 because the project management was the responsibility of 8 tie itself, but given the fact that it was overseeing 9 the project management, it was just a higher level -- 10 not investigation, but oversight of it and reporting 11 back. The original aspects are all the same with 12 financial, commercial and legal aspects, and also the 13 programme, because as I said earlier on, it was -- the 14 way I saw the Operating Agreement, the way 15 I communicated with Dave Anderson, the SRO, was to look 16 primarily at costs overruns and programme overruns, and 17 the impact it would have to the city. 18 Q. So can I take your answer as being that you didn't 19 regard that this as being a significant change in the 20 role of the TMO? 21 A. No, minor change. 22 Q. I think you explain in your written answers that when 23 these proposals were implemented, and Bob McCafferty was 24 appointed to the role, the role became a full-time one? 25 A. That's correct. 116 1 Q. Was it your view that the TMO role should always have 2 been a full-time one? 3 A. That was the conclusion I came to. I don't know what -- 4 over what period of time, but certainly by summer of 5 2010, that would have been my conclusion, or if I was 6 advising any city authority on delivering a tram project 7 or mass rapid transit, it would be have a good, 8 competent and capable monitoring officer in place, and 9 it would have to be 100 per cent of the person's role. 10 Q. You indicated that I think certainly by mid-2010, you'd 11 come to the view that it should be a full-time position. 12 Can you give us any indication as to whether you thought 13 that at an earlier point? 14 A. I don't think I could put my hand on my heart and say by 15 January 2010 it should be a full-time role. I think it 16 was just a natural progression and the amount of work, 17 the difficulty and the reporting, in what was a very 18 complex and complicated project, that it needed somebody 19 to devote 100 per cent of their time to that. That's 20 why, you know, I was happy to recommend Bob McCafferty 21 as doing that role 100 per cent, because he's got the 22 skill sets, he's got the competences, and he would have 23 the motivation, and I could easily backfill his role. 24 CHAIR OF THE INQUIRY: Sorry, when did Mr McCafferty take 25 over? 117 1 A. Sorry, my Lord? 2 CHAIR OF THE INQUIRY: When did Mr McCafferty take over? 3 A. He formally didn't take over until after mediation, but 4 from about this time, round about the August of 2010, 5 the TMO role was actually starting to reduce in nature 6 because there wasn't as much activity on-street. So it 7 was a bit of a transition between myself and 8 Bob McCafferty. But formally I think it was after 9 mediation. 10 MR MCCLELLAND: After mediation tie performed initially less 11 of a role, and then ultimately no role at all, in the 12 project. Is it because of the removal of tie that you 13 thought that the Monitoring Officer role needed to be 14 a full-time one, or was it your view that even with 15 a project structure of a company like tie in place, 16 a full-time Monitoring Officer would still be required? 17 A. I think with the -- I think with the complex nature of 18 the contract, and all the dependencies, I was coming to 19 that conclusion that it should be a 100 per cent role 20 by, as I say, the summer of 2010, irrespective of 21 whether tie were there or not there. 22 Q. If we could look at your written answers, please -- 23 CHAIR OF THE INQUIRY: Before that, if you look at the 24 document on the screen, you see there that the Tram 25 Monitoring Officer has responsibilities in respect of 118 1 TEL. Did you see this document when it was -- 2 A. I would have seen that document, but as I say, 3 Mr Anderson gave me a very clear instruction not to get 4 involved with the TEL role at all. 5 CHAIR OF THE INQUIRY: But it's quite clearly set out that 6 that's what the Tram Monitoring Officer is to do. 7 A. Yes. 8 CHAIR OF THE INQUIRY: You are saying that Mr Anderson, 9 despite that, said: please ignore your duties to TEL, or 10 to the Council in respect of TEL. 11 A. Maybe at that time they could see someone else coming 12 into the TEL role and the new Tram Monitoring Officer, 13 whoever it was going to be, would actually incorporate 14 the TEL aspect in it. 15 But as I say, I was just acting on a very clear 16 instruction from Mr Anderson not to get involved on the 17 TEL issue at all. 18 CHAIR OF THE INQUIRY: Thank you. 19 MR MCCLELLAND: Now, Mr Poulton, we've talked about initial 20 difficulties or problems or shortcomings that there were 21 in the reporting of information about the project to the 22 Council. And you've described an improvement in 23 relation to that from around 2009. 24 The way that you put it in your written answers is 25 that there was a sea change in the quality of reporting 119 1 from mid-2009. Do you have any view on what it was that 2 brought about the sea change? 3 A. I would have said it was down to this meeting or coming 4 of minds between David Mackay and Tom Aitchison at the 5 time, and it was more around the need to get together 6 and act as one team. In fact I think the term that was 7 used was "we are one family". That was the branding 8 that we were trying to do, and to me that was when the 9 sea change did happen. 10 A lot of it was down to the behaviours, building the 11 relationships, but also Richard Jeffrey coming in and 12 instilling a new confidence and working together, 13 especially on communication and reporting. 14 Q. Were you generally satisfied with the reporting after 15 this sea change? 16 A. Yes. 17 Q. In your written answers you make -- I don't think we 18 need to go to it, but it's page 10, question 40 for the 19 record. You say there was an issue of vagueness in the 20 reports to the Tram Project Board. Again, was that 21 something which was remedied after the sea change in mid 22 2009? 23 A. Yes. It definitely got better. I don't think it was 24 solved altogether, but I think that was because of the 25 difficulty with the issues in the negotiations that were 120 1 going on. 2 Q. Again, we don't need to go to it, but question 83, you 3 say that in terms of reporting to the Tram Monitoring 4 Officer, you felt that you were not being kept in the 5 loop and that you felt that you were only being provided 6 with information at a time that was suitable to tie. 7 Again, were those difficulties remedied by this sea 8 change in mid-2009? 9 A. Yes, they were. As I say, that initial comment from me 10 there was more directed at the 2008 reporting 11 arrangement. 12 Q. Now, it's apparent from the reports to the IPG through 13 2009 and 2010 that you reported to that body on the 14 various disputes which were affecting the Infraco 15 contract. Do you recall that? 16 A. Yes. 17 Q. What was the purpose of reporting on these matters to 18 the IPG? 19 A. The purpose was to give a good overview of where we were 20 on programme. Basically progress versus programme. 21 Q. Did the IPG regard itself as having to consider whether 22 the disputes were being handled in a way that protected 23 the Council's interests? 24 A. Yes, there was -- there was certainly some discussion 25 around that. 121 1 Q. Would it have been part of the IPG's function to act 2 appropriately if they came to the view that the disputes 3 were not being handled in a way that provoked the 4 Council's interests? 5 A. Yes. 6 Q. Your reports on these disputes, what was the source of 7 your information? 8 A. Source came from Steven Bell, mostly. 9 Q. Was that in the form of these written and oral reports 10 that we heard about this morning? 11 A. Yes. 12 Q. What about Duncan Fraser and Andy Conway? Were they 13 a source of information for you about the disputes? 14 A. With regard to the dispute, I think, if my recollection 15 is right, Duncan Fraser had already retired at that 16 time. So Andy Conway would have been in the know with 17 regard to what was happening with disputes. So I would 18 generally have a conversation with him to check the 19 accuracy, validity, of the up-to-date situation. 20 Q. Were there other sources of information about the 21 disputes to the IPG? 22 A. It was -- it was mostly through Steven Bell and/or 23 Richard Jeffrey. 24 Q. When you say it was coming through Richard Jeffrey, who 25 was he reporting to? 122 1 A. Richard would be accountable to the Chairman, 2 David Mackay. 