Tesco v Constain - Thomson Reuters

2003 WL 21729349 Page 42003 WL 21729349 (QBD (T&CC)), [2003] EWHC 1487(Publication page references are not available for this document.)against PHJ in relation to the design of the Store, tothe detail of which I shall come, that the main focusof attention in the express and implied termspleaded was the design, rather than theconstruction, of the Store.15. During the hearing before me Tesco sought,and obtained without objection, consent to amendfurther the Re-Amended Particulars of Claim inAction 07 so as to add new paragraphs 12A and12B as follows:--"12A Further or alternatively, as at the date ofTesco's letter of 20 March 1989, Tesco and Costainhad reached agreement on all essential terms of thecontract other than price. Agreement on price wasreached on or about 28 June 1989. In the premises,a binding contract for the design and constructionof the store on the terms set out in paragraph 12above and paragraphs 15 and16 below wasconcluded between Tesco and Costain on or aboutthat date.12B. If, which is denied, the agreement of theEmployer's Requirements and/or the Contractor'sProposals was essential for a binding contract to beconcluded between Tesco and Costain, then Tescowill contend that such a binding contract wasconcluded upon the agreement of the Employer'sRequirements in or about March/April 1990 and/orupon the agreement of the Contractor's Proposals inor about March 1990."16. The duties of care alleged in respect of thework done by Costain in relation to the Store in1989 and 1990 at paragraph 17 of the Re-AmendedParticulars of Claim were:--"Further or alternatively, in the circumstancespleaded above, Costain owed Tesco duties atcommon law of the same form and scope as thoseset out at paragraphs 15 and 16 above. Further oralternatively Costain owed to Tesco a duty toexercise reasonable skill and care in designing andbuilding the Redditch store."17. Costain's case in relation to the circumstancesin which no contract came to be concluded inrelation to the Store between it and Tesco wasneatly encapsulated in paragraph 16 c of itsAmended Defence in Action 07:--"It is admitted that, in the event that a contractwas concluded, it was intended by Costain thatsuch a contract would include Tesco's StandardTerms and be executed under seal, and that in thosecircumstances a 12 year limitation period wouldapply. As a result of the failure of Tesco to providesuch documents, despite Costain's repeatedrequests (some of which Tesco identify atparagraph 13 c of the Particulars of Claim and towhich Costain will refer at trial) for a complete setof contract documents and which Tesco eitherwould not or could not deliver, no such contractwas concluded."18. So far as any duty of care was concerned,Costain's case, set out at paragraph 20 of itsAmended Defence in Action 07, was:--"a. It is denied that Tesco has properly identifiedthe scope of the common law duty upon which itseeks to rely.b. Without prejudice to (a) above, it is denied, inthe "circumstances pleaded" by Tesco, that Costainowed Tesco duties at common law of the sameform and scope as those set out at paragraphs 15and 16 of the Particulars of Claim for the reasonsgiven above.c. Further and in any event, it is denied thatCostain owed Tesco a duty to exercise reasonableskill and care in designing the Redditch store. Inparticular Costain did not design the Redditchstore, the professionals did, and so Costain couldnot and did not owe any duty in respect of designor the fitness for purpose of the same.d. Yet further, if Costain did owe any tortiousduties with regards to either the construction,design or fitness for purpose of the Redditch store(denied in any event as to design and fitness forpurpose, not admitted as to construction), it isdenied that the scope of the same embraced a dutyof care to save Tesco harmless from loss in respectof damage to the property itself and/or economicloss consequent upon the same.e. Further and in any event, such duty of care inlaw which could be established (which is notadmitted) is limited to a duty to save harmless inrespect of defects not apparent by intermediatesubsequent inspection. No such duty or breach ofthe same is pleaded."19. Tesco's response to that case was set out inparagraph 13 of its Re- Amended Reply toCostain's Defence in Action 07 as follows:--"As to paragraph 20, it is denied that Tesco hasfailed to identify properly the common law duty ofcare relied on. Without prejudice to the foregoing,Tesco pleads further to paragraph 20 as follows:(1) Costain owed to Tesco a concurrentduty of care at common law to exercise reasonableskill and care in and about the performance of itscontractual duties;(2) Such a duty extended to holding Tescoharmless in respect of both damage to the storeitself and economic loss consequent thereon.(3) Further or alternatively, even if, whichis denied, no contract was concluded betweenTesco and Costain, either on the terms of Issue 7 orat all, then Costain nevertheless owed to Tesco aduty at common law to exercise reasonable skilland care in designing and constructing the store.Such a duty extended to holding Tesco harmless inCopr. © West 2004 No Claim to Orig. Govt. Works