Tesco v Constain - Thomson Reuters

2003 WL 21729349 Page 182003 WL 21729349 (QBD (T&CC)), [2003] EWHC 1487(Publication page references are not available for this document.)involvement commenced some time in 1988. Thatwas a considerable period before the execution ofthe PHJ Agreement. Costain's involvement seemsto have commenced when it was invited, by a letterdated 16 November 1988 written on behalf ofTesco by Bucknalls, to submit a first stage tenderfor the construction of the Store. That was not thefirst time that Costain had been invited to submit atender for the construction of a supermarket forTesco. It was clear from the material put before methat Costain was at that time familiar with Tesco'swishes to use Standard Documentation and to havethe contractor for any supermarket enter into aMain Contract under seal under which thecontractor accepted design responsibilities. It alsoappeared that Costain was in principle prepared todeal with Tesco on the terms desired by Tesco,subject to appropriate back-to-back arrangementsbeing made with the relevant architects and otherprofessional organisations.50. My attention was drawn in particular to theinvolvement of Costain in three projects for Tescoin 1988 and 1989. One project concerned theconstruction of an extension to a warehouse atCrick. In that case it appeared that Costainexecuted a form of the Main Contract included inIssue No. 6 with amendments which includeddeletion of clause 4 (which was not materiallydifferent from clause 4 of the Conditions). Thatform of contract as executed was sent to Messrs.Spicer Partnership ("Spicer"), quantity surveyorsacting on behalf of Tesco in relation to that project,under cover of a letter dated 24 March 1988.Execution seems to have preceded the execution ofnovation agreements with the relevant professionalfirms involved with the design in that case.Novation agreements were executed subsequently,but in the interim no form of agreement wasconcluded as between Tesco and Costain becausethe amendments made by Costain to the form ofagreement which it executed were not acceptable toTesco.51. The second of the three projects to which Ihave referred concerned the construction of anextension to the Tesco supermarket in Pontypridd.Again Spicer acted as quantity surveyors to Tesco.From the terms of a letter dated 25 March 1988written by Costain to Spicer it appears that Costainexecuted and returned to Spicer contract documentsin that case notwithstanding that no novationagreement had been made with Messrs. Ove Arupand Partners ("Arup"), although novationagreements had been made with other professionalorganisations involved.52. The third project to which I have referredconcerned the construction of a supermarket inMold. In that case it appears that Costain executeda form of the Main Contract included within IssueNo. 6 and returned it under cover of a letter dated23 March 1989 to Messrs. Robert H. Gleave andPartners ("Gleave"), the quantity surveyors actingfor Tesco in relation to that project,notwithstanding that the structural engineersinvolved in that project had not at that timeexecuted a novation agreement. The structuralengineers did subsequently execute such anagreement.53. I shall return to what is said to be thesignificance of the events to which I have referredin the previous three paragraphs of this judgment.54. Following the indication on the part of Costainthat it was interested in submitting a tender for theconstruction of the Store tender documents weresent to it by Bucknalls under cover of a letter dated21 November 1988. In that letter it was indicatedthat the intended forms of contract for the projectwere those included within Issue No.6. There werealso sent under cover of that letter Employer'sRequirements, and a form of tender, amongst otherdocuments. The Employer's Requirementsidentified as "Architect" for the purposes of theproject PHJ, as "Quantity Surveyor" Bucknalls, as"Structural Engineer" Ernest Green PartnershipLtd. ("Green") and as "Building Services Engineer"Messrs. Sibley Robinson Partnership ("Sibley").The Employer's Requirements also identified as"Employer's Representative" Mr. Kevin Pleass, aProject Controller. At folio 1/4 the Employer'sRequirements included this:--"C The Quantity Surveyor will be employed bythe Employer throughout the Contract and his feeswill be paid directly by the Employer.Contractor's Design TeamD The Architect, Structural Engineer, BuildingServices Engineer are responsible for the design ofthe project and will, under the terms of theContract, become employed by the Contractorthrough a Consultant Novation Agreement.E Attention is drawn to the fact that the NovationAgreements included are standard for the TescoForm of Contract.F The Contractors design team's remunerationwill be met by the Contractor, as set out in theirrespective Letters of Appointment reproduced inthe Tesco Form of Contract."No copies of any agreements made between Tescoand PHJ, Green or Sibley were attached to theEmployer's Requirements. At folio 1/11 of theEmployer's Requirements was set out a list ofcontractors introduced by the words:--"A It is the Employers policy to use thefollowing approved sub- contractors and suppliersas mentioned in the Policy Memoranda for variousCopr. © West 2004 No Claim to Orig. Govt. Works