3 Q. So would David Mackay then be reporting on these 4 disputes to the IPG? 5 A. When you say reporting to the Chairman, he would also 6 have a responsibility to go back to Tom Aitchison as 7 well. I don't know how he performed that function, 8 whether he did it in parallel or it was consecutive. 9 Q. Were the members of the IPG satisfied that they were 10 given as much information as they wanted or needed about 11 the disputes? 12 A. I think that would be better answered by Mr Aitchison. 13 Mr Inch to some extent, certainly Mr Anderson and 14 Mr McGougan. 15 I think there was some frustration around, but as 16 I say, there was a more open culture when 17 Richard Jeffrey arrived, and there might have been 18 frustration, but it wasn't deliberate -- I don't think 19 information was deliberately kept from them: just 20 frustrating because Richard would update either 21 Tom Aitchison, and obviously David Mackay, as and when, 22 but things just seemed to drag on with negotiation and 23 there wasn't a line drawn in the sand with some of the 24 issues. 25 Q. But you attended the meetings of the IPG? 123 1 A. IPG, I did, yes. 2 Q. You were one of the main routes by which information 3 about the disputes reached the IPG? 4 A. Yes, but there were effectively three routes it could 5 reach the IPG. One, myself, from the formal reporting. 6 It could also be through Finance, Alan Coyle was really 7 on the ball with all the financial aspects, and he would 8 either inform Donald McGougan or Donald would maybe give 9 him a steer, go straight to Tom Aitchison, and likewise 10 on the legal side of things, Nick Smith was also on the 11 ball and would go or could go straight to either 12 Jim Inch or Tom Aitchison. 13 Q. Yes. I just mean -- 14 A. Rather than leave it to the formal monthly meeting of 15 IPG. 16 Q. All I mean is that, given the nature of your role, and 17 your attendance at the IPG, that if there had been 18 concern at that forum about a lack of information on 19 disputes, you would have been aware of it? 20 A. Yes. 21 Q. As the Monitoring Officer of tie, you would have been in 22 a position to do something about it? 23 A. Yes. And that would -- I would have got back to either 24 Steven Bell or Richard Jeffrey with whatever the issue 25 was or the message was. 124 1 Q. Insofar as you did that, were you satisfied that you got 2 answers to the questions that you posed? 3 A. Yes, over a period of time, as I say, it was an 4 improving communication line that was in place. 5 Q. Now, it comes across from your written answers that your 6 own view was that you had limited expertise in dealing 7 with contractual disputes, and didn't want to be 8 involved in dealing with them. Is that fair? 9 A. That's absolutely fair, yes. I'm not a dispute 10 resolution expert by any manner of means. So I didn't 11 particularly want to get involved in any dispute 12 resolution processes. 13 Q. Did you consider yourself able to take a view on whether 14 the disputes were being handled by tie in a way that 15 protected the Council's interests? 16 A. No. I would -- I would pass that on to others. That -- 17 as I say, that's not really my area of influence or 18 expertise. 19 Q. Who in the IPG did have that expertise? 20 A. Dave Anderson, for one. I would have thought Jim Inch, 21 possibly Donald McGougan, but certainly from a team 22 perspective of the Chief Executive, Jim Inch, 23 Dave Anderson and Donald McGougan coming to a collective 24 decision. 25 Q. If you could look, please, at document CEC00867662. 125 1 This is a report to the IPG of 25 February 2009. 2 If we can go to page 10 of that, please. We see in 3 the middle, the Tram Monitoring Officer update. 4 In the second paragraph: 5 "tie has been involved over recent days in 6 negotiating with BSC, the Infraco/Tramco consortium, 7 over some very significant claims. The financial impact 8 of these claims could be substantial and, if a formal 9 contract resolution process is required to deal with 10 them, further programme delay is likely. This is 11 obviously a concerning situation and the TMO will be 12 looking for an early formal briefing from tie on the 13 financial and programme implications." 14 Did you get that briefing? 15 A. I'm sure I did. I can't visualise it, but I'm sure that 16 would have come across my desk. 17 Q. If this report is dated 25 February 2009, can you recall 18 in broad terms what the substance of the briefing was? 19 A. Sorry, I can't recall that. 20 Q. If we could just look at the following IPG report, which 21 is CEC00892626, and if we could go to page 3, please. 22 At section 3 we see there: 23 "Evaluation of Strategic Options for Contractual 24 Dispute. 25 A verbal update on the contractual position between 126 1 Bilfinger Berger and tie Ltd will be provided by the 2 Tram Monitoring Officer." 3 Then if we read down to the paragraph just above the 4 next heading: 5 "It is recommended that independent expert dispute 6 and project management advice is sought to ensure that 7 the Council's best interests are being met and that 8 a full understanding of the Council's liabilities are 9 identified." 10 Whose recommendation was that? 11 A. From memory, that was Mr Anderson's recommendation. 12 Q. Did you agree with it? 13 A. Yes, I thought by that time that the project really 14 needed independent advice coming in. 15 Q. And by "independent", do you mean independent of tie? 16 A. Yes, and maybe independent of the Council as well. 17 Q. So external advice to the Council as distinct from 18 external advice to tie? 19 A. Yes. 20 Q. In your written response you say that your view was that 21 a professional independent expert should be employed as 22 tie did not have the competencies to address these 23 issues. What do you mean by that? 24 A. I felt that overall it would be better served by an 25 external expert coming in to have a look at it, because 127 1 it wouldn't really be in my opinion a fair and 2 independent overview or audit of the processes. It 3 would be better to get a fresh pair of eyes and an 4 independent expert to come in. 5 However, as I say, that is only my recommendation. 6 It really was above my pay grade for Tom Aitchison, 7 Jim Inch, Dave Anderson and Donald McGougan to come to 8 that informed decision. 9 Q. Specifically what competencies did you think tie lacked? 10 A. Just with regard to optioneering or project management 11 or the whole thing? 12 Q. Well, I'm just asking about your response in your 13 written answers, where you say that in relation to this 14 recommendation that we have on screen, your view was 15 that a professional independent expert was needed 16 because tie didn't have the competencies to address the 17 issues. I'm just interested to know what competencies 18 you thought tie lacked. 19 A. tie and the individuals were very professional and 20 competent people. Very experienced on delivering rail 21 projects in my opinion, and the majority of them were 22 rail experts delivering a rail scheme on to a road 23 project, and there was a lack of understanding and 24 knowledge with regard to the issues that would come up 25 with delivering, as I say, relatively speaking, rail on 128 1 to road. 2 With regard to understanding the public's concerns, 3 shopkeepers, keeping the -- Edinburgh moving, but also 4 on the legislation and the Traffic Regulation Order 5 procedures. So that's -- I felt they lacked there. 6 With regard to the optioneering, I felt it would be 7 better that it was done independently, especially with 8 regard to the dispute in project management, because 9 I think they felt that they had the experience and they 10 had the knowledge, but that wasn't really playing out. 11 But that really is just a personal opinion. 12 Q. So if I can try and summarise that, I think there were 13 two competencies that you referred to. One was in 14 relation to traffic regulation? 15 A. Traffic Regulation Orders. Both temporary and full 16 Traffic Regulation Order. 17 Q. And the second was optioneering. By that, do you mean 18 considering the different options to address the 19 disputes that were affecting the Infraco project? 20 A. Yes. 21 Q. You made the point there that tie's -- the experience of 22 the individuals in tie was generally in heavy rail? 23 A. Yes. 24 Q. And the tram scheme involved the installation of rail 25 into a road network. Was there any lack of competency 129 1 you identified beyond that issue of dealing with Traffic 2 Regulation Orders? 