Tesco v Constain - Thomson Reuters

2003 WL 21729349 Page 172003 WL 21729349 (QBD (T&CC)), [2003] EWHC 1487(Publication page references are not available for this document.)47. The Architect's Agreement included withinIssue No.7 ("the Issue 7 Architect's Agreement")included these provisions:--"You are invited to provide ArchitecturalServices for the above project and to carry out allnecessary duties in connection therewith and as setout hereunder. It is a condition of your appointmentthat at or about the time the Construction Contractis entered into you will execute a NovationAgreement, a draft of which is annexed hereto,when directed by this Company ....1.1 Your appointment and, therefore, theseTerms and Conditions are effective from the dateof this Company's first instructions to you inrespect of this project.1.2 The Architect will up to the time of theexecution of the Novation Agreement act on behalfof this Company in all matters set out or implied inthe Architect's appointment and will obtainapproval in writing before initiating any service orwork stage. Such approval will be obtained from aDirector of this Company or its designatedrepresentatives.1.3 The Architect shall in conformity withthe normal standards of the Architect's professionto be assessed by the Standard of an Architectexperienced in projects of the scale and complexityof this project exercise all reasonable skill, care anddiligence in the discharge of the services agreed tobe performed by him. In connection with theproject the Architect will prior to the execution ofthe Novation Agreement only take instructionsfrom a Director of this Company or its designatedrepresentatives. The Architect will not make at anytime any material alteration, addition or omissionfrom the design unless approved by a Director ofthis Company or its designated representatives ....9.1 For all purposes the Terms andConditions contained in this letter shall be deemedto have been made under Seal by the parties."48. In the Novation Agreement included withinIssue No. 7 ("the Issue 7 Novation Agreement")Tesco was called "the Company", the contractorparty to it was called "the Contractor" and theprofessional organisation party to it was called "theConsultant". The expression "the PrincipalAgreement" was defined as meaning the relevantIssue 7 Main Contract, while the expression "termsof Engagement and Conditions of Appointment"was defined as meaning whatever agreement hadpreviously been made between Tesco and therelevant professional organisation. The Issue 7Novation Agreement included these provisions:--"1. THE Consultant HEREBY UNDERTAKESto perform the obligations under the Terms ofEngagement and Conditions of Appointment forthe Contractor with immediate effect and to bebound by the terms and conditions of the same inevery way as if the Contractor were a party theretoab initio in lieu of the Company.2. THE Consultant:(a) Releases and discharges the Companyfrom the further performance of the Company'sobligations under the Terms of Engagement andConditions of Appointment and from all claims anddemands whatsoever arising out of or in respect ofthe Terms of Engagement and Conditions ofAppointment whether prior to or subsequent to thedate hereof.(b) Is deemed to have notice of the termsand conditions of the Principal Agreement andagrees that the performance of the obligationsunder the Terms of Engagement and Conditions ofAppointment are necessary for the execution andcompletion of the Works under the PrincipalAgreement.Provided that for the avoidance of doubtthis shall not mean that the Consultant undertakesany duty or obligation beyond that of exercisingthat degree of skill, care and diligence so as toconform with the duties set out in the Terms ofEngagement and Conditions of Appointment.3. THE Consultant releases and discharges theCompany from all claims and demands whatsoeverin respect of the said Terms of Engagement andConditions of Appointment and accepts the liabilityof the Contractor upon the said Terms ofEngagement and Conditions of Appointment in lieuof the liability of the Company and the Contractoragrees to be bound by the terms of the said Termsof Engagement and Conditions of Appointment inevery way as if it were named in the said Terms ofEngagement and Conditions of Appointment as aparty thereto in place of the Company ...6. Nothing contained in this Agreement shalloperate to discharge the Consultant from anyliability in respect of duties performed prior to theexecution of this Agreement. The Consultantagrees that in respect of all duties performed by itafter the said date of execution it shall owe thesame duty of care to the Company as agreed in theTerms of Engagement and Conditions ofAppointment concurrent with such duties owed tothe Contractor ....8. For all purposes the Terms and Conditionscontained in this Novation Agreement shall bedeemed to have been made under seal by theparties."The involvement of Costain in the constructionof the Store49. I shall come separately to deal with theinvolvement of PHJ in the design of the Store, butit is material at this stage to notice that thatCopr. © West 2004 No Claim to Orig. Govt. Works