Tesco v Constain - Thomson Reuters

2003 WL 21729349 Page 872003 WL 21729349 (QBD (T&CC)), [2003] EWHC 1487(Publication page references are not available for this document.)but for its reliance upon the report increased abovewhat that cost would have been as at the date ofTesco's reliance upon the report and Tesco therebysustained a loss.13. If the answer to Issue 10 is to the effect that aduty of care was owed by Costain to Tesco whichwas capable of encompassing one or more of thelosses pleaded in the Amended Particulars of Claimin Action No. HT-02-439, and on the assumptionthat Costain was in breach of that duty of care asalleged by Tesco in the said Amended Particularsof Claim, subject to issues arising under Hsection14A and section 32 of the Limitation Act 1980, didTesco's cause of action in tort in respect thereofonly accrue as at the date of the fire, 4 August2001?Answer: As for Issue 12.14. On the assumption that Costain is liable toTesco to any extent in respect of the claims madein this action, is the Second Defendant ("CostainLimited") liable to Tesco as contended at paragraph66 of the Re-Amended Particulars of Claim inAction No. HT-02-07 and in paragraph 54 of theParticulars of Claim in Action No. HT-02-439?Answer: The agreed answer to this issue is no, asthe claim against the Second Defendant has beendiscontinued.15. If there was no contract as between Tescoand Costain which imposed upon Costain designand build obligations (whether in accordance withthe Tesco Standard Documentation for use with theDesign and Build Contracts, Issue No. 7, orotherwise) do PHJ's contractual obligations toTesco nevertheless fall to be determined on thebasis that the position as between Tesco andCostain was that Costain had undertaken designand build responsibilities to Tesco as alleged inparagraph 11A of PHJ's Amended Defence inAction No. HT-02-07?Answer: Upon proper construction of the PHJAgreement what was required to be included byPHJ in its designs of the Store was to bedetermined having regard to the fact that thosedesigns were to be implemented by an experiencedbuilding contractor.16. Was the agreement executed by PHJ on 20March 1989 deemed as between the parties to it tobe a specialty for the reason pleaded at paragraph56 of the Re-Amended Particulars of Claim inAction No. HT- 02-07?and17. Is the limitation period for the contractualclaims made by Tesco against PHJ in respect ofalleged breaches of the agreement executed by PHJon 20 March 1989, pleaded at paragraph 8 of theRe-Amended Particulars of Claim in Action No.HT-02-07, 12 years or 6 years?Answer: Although the PHJ Agreement was notin fact a specialty, upon proper construction ofclause 9.1 of it PHJ agreed not to raise a defence oflimitation in respect of any claim for alleged breachof the agreement unless and until a period of 12years had elapsed from the date of the allegedbreach.18. Were any, and if so which, of the impliedterms pleaded at paragraph 10 of the Re-AmendedParticulars of Claim in Action No. HT- 02-07 termsof the agreement between Tesco and PHJ which ispleaded at paragraph 8 of that Re-AmendedParticulars of Claim?Answer: None of the alleged implied terms wereterms of the PHJ Agreement.19. If PHJ was in breach of any duty of careowed in tort to Tesco, as alleged in paragraph 54 ofthe Re-Amended Particulars of Claim in ActionNo. HT-02-07, and subject to issues arising underHsection 14A and section 32 of the Limitation Act1980, did Tesco's cause of action in tort in respectthereof only accrue as at the date of the fire, 4August 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.20. Whether the nature of the obligations set outin paragraphs 9, 10 and 11 of the Re-AmendedParticulars of Claim was such that, in the event thatPHJ was in breach of contract as alleged by Tesco,those breaches of contract occurred at or continueduntil Practical Completion regardless of (1) whenthe allegedly defective design work wasundertaken; and (2) whether, as a matter of fact, thedefects in construction alleged could or could notbe detected upon a reasonable inspection of theRedditch store as at the date of PracticalCompletion.Answer: PHJ had no obligation to review itsdesign unless something occurred which wouldhave brought to the attention of a reasonablycompetent architect the need to review his design.PHJ had no obligation to inspect work executed atthe Store which had been covered up.21. Did Costain or PHJ carry out an inspectionof the Redditch store in 1993/1994? If so, which?Answer: Costain carried out an inspection in theautumn of 1993.22. In all the circumstances, what were thenature and extent of any duty of care in tort, if any,Copr. © West 2004 No Claim to Orig. Govt. Works