3 A. Yes, there was -- certainly there was one, possibly two 4 individuals, who had retired from City of Edinburgh 5 Council, and then they had been seconded in or brought 6 in on a fixed term basis, who had the competencies in 7 the Traffic Regulation Order side of things. So they 8 boosted their knowledge and understanding with getting 9 those individuals in. 10 Q. That's in relation to traffic regulation. Were there 11 any other competencies relating to the installation of 12 a rail over a road network that you thought tie lacked? 13 A. Not that I can think of, apart from those that I've 14 already mentioned. 15 CHAIR OF THE INQUIRY: When you were first asked the 16 question, you said you sought clarification as to 17 whether the competencies the -- Counsel was asking about 18 competencies relating to optioneering or project 19 management or the whole thing. Did you think there were 20 issues of lack of competence in tie about project 21 management or other aspects of the contract? 22 A. Just like anything, my Lord, I think there could be 23 improvements made, and I wouldn't say it was a big 24 weakness with project management. I think it was just 25 the nature of the contract. It could have been better. 130 1 But, as I say, with regard to the dispute process, 2 I felt that there was certainly required -- some 3 independent expert advice needed. 4 CHAIR OF THE INQUIRY: I can understand that, but what is 5 your position about the lack of competence in relation 6 to project management? 7 A. Yes, as I say, I don't see any major weakness there. 8 The weaknesses that I was alluding to there were mostly 9 on the rail on to the road system and the consultation, 10 the legislation bit behind that. I don't think there 11 was any fundamental weakness in tie with regard to 12 project management. 13 CHAIR OF THE INQUIRY: Why did you mention project 14 management? 15 A. It was really just to see where Counsel was coming from, 16 you know, whether it was the overall picture or -- or 17 individual things. 18 MR MCCLELLAND: I think the reference to project management 19 comes from the document that's up on screen. It said: 20 "It is recommended that independent expert dispute 21 and project management advice is sought to ensure that 22 the Council's best interests are being met ..." 23 A. Yes. 24 Q. So that was a concern, I think, that you said you held, 25 and Mr Anderson held too. 131 1 A. Yes, I think that was -- that's a fair comment. 2 Q. I think the question was what you regarded as being the 3 shortcomings in project management in tie if external 4 advice was needed on that subject? 5 A. Yes. I think it was more robust project management, to 6 make sure that any work streams or deadlines were being 7 met. I felt that was -- I felt that was a weakness in 8 tie to start with. 9 Q. One of the comments that you make in your written 10 answers is that tie were woefully under-resourced to 11 deal with potential claims. What do you mean by that? 12 A. I don't think they had resourced properly for that. 13 There was an underestimation of the amount of claims 14 that were coming in. 15 Q. When did you reach that view? 16 A. I couldn't honestly say. I was going to say maybe -- 17 maybe about summer 2009, autumn 2009, round about that 18 period. 19 Q. If you yourself lacked expertise in handling disputes, 20 how were you able to make that assessment that tie were 21 under-resourced to deal with them? 22 A. It wasn't so much on a dispute aspect of it. It was 23 more the resourcing aspect. 24 Q. Yes, but would you not need to understand what was 25 involved in handling disputes in order to make an 132 1 assessment of the resources needed for that? 2 A. Yes. As I say, my assessment of it was more on the 3 volume that were coming -- coming in and the complexity 4 of it, especially with regard to the utility work and -- 5 with the amount of what I would call spaghetti pipes 6 underneath the road system. It was quite a tricky -- 7 tricky issue trying to quantify all the claims and value 8 the claims. 9 Q. So when you talk about tie being under-resourced in 10 relation to claims, are you talking there about claims 11 under both the MUDFA contract and under the Infraco 12 contract? 13 A. Yes. It was -- yes, it was -- it was both of them, 14 I think, but certainly I was -- where I was coming from 15 was MUDFA. 16 Q. Did you take any steps to deal with the shortcomings 17 that you saw in tie's resourcing? 18 A. I brought it to the attention of IPG, and that was fed 19 back to -- to tie. 20 Q. Did tie do anything about it? 21 A. I'm not absolutely sure if they got additional resource 22 in, but they might have moved one or two people over who 23 had some skill set in that area to deal with the claims. 24 But I can't be sure. 25 Q. We started off this by looking at the question of 133 1 whether independent advice was needed in relation to 2 disputes and project management. 3 I think you say in your written answers that you're 4 not aware of any independent advice being obtained; is 5 that correct? 6 A. That's correct. 7 Q. And that you're also not aware of any reasons why that 8 would be -- why that wouldn't have been done? 9 A. Mm-hm. 10 Q. Is that correct? 11 A. That's correct. 12 Q. We know that tie took legal advice from solicitors and 13 Counsel. Was that sufficient in your view? 14 A. Well, I fed that information to, as I say, the IPG 15 group, and I did not have enough experience in it. So 16 I didn't really want to get involved. If there was 17 an action coming out, I would have been quite happy to 18 action that. 19 Q. So you're not able to say whether tie's steps were 20 sufficient? 21 A. No, I wouldn't be sufficiently experienced enough to say 22 that. 23 Q. Okay. Just on the page that we have got up on screen, 24 we see the heading at the bottom, "Strategic Commercial 25 Options Considered". It starts off by explaining that: 134 1 "Five commercial options had been presented to the 2 Tram Project Board by tie Ltd." 3 We don't need to go through them in detail, but if 4 we could just go to the full size of the page and just 5 flick through the pages, we can see that this summary 6 runs from page 3 through to page 7. If we just stop at 7 that page. 8 Was it you that reported on these matters to the 9 IPG? 10 A. No, I had nothing at all to do with that. 11 Q. Who was that? 12 A. I think that was a mixture of Alan Coyle and Nick Smith 13 putting that together. Andy Conway may have had some 14 input to it, but mostly team effort between Alan and 15 Nick. 16 Q. Excuse me. Just bear with me for a minute, Mr Poulton. 17 (Pause) 18 If we could just go, please, to page 6. We have at 19 the top there the first bullet point: 20 "tie Ltd have acknowledged that the very future of 21 the project may rest on the ability of tie Ltd to be 22 successful on all major points of contractual principle 23 in dispute. It is therefore imperative that the Council 24 is certain that tie Ltd's defences and arguments are 25 absolutely robust prior to a relationship-threatening 135 1 legal battle." 2 Was this the reason why you thought independent 3 advice was required in relation to the disputes? 4 A. I really had no view on that. Again, it was outwith my 5 area of expertise. So I was leaving it up to my line 6 manager, SRO, to come to an informed decision about 7 that. As I say, my expertise is on the traffic and 8 transportation side of things. 9 Q. If we go to page 7. The last paragraph before 10 section 4, what it says there is: 11 "It is essential that the Council do their own 12 thinking on Strategic Options which will consider all 13 the Council's interests. With this in mind, a letter 14 has been drafted by the Council's Chief Executive to the 15 Chairman of tie Ltd requesting greater engagement 16 between Council Officers and tie Ltd on Strategic 17 Options Appraisal and DRP related issues." 18 Did that greater engagement take place? 19 A. I think it did, yes, but I can't recall who actually 20 took part in that engagement. 21 Q. Did the Council, perhaps in the form of the IPG, do its 22 own thinking on strategic options? 23 A. They certainly had a discussion at one of the IPG's 24 meetings. I think that's what led to obviously the 25 request for greater engagement. 136 1 Q. If we go, please, to CEC00871938. This is the action 2 note from that meeting of the IPG. We see there under 3 the heading, "Strategic options": 4 "CEC team now established at tie (Citypoint), need 5 to better develop/cost strategic options (including 6 cancellation) ..." 