Tesco v Constain - Thomson Reuters

2003 WL 21729349 Page 142003 WL 21729349 (QBD (T&CC)), [2003] EWHC 1487(Publication page references are not available for this document.)convenient to deal with them as preliminary issuesin advance of the main trial so that the preparationfor that trial could be more focused. I thereforedirected that the following questions be determinedas preliminary issues:--"1. Did the Claimant ("Tesco") and the FirstDefendant ("Costain") make a contract in 1989under which Costain undertook to carry out anywork or provide any services for Tesco inconnection with the construction of a supermarketand associated buildings at a site at ColdfieldDrive, Oakenshaw Wood, Redditch, Birmingham("the Redditch Site")?2. If the answer to Issue 1 is affirmative:(i) Was it a term of such a contract that thelimitation period in respect of any breaches of theagreement would be twelve years?(ii) How was such a contract made andwhat documents, if any, were incorporated into it?(iii) Were any, and if so which, of theexpress terms pleaded at paragraph 15 of the Re-Amended Particulars of Claim in Action No. HT-02-07 terms of such agreement and, if not, so far asmaterial, what were the express terms?(iv) Were any, and if so which, of theimplied terms pleaded at paragraph 16 of the Re-Amended Particulars of Claim in Action No. HT-02-07 terms of such agreement and, if not, so far asmaterial, what were the implied terms?3. Is Costain estopped, as asserted by Tesco atparagraph 12A of its Amended Reply in Action No.HT-02-07, from denying that "the contract withTesco for the design and construction of theRedditch Store was on Tesco's standard terms andconditions" by reason of the matters set outtherein?4. Is Costain estopped, as against Tesco and/orthe Third Defendant ("PHJ"), from denying that itwas retained as Tesco's design and build contractoras alleged in paragraph 5 of PHJ's Defence toCostain's Part 20 proceedings in Action No. HT-02-07?5. If the answer to Issue 2(i) is negative, isCostain estopped, as asserted by Tesco atparagraph 65(2) of the Amended Reply in ActionHT- 02-07 from "denying any claim made byTesco is statute-barred provided that any suchclaim has been made within 12 years from theoccurrence of the relevant breach of whichcomplaint is made"?6. Is Costain estopped from denying a novationby conduct in April 1989 as alleged at paragraph 5of PHJ's Defence to Costain's Part 20 proceedingsin Action No. HT-02-07?7. Did Costain owe to Tesco any duty of care intort in relation to anything undertaken by Costainin connection with the Redditch Site in 1989?8. If the answer to Issue 7 is affirmative were thenature and extent of such duty of care as set out inparagraph 17 (and 15 and 16) of the Re-AmendedParticulars of Claim and paragraph 13 of the Replyto the Defence of Costain in Action No. HT-02-07;and if not, what were the nature and extent of theduty of care owed by Costain to Tesco?9. Did Costain assume a duty of care to Tesco ofthe nature and extent pleaded at paragraph 27 of theRe-Amended Particulars of Claim in Action No.HT-02-07 as a result of the writing by Costain toTesco of the letter dated 19 October 1993; and, ifnot, what were the nature and extent of the duty ofcare to Tesco (if any) assumed by Costain inwriting the letter dated 19 October 1993?10. Did Costain assume a duty of care to Tescoof the nature and extent of th[at] pleaded atparagraph 21 of the Amended Particulars of Claimin Action No. HT-02-439 as a result of the writingby Costain to Tesco of the letter dated 27 May1994; and, if not, what were the nature and extentof the duty of care to Tesco (if any) assumed byCostain in writing the letter dated 27 May 1994?11. If the answers to Issues 7 and 8 are to theeffect that a duty of care was owed by Costain toTesco which was capable of encompassing one ormore of the losses pleaded at paragraph 65 of theRe-Amended Particulars of Claim in Action No.HT-02-07, and on the assumption that Costain wasin breach of that duty of care as alleged by Tesco inthe said Re-Amended Particulars of Claim, subjectto issues arising under Hsection 14A and section 32of the Limitation Act 1980, did Tesco's cause ofaction in tort in respect thereof accrue as at the dateof the fire, 4 August 2001?12. If the answer to Issue 9 is to the effect that aduty of care was owed by Costain to Tesco whichwas capable of encompassing one or more of thelosses pleaded at paragraph 65 of the Re-AmendedParticulars of Claim in Action No. HT-02-07, andon the assumption that Costain was in breach ofthat duty of care as alleged by Tesco in the said Re-Amended Particulars of Claim, subject to issuesarising under Hsection 14A Hand section 32 of theLimitation Act 1980, did Tesco's cause of action intort in respect thereof only accrue as at the date ofthe fire, 4 August 2001?13. If the answer to Issue 10 is to the effect that aduty of care was owed by Costain to Tesco whichwas capable of encompassing one or more of thelosses pleaded in the Amended Particulars of Claimin Action No. HT-02-439, and on the assumptionthat Costain was in breach of that duty of care asalleged by Tesco in the said Amended Particularsof Claim, subject to issues arising under Hsection14A and section 32 of the Limitation Act 1980, didTesco's cause of action in tort in respect thereofonly accrue as at the date of the fire, 4 August2001?14. On the assumption that Costain is liable toTesco to any extent in respect of the claims madeCopr. © West 2004 No Claim to Orig. Govt. Works