Tesco v Constain - Thomson Reuters

2003 WL 21729349 Page 92003 WL 21729349 (QBD (T&CC)), [2003] EWHC 1487(Publication page references are not available for this document.)to conclude that the relevant requirements were metif what was shown on the drawings was what wasseen on site, without revisiting the question of whatthe relevant requirements were. Further it wascontended that on the balance of probabilitieswhoever made the inspection on behalf of Costainhad been accompanied by a representative of PHJ.The point was also made that Tesco could not haverelied on the letter dated 19 October 1993 as in itsletter dated 28 April 1994 it requested PHJ toundertake an identical inspection to that uponwhich Costain reported in its letter dated 19October 1993.29. In the Amended Defences of Costain defencesof limitation were raised in relation to all allegedcauses of action which it was contended on behalfof Tesco it had against Costain. That line ofdefence was obvious, and one which it was soughtto forestall in the Re-Amended Particulars of Claimin Action 07 and in the Amended Particulars ofClaim in Action 439. Essentially the points taken inthe Re-Amended Particulars of Claim in Action 07were, first, that the claim for damages for breach ofthe contract for the design and construction of theStore contended for was one to which a twelve yearlimitation period was applicable, and that periodhad not expired by the date of the commencementof Action 07, while for all of the alleged causes ofaction in tort what was contended was that thecause of action did not arise until the date of theFire, or, if it did, Tesco's date of knowledge for thepurposes of HLimitation Act 1980 s. 14A was notuntil after the date of the Fire. The AmendedParticulars of Claim in Action 439 included asection entitled "Costain, Limitation and itsInspection and Report in October 1993". Thatsection was in these terms:--"39. As to Tesco's claim in tort arising fromCostain's inspection and report in October 1993and/or 1994,a. Such cause of action did not accrueuntil loss was suffered by reason of the fire on 4August 2001;b. Alternatively, Tesco's date ofknowledge, for the purposes of Hsection 14A of theLimitation Act 1980, was not until after the fire on4 August 2001.40. By reason of the matters set out inparagraphs 32 to 36 above, Tesco will contend thatno reasonably competent contractor carrying out aninspection in accordance with Tesco's instructionscould have failed to identify and report on thedefects in fire-stopping at the Redditch Store.41. In particular, the defects set out in paragraph36 above were basic and obvious. Those inparagraphs 36a to 36f inclusive would have beenparticularly obvious upon the most cursory ofinspections of the roof. They would have beenobvious to even a relatively junior employee withsome basic training in the Building Regulations andfire protection matters.42. In the premises it is to be inferred that either:a. Costain carried out no inspection at allof the Redditch store and then deliberatelyconcealed this fact from Tesco by its letters dated13 [sic] October 1993 and/or 27 May 1994; orb. Costain did carry out such aninspection, identified some or all of the defectsrelied upon by Tesco but deliberately failed inbreach of duty to report the same to Tesco; orc. Costain carried out a limited inspectionof the store but deliberately concealed the limitednature of its inspection and/or any defects revealedon such an inspection; ord. Carried out an inspection which was socursory that it could not properly be described as a"detailed" inspection.43. The absence of any inspection and/or theabsence of any detailed inspection and/or thedeliberate breach of duty in failing to report toTesco the defects identified by any such inspectionconcealed facts and matters relevant to Tesco'scause of action against Costain in circumstanceswhere they were unlikely to be discovered for sometime. Such facts and matters were:a. The failure of Costain to carry out anyinspection at all of the Redditch store; alternativelyb. The failure of Costain to carry out a"detailed" inspection of the store and/orc. The failure of Costain to report to Tescoeach and every one of the defects that it in factidentified.44. Tesco could not have discovered and did notin fact discover these facts and matters, whether byreasonable diligence or at all, until such time as thefire. For the avoidance of doubt, each of the defectsrelied upon by Tesco would only have beenidentifiable upon an inspection of the roof spaces.Having obtained confirmation from Costain thatsuch an inspection had been carried out and that thefire stopping works at the store were adequate andcomplied with relevant statutory requirements,Tesco had no reason, and did not in fact, undertakeany such inspection of the roof space itself.45. By reason of the foregoing Tesco is entitledto and does rely on Hsection 32 of the LimitationAct 1980 in support of its contention that its causesof action as against Costain did not accrue until thedate of the fire, namely 4 August 2001."The claims against PHJ30. As against PHJ it was alleged in the Re-Amended Particulars of Claim in Action 07 that itentered into an agreement ("the PHJ Agreement")Copr. © West 2004 No Claim to Orig. Govt. Works