7 Were you aware of the arrangements in place for that 8 purpose? 9 A. I remember that was -- required the stronger legal 10 presence by legal services. 11 Q. How was that addressed? 12 A. I -- from memory, I think Gill Lindsay went down to 13 Citypoint over a period of time. 14 Q. A couple of bullet points down, it says: 15 "Option to bring in independent reviewer to consider 16 contract and BB position, with view to future dispute 17 avoidance. Requires delicate handling to ensure there 18 is no intimation to the consortium that there are 19 deficiencies in the contract. ACTION MP ..." 20 I assume that's you: 21 "... to discuss with team at Citypoint before 22 considering approach to Dave Mackay." 23 What did you do in relation to that? 24 A. Basically, I located myself down at Citypoint for 25 a number of weeks, and then reported back to my SRO, 137 1 Dave Anderson. 2 Q. That's specifically in relation to this question of an 3 independent reviewer? 4 A. Yes. 5 Q. What did you report to Mr Anderson about that? 6 A. I can't remember the details of that, but certainly 7 Mr Anderson was going to take things forward, because he 8 had a number of ideas how he could -- he could take that 9 forward in the future, and I'd never really get involved 10 anymore at that stage. 11 Q. Okay. Then the next bullet point is: 12 "ACTION MP to prepare report on strategic options, 13 improving client-contractor relationship, scope for 14 getting more from contract." 15 What did you do in relation to that? 16 A. Yes, just as the action is saying, it was preparing 17 a report on all the strategic options. Improving the 18 client-contractor relationship was co-locating with -- 19 with tie down at Citypoint, and that led to better 20 reporting, communication, more up-to-date information, 21 accurate information, back to the IPG. 22 Q. I'm not sure if we're aware of a report being prepared 23 by you on strategic options. What was the nature of 24 your report and who did you provide it to? 25 A. Well, I think that was the report you had up earlier on, 138 1 which was the strategic options that I said that 2 Alan Coyle and Nick Smith had pulled that together. And 3 I had been working on the side with that. 4 Q. But this action note comes after that meeting of the 5 IPG. So it must be referring to a different report. 6 A. I'm not aware of any actual report. I don't have access 7 to -- to that at all. 8 Q. Okay. The impression one gets from these minutes, 9 Mr Poulton, is that CEC officers were actively engaged 10 in assessing the strategic options for addressing the 11 project's difficulties, and had access to whatever 12 information tie held that was relevant to that. Would 13 you agree with that? 14 A. Yes. 15 Q. If we could go, please, to document CEC00671819. We see 16 that this is the report to the IPG, 28 October 2009. 17 Just go to page 5, please. This is the TMO update 18 presented by you. It says there: 19 "The table below provides a summary of the Dispute 20 Resolution Process." 21 Then if we could just look over the page at page 6, 22 please, we see there a list of various disputes under 23 the Infraco contract, with a summary description, some 24 estimates of their financial impact, and then summary 25 notes. 139 1 Who prepared that table? 2 A. From memory, that was a mixture of Andy Conway, 3 Alan Coyle, and Nick Smith. 4 Q. This was part of your report as TMO. So presumably you 5 were familiar with it? 6 A. Yes. 7 Q. Was this information that had come from tie about all of 8 these disputes? 9 A. Yes. 10 Q. We see, for example, the sixth line down, there's an 11 entry there for the dispute over what comprises BDDI for 12 the purposes of the Infraco contract. And there's 13 a range given for the financial impact of GBP20 million 14 to GBP30 million. Was that an issue that you were aware 15 of and understood? 16 A. I'm sure I understood it at the time, but going back 17 nine years, I've got no actual detailed knowledge of it. 18 Q. If we could just go back, please, to page 5, what it 19 says at the start of the final paragraph: 20 "The approximate value of each DRP is noted below 21 (though it should be noted that the value of a DRP 22 principle may significantly differ from the value of the 23 DRP dispute itself)." 24 Was that a point that was fully understood by the 25 IPG? 140 1 A. I would have to pass on that, that question. You would 2 have to ask the members of IPG, I think. 3 Q. Did you understand the point? 4 A. Yes, I understood the point. 5 Q. What was your understanding of it? 6 A. Just that the -- the DRP principle itself, that it might 7 be -- significantly might be, I don't know the use of 8 that word, but certainly differ from the actual value of 9 each individual dispute itself. 10 Q. Did you understand that whilst there were disputes 11 relating to particular locations on the project, the 12 issues of principle that underlay those disputes, if 13 resolved, might have much wider financial implications 14 for the contract? 15 A. Yes. And that's what Richard Jeffrey kept saying as 16 well. 17 Q. Was the IPG able to get whatever information it wanted 18 about the potential impact of these disputed issues of 19 principle? 20 A. Yes, there was a regular flow of information coming 21 back. Again, from -- I think that was from Alan Coyle 22 that was coming back. 23 Q. Were there any issues of principle which you understood 24 to be of particular importance for the cost of the 25 project? 141 1 A. Not -- not any one individual principle, no. 2 Q. Do you recall decisions being issued in adjudications 3 relating to Gogarburn Bridge and Carrick Knowe? 4 A. I remember the adjudications being minuted, but I don't 5 have any direct knowledge of them at this point in time 6 in the future. 7 Q. Did you read the adjudication decisions? 8 A. From memory, yes. 9 Q. So were they available to Council officers who wanted to 10 see them? 11 A. From my memory, yes. 12 Q. Do you recall whether there was any view on the 13 potential impact for the project more generally, of the 14 decisions that were taken in those adjudications? 15 A. No, I didn't really form a view of that. As I say, it 16 was really outside my area of influence. I was 17 letting -- I was leaving it up to the decision-makers to 18 make the correct decisions hopefully, and relay the 19 findings to me and any actions. 20 Q. If we could look, please, at document TIE00896881. This 21 is one of Steven Bell's reports to you. What he says, 22 just in the second paragraph down: 23 "The adjudicator's decisions on DRP 5a 24 (Gogarburn Bridge) and DRP 5b (Carrick Knowe Bridge) 25 were received on 16 November. It is disappointing that 142 1 this adjudicator favoured Infraco's position more than 2 tie's. 3 The detailed reasoning is under review ..." 4 Was it understood in the IPG that these decisions 5 had gone against tie and actually favoured the 6 consortium? 7 A. Yes, it was understood by the IPG members. 8 Q. Was it understood that the principle that was decided in 9 those adjudications might have wider significance for 10 the costs of the project? 11 A. Yes, it was. 12 Q. If we could go, please, to document CEC00551112. This 13 is another of Mr Bell's reports to you from 14 6 December 2009, and it says, just in the second 15 paragraph there in relation to the Gogarburn Bridge and 16 Carrick Knowe Bridge decisions, that no formal challenge 17 is being pursued with the adjudication decision. Why 18 was that? 19 A. I can't recall the rationale behind it. 20 Q. Had the IPG been consulted about it? 21 A. Again, I can't -- I can't recall if they were aware of 22 it or not. 23 Q. Was the decision not to formally challenge it one that 24 was in the Council's best interests? 25 A. As I say, that's -- I don't think that's really 143 1 appropriate for me. It's maybe better coming from IPG 2 decision-makers. 3 Q. From your general experience of meetings in the IPG, do 4 you think it's likely that the IPG would have considered 5 whether formally challenging that decision was something 6 that the Council's interests required? 7 A. Yes, I'm sure they would have considered it. 8 Q. If we can go, please, to CEC00469787, if you could go to 9 page 5, please. This is your TMO report, and if we can 10 go to the third paragraph from the bottom, halfway 11 through that paragraph what it says is: 12 "The adjudicator's result for Carrick Knowe and 13 Gogarburn Bridge has now been passed to Richard Keen QC 14 for review. A post-mortem has been conducted on this 15 result to enable tie Ltd to strengthen the drafting of 16 adjudicator's questions in future DRPs and make best use 17 of the lessons learned." 