Tesco v Constain - Thomson Reuters

2003 WL 21729349 Page 332003 WL 21729349 (QBD (T&CC)), [2003] EWHC 1487(Publication page references are not available for this document.)Heckels had suggested, erroneously, that all thatneeded to be considered was the fire protection tothe structural steelwork. In fact, in my judgment,the submission was unsound. The sentence fromthe letter dated 31 August 1993 upon which Mr.Taverner relied does not seem to me to bear themeaning for which he contended. It was not, in myjudgment, a request that PHJ identify whatinvestigations Costain should carry out, or as towhat Costain should look for in undertaking itsinspection, as Mr. Taverner seemed to assert, but asimple request that PHJ should provide copies ofthe relevant drawings. In other words, theexpression "indicating areas/details to beinvestigated" was adjectival, describing thedrawings of which copies were wanted, and notequivalent to a conjunction and an infinitive, whichis what Mr. Taverner's submission would involve.That Mr. Heckels, by his response in his letterdated 7 September 1993 sought to explain why thedrawings of which he sent copies showed whatthey did, and not something else, cannot remotely,as it seems to me, be taken as any giving of advicethat the designs were proper designs or anyindication that PHJ accepted a duty of care toCostain or anyone else in relation to the provisionof the copy drawings or what was shown on them.the Defence of Costain in Action 07 reliance wassought to be placed upon Mr. Laird's letter as anexample of Costain "purporting to act as thoughthere had been a novation in respect of PHJ'sArchitect's Appointment". In fact it seems thatreliance was sought to be placed on the letter assome sort of admission that there had been anovation of the PHJ Agreement, for the letter waswritten long after completion of the construction ofthe Store. It seems to me to be plain that, whateverthe merits of the assertion that there was in fact anovation by conduct of the PHJ Agreement asbetween Costain, PHJ and Tesco, or the assertionthat Costain is estopped from denying that therehad been such a novation, the issue is not advancedby reliance on Mr. Laird's infelicitous use oflanguage as to a matter concerning which it wouldseem he had no knowledge, as it was not suggestedthat he had had any involvement in the constructionof the Store or in the making of any contractualarrangements in relation to it. All he was reallysaying to PHJ in his letter, as it seems to me, was aquestion has arisen as to the structural safety of thisbuilding which you designed and I would like youto advise me about it. The building at which theincident to which Mr. Laird referred had takenplace was in fact the New Oscott Store.Mr. Laird's letter of 18 May 1994The Costain Agreement dated 1 July 1999134. Mr. Nicholas Laird was employed by Costainin 1994 as an Area Manager. He wrote a letterdated 18 May 1994 to PHJ which was in theseterms:--"We have recently had reason to revisit a Tescostore where a triangular gable end at high levelbuilt in brick and blockwork cavity constructionwas sucked out by high winds. The reason for thefailure being the construction was not tied back tothe steelwork.It therefore follows as you were the Architectnovated to us for the Tesco store built at Redditchin 1989/90 that we require you to check yourdrawings and visit the site to remove any doubt thata similar incident could occur. It would also beworthwhile checking for any such other area of thedesign, such as pre-cast copings etc which mayhave a similar potential problem.Would you please carry out your investigationwithin the next 2/3 weeks and write to usconfirming there is no problem or advise by returnof any potential area that would require furtherdetailed investigation.Please respond to Nick Laird at the aboveaddress."135. At paragraph 11 of the Amended Reply to136. An agreement in writing dated 1 July 1999("the Costain Agreement") was made betweenCostain and the Other Costain Company. A copy ofthe Costain Agreement was put in evidence. Therecital to the Costain Agreement provided that:--"The Vendor [that is to say, Costain] has agreedto sell and the Purchaser [that is to say, the OtherCostain Company] has agreed to purchase theAssets and the Businesss on the terms set out inthis Agreement."The expressions "the Assets" and "the Business"were respectively defined in clause 1 of the CostainAgreement as meaning:--"the property and assets agreed to be sold andpurchased under this Agreement;"and"the whole of the business carried on by theVendor in the United Kingdom at the date of thisAgreement;".137. By clause 2 of the Costain Agreementprovision was made for the sale and purchase of theBusiness and the Assets as follows:--"2.1 Subject to the provisions of Clause 2.3 theVendor shall sell and the Purchaser shall purchaseas a going concern the Business and Assets and thePurchaser shall assume the Liabilities with effectCopr. © West 2004 No Claim to Orig. Govt. Works