Tesco v Constain - Thomson Reuters

2003 WL 21729349 Page 102003 WL 21729349 (QBD (T&CC)), [2003] EWHC 1487(Publication page references are not available for this document.)set out in a letter dated 22 February 1989 writtenby Tesco to PHJ and dated, as executed on behalfof PHJ, 20 March 1989. That was not in dispute,nor were the express terms of the PHJ Agreement.It was common ground that in the circumstancesPHJ owed to Tesco duties of care in tort to carryout its obligations under the PHJ Agreement withthe care and skill to be expected of reasonablycompetent architects.31. While there was agreement as between Tescoand PHJ as to what were the express terms of thePHJ Agreement, that was not the position inrelation to terms which it was contended on behalfof Tesco at paragraph 10 of the Re- AmendedParticulars of Claim in Action 07 were to beimplied into that agreement. The terms contendedfor were said to be implied, "by operation of law togive business efficacy to the retainer and/or toreflect the common intention of the parties", andwere these:--"a. PHJ would, so far as it was able, design theRedditch store so that,i. Its drawings demonstrated compliancewith the relevant statutory requirements, includingBuilding Regulations;b. PHJ would, so far as it was able, inspect thesite during the construction of Redditch store so asto ensure that it was,i. Constructed in accordance with goodbuilding practice;ii. Constructed in accordance with therelevant statutory requirements, including BuildingRegulations."32. The case of PHJ in relation to the termsquoted in the preceding paragraph was set out atparagraph 9 of its Amended Defence and was:--"(i) It is admitted that it was an implied term ofthe contract pursuant to which Tesco retained PHJas aforesaid, that PHJ would act with thereasonable care and skill of a reasonably competentarchitect.(ii) Save as aforesaid, paragraph 10 of the Re-Amended Particulars of Claim is denied. It isaverred that the express terms agreed betweenTesco and PHJ were comprehensive, and that therewas no necessity for the implication of any furtherterms or conditions in order to give businessefficacy to the contract between PHJ and Tescoand/or to reflect the common intention of theparties."33. At paragraph 11A of its Amended Defence itwas explained on behalf of PHJ that:--"If, as alleged by Costain in its Defence herein,but denied by Tesco, there was no contract betweenTesco and Costain which imposed upon Costaindesign and build obligations (whether inaccordance with the Tesco StandardDocumentation for use with the Design and BuildContracts, Issue No. 7, or otherwise) then PHJ'scase is as follows:(i) That, as pleaded above, PHJ was, at allmaterial times, led to believe, by both Tesco and byCostain, that Costain was working for Tescopursuant to a Design and Build contract, and assuch had design obligations to Tesco.(ii) That the nature and extent of PHJ'scontractual obligations to Tesco fall to bedetermined on the basis that the position asbetween Tesco and Costain was as PHJ had beenled to believe, namely that Costain had in factundertaken design and build responsibilities toTesco, whether or not that was in fact the positionand whether or not Costain's contentions herein asto the nature and extent of its contract with Tescoare accepted in whole or in part."34. Anticipating, as in the case of Costain, andagain correctly, as matters turned out, that defencesof limitation would be raised in answer to thecontentions that PHJ had acted in breach of the PHJAgreement and negligently in designing the Store,it was pleaded on behalf of Tesco at paragraphs 56and 57 of the Re-Amended Particulars of Claimthat:--"56. The Architect's Terms and Conditionsexecuted by PHJ, on 20 March 1989, were deemedto have been made under seal. Tesco's claim incontract is thereby brought within the twelve yearlimitation period.57. As to Tesco's claim in tort arising from thedesign, development and inspection of the Redditchstore by PHJ,a. Such cause of action did not accrueuntil loss was suffered by reason of the fire on 4August 2001;b. Alternatively, Tesco's date ofknowledge, for the purposes of Hsection 14A of theLimitation Act 1980, was not until after the fire on4 August 2001."35. The response of PHJ to what was set out atparagraph 56 of the Re-Amended Particulars ofClaim in Action 07 was set out in paragraph 49 ofits Amended Defence in this way:--"With regard to paragraph 56 of the Re-Amended Particulars of Claim, PHJ says asfollows:(i) It is admitted that the Architect's Termsand Conditions, signed by PHJ on 20.3.89contained the following text:"9.1 For all purposes, the Terms andConditions contained in this letter shall be deemedto have been made under seal by the parties."(ii) It is denied that the contract betweenPHJ and Tesco was in fact a specialty within theCopr. © West 2004 No Claim to Orig. Govt. Works