18 It would appear from your report that this proposed 19 improvement and strengthening of the position was 20 a matter discussed in the IPG; is that correct? 21 A. Yes. It would have been. Although I don't even recall 22 Richard Keen's name at this moment in time. 23 Q. Do you recall in what way the strengthening of questions 24 was to be done? 25 A. No, I can't -- I can't recall that. Sorry. 144 1 Q. Do you recall whether the IPG took the view that the 2 Council's interests were going to be best served by the 3 approach that's noted here? 4 A. Yes, I think that was the case. 5 Q. Now, we focused in these questions on two adjudication 6 decisions. There were of course others that followed. 7 Were you satisfied that discussion about the 8 adjudication decisions that took place in the IPG was 9 properly informed by an understanding of those 10 decisions? 11 A. I think it was properly informed with all the 12 information. I personally had no view on the 13 adjudications themselves because, as I say, I think that 14 was really a matter for the decision-making team in the 15 IPG. 16 Q. At any point did you have the impression that those in 17 the IPG needed more information to make a decision? 18 A. I think they had near enough all the information they 19 needed to make an informed decision. 20 Q. If we could go to your statement, please, which is 21 TRI00000115, at page 34, please. Question 162. What 22 you say in answer to this question is: 23 "In my opinion tie were kidding themselves on that 24 they could make this contract work through strong 25 contract management techniques. In essence, because of 145 1 the claim orientation of this contractor this was never 2 going to be achieved." 3 Can you just explain what you mean by "tie were 4 kidding themselves on"? 5 A. I think my view -- it was only a personal view at that 6 time -- I felt that there was hope, if not expectation, 7 by tie that could get the relevant parties around 8 a table and actually deliver this contract for a fair 9 price to -- to tie and the Council. But I just felt 10 that there were tactics involved. It could have been 11 the case that it was just never going to happen, and 12 I think tie were actually living in hope rather than 13 expectation that it could have been just down to good 14 relationship and good contract management techniques. 15 Q. When did you come to the view that tie were kidding 16 themselves on about this? 17 A. I'm going to say my feeling got stronger as the year 18 went on, from about maybe summer of 2009 through to 19 summer of 2010. 20 Q. If you'd come to the view that tie were kidding 21 themselves on, should you not just have told them to 22 settle the claims? 23 A. I didn't think that was in my remit to do that. 24 Q. So when you come to the view that tie were kidding 25 themselves on, is that a view not informed by any 146 1 knowledge in relation to these matters? 2 A. It was just -- it was a general feeling and personal 3 opinion by myself. And it was shared with -- it was 4 shared with the IPG members. 5 Q. If that matter had been communicated to tie and they'd 6 been told to settle the claims, tie might have saved 7 considerable delay costs, for example. 8 A. Well, as I say, I didn't think that was in my remit to 9 pass that on. I had reported my own feelings to IPG. 10 So to me it was either up to Dave Anderson to pass that 11 action over to Richard Jeffrey or even Tom Aitchison to 12 David Mackay. 13 Q. In your written answers you make a number of criticisms 14 of Bilfinger Berger. I think it's accurate to summarise 15 that as essentially being that they had a deliberate 16 tactic of disruption or delay in order to gain extra 17 payment from tie. 18 Would you accept that as a fair summary of your 19 view? 20 A. Yes, my own personal view was -- and it was -- I was 21 going to say, don't mean any disrespect, but I just felt 22 the tactics that were being deployed, there was a gap at 23 tendering time, and they were using whatever means they 24 could to stall things, and be claim orientated to make 25 up that financial shortfall. 147 1 So as I say, that was really my own personal 2 opinion, having dealt with a number of contractors 3 throughout the years. 4 Q. When you say that there was a gap at the tender stage, 5 what do you mean by that? 6 A. Well, I wasn't there at tendering stage, but I believe 7 there was quite a substantial gap between the winning 8 tenderer and the second place. 9 Q. Is that something that you know from having investigated 10 it yourself? 11 A. No. That's really just -- just my own personal thought. 12 Q. Is it informed in any way by knowledge of the facts? 13 A. No, just my own personal thought. 14 Q. Just to be clear, would you -- if it was your own 15 personal thought, uninformed by knowledge of the facts, 16 would you withdraw the statement? 17 A. When I say without knowledge of the facts, just the way 18 things were going with the whole contract and the delays 19 and the tactics. 20 So as I say, it's just my own personal thought that 21 that was the case, and that's why it was difficult to 22 deliver this contract. 23 Q. My last question was focused on what you'd said about 24 there being a gap at the tender stage. If we could turn 25 our attention to the idea that the contractor had 148 1 a deliberate tactic of disruption or delay to gain extra 2 payment, what was the factual basis for that view? 3 A. I can't recall all the details of that. 4 Q. Again, is it a view that was based on your own knowledge 5 of the facts? 6 A. Partly, but it was more the -- the direction of travel 7 with this contract. It just seemed to me at every point 8 there was always an issue and there wasn't a willingness 9 to get together to see a way forward. 10 It was more a position where it was -- again, only a 11 personal view that there would be a wedge driven down 12 between tie and the contractor. 13 Q. For example, Mr Poulton, did you read the Infraco 14 contract? 15 A. I certainly read it. I don't know if I would be able to 16 recite it page by page or line by line. 17 Q. Well, I'm just -- I'm struggling for the moment to 18 understand what you see as the basis for the view you've 19 expressed that the contractor had a deliberate tactic of 20 disruption or delay in order to gain extra payment. 21 A. Well, as I said, it's really just my own personal 22 thought on the way this contract was moving forward or 23 wasn't moving forward, and there always seemed to be 24 problems cropping up and there were no easy solution to 25 resolving -- or could I say the -- a willingness to -- 149 1 to resolve them. Everything seemed to go back to 2 Dispute Resolution Processes. 3 Q. I mean, if I could put it this way, to describe 4 Bilfinger's approach as a tactic, was it your view that 5 they were not contractually entitled to do what they 6 were doing? 7 A. I think they were contractually entitled to do what they 8 were doing. But as I say, maybe it's the use of the 9 word "tactic" is wrong, but it's just my own personal 10 thought on dealing with a lot of contracts over the 11 years. 12 Q. If it's the case that Bilfinger were acting in 13 accordance with their contractual entitlement, there's 14 not much wrong about that, is there? 15 A. No. 16 CHAIR OF THE INQUIRY: Mr McClelland, find a convenient 17 point. 18 MR MCCLELLAND: We can stop there, my Lord. 19 CHAIR OF THE INQUIRY: Can I just clarify, where are we in 20 the terms of timing? Because I'm aware that there are 21 at least two core participants who asked to ask 22 questions. 23 MR MCCLELLAND: My own best judgement, my Lord, is that we 24 should still cover all of the ground by 4.30. 25 CHAIR OF THE INQUIRY: Including the core participants 150 1 getting a chance? 2 MR MCCLELLAND: Yes, I think so. 3 CHAIR OF THE INQUIRY: Well, we'll adjourn until 3.30 to 4 enable the shorthand writers to have another break. 5 (3.13 pm) 6 (A short break) 7 (3.30 pm) 8 CHAIR OF THE INQUIRY: You're still under oath, Mr Poulton. 9 Mr McClelland? 10 MR MCCLELLAND: Could we please have Mr Poulton's statement 11 back up on screen. TRI 00000115. If we could go, 12 please, to page 56. 