Tesco v Constain - Thomson Reuters

2003 WL 21729349 Page 72003 WL 21729349 (QBD (T&CC)), [2003] EWHC 1487(Publication page references are not available for this document.)(vi) It is further averred that PHJ'scontractual obligations were in fact transferred bynovation from Tesco to Costain, in accordance withthe Design and Build arrangements set out above.In this regard, PHJ says further as follows:(a) PHJ did in fact, on 4.5.90, execute anovation agreement, as had been contemplated inthe letter to PHJ dated 22.2.89, pursuant to whichits contractual obligations were purportedlytransferred from Tesco to Costain. This documentwas not so far as PHJ can now ascertain, everexecuted by either Tesco or Costain.(b) It is, however, PHJ's case that therewas a novation by conduct, in about April 1989, asa result of which PHJ's contractual obligations werein fact transferred from Tesco to Costain.(c) Further or alternatively, it is averredthat Tesco, Costain and PHJ each conductedthemselves, at all material times from April 1989onwards, on the common assumption that there hadbeen such a novation; on the common assumptionthat Costain was engaged by Tesco as Design andBuild Contractors; and on the common assumptionthat PHJ was engaged as Costain's architect. PHJwill rely in support of each of these avermentsupon, inter alia, the facts and matters set out above.(d) In the premises, Tesco and Costain areeach now estopped by convention, or by conduct,from denying that there was such a novation at orabout that time."24. During the course of the hearing before meTesco sought and obtained, again withoutobjection, permission further to amend its Re-Amended Reply to the Defence of Costain and theOther Costain Company in Action 07 so as to addthese paragraphs in relation to the course of dealingupon which Tesco sought to rely:--"4A. Paragraph 12 is denied. It was not anessential pre-requisite or condition precedent ofCostain taking on contractual or any other legalresponsibility for the design or of there being alegally binding contract between Costain andTesco, that Costain were to receive executednovation agreements in respect of the consultants atthe same time as and as part of the execution of theformal contract documents between Costain andTesco. No such precondition was intimated byTesco to Costain, let alone agreed between theparties.4B. Further, and as Costain had demonstrated atother projects where the contract documentationwas executed prior to Costain commencing work atRedditch, Costain was perfectly prepared toexecute the contract documents as between itselfand Tesco in the absence of some or all of thenovation agreements (whether executed or not). Forthe avoidance of doubt, Tesco will contend that thisdemonstrates that the receipt of executed novationscannot have been a precondition for Costainconcluding a binding contract with Tesco underwhich Costain took responsibility for the design ofthe store. In this regard Tesco relies on thefollowing projects:(1) Mold(2) Crick(3) Pontypridd4C. In each of the projects referred to inparagraph 4B above, Costain executed the contractdocuments as between itself and Tesco in theabsence of executed novation agreements in respectof one or more of the consultants.4D. Tesco relies on this course of dealingbetween the parties as demonstrating that there wasno essential pre-requisite or condition precedent ofthe type alleged in paragraph 12."25. It is not material for the purposes of thisjudgment to set out more precisely than I havealready the nature of the alleged breaches ofcontract for which Tesco contended or the nature ofthe alleged negligence on the part of Costain inperforming its obligations as a result of that allegedcontract.26. As I have already indicated, the other matterscomplained of as against Costain on behalf ofTesco, apart from failure to perform properlyobligations allegedly assumed in relation to theconstruction of the Store in the first place, concernthe alleged inspection of the Store by Costain inOctober 1993 and the reports made of the results ofthat inspection. The case as against Costain was putin the Re-Amended Particulars of Claim in Action07 in this way:--"21. On the evening of 17 July 1993, Tesco'sstore in Maidstone, Kent was substantiallydestroyed by fire. The fire had been starteddeliberately by persons unknown in a plastic refusebin outside a newsagents, which was part of thesame shopping complex as the Maidstone store.The fire penetrated the interior of the roof of thenewsagents through the timber soffit, and thenspread through the roof void of the entire complex.22. As a consequence of such fire, Tesco tooksteps to check that the works necessary to inhibitthe spread of fire had been carried out at otherstores constructed to a similar design.23. On 19 October 1993, Costain who knew, as aresult of their extensive links with Tesco, ofTesco's desire to check the extent of fire inhibitingworks at other stores, wrote to Tesco in thefollowing terms in relation to the Redditch store,"Although we did not receive a letterspecific to this store, we have taken it uponourselves to carry out a detailed inspection of firebarriers as per other stores constructed by ourCompany in the Midlands.Copr. © West 2004 No Claim to Orig. Govt. Works