Tesco v Constain - Thomson Reuters

2003 WL 21729349 Page 82003 WL 21729349 (QBD (T&CC)), [2003] EWHC 1487(Publication page references are not available for this document.)We are pleased to report that further tothis inspection we can confirm that fire stoppingworks comply with the requirements of the Designand Statutory Regulations prevailing at the time ofconstruction".24. Costain intended that its letter should berelied upon by Tesco and in particular, intendedand/or foresaw that Tesco would not carry out anyother or further investigation into the adequacy ofthe fire inhibiting works at the Redditch store.25. By letter, dated 28 April 1994, Tescorequested PHJ, as the appointed architect for thedevelopment of the Redditch store, to arrange aninspection, in conjunction with the maincontractors (Costain), in order to determine andreport upon the condition of the fire inhibitingworks at the store.26. By letter to Tesco, dated 3 June 1994, PHJconfirmed that,a. Costain had carried out the relevantinspection in the previous October, as part ofCostain's review of all four Midlands Tescoprojects with which Costain had been involved;b. From discussions with Costain, itappeared that Costain might not have actuallyreturned the report to Tesco in respect of theRedditch store, but Costain had now done so.27. By undertaking the inspection and/or bymaking the statements in its letter dated 19 October1993 against the factual background set out above,Costain undertook towards Tesco a common lawduty of care,a. To undertake a detailed inspection ofthe fire inhibiting works at the Redditch store withreasonable skill and care; and/orb. To exercise reasonable skill and care soas to see that its detailed inspection entailed athorough inspection of all the fire stopping worksat the Redditch store in October 1993;c. To exercise reasonable skill and care soas to see that it had taken all necessary steps toensure that its confirmation, that fire inhibitingworks at the Redditch store complied with therequirements of the Design and StatutoryRegulations prevailing at the time of construction,was accurate; and/ord. To take reasonable skill and care so asto ensure that the statements made in the letter of19 October 1993 were accurate.28. As a consequence of, and in reliance on, thefact that Costain had carried out a detailedinspection of the Redditch store, in or aboutOctober 1993, and the terms of Costain's letter of19 October 1993, Tesco did not itself carry out (orobtain) a detailed inspection of the fire inhibitingworks at the Redditch store, or effect remedialworks."27. In the Amended Particulars of Claim in Action439 the allegations set out in the precedingparagraph were repeated, with the addition,between what was paragraph 25 of the Re-Amended Particulars of Claim in Action 07, butwas paragraph 16 of the Amended Particulars ofClaim in Action 439, and what was paragraph 26 ofthe Re-Amended Particulars of Claim in Action 07,which was paragraph 20 of the AmendedParticulars of Claim in Action 439, of theseparagraphs:--"17. Pursuant to this request, PHJ contactedCostain on or about 16 May 1994 with regard toorganising an inspection of the store. Costainconfirmed to PHJ that it had already inspected thestore and retained a copy of the report in respect ofthe same. In these circumstances PHJ did notarrange for a further inspection of the store to beundertaken.18. By letter to Tesco dated 27 May 1994Costain confirmed to Tesco that,"further to a detailed inspection of thestore last Autumn we can confirm that fire stoppingworks comply with the requirements of the designand statutory regulations prevailing at the time ofconstruction."19. Costain intended that this letter should berelied upon by Tesco whether in addition to orsubstitution of its letter dated 19 October 1993 andin particular, intended and/or foresaw that Tescowould not carry out any other or furtherinvestigation into the adequacy of the fireinhibiting works at the Redditch site and, inparticular, would not require PHJ to undertake aninspection of the store as it had requested it to do inits letter of 28 April 1994."28. Costain admitted in its Amended Defences inAction 07 and Action 439 that the letters dated 19October 1993 and 27 May 1994 had been writtenby it to Tesco and were in the terms alleged onbehalf of Tesco. However, Costain seemed to haveno very positive case as to what inspection wasundertaken before the letter dated 19 October 1993was written. Rather its case as pleaded was that itwas not possible now to say who had carried out aninspection or of what that inspection consisted. Tosupply that deficiency a case was set out as to whatthe inspection most probably amounted to and itwas asserted that it would not have beenpracticable for the person making the inspection tohave damaged the structure of the Store in order toinspect all that which might have been inspectedhad there been no objection to invasiveinvestigation. Moreover, it was contended that itwould have been reasonable for the person makingthe inspection to proceed on the basis that theoriginal drawings of the Store showed what wasrequired under relevant regulations at the time ofconstruction, and thus reasonable for such personCopr. © West 2004 No Claim to Orig. Govt. Works