13 In your answer to the question 263, Mr Poulton, what 14 you say is, just picking it up from the second sentence: 15 "I still maintain that if the contractor was 16 a willing partner, then the contract would never have 17 suffered the programme delays and the significant cost 18 increases that it actually did." 19 What do you mean by that? 20 A. Contractors in general, they've got a job of work to do. 21 They're there to make a profit, but there are willing 22 partners and there are unwilling partners, and I just 23 felt that this contractor was an unwilling partner in 24 this contract. 25 Q. In coming to the view that they were unwilling, had you 151 1 formed a view on what Bilfinger or the other contractors 2 were contractually entitled to do? 3 A. I think I have answered that earlier, that yes, they 4 were perfectly within their contractual obligations. 5 I think it was more what I was trying to allude to was 6 it was more the willingness to come to the table, just 7 like in any relationship, you can get a willing partner, 8 an unwilling partner, and it was my own personal 9 feeling. 10 Q. So when you refer to a willing partner, should we read 11 that as meaning willing to depart from what they saw as 12 their contractual entitlements? 13 A. As I say, it's more the willingness to come to the 14 table. But notwithstanding there needs to be a contract 15 behind it. 16 Q. Moving on from that, at a number of points in your 17 written answers you describe tie as having been naive. 18 What do you mean by that? 19 A. A bit similar to one of my previous answers, and I felt 20 that they were hoping that this was a willing partner 21 going to come to the table, rather than their 22 expectation. 23 Q. Just developing that, you say that the naivety was 24 exploited by the Infraco consortium. What did you mean 25 by that? 152 1 A. Again, I think I have alluded to that. I just -- again, 2 it's my own personal feeling. I just felt that the 3 contractor was sticking to the letter of the contract 4 itself, rather than the spirit of the contract. 5 Q. Would you accept that to describe someone as naive 6 implies that you had a better knowledge and experience 7 of the matters in question? 8 A. No, not at all. 9 Q. Did you have a better -- better knowledge or experience 10 than those in tie about these matters? 11 A. Absolutely not. As I said before, I'm simply a track 12 and transportation subject matter expert. Not 13 a contractual management expert. 14 Q. We understand from the IPG reports that from around 15 April 2010, you spent some time working in tie's offices 16 for, I think, three days a week, over a two-month 17 period; is that correct? 18 A. That's correct. 19 Q. Did that work lead up to your report, entitled "The Tram 20 Project Assurance Review"? 21 A. Yes, it would do. 22 Q. Was that the only time that you went into tie's office 23 to investigate or monitor what they were doing? 24 A. I was down at tie's office quite regularly, but over 25 a period of time, yes. 153 1 Q. When you say that you were down there quite regularly, 2 what -- how often and what did you do? 3 A. Without being overly accurate, I would have said 4 certainly in 2008 I was down maybe once every two weeks 5 or three weeks, getting close to December 2008 I might 6 have been down there twice -- twice a week, mostly with 7 the Princes Street phase of the programme, to try and 8 get that to work. 9 Not carrying out the TMO role, but one of Head of 10 Transport, and liaising with the traffic models down 11 there, to see what we could get to work, see how we 12 could give the contractor more working space, and then 13 eventually with this one family approach, just getting 14 down to Citypoint to get a good feel, build 15 the relationships, and how I could assist if at all. 16 Q. You have described there the period in late 2008 when 17 you were going down to deal with, I take it from your 18 answer, traffic regulation issues? 19 A. No. Not at all. It was mostly how we could look at 20 options to get the traffic round the other streets, 21 George Street, Queen Street, working, looking at the 22 options from a traffic modelling perspective, looking 23 at -- if I'm not mistaken, in the contract it was -- it 24 was saying that we should be keeping one lane open of 25 Princes Street at all times. So looking at modelling, 154 1 does that mean eastbound or westbound, what works 2 better, and indeed it ended up saying we could get the 3 city to work, but closing the full width of 4 Princes Street to allow safe working practices for the 5 contractor. 6 Q. After that work was done, did you carry on going down 7 regularly to tie's office? 8 A. I can't remember that far back. It would have been -- 9 certainly, as I say, up to between 10 October 2008/December 2008. It's only around the 11 Princes Street works. But then when Princes Street got 12 up and running, then I would fall back from that and 13 concentrate on the core business activities as Head of 14 Transport. 15 Q. Yes. So this spell that you had in tie's offices in 16 April -- from April 2010, leading up to the production 17 of your report, should we take that as the only time 18 that you spent in tie's offices after this period in 19 late 2008? 20 A. Yes. 21 Q. From your time in tie in that period of 2010, did you 22 have concerns about tie's record-keeping? 23 A. I can't really recall the details, no. 24 Q. Could we have document CEC00252753. We see that this is 25 the tram IPG Action Note from 12 May 2010. 155 1 Just bear with me, Mr Poulton. (Pause) 2 If we just go to page -- you see at the bottom of 3 the page 1, there's a section headed up, "Tram 4 Monitoring Officer Update", and if we could just move to 5 page 2, please, at the top of that page it reads: 6 "Noted TMO view that improvements are necessary in 7 tie's record-keeping and project management, and is 8 currently considering how best to raise this." 9 What were your concerns about record-keeping? 10 A. I can't recall what that was. 11 Q. If we could go to document CEC00224207, again, under the 12 heading "TMO", I should say this is the IPG Action Note 13 from 9 June 2010. The first bullet under the heading 14 "TMO" reads: 15 "TMO Project Assurance Review. Noted issues related 16 to design, absence of utilities records from 17 September 2007 to June 2008 and complexity of various 18 programmes." 19 What was the issue there about an absence of 20 utilities records? 21 A. This was to do with the -- the MUDFA works, and when 22 I asked about where are your documents, so as I can have 23 a look through them, there was certain records missing. 24 If my memory serves me correctly, it was mostly to do 25 with around Shandwick Place and Leith Walk, about 156 1 record-keeping there. There was lots of things missing. 2 Maybe it was just a time thing, I don't know. But that 3 was what I reported at the time. 4 Q. Were you concerned about that? 5 A. Yes, I was -- I was concerned that was just a snapshot. 6 It wasn't a full inventory of all the records, but it 7 was just at random, picking out places. I think from 8 memory there was quite a bit of flooding down at 9 Shandwick Place and I was looking for records to make 10 sure all the gullies were put back in place. 11 Q. Do you recall whether the absence of records that you 12 identified was something that had particular 13 implications for the project? 14 A. No, not -- not to my knowledge. 15 Q. Did you have any other concerns about record-keeping at 16 tie? 17 A. Not so much record-keeping, but I think certainly the 18 note there, issues related to design, it was the way the 19 designs were coming in to us, CEC, more on the pack -- 20 the fact that it wasn't composite drawings that were 21 coming in, it was a bit of piecemeal, the way the 22 designs were coming in from all around the country. 23 So that was a bit of an issue which led to delays. 24 Q. Do you mean designs coming in to the planning and 25 technical departments of the Council? 157 1 A. Yes. 2 Q. When you say that led to delays, what do you mean? 3 A. Well, obviously technology has moved on significantly 4 since 10 years ago, but at that time, if I recall, there 5 were different design offices, say in Manchester, Leeds, 6 or Birmingham, and it was all graphically prepared, but 7 there was a request maybe for this final design at the 8 traffic signal junction, but it only showed the traffic 9 signal poles. It didn't show the traffic sign poles or 10 other regulatory signing. They came in separately. 