Tesco v Constain - Thomson Reuters

2003 WL 21729349 Page 302003 WL 21729349 (QBD (T&CC)), [2003] EWHC 1487(Publication page references are not available for this document.)forward on Redditch.17/5/94Spoke to Bob Heckles (out yesterday). He recallsdoing the survey for New Oscott -- no problems butproperly protected as agreed with L. A. fire officer.He thinks a similar exercise with Costains forRedditch -- probably Charles Trueman.He suggest [sic] we phone Tescos and put themin touch with Costains as they have a copy of thereport for Redditch and are in any case responsibleunder D + B contract.Tony O'CP.S. Robert has checked his daybook -- hissurvey was at end Sept. 93."120. It appears that Mr. O'Connor's note isinaccurate in a number of respects, although it isunclear whether he noted accurately what he wastold, that information being inaccurate, or whetherthe note itself was inaccurate, or a combination ofthe two.121. Mr. O'Connor himself was called as awitness, but his evidence, which I accept, was thathe had no recollection of the conversationsrecorded in his files note and no recollection of thecircumstances prevailing at the time he made thenote. Other than in relation to the matters recordedin his notes and the sending of copies of drawingsshowing fire precautions to Costain on about 12October 1993, Mr. O'Connor had nothing to dowith the Store.122. Mr. Gibson-Leitch was asked about thereferences to him in the note. His evidence, whichagain I accept, in his witness statement about itwas:--"37. That attendance record is not howeverentirely accurate in so far as it refers to theinspections having been carried out by me onbehalf of Costain. It is not correct to say that Irecalled carrying out the four inspections. As said,in conjunction with my fellow contracts manager,and given the company wide profile of the affair,possibly also our area manager, I would havedelegated this task. I recalled that four inspectionshad been carried out, not that I carried them out.38. It would have been unusual for the architectsnot to be involved in such inspections. Thisapproach was followed by Costain on all suchsimilar requests received from clients."123. Although not something upon which Mr.Gibson-Leitch specifically commented, Mr.O'Connor's note was also inaccurate in indicatingthat no report had been made to Tesco following aninspection in 1993 -- Mr. Gibson-Leitch hadwritten the letter dated 19 October 1993.124. Mr. Heckels was also asked to comment onMr. O'Connor's note. His evidence in his witnessstatement dated 8 April 2003, which I accept, was:--"13. What I can say with complete confidence isthat even if I did mention to Tony O'Connor, oranyone else, that PHJ had carried out some specificfire-stopping survey or inspection of a Tesco storein 1993/4, that would have been a reference to aninspection at the New Oscott site. So far as I canrecall, I never went to the Redditch site at all; andapart from dealing with the telephone call fromCostain referred to above [from Mr. Burley], I hadno involvement at all in the Redditch project.14. As mentioned above, I do not know ifanyone from PHJ attended a re- inspection of thefire-stopping works at Redditch. I do not evenknow if one took place, although obviouslyCostain's letter of 19th October 1993 suggests thatCostain did carry out such an inspection. I certainlydo not recall suggesting that Charles Truman mayhave been involved in such an inspection, but if Idid raise this suggestion, it must have been pureguesswork on my part, based on the assumptionthat if PHJ had been involved in any inspection, hemay have been a likely individual to have beeninvolved. I knew that Redditch was GrahamWelch's project and that Charles Truman workedfor Graham. Charles Truman was not an architect.He was employed as a "clerk of works" and wasresponsible for sorting out site problems. I believehe managed small projects on site and it may wellhave been his job to do routine inspections forGraham Welch. However, for large inspections, thecontractors would, I think, normally wish to use thearchitect who designed the building. A firestoppinginspection would be a big job with lots ofopening up to do. It would probably take more thana day. I do not think it is the sort of job that I wouldever have expected Charles Truman to carry out,and I have to say, therefore, that it seems to menow unlikely that I would ever have suggested toMr. O'Connor that I thought Charles might havecarried out such an inspection.15. I am accordingly a little surprised at whatwas recorded by Mr. O'Connor in his note. I thinkit is at least possible that he may have recordedsomething that I suggested I thought might havehappened as if I had confirmed that I thought thatthat is what definitely had occurred. If I did saywhat is recorded, it may perhaps have been that Iassumed that Costain would have wanted someonefrom PHJ to go with them on such an inspection.My experience is that contractors can be reluctantto take on responsibilities relating directly orindirectly to design matters and this may perhapsbe why I may have supposed at the time that PHJmay had [sic] accompanied Costain on anyinspection. I should say, however, that I have noCopr. © West 2004 No Claim to Orig. Govt. Works