Tesco v Constain - Thomson Reuters

2003 WL 21729349 Page 832003 WL 21729349 (QBD (T&CC)), [2003] EWHC 1487(Publication page references are not available for this document.)I consider him to be a man of the highest integrity,and, moreover, as I have said, a careful andcautious man. He would have had no reason towrite as he did unless he considered that he hadgood grounds for what he wrote. He personally wastotally unaffected whether or not an inspection hadbeen carried out, and whatever it was that aninspection revealed. It is obvious from the evidenceput before me that material in relation to theinspection of other Tesco stores in the Midlandswhich resulted in letters being written by Costainwhich were logged by Tesco as having beenreceived, but now cannot be found, that relevantdocumentation has gone missing. I accept theevidence of Mr. Gibson-Leitch that he delegatedthe task of inspection to someone -- to whom, it isno longer possible to say -- who seemed to himcompetent to undertake an inspection of the firestopping and inhibiting works at the Store, and thatthat person subsequently reported to Mr. Gibson-Leitch in terms which persuaded him that a properinspection had been carried out and that theappropriate works had been properly carried out inthe first place.275. Mr. Taverner submitted that I should findthat an inspection of the Store had been made onbehalf of Costain in the autumn of 1993 before Mr.Gibson-Leitch wrote his letter dated 19 October1993, and that on that inspection the representativeor representatives of Costain had beenaccompanied by a representative or representativesof PHJ. He relied heavily upon the terms of thenotes made by Mr. O'Connor on 16 and 17 May1994 which recorded Mr. Gibson-Leitch as havingsaid at that time that he recollected jointinspections with architects at the four Tesco storesin the Midlands area built by Costain and Mr.Heckels as having said that he had undertaken aninspection at New Oscott and as having surmisedthat an inspection had been undertaken by someoneat PHJ, probably Mr. Truman, at the Store. Mr.Taverner also relied upon the fact, as to whichCostain witnesses spoke, and which seems to havebeen accepted at least in general terms by Mr.Heckels, that Tesco's usual practice was to requirea joint inspection by the relevant architect andcontractor. Further, he also attention to the fact thatthere was no positive evidence that there had notbeen a joint inspection.276. Mr. Coulson contended that there was nosubstance in the points made by Mr. Tavernerwhich I have summarised in the precedingparagraph.277. It was, as it turned out, not in dispute thatMr. Truman had left the employment of PHJ at thebeginning of 1993 before the question of aninspection of the Store had arisen. That meant, as itseems to me, first, that Mr. Truman could not havebeen the person who made a joint inspection, ifjoint inspection there was, of the Store with arepresentative of Costain. Second, it meant that Mr.O'Connor's note upon which Mr. Taverner reliedeither recorded accurately inaccurate informationas to Mr. Truman provided by Mr. Heckels orrecorded inaccurately what Mr. Heckels said. Ihave already recorded that both Mr. Heckels andMr. O'Connor were called to give evidence, butneither had any recollection of their conversationindependent of the note made by Mr. O'Connor. Inmy judgment the possibility of misunderstanding atthe time of the conversation was increased by thefact that neither Mr. Heckels nor Mr. O'Connor hadany involvement with the Store apart from thisconversation and, in the case of Mr. Heckels, beingthe PHJ person who was asked to provide therelevant fire precautions drawings to Costain. Mr.Gibson-Leitch in his evidence spoke of Mr.O'Connor's note being inaccurate insofar as itsuggested that Mr. Gibson-Leitch personally hadcarried out surveys of Tesco stores. A furthermystery concerning the notes made by Mr.O'Connor was that they referred to Costain,according to Mr. Gibson-Leitch, having no recordof having reported to Tesco following theinspection of the Store, when in fact Mr. Gibson-Leitch had done so in his letter dated 19 October1993. As I have already indicated, it seems to methat it would not be safe to draw any inferencefrom the terms of Mr. O'Connor's notes. Forwhatever reason they were not accurate in anumber of respects.278. Mr. Coulson also drew attention to the factthat, if Costain had wanted PHJ to inspect the Storejointly with it, the logical point at which to makesuch request would have been in Mr. Burley's letterdated 9 September 1993. That is a fair point.Moreover, in none of the subsequent writtencommunications between Costain and PHJ wasthere any reference to any joint inspection. Mr.Gibson-Leitch's letter dated 19 October 1993 wascopied to PHJ, but that referred only to what "we",meaning in the context Costain, had taken it uponitself to do. There was no suggestion in the letterthat the inspection had been made jointly with PHJ.While what prompted Mr. Dainty of Tesco to writehis letter to PHJ dated 28 April 1994 was obscure,the responses to it did indicate a number of thingsrelevant to the question whether PHJ had made ajoint inspection with Costain in the previousautumn. If there had been a joint inspection onewould have expected that that would have beenrecollected then by relevant personnel on bothsides, specifically Mr. Gibson-Leitch on theCostain side and Mr. Welch on the PHJ side. OneCopr. © West 2004 No Claim to Orig. Govt. Works