Tesco v Constain - Thomson Reuters

2003 WL 21729349 Page 222003 WL 21729349 (QBD (T&CC)), [2003] EWHC 1487(Publication page references are not available for this document.)In recognition of the above difficulties weconfirm our request for you to attend a meeting onsite on Friday 11 August 1989 at 2.30 pm where wetrust items can be addressed prior to the mainTesco Meeting on 16 August 1989."77. Costain also made a habit of sending to PHJfor comment any drawings prepared by itssubcontractors.78. Bucknalls sent to Costain under cover of aletter dated 13 September 1989 two copies of Issue7 Novation Agreements relating to Sibley andGreen. Costain returned those documents toBucknalls under cover of a letter dated 22September 1989 which included this paragraph:--"We note that each of the documents has beensigned by the Employer, but we feel that, inasmuchas in Clause 4 of the Agreement the Consultantacknowledges that to date he has received paymentof the sum stated, it would be prudent for theConsultants to execute the documents before thisCompany is asked to sign them."79. While in many respects illustrated by mattersto which I have already referred Costain operatedas if it was setting the pace for work in connectionwith the Store not only by itself, but also by PHJ,Green and Sibley, the position in relation toBuilding Regulations approval appears to havebeen handled substantially by PHJ to the exclusionof Costain.80. In the minutes of the first meeting betweenrepresentatives of Costain, Tesco, PHJ, Green,Sibley and Bucknalls, which was held on 14 March1989 it was recorded, at minute 2.02 that:--"The application for Building Regulationapproval had been made in the name of theprevious contractor. Peter Hing & Jones to discusswith Redditch [that is to say, the Council of theBorough of Redditch ("the Council")] and amendas necessary.They were also to seek stage BuildingRegulations approval. Ernest Green & Partnerswere requested to assist and if possible enter intodirect communication with the consultant engineerscarrying out the checking on Redditch behalf(Keith Thomson & Partners, Redditch)."81. From the first meeting between Costain,Tesco, PHJ, Green, Sibley and Bucknalls forwardan item, numbered either 2.01 or 2.02, of theminutes remained the question of BuildingRegulation approval.82. The minutes of the meeting held on 29 March1989 at 2.02 recorded that:--"No action had taken place regarding thebuilding regulation approval as discussed at the lastmeeting. Both Peter Hing & Jones and ErnestGreen were instructed to take action as soon aspossible in accordance with previous discussions."83. The relevant minute, 2.02, in those of themeeting held on 12 April 1989 read:--"PH&J had received queries from RedditchBorough Council regarding fire protection. PH&Jwould respond by 14.4.89."84. In fact it appears that PHJ did not respondwithin the timescale expected by the Council, withthe result that by a notice dated 21 April 1989 theplans deposited with the Council were rejected forwant of the supply of information requested by theCouncil's letter dated 31 March 1989. Thatrejection seems to have spurred PHJ into action, forin a letter dated 25 April 1989 to the Council itsought to deal with the outstanding informationrequested by the Council, including in particularconcerning fire protection. In relation to cavitybarriers the letter said this:--"3.0 Cavity BarriersIt is standard practice for Tesco Stores Limitedto provide other fire protection facilities as analternative to the provision of cavity barriers in theceiling void over the sales area, and we now applyfor a relaxation of the Building RegulationRequirement B3 (3) for the following reasons:3.1 The building will be protected byautomatic heat/smoke detection system throughout.3.2 No combustible materials are to beinstalled within ceiling voids.3.3 Duct probes will be installed withinthe extract ducting.3.4 A fireman's control switch will beinstalled.3.5 The automatic detection installationswill be connected to the fire alarm installation,which on activation will automatically shut downthe ventilation system and activate a separatesmoke ventilation.3.6 The ceiling is constructed of noncombustiblematerial.3.7 All electric cables are in metal conduitor trunking."85. In a letter to the Council dated 19 May 1989PHJ confirmed that the Council did not require aformal resubmission of the Building Regulationsapplication following the rejection of plans or aformal application for relaxation of requirements inrelation to cavity barriers in the sales area.86. Minute 2.02 of the meeting held on 10 MayCopr. © West 2004 No Claim to Orig. Govt. Works