Tesco v Constain - Thomson Reuters

2003 WL 21729349 Page 112003 WL 21729349 (QBD (T&CC)), [2003] EWHC 1487(Publication page references are not available for this document.)meaning of Hsection 8 of the HLimitation Act 1980,and it is accordingly denied that the period oflimitation applicable to Tesco's claims in contractherein is 12 years.(iii) Further and in any event, all of thework carried out by PHJ which it is now contendedby Tesco was carried out in breach of contract wascompleted in 1989 and in any event prior to 8.1.90.Accordingly, even if, which is denied, PHJ was inbreach of contract as alleged, the breach(es) ofcontract alleged occurred more than 12 years priorto the date of issue of these proceedings and arestatute barred even if the applicable period oflimitation is that provided for in Hsection 8 of theLimitation Act 1980."36. Although no claim was made against PHJ onbehalf of Tesco in relation to the alleged inspectionof the Store in 1993 or 1994, such a claim wasmade on behalf of Costain in Part 20 proceedingscommenced against PHJ in each of Action 07 andAction 439. The way in which the claim was put ina combined statement of case in both actions wasthis:--"20A. On 9th September 1993, Costain wrote toPHJ in these terms:"... in anticipation of Tesco's formalinstruction, we confirm our verbal request to yourMr. Heckles for the supply of all drawings relevantto fire protection/prevention works at the Redditchstore."20B. PHJ knew, or ought reasonably to haveknown, that Costain asked for these drawings forthe purposes of carrying out an inspection of theRedditch store. PHJ thereafter supplied thesedrawings knowing that Costain would use them incarrying out an inspection of the Redditch store.20C. In this respect, Costain, as contractor,would have assumed, and was entitled to assume,that the design depicted in the drawings compliedwith the Statutory Regulations prevailing at thetime of construction. PHJ knew, or oughtreasonably to have known, that Costain wouldassume that the drawings complied with theStatutory Regulations prevailing at the time ofconstruction. PHJ did not say at any time prior tothe inspection (or afterwards) that the design of theRedditch store failed to comply with the StatutoryRegulations prevailing at the time of construction.20D. An inspection of the Redditch store tookplace in September/October 1993.20E. Costain avers that, on the balance ofprobabilities, PHJ carried out the inspection of theRedditch Store in September/October 1993 jointlywith Costain and agreed that fire stopping workscomplied with the requirements of the Design andStatutory Regulations prevailing at the time ofconstruction. In support of this proposition Costainwill rely upon the following:a. That Mr. Heckles' recollection at thetime appears to have been that PHJ inspectedjointly with Costain.b. That Mr. Gibson-Leitch's recollection atthe time appears to have been that all fourMidlands Stores were inspected by Costain "witharchitects".c. That it was Tesco's practice to ask thecontractor and the architect to inspect.d, That it was Costain's practice to carryout these inspections jointly with the architect, as itwas on any occasion where queries were raisedwhich would have involved design/regulationissues.e. That Mr. Heckles (in the context ofrecollecting his agreement with the Fire Officer inrelation to New Oscott) recalled that someone fromPHJ had done "a similar exercise with Costains forRedditch" -- which is to say that this person carriedout an inspection jointly with Costain and found tothe same effect i.e. "no problems but properlyprotected as agreed with LA Fire Officer".f. That PHJ were asked to issue therelevant drawings, and did issue (aroundSeptember/October) the relevant drawings, inrelation to the Redditch store.g. That Mr. O'Connor's reference at theend of the note: "P. S. Robert has checked hisdaybook -- his survey was at the end of September"is a reference to "someone from our group" i. e.PHJ inspecting the Redditch store in September1993.h. That PHJ was the designer and Costainthe contractor.20F. On 19th October 1993, Costain wrote toTesco (copied to PHJ) in the following terms:"Although we did not receive a letterspecific to this store, we have taken it uponourselves to carry out a detailed inspection of firebarriers as per other stores constructed by ourCompany in the Midlands. We are pleased to reportthat further to this inspection we can confirm thatfire stopping works comply with the requirementsof the Design and Statutory Regulations prevailingat the time of construction".20I. [sic] On 28th April 1994 Tesco wrote toPHJ in the following terms:"I understand that you were the appointedArchitect for the above Development which hasbeen carried out within the last 6 years. Could youplease arrange to have an inspection carried out byyourselves in conjunction with the main contractorsin order to determine the condition of the firestopping works and if necessary a report should beprovided and returned to myself. If the firestopping works are unsatisfactory then could youplease forward a letter informing us of same, oralternatively, providing a building regulationcompletion certificate as soon as possible."Copr. © West 2004 No Claim to Orig. Govt. Works