“Any variations to existing drawings, other than those specifically requested by an official Tesco instruction, must be issued to ourselves in preliminary form, for a cost analysis prior to issue as a construction detail.” (d) Costain dealt direct with Tesco over questions of design which arose from time to time, including, by way of example, the design of the toilet area, as evidenced by a letter dated 19.5.89 from Tesco to Costain; and the design of the Customer Catering Facility, as evidenced by a letter dated 22.5.89 from Costain to PHJ enclosing Tesco’s drawing detailing Tesco’s instructions in relation to the said facility; (e) Costain complained, from time to time about PHJ’s work, as evidenced, for example, by Costain’s letters to PHJ of 14.6.89 and 8.8.89. (f) Costain assumed responsibility for the management of the site and for the co-ordination of all activities, including design work. PHJ will rely in this regard upon