11 So if -- my comment at that time was if we got these 12 in, in one drawing, one composite drawing, it might take 13 a week to get all those things together, but it might 14 save two weeks or three weeks in the overall programme. 15 Q. Moving on from that, you make some comments in your 16 written answers about what in your view was the main 17 cause of delay in the project. 18 Did you have any expertise in the analysis of delay? 19 A. I can't recall. I don't know if it's in the report or 20 not. I don't have access to that. 21 Q. Sorry, no, my question is: do you have experience or 22 expertise in the analysis of delay on projects? 23 A. Experience, not really. 24 Q. The reason I ask is that at question 262 you express the 25 view that it was the MUDFA works that were the dominant 158 1 cause of delay, and at question 230 you say it was 2 a lack of agreement about design development. We know 3 that delay analysis work was done by experts, and I'm 4 just keen to know whether you have expertise in the 5 analysis of delay? 6 A. No. No, I don't. 7 Q. So in terms of the cause of delay, would you defer to 8 the views of others with expertise? 9 A. Yes. 10 Q. Can we go, please, to document CEC00469787. This is the 11 IPG report of 23 December 2009. If you just go to 12 page 5 of that, please. 13 This is your TMO update report. Just to put it in 14 context, you say in the first sentence: 15 "Negotiations are currently ongoing with BSC for 16 a supplemental agreement covering the remaining 17 on-street works on a demonstrable costs basis." 18 Then reading on to the second paragraph: 19 "There is a large cost exposure relating to the 20 on-street supplemental agreements of between 21 GBP20 million to GBP35 million. This number is based on 22 experience gained from the Princes Street on-street 23 agreement and the likely incremental cost of full depth 24 road reconstruction on all on-street sections. It 25 should be noted that the cost estimate is an unmitigated 159 1 risk, and it will be essential that appropriate controls 2 are in place to reduce this exposure. These mitigations 3 should also include appropriate policing of design 4 assumptions given the design issues experienced on 5 Princes Street. It will be essential that any agreement 6 for on-street agreements do not result in over engineered 7 construction." 8 Can you explain what you meant by the design issues 9 on Princes Street and the need to avoid an 10 over engineered construction? 11 A. Not really. My memory doesn't go as far as back as 12 that, apart from the over engineered reconstruction on 13 Princes Street, I seem to recall it was deeper than was 14 actually required. I may be wrong, but that was my -- 15 my recollection of that. 16 Q. Okay. 17 A. Basically, a thicker platform than was actually 18 required. There could have been a reason for that. 19 Q. Are you aware of what was done in relation to the 20 on-street works in that regard in areas other than 21 Princes Street? 22 A. No, I don't have the detailed knowledge of that. 23 Q. Okay. If we could just bring your statement up on 24 screen again, please. 25 If we could just go, please, to page 89, question 160 1 404. Your answer there is: 2 "I felt that CEC totally under-estimated design, 3 interface and reporting resources for this project. In 4 hindsight this is a very easy conclusion to come to. If 5 there had been a more 'intelligent' client in the form 6 of tie and a contractor who wasn't totally driven for 7 commercial purposes the result could have been much 8 different." 9 Can you just expand on what you mean there about 10 CEC? 11 A. Yes. I felt there was a lack of understanding, the 12 whole component parts of the design, the project 13 management. The interface between the -- the various 14 contractors, but also from the design side of how 15 that -- because that was novated. 16 My comment with regard to an intelligent client was 17 more around, I suppose, a different form of contract, 18 an NEC style form of contract, being more collaborative 19 working rather than the way this contract was -- was 20 pieced together. 21 Q. If we could just bring up Dave Anderson's statement, 22 please, which is TRI00000108. If we could go to 23 page 130, please. 24 Now, Mr Anderson was asked whether he had any views 25 on what were the main reasons for the failure to deliver 161 1 the project in the time within the budget and to the 2 extent projected, and this is part of his list of 3 reasons. 4 If we just look at the bullet point that's sixth 5 from the bottom, he says: 6 "The Council (myself included) failed to grip the 7 first signs of major problems in the project and 8 weaknesses in tie's interpretation of the contract when 9 the first major signs of problems arose in the 10 Princes Street stand-off of January 2009." 11 Do you agree with that? 12 A. Yes. 13 Q. Would you include yourself within the group of officers 14 who failed to get a grip of the project when the 15 problems began to emerge? 16 A. Well, I felt my role as a TMO, I was doing the best 17 professional job to the -- to my ability. As I've said 18 before, I didn't feel the TMO role was -- had any 19 authority or had any teeth. 20 So I felt I was doing my job, but in fairness to 21 what Dave Anderson is saying there, I could be included 22 in that. 23 Q. If we just look at the point three from the bottom, 24 Mr Anderson says: 25 "There were significant breaks in senior positions 162 1 in the Council with a new Director of City Development 2 (myself) and Head of Transport recruited only weeks 3 before the project went live and no clear process for 4 managing the transition. There were similar problems 5 within tie with three Chief Executives and two Chairmen 6 over a three year period." 7 Focusing on what he says there about his own 8 position and yours, do you agree with what he says? 9 A. Yes. It was -- I think it was difficult, both the 10 Director and the Head of Transport coming in to a new 11 organisation within one month of each other, and there 12 certainly -- there was no transition plan in place at 13 that time. 14 MR MCCLELLAND: That's fine. Thank you, Mr Poulton. I have 15 no more questions for you. 16 CHAIR OF THE INQUIRY: Mr Fairley, you've indicated that you 17 have some questions? 18 MR FAIRLEY: Yes, my Lord, I don't anticipate being very 19 long. 20 Examination by MR FAIRLEY 21 MR FAIRLEY: Mr Poulton, the Inquiry has amongst the various 22 documents that it has gathered a series of minutes of 23 the IPG. I want just to ask you a few questions about 24 those, you being a member of, or someone who attended 25 the IPG. 163 1 I'm not going to ask you detailed questions about 2 any of these, but as a matter of general overview, is it 3 fair to say that the structure of IPG meetings tended to 4 include what became known as an evaluation of financial 5 contingency measures, strategic options, and a financial 6 update as a regular feature of the IPG meetings? 7 A. Yes, I would -- I would agree with that. 8 Q. If you take it from me that if we were to take a sample 9 over a period of, say, a year from November 2009 through 10 to -- almost a year, to September 2010. That's a 11 regular feature of the minutes; is that fair? 12 A. Yes, I would agree with that. 13 Q. And responsibility for that update would typically rest 14 either with Mr Coyle, Mr McGougan or Mr Smith? 15 A. That's correct. 16 Q. So they were the owners of that particular part of the 17 agenda? 18 A. Yes. Owners of that part of the agenda over that period 19 of time that you talked about there. 20 Q. Yes. So far as the Tram Monitoring Officer's input to 21 these meetings, that tended to follow the input from 22 either Mr Coyle, Mr McGougan or Mr Smith as usually as 23 item number 4 on the agenda, and that would generally be 24 the part of the IPG agenda where the Dispute Resolution 25 Procedure outcomes would be considered; is that right? 164 1 A. That's right. 2 Q. As part of that process -- I think we've heard some 3 evidence about this already -- you would put forward 4 a table showing the particular dispute and the financial 5 implications that were anticipated to be associated with 6 that; am I correct in that? 7 A. That's right. 8 Q. If we could perhaps just look at one of those by way of 9 example, could we go to document CEC00469787, which 10 should be the minutes of the December 2009 IPG. 11 Could we go to page -- first of all, to page 5 in 12 that document, which should be the start of the TMO 13 report. 