Tesco v Constain - Thomson Reuters

2003 WL 21729349 Page 232003 WL 21729349 (QBD (T&CC)), [2003] EWHC 1487(Publication page references are not available for this document.)1989 recorded that:--"Peter Hing & Jones had forwarded a copy ofRedditch Building Control queries to CCL [that is,Costain] and had replied to all points also copyingCCL. CCL suggested that Peter Hing & jones [sic]neet Building Control to clear any furtherproblem."87. The detail of records in the minutes thereafterin relation to the progress of the BuildingRegulations application is not material. It issufficient to state that all relevant minutes indicatedthat the matter was being dealt with by PHJ.88. Building Regulations approval of the plans ofthe Store was, in the event, granted by the Councilon 19 December 1989.89. Construction of the Store was completed onabout 27 February 1990.Attempts to finalise contract documentationbetween Tesco and Costain90. It appears that no serious effort was madeeither on behalf of Tesco or on behalf of Costain toaddress the question of completion of contractdocumentation in relation to the Store until theconstruction of the Store was almost complete.Even at that time the initiative seems to have comesubstantially from Costain, which had the greatestdifficulty in extracting any worthwhile, still lessprompt, response from Bucknalls on behalf ofTesco.91. It was Mr. Gerald Paine, at the time employedby Costain as a Managing Quantity Surveyor, whosought, unsuccessfully as it turned out, to advancethe question of contract documentation. His effortsreally began with a letter to Bucknalls dated 16January 1990, in which he wrote:--"As discussed between Mr. C. Matthews and thewriter today we are pleased to enclose herewith ourdraft Contractor's Proposals for this project for yourperusal. The basic format has been successfullyused on other Tesco projects and we look forwardto receiving your comments shortly, so that we mayamend as necessary and provide you with two setsfor incorporation into the Contract Documents.Similarly we look forward to receiving yourcomments on the proposals discussed todaybetween Mr. C. Matthews and the writer, regardingour proposed amendments to the revisedEmployer's Requirements document, which wasreceived at Coventry on 29th June 1989, afteracceptance of the second stage Contract Sum."Although, as I have already indicated, the Issue 7Main Contract contemplated that Contractor'sProposals would be incorporated in a contract inthat form, it appears that it was only at this timethat Costain got round to producing a draft of such.Obviously the matter of the revised Employer'sRequirements had by this point been longoutstanding.92. Unhappily Mr. Paine's optimism that he wouldhear shortly after his letter of 16 January 1990 fromBucknalls proved to be misplaced. He did send areminder dated 1 March 1990 in which he referredto telephone conversations with Mr. Matthews ofBucknalls after the date of the letter, but by the dateof the letter no final response had beenforthcoming. Eventually Miss Susan Bell ofBucknalls did reply, in a letter dated 15 March1990, with some minor observations. However, thematter of finalising contract documentation was notthen pressed forward by Bucknalls.93. Miss Bell did write a letter dated 14 February1990 to PHJ requesting signature on behalf of PHJof an Issue 7 Novation Agreement. PHJ, by Mr.Lyons, did sign such an agreement, but not until 4May 1990. It was never executed either on behalfof Tesco or on behalf of Costain.94. Mr. Paine replied to Miss Bell's letter dated 15March 1990 in a letter dated 26 March 1990. Thepart of the letter which is material for presentpurposes was in the following terms:--"We acknowledge receipt of your letter dated15th March 1990 and are pleased to confirm ouragreement to your comments. Accordingly weenclose herewith two bound copies of the dulyamended Contractor's Proposal [sic] forincorporation into the Contract Documents.We note that the latter part of our letter dated 1stMarch 1990, concerning our proposed amendmentsto the revised Employer's Requirements, has notbeen covered in your letter of 15th March 1990 andwe look forward to receiving your response.With regard to the recent telephone request fromMr. Matthews we can advise you that we have nowreceived from the Ernest Green PartnershipLimited a letter dated 19th March 1990 enclosingin duplicate the Terms of Engagement andConditions of Appointment and the ConsultantNovation Agreement both duly executed by ErnestGreen Partnership Limited.We enclose herewith both copies of the Terms ofEngagement and the Novation Agreement forincorporation into the Contract Documents.However, we note that most of the items referred toin our letter to you dated 22nd September 1989have not been corrected ....We look forward to receiving the ContractDocuments for execution by this Company at yourCopr. © West 2004 No Claim to Orig. Govt. Works