Tesco v Constain - Thomson Reuters

2003 WL 21729349 Page 52003 WL 21729349 (QBD (T&CC)), [2003] EWHC 1487(Publication page references are not available for this document.)respect of both damage to the store itself andeconomic loss consequent thereon.(4) By reason of the matters set out atparagraph 11 above, Costain assumedresponsibility towards Tesco for the design andconstruction of the Redditch store.(5) Further or alternatively, by reason ofthe express warranty provided by Costain asparticularized in paragraph 15b of the AmendedParticulars of Claim, Costain owed to Tesco a dutyof the nature and extent set out in sub-paragraphs(1) and (2) above."20. In its Re-Amended Reply to Costain's Defencein Action 07 it was pleaded on behalf of Tesco atparagraphs 5 to 9 inclusive that there had been acourse of dealing between Tesco and Costain in theperiod 1988 to 1991 in the course of which Costainhad constructed a number of stores for Tesco. Itwas contended that in the case of each storeCostain had agreed to undertake the design andconstruction on the terms of Tesco's standard formof design and build contract for the time being inuse. The conclusion contended for at paragraph 10of the Re-Amended Reply was:--"In the premises, and by reason of this course ofdealing between the parties:(1) The agreement between Costain andTesco in relation to the Redditch store was onTesco's standard terms and conditions, either byway of express agreement or by way of implicationby reason of this course of dealing; and(2) The relevant limitation periodapplicable to any contractual claims arising underor out of the contract is 12 years."21. Tesco's Re-Amended Reply to the Defence ofCostain also included this response to Costain'scase as to there being no contract between them inrelation to the Store:--"11. While Tesco admits that its standard termcontract documentation was not executed byCostain in the case of the Redditch store, at allmaterial times Costain evinced an intention tocomplete the documentation and to be bound by itsterms. Tesco relies in particular in this regard on:(1) Paragraph 14a of Costain's Defence.(2) Costain's acceptance of the standardterms and conditions by its conduct in purporting todesign and construct the Redditch store inaccordance with the same. In this regard Tescorelies in particular on the following:(a) Commencing works on site(b) Making payment to PHJ in respect ofarchitectural services provided in relation to theRedditch store by PHJ. For the avoidance of doubt,prior to Costain commencing work on site PHJ hadbeen paid by Tesco.(c) Adopting and complying with thedefects liability period provided for by Tesco'sstandard terms.(d) Purporting to act as though there hadbeen a novation in respect of PHJ's Architect'sAppointment. By way of example, Tesco refers toand relies upon Costain's letter to PHJ dated 18May 1994 in which Costain asserted that PHJ was"the Architect novated to us for the Tesco storebuilt at Redditch in 1989/90" and as such wasrequired to check its drawings and inspect the storeto establish the safety of the structure.(e) Naming Tesco's Design and ConstructContract Issue No. 7 as the main contract in its(Costain's) sub-contracts in respect of the Redditchstore.(f) Undertaking the 1993/4 inspection ofthe store and reporting to Tesco in respect of thesame in circumstances where Costain accepted thatif defects in fire stopping were found it would beliable to remedy the same at no cost to Tesco.Tesco refers to paragraph 21 below in this regard.(3) Further PHJ and the other consultantsrelied upon the existence of a contract betweenTesco and Costain on the terms of Tesco's standardterms edition 7 as the basis upon which they actedin relation to the contract and, in particular,followed the instructions of Costain ....12A. Further or alternatively, Costain is nowestopped from denying that the contract with Tescofor the design and construction of the RedditchStore was on Tesco's standard terms and conditionsby reason of the matters set out:(1) in paragraph 11 above;(2) in Tesco's reply 32 to Costain'sRequests for Further Information dated 15 August2002; and(3) in paragraph 5 of PHJ's Defence toCostain's Part 20 Particulars of Claim."22. Reply 32 to Costain's Request for FurtherInformation dated 15 August 2002 was in theseterms:--"As is more fully particularised in Tesco's Replyto Costain's Defence, Tesco will contend that it isentitled to rely on a 12 year limitation period evenif the contract under seal was not executed byreason of the following:(a) It was a term of the contract enteredinto by Tesco and Costain and/or it was within thecontemplation of the parties that such a contractwould be under seal and that, as a result, a 12 yearlimitation period would apply to any claims arisingout of the contract. In the premises, and for theavoidance of any doubt, the effect of the contractwas that Costain agreed not to raise any point onlimitation provided any claim made by Tesco inrespect of Costain's breach of contract was madewithin 12 years of any such breach.(b) Tesco relied on the matters set out inCopr. © West 2004 No Claim to Orig. Govt. Works