Tesco v Constain - Thomson Reuters

2003 WL 21729349 Page 862003 WL 21729349 (QBD (T&CC)), [2003] EWHC 1487(Publication page references are not available for this document.)reasonably fit for its intended purpose.3. Is Costain estopped, as asserted by Tesco atparagraph 12A of its Amended Reply in Action No.HT-02-07, from denying that "the contract withTesco for the design and construction of theRedditch Store was on Tesco's standard terms andconditions" by reason of the matters set outtherein?Answer: No.4. Is Costain estopped, as against Tesco and/orthe Third Defendant ("PHJ"), from denying that itwas retained as Tesco's design and build contractoras alleged in paragraph 5 of PHJ's Defence toCostain's Part 20 proceedings in Action No. HT-02-07?Answer: No.5. If the answer to Issue 2(i) is negative, isCostain estopped, as asserted by Tesco atparagraph 65(2) of the Amended Reply in ActionHT- 02-07 from "denying any claim made byTesco is statute-barred provided that any suchclaim has been made within 12 years from theoccurrence of the relevant breach of whichcomplaint is made"?Answer: No.6. Is Costain estopped from denying a novationby conduct in April 1989 as alleged at paragraph 5of PHJ's Defence to Costain's Part 20 proceedingsin Action No. HT-02-07?Answer: No.7. Did Costain owe to Tesco any duty of care intort in relation to anything undertaken by Costainin connection with the Redditch Site in 1989?Answer: Yes.8. If the answer to Issue 7 is affirmative were thenature and extent of such duty of care as set out inparagraph 17 (and 15 and 16) of the Re-AmendedParticulars of Claim and paragraph 13 of the Replyto the Defence of Costain in Action No. HT-02-07;and if not, what were the nature and extent of theduty of care owed by Costain to Tesco?Answer: The duty of care owed by Costain toTesco was to execute any building or design workwhich Costain in fact carried out itself with the careand skill to be expected of a reasonably competentbuilding contractor so as not to cause damage toperson or property or economic loss.9. Did Costain assume a duty of care to Tesco ofthe nature and extent pleaded at paragraph 27 of theRe-Amended Particulars of Claim in Action No.HT-02-07 as a result of the writing by Costain toTesco of the letter dated 19 October 1993; and, ifnot, what were the nature and extent of the duty ofcare to Tesco (if any) assumed by Costain inwriting the letter dated 19 October 1993?and10. Did Costain assume a duty of care to Tescoof the nature and extent of the [sic] pleaded atparagraph 21 of the Amended Particulars of Claimin Action No. HT-02-439 as a result of the writingby Costain to Tesco of the letter dated 27 May1994; and, if not, what were the nature and extentof the duty of care to Tesco (if any) assumed byCostain in writing the letter dated 27 May 1994?Agreed answer to 9 and 10: It being accepted byCostain that in undertaking the inspection and inmaking the statements in the letters dated 19October 1993 and 27 May 1994, Costain undertookto Tesco a common law duty of care to undertake adetailed inspection of fire barriers with reasonableskill and care, and to exercise reasonable skill so asto ensure that the statements made in the letters (of19 October 1993 and 27 May 1994) were accurate,the questions of the nature and scope of that duty ofcare, including the meanings of "a detailedinspection" and "fire barriers" be left over to thetrial in October.11. If the answers to Issues 7 and 8 are to theeffect that a duty of care was owed by Costain toTesco which was capable of encompassing one ormore of the losses pleaded at paragraph 65 of theRe-Amended Particulars of Claim in Action no.HT-02-07, and on the assumption that Costain wasin breach of that duty of care as alleged by Tesco inthe said Re-Amended Particulars of Claim, subjectto issues arising under Hsection 14A and section 32of the Limitation Act 1980, did Tesco's cause ofaction in tort in respect thereof accrue as at the dateof the fire, 4 August 2001?Answer: No. Any cause of action accrued at thedate at which Tesco in fact sustained economic lossas a result of a breach of the duty of care. If theStore as completed was less valuable than it wouldhave been had the requisite fire stopping andinhibiting measures been incorporated into it, thecause of action accrued at the date of PracticalCompletion. If that is not so, but Tesco would havebeen put to additional expense had it required theinclusion in the Store at the time of construction ofthe appropriate fire stopping and inhibitingmeasures, the cause of action accrued at the date atwhich that cost exceeded what it would have beenat the time of the original construction of the Store.12. If the answer to Issue 9 is to the effect that aduty of care was owed by Costain to Tesco whichwas capable of encompassing one or more of thelosses pleaded at paragraph 65 of the Re-AmendedParticulars of Claim in Action No. HT-02-07, andon the assumption that Costain was in breach ofthat duty of care as alleged by Tesco in the said Re-Amended Particulars of Claim, subject to issuesarising under Hsection 14A and section 32 of theLimitation Act 1980, did Tesco's cause of action intort in respect thereof only accrue as at the date ofthe fire, 4 August 2001?Answer: No. Any cause of action accrued at thedate upon which the cost to Tesco of having carriedout the works which it would have had carried outCopr. © West 2004 No Claim to Orig. Govt. Works