Tesco v Constain - Thomson Reuters

2003 WL 21729349 Page 22003 WL 21729349 (QBD (T&CC)), [2003] EWHC 1487(Publication page references are not available for this document.)4. Messrs. Peter Hing and Jones ("PHJ"), theThird Defendants in Action 07, are a firm ofarchitects. They designed the Store as originallyconstructed.5. In about 2001 Tesco decided to have works("the Alteration Works") carried out at the Store.The contractor engaged to design and to undertakethe Alteration Works was the Fourth Defendant inAction 07, Vale (UK) Ltd. ("Vale").6. Part of the Alteration Works involved theconstruction of an extension at the north-easterncorner of the Store. In this judgment I shall call thework of constructing that extension "the ExtensionWorks".7. The Extension Works were sub-contracted byVale to Leonard Burgess Ltd. ("Burgess").Although, nominally, a party to Part 20 Claims inAction 07, Burgess is in liquidation and has takenno part in those proceedings.8. The performance of the Extension Worksincluded the design, manufacture and erection of asteel structure ("the Structure").9. Burgess sub-sub-contracted to a companycalled Benruss the design and manufacture of theStructure. It sub-sub-contracted the erection of theStructure to Whitelight Industries Ltd.("Whitelight"), which is the Fifth Defendant inAction 07. Whitelight went into liquidation afterthe commencement of Action 07 and thereaftertook no part in the action.10. It seems that during the course of the attemptby Whitelight to erect the Structure it becameapparent that some modification of the steel frameof the existing external wall at the north-easterncorner of the Store was necessary. In particular, itbecame apparent that it would be necessary toundertake works involving cutting into the steel ofthe existing frame ("the Cutting Works"). It seemsthat Whitelight was asked by Burgess to, and did,provide a steel fabricator to undertake the CuttingWorks. While the Cutting Works were in progressthe Fire broke out.11. How it was contended in the circumstanceswhich I have summarised Costain and PHJ wereliable to Tesco in respect of the consequences ofthe Fire was put in paragraph 3 of the CaseSummary for the present trial in this way:--"As against PHJ and Costain, Tesco contendsthat the fire spread, causing very substantialdamage to the Store, was due to the absence ofproper fire stopping measures at the Store. Tescocontends that there was no cavity closure at the topof the external wall enabling the fire to escape intothe eaves and then the roof space, and that therewere long lengths of roof space without cavitybarriers."12. A consideration of exactly how the case ofTesco was put in the Re- Amended Particulars ofClaim in Action 07 against Costain and PHJ andagainst Costain in the Amended Particulars ofClaim in Action 439 suggested that there were anumber of issues which could conveniently be triedas preliminary issues in advance of the main trial.This judgment is concerned with those issues.Before setting out the issues for determination atthis stage of the litigation, it is necessary to explainhow the particular issues which I ordered to betried arose.The Claims against Costain13. In short it was alleged against Costain onbehalf of Tesco, first, that Costain was in breach ofthe contract by which it agreed to design andconstruct the Store in the first place, and negligent,in relation to failing to provide appropriate firestopping and inhibiting measures within the Storeas constructed, and, second, that Costain wasnegligent in relation to the undertaking of aninspection of the Store in about October 1993 toassess the adequacy of the fire stopping andinhibiting measures in place and in reporting on theresults of that inspection. In Action 07 complaintwas made in relation to the report contained in aletter dated 19 October 1993. In Action 439complaint was added in respect of the reportcontained in a letter dated 27 May 1994. In itsAmended Defence in Action 07 Costain denied thatit had concluded any contract with Tesco inrelation to the construction of the Store, although itwas admitted that Costain had in fact built it.Costain further denied that it owed to Tesco theduties of care in respect of the construction of theStore for which Tesco contended. The inspection ofthe Store in October 1993 was admitted, but it wascontended that it had been competently carried outand the results properly reported. Limitationdefences were advanced in respect of all claims.14. The way in which the alleged contractbetween Tesco and Costain in relation to theconstruction of the Store was pleaded in the Re-Amended Particulars of Claim in Action 07 wasthis:--"12. By letters, dated 20 and 23 March 1989,Tesco instructed Costain to design and build theRedditch store in accordance with Tesco's DesignCopr. © West 2004 No Claim to Orig. Govt. Works