Tesco v Constain - Thomson Reuters

2003 WL 21729349 Page 842003 WL 21729349 (QBD (T&CC)), [2003] EWHC 1487(Publication page references are not available for this document.)might have expected the fact of a joint inspection tohave been mentioned in correspondence to Tesco,given that by his letter dated 28 April 1994 Mr.Dainty was specifically asking for PHJ toundertake an inspection. However, in his letterdated 27 May 1994 to Tesco Mr. Gibson-Leitchspoke only of what "we", that is Costain, couldconfirm. Mr. Welch in his letter to Tesco dated 3June 1994 in terms referred to the inspection ashaving been carried out by Costain. He made thatpoint in his letter to Mr. Gibson-Leitch dated 3June 1994. While it is always possible that aresponse from Costain challenging that assertionhas gone missing, given the terms of Mr. Gibson-Leitch's letters to which I have referred, that seemsunlikely.279. In the result I conclude that the answer toIssue 21 is that Costain alone made an inspection ofthe Store in the autumn of 1993 and that PHJ madeno inspection.The PHJ 1993-1994 Tortious Duties Issues280. These were rather curious issues in that theydid not arise as between Tesco and PHJ, each ofwhich agreed that PHJ owed no duties either toTesco or to Costain in relation to the Store in 1993and 1994. It was only Costain which contended thatPHJ owed any duties to Tesco or to Costain.281. The way in which Mr.Taverner and Mr.Hargreaves put Costain's case in relation to theseissues in their written opening was as follows:--"355. These issues fall to be answered asfollows:(a) PHJ owed Tesco and Costain a duty ofcare to identify any element of the design of theRedditch store which did not comply with theStatutory Regulations prevailing at the time ofconstruction. (This is whether PHJ inspected ornot.)(b) PHJ owed Tesco a duty to inspect theRedditch store with that degree of skill and care tobe expected of the reasonably competent architectcarrying out such an inspection.356. The nature of the duties was for PHJ toexercise that degree of skill and care to be expectedof the reasonably competent architect performingsuch services.357. The duty ran from the date of reliance (ifany) by Tesco up and until a further inspection wasor could be expected to be carried out which couldgive rise to the opportunity for the statement beingshown to have been wrong.358. As regards the duty owed to Costain, thisran from the date of Costain's reliance i.e. around3rd June 1994.359. The duties are capable of encompassing oneor more of the losses pleaded at paragraph 65 ofRAPC, including Costain's liability to Tesco (ifany) (see paragraphs 20Q and 20M of Costain'sAmended Particulars of Part 20 Claim.360. PHJ owed Costain a duty of care in thesecircumstances because:(a) PHJ knew, or ought reasonably to haveknown, that Costain asked for "the supply of alldrawings relevant to fire protection/preventionworks at the Redditch store" for the purposes ofcarrying out an inspection of the Redditch store.(b) PHJ thereafter supplied these drawingsknowing that Costain would use them in carryingout an inspection of the Redditch store.(c) Costain, as contractor, would haveassumed, and was entitled to assume, that thedesign depicted in the drawings complied with theStatutory Regulations prevailing at the time ofconstruction.(d) PHJ knew, or ought reasonably to haveknown, that Costain would assume that thedrawings complied with the Statutory Regulationsprevailing at the time of construction.(e) PHJ did not say at any time prior to theinspection (or afterwards) that the design of theRedditch store failed to comply with the StatutoryRegulations prevailing at the time of construction.(f) The inspection in October 1993 tookplace jointly between Costain and PHJ.(g) Costain copied the 19 October 1993letter to PHJ.(h) On 28 April 1994 Tesco wrote to PHJin the terms set out at paragraph 323 above.(i) On 27 May 1994, Costain wrote toTesco in the terms set out in paragraph 327 above,and copied that letter to PHJ.(j) On 3 June 1994, PHJ wrote to Tesco inthe terms set out at paragraph 329 above, andcopied that letter to Costain.(k) PHJ's letter dated 3rd June 1994implicitly confirmed that it was satisfied by itsprevious inspection with Costain and/or that it wassatisfied that the drawings which it had supplied toCostain expressly for the purposes of inspectioncomplied with the Statutory Regulations prevailingat the time of construction. Otherwise, PHJ's letterdated 3rd June 1994 was not a proper response toTesco's letter dated 28th April 1994."282. The exposition of Costain's case which Ihave quoted in the preceding paragraphdemonstrated, as it seemed to me, the fallacies in it.To the extent to which it depended upon a findingthat PHJ had inspected the Store jointly withCostain in the autumn of 1993, it failed because Ihave not made the requisite finding. In the absenceof such a finding it seems to me that the case is allCopr. © West 2004 No Claim to Orig. Govt. Works