Tesco v Constain - Thomson Reuters

2003 WL 21729349 Page 312003 WL 21729349 (QBD (T&CC)), [2003] EWHC 1487(Publication page references are not available for this document.)specific knowledge that Costain was the sort ofcontractor, which was reluctant to carry outinspections itself."125. Mr. Charles Truman was not called to giveevidence in person, but a witness statement madeby him was put before me as his unchallengedevidence. He ceased his employment with PHJ on31 May 1993. He had nothing to do with anyinspection of the Store in September or October1993.126. In the result it seems to me that no reliancecan be placed on the file note of Mr. O'Connor asan accurate record of anything which actuallyhappened, whether or not it was, in whole or inpart, an accurate record of what Mr. O'Connor wastold on 16 or 17 May 1994.127. There was undoubtedly some contactbetween PHJ and Costain following Mr. Dainty'sletter dated 28 April 1994 to PHJ, for Mr. Gibson-Leitch was prompted to write again to Tesco, thistime marking his letter for the attention of Mr.Dainty. The letter was dated 27 May 1994 andheaded "TESCO -- REDDITCH". It was copied toMr. Welch at PHJ. The letter said, simply:--"We are pleased to report that further to adetailed inspection of the above store last Autumn,we can confirm that fire stopping works complywith the requirements of the design and statutoryregulations prevailing at the time of construction."128. Mr. Welch himself replied to Mr. Dainty'sletter in a letter dated 3 June 1994, which wascopied to Costain. What he said in his letter was:--"Thank you for your letter dated 28th April1994. We were in fact approached by CostainConstruction Limited last October in respect of thismatter, and they have carried out the inspection towhich you refer, as part of their review of all fourMidlands Tesco projects with which they wereinvolved.From discussion with Costain, it appeared theymay not have returned a report to you in respect ofthe Redditch project, but they confirmed to us thatthey would do so, and I see that they have nowwritten.We hope this is satisfactory and closes thematter."129. Mr. Dainty in his evidence told me that hecould not now recall having seen either Mr.Gibson-Leitch's letter dated 27 May 1994 or that ofMr. Welch dated 3 June 1994, but he felt that hemust have received them. However, at paragraph34 of his witness statement dated 3 April 2003 Mr.Dainty asserted with confidence that:--"Tesco relied on Costain's written assurances(see their letters 19.10.93 and 27.05.94 ...) that theyhad carried out a detailed inspection of TescoRedditch and that the store was built in accordancewith the Building Regulations prevailing at thetime of construction. As a result of receiving theseassurances, Tesco believed that the fire inhibitionmeasures at Redditch were satisfactory. I do notbelieve, given the very serious nature of Tesco'srequest initial request [sic], that Costain can havebelieved that Tesco would not rely on theseassurances."130. Mr. Richard Rowswell was employed byTesco in 1993 and 1994 as Fire and StructuralSafety Manager. He retired on account of ill-healthin 1996. However, he did make a witness statementwhich was put before me pursuant to the provisionsof Civil Evidence Act 1995. At paragraph 7 of thatwitness statement Mr. Rowswell referred to theletters dated 19 October 1993 and 27 May 1994written by Mr. Gibson-Leitch. He went on:--"I do not now specifically recall seeing either ofthese letters from Costain, but I was more involvedwith the stores where problems were reported andin respect of which I would have definitelyreceived copies. Having seen the inspectionCostain had carried out at Milton (see below) andtheir subsequent reports, I would have beensatisfied that a "detailed" inspection would haveidentified at least all those defects identified atMilton. If Costain had said the building did notcomply with the design or building regulations,Tesco would have required them to carry out anyremedial works, just as we did at Milton ..."131. There was no real dispute about the factswhich I have set out in this section of thisjudgment. However, it was an important part of thecase of Costain that I should draw inferences inparticular from the file note of Mr. O'Connor as tothe participation of PHJ in the inspection made byCostain prior to Mr. Gibson-Leitch writing hisletter dated 19 October 1993 to Tesco. I find itimpossible to draw the suggested inferences. I havealready indicated my view of the accuracy of thefile note. The position on the evidence which Ihave indicated I accept is that it is not possible tosay who on behalf of Costain made an inspection ofthe Store with a view to reaching a conclusion as towhether it had been constructed in accordance withits design and in accordance with applicablestatutory regulations, or when, other thanapproximately. No witness asserted that theinspection had been made jointly with somerepresentative of PHJ. The evidence on behalf ofCostain went no further than to suggest that itwould have been usual for an inspection of the kindin question to have been made with the architectwho had in fact designed the building, and possibleCopr. © West 2004 No Claim to Orig. Govt. Works