14 You were referred earlier to a section of this by 15 Counsel to the Inquiry. But this is the section of the 16 December 2009 IPG minutes that contains your update at 17 item 4; do you see that? 18 A. Sorry, item 4? Sorry, I see item 4. 19 Q. Yes. 20 A. Are you talking about the table? Is it overleaf? 21 Q. I'm going to go to the table in a moment, but this was 22 item 4 on the agenda for that day, and it's the TMO 23 update reports. 24 Can we go over the page to the table, which is part 25 of this update, please. 165 1 Now, I don't know, can you see that or do you need 2 us to zoom in on the table? 3 A. No, I can see that. 4 Q. Right. I just want to look at the way in which this has 5 been set out. What you have done there, if we read from 6 the fourth column in, is to give a summary description 7 of the name of each dispute. Do you see that? 8 A. Yes. 9 Q. So, for example, the first one in the table is Hilton 10 car park. Do you see that? 11 A. I do. 12 Q. Then the columns that follow that include what might be 13 described as the financials? 14 A. Yes. 15 Q. You have headed those up "tie view", "BSC view" and 16 "Delta"? 17 A. Yes. 18 Q. So we take it from that that the tie view is the 19 estimate given by tie of what it is likely to cost if 20 there is an additional cost involved, the BSC view of 21 what the additional cost is, and the delta column is the 22 difference between those two? 23 A. That's correct. 24 Q. Then there's another column on the -- to the right of 25 the delta column, which is "Outcome/Financial Impact". 166 1 Is that right? 2 A. That's right. 3 Q. Now, am I right in saying that you can only actually 4 fill that column in once you know what the financial 5 impact is going to be. So it's not an estimate, it's 6 an actual assessment of financial impact? 7 A. That's correct. 8 Q. The reason I say that is because when we look further 9 down this table, we see that the Russell Road at 6(c), 10 Russell Road retaining wall, there is nothing in the 11 Outcome/Financial Impact box. I think we had the reason 12 for that, because the adjudicator's decision is still 13 being awaited at this point? 14 A. That's right. 15 Q. Is that correct? Okay. 16 So what you are trying to do here for the purposes 17 of those sitting on the IPG is to give an indication of 18 where the parties to these disputes see the financial 19 outturn figures as going, but what the difference is 20 between those, and then where possible you give 21 an actual indication of additional cost; is that the 22 case? 23 A. That's right. 24 Q. Just for completeness on the far side of this, there is 25 a notes column where you give a brief summary of the 167 1 outcome of those adjudications that have been resolved. 2 A. That's correct. 3 Q. Could we zoom in on Gogarburn and Carrick Knowe, please, 4 which is 6a and 6b, and what you have recorded there is 5 that in relation to Gogarburn, the adjudicator found in 6 favour of BSC on this issue and rejected tie's argument 7 on the principle of design development. And there's an 8 identical passage in relation to Carrick Knowe. 9 A. That's right. 10 Q. Putting that colloquially, you are explaining to the IPG 11 that on the issue of principle, BSC won and tie lost 12 these adjudications. Isn't that right? 13 A. That's right. 14 Q. So anyone on the IPG who read these notes would realise 15 that the outcome of these adjudications had been in 16 favour of BSC and against tie? 17 A. That's right. 18 Q. These figures, these estimate figures and deltas and 19 actual outturn figures don't find their way into the 20 Tram Project Board papers. Am I right about that? 21 A. I couldn't -- I couldn't be accurate in my comment about 22 that. 23 Q. Well, if you take it from me that this table that you 24 have produced is not reproduced in any of the Tram 25 Project Board papers, do you know why that was? 168 1 A. No. 2 Q. But certainly this detailed information on figures was 3 something that the members of the IPG would have had at 4 their disposal as a result of these tables that you were 5 producing? 6 A. That's right. 7 Q. Broadly speaking, without going through all of these 8 minutes, was this pattern of producing a table in this 9 way something that continued throughout 2009 and into 10 2010? 11 A. I can't remember the exact times, but that -- it was 12 round about that time, and that pattern. 13 Q. Yes. So, for example, when the Russell Road retaining 14 wall decision came in from the adjudicator, was that 15 something that you reported to the IPG? 16 A. After the adjudicator's decision was given? 17 Q. Yes. 18 A. Why. 19 Q. I don't think I need to take you to the document, 20 Mr Poulton, but if you take it from me that in the 21 following month, in the January of 2010, you reported on 22 Russell Road that the adjudicator had deemed that tie 23 must pay for the design changes, which counters tie's 24 view that the design changes were part of design 25 development. Again, that is you reporting to the IPG 169 1 that on the issue of principle of whether or not there 2 should be more money paid, BSC's view had prevailed? 3 A. That's right. 4 Q. Again, if you just take it from me that a figure was put 5 on that, and you reported to the IPG that the additional 6 cost of this was going to be GBP1.4 million, which was 7 less than tie had anticipated -- which was more than tie 8 had anticipated, but equally, less than BSC had been 9 claiming; is that your recollection? 10 A. Yes. Well, I'll take it from you with regard to the 11 actual number. 12 Q. Yes. If we were to go through these minutes, we would 13 find a similar pattern of reporting of DRP outcomes and 14 either anticipated or actual known financial outcomes 15 through the period that I have described through 16 November 2009 through to September 2010? 17 A. Yes, that's right. (Pause) 18 Q. On that same report, just finally, Mr Poulton, can we go 19 back to page 3. This is not a section of the report 20 that you were the author of, but this is the section 21 that was presented on this occasion by Mr McGougan. 22 Just to orient you, we're talking here about the 23 23 December 2009 IPG report. This is Mr McGougan's report 24 on financial outturn. 25 In relation to Gogarburn and Carrick Knowe, do we 170 1 see there, in the third paragraph, beginning with the 2 words, "The main changes to the assumptions underpinning 3 the GBP524 million plus X forecast ..." 4 He says there is a significant re-evaluation of the 5 design-related issues following the adjudicator's 6 decision on Gogarburn and Carrick Knowe bridges: 7 "This has added an additional GBP4.4 million 8 increment to the previous forecast." 9 Am I right in saying that GBP4.4 million increment 10 is across the project rather than specifically for 11 Gogarburn and Carrick Knowe? 12 A. That's what I took out of it, but Mr McGougan would be 13 the best person to answer that one. 14 Q. Yes. I suppose the point really is that there was an 15 assessment being made of what the implication for the 16 project as a whole was of the decisions in Gogarburn and 17 Carrick Knowe. 18 A. Yes. 19 Q. Which I think is the point that was taken earlier from 20 you, that the individual DRP outcome cost might be less 21 than the cost across the project as a whole, if the 22 principle were extrapolated out? 23 A. Yes. 24 MR FAIRLEY: That's really what's been dealt with here. 25 Thank you. I have no further questions. 171 1 CHAIR OF THE INQUIRY: Mr Borland? 2 MR BORLAND: My Lord, given the answers which Counsel to the 3 Inquiry obtained from this witness, I have no need to 4 ask any questions of Mr Poulton. 5 CHAIR OF THE INQUIRY: I don't think there's anyone else. 6 Thank you very much, Mr Poulton. Your evidence is 7 now concluded, although you're still subject to your 8 citation and it would be possible to recall you if it 9 was necessary. Hopefully that won't be necessary. 10 Thank you very much for attending. 11 A. Thank you, my Lord. 12 (The witness withdrew) 13 CHAIR OF THE INQUIRY: We will now adjourn until the week 14 commencing 19 February, and we'll publish a timetable as 15 soon as we've firmed up on the attendance of witnesses. 16 (4.06 pm) 17 (The hearing adjourned until a date in February to be 18 confirmed) 19 20 21 22 23 24 25 172 1 INDEX 2 PAGE 3 MR MARSHALL POULTON (affirmed) .......................1 4 5 Examination by MR MCCLELLAND ..................1 6 7 Examination by MR FAIRLEY ...................163 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 173