Tesco v Constain - Thomson Reuters

2003 WL 21729349 Page 122003 WL 21729349 (QBD (T&CC)), [2003] EWHC 1487(Publication page references are not available for this document.)20J. On 27th May 1994, Costain wrote to Tesco(copied to PHJ) in the following terms:"We are pleased to report that further to adetailed inspection of the [Redditch] store lastautumn, we can confirm that fire stopping workscomply with the requirements of the design andstatutory regulations prevailing at the time ofconstruction."20K. On 3rd June 1994, as alleged at Paragraph20 of the Particulars of Claim, PHJ wrote to Tescoin the following terms:"Thank you for your letter dated 28thApril 1994. We were in fact approached by CostainConstruction last October in respect of this matter,and they have carried out the inspection to whichyou refer, as part of their review of all fourMidlands Tesco projects with which they wereinvolved. From discussion with Costain, itappeared they may not have returned a report toyou in respect of the Redditch project, but theyconfirmed to us that they would do so, and I seethat they have now written. We hope this issatisfactory and closes the matter."20L. PHJ's letter dated 3rd June 1994 implicitlyconfirmed that it was satisfied by its previousinspection with Costain and/or that it was satisfiedthat the drawings which it had supplied to Costainexpressly for the purposes of inspection compliedwith the Statutory Regulations prevailing at thetime of construction. Otherwise, PHJ's letter dated3rd June 1994 was not a proper response to Tesco'sletter dated 28th April 1994.20M. In all the circumstances:a. PHJ owed Tesco a duty of care toinspect the Redditch store with that degree of skilland care to be expected of the reasonablycompetent architect carrying out such aninspection.b. Further and in any event PHJ owedTesco a duty of care to identify any element of thedesign of the Redditch store which did not complywith the Statutory Regulations prevailing at thetime of construction. Costain will contend that thisduty of care arose as early as 9th September 1993,and that it had certainly arisen by 3rd June 1994.c. Yet further and in any event PHJ owedCostain a duty of care to identify any element ofthe design of the Redditch store which did notcomply with the Statutory Regulations prevailing atthe time of construction. Costain will contend thatthis duty of care arose as early as 9th September1993, and that it had certainly arisen by 3rd June1994.20N. PHJ owed these duties because:a. PHJ was aware of the contents of theletters dated 19th October 1993 and 27th May1994;b. PHJ was the architect and designer ofthe works and Costain was the contractor. Tescohad a policy of requiring inspections by botharchitect and contractor for these purposes, andCostain had a policy of inspecting with thearchitect for these purposes;c. Neither Tesco nor PHJ can haveexpected that Costain would have undertaken areview of the design of the Redditch store in orderto ascertain whether the design complied with theStatutory Regulations prevailing at the time ofconstruction;d. PHJ knew having received Tesco'sletter of 28th April 1994 and in the circumstancesabove that Tesco (and, further or in the alternative,Costain) was/were dependent upon PHJ to report ifthe design of the Redditch store was not compliantwith the Statutory Regulations prevailing at thetime of construction.20O. To the extent that Tesco establishes that thedesign of the Redditch store was not compliantwith the Statutory Regulations prevailing at thetime of construction, and to the extent that Tescoestablishes, contrary to Costain's Defences, ifalleged, that Costain is liable for failing to point outsuch non-compliances in its letters dated 19thOctober 1993 or 27th May 1994, then PHJ was inbreach of those duties of care which it owed toTesco identified in paragraphs 20M a. and b.above, and the duty of care which it owed toCostain identified in paragraph 20M c. above, infailing to identify those non- compliances either toCostain or to Tesco direct. Costain and CostainLimited repeat paragraph 4 above and Costain willfurther claim from PHJ damages for breach of theduty of care described in paragraph 20M c. above.20P. Further and in any event, to the extent thatTesco establishes that the construction of theRedditch store was not compliant with theStatutory Regulations prevailing at the time ofconstruction, and to the extent that Tescoestablishes, contrary to Costain's Defences, thatCostain is liable for failing to point out such noncompliancesin its letters dated 19th October 1993or 27th May 1994, then PHJ was in breach of thoseduties of care which it owed to Tesco identified inparagraphs 20M a. and b. above, and the duty ofcare which it owed to Costain identified inparagraph 20M c. above in failing to identify thosenon-compliances either to Costain or to Tescodirect. Costain and Costain Limited repeatparagraph 4 above.20Q. As particulars of breaches of the duties ofcare described at paragraph 20M above, Costainand Costain Limited will refer to and rely upon theallegations herein and such of the allegations madeby Tesco against Costain and PHJ as Tescoestablishes at the trial of this matter."37. The answer of PHJ to the allegations quoted inthe preceding paragraph was set out in paragraphsCopr. © West 2004 No Claim to Orig. Govt. Works