Tesco v Constain - Thomson Reuters

2003 WL 21729349 Page 132003 WL 21729349 (QBD (T&CC)), [2003] EWHC 1487(Publication page references are not available for this document.)13A to 13J of its Amended Defence in the Part 20proceedings. Those paragraphs were in thefollowing terms:--"13A. Paragraph 20A of the Part 20 Particularsof Claim is admitted.13B. Paragraph 20B of the Part 20 Particulars ofClaim is denied.13C. With regard to paragraph 20C of the Part20 Particulars of Claim, PHJ says as follows:(i) It is agreed that PHJ did not informCostain that the design of the Redditch store didnot comply with Statutory Regulations prevailingat the time of construction. It is denied, if the samebe averred, that Costain's request to PHJ, to whichreference is made in paragraph 20A of the Part 20Particulars of Claim, imposed any obligation uponPHJ to consider this question or to advise Costainas to whether or not the design of the Redditchstore complied with Statutory Regulationsprevailing at the time of construction.(ii) It is denied that Costain was entitled toassume that the design depicted in the drawingssupplied by PHJ complied with StatutoryRegulations. Costain undertook an obligation toTesco to confirm that the fire-stopping works at theRedditch store complied with the requirements ofthe Design and Statutory Requirements [sic]prevailing at the time of construction, not toconfirm that the building had been constructed inaccordance with PHJ's drawings. If, which is notadmitted, Costain made any such assumptionCostain thereby took upon itself the risk that thebuilding, as designed, did not comply with therequirements of the Design and StatutoryRequirements [sic] prevailing at the time ofconstruction.(iii) It is denied that PHJ either knew, orought reasonably to have known that Costainwould assume that the design of the Redditch storedepicted in PHJ's drawing complied with StatutoryRegulations prevailing at the time of construction.(iv) Save as aforesaid, paragraph 20C ofthe Part 20 Particulars of Claim is denied.13D. Paragraph 20D of the Part 20 Particulars ofClaim is not admitted.13E. Paragraph 20E of the Part 20 Particulars ofClaim is denied. With regard to the matters reliedupon by Costain, PHJ says as follows, adopting thelettering used in the Part 20 Particulars of Claim.(a) If, which is not admitted, Mr. Heckelsbelieved at any material time that PHJ had, or mayhave, carried out a joint inspection with Costain ofthe fire-stopping works at the Redditch store, Mr.Heckels was mistaken in that belief.(b) If, which is not admitted, Mr. Gibson-Leitch believed at any material time that he hadcarried out an inspection of the fire- stoppingworks at the Redditch store with an architect, theneither the architect in question was not PHJ, or Mr.Gibson-Leitch was mistaken in that belief.(c) This is denied. Tesco did not ask, anddoes not assert that it asked, PHJ or any otherarchitect to carry out an inspection of the firestoppingworks at Redditch.(d) This is denied. Costain did not ask anyarchitect to carry out inspection of the fire-stoppingworks at Redditch.(e) No admissions are made as to thestatement alleged to have been made by Mr.Heckels. The attendance note dated 17.5.94, andmade by a Mr. O'Connor, from which the wordsquoted have been taken, does not, in any event,support the construction which Costain seek toplace upon it, namely that an inspection offirestopping works had been carried out by PHJ atthe Redditch store which disclosed no problems.(f) The facts pleaded are admitted; theinference which Costain seek to draw is denied.PHJ's case is that if Costain had asked, or hadintended to ask, PHJ to conduct a joint inspectionof the Redditch store, the written request of19.10.93 [sic -- in fact the request was dated 9September 1993] for the drawings would have beenthe obvious moment to do so. The fact that Costaindid not make such a request at this time evidencesthat Costain did not intend to, and did not in fact,ever ask PHJ to conduct a joint inspection of theRedditch store.(g) The postscript to Mr. O'Connor's noteis admitted. It is denied that it has the meaningsuggested by Costain.13F. Paragraphs 20F, 20I, 20L and 20K of thePart 20 Particulars of Claim are admitted.13G. Paragraphs 20L and 20M of the Part 20Particulars of Claim are denied.13H. Save that it is admitted that PHJ was awareof the contents of the letters dated 10. [sic in fact19] 10.93 and 27.5.94 and that PHJ was thearchitect involved in the construction of theRedditch store, paragraph 20N of the Part 20Particulars of Claim is denied.13I. Paragraphs 20O and 20P of the Part 20Particulars of Claim are denied.13J. Paragraph 20Q of the Part 20 Particulars ofClaim is noted. PHJ's case as to the allegedbreaches of duty (which are denied) is as set outherein and in its Amended Defence to Tesco's Re-Amended Particulars of Claim, served in ActionNo. HT-02-07."The Preliminary Issues38. The validity of the contentions in the variousstatements of case which I have so far set out inthis judgment plainly needed to be determined atsome stage in this litigation, and it seemedCopr. © West 2004 No Claim to Orig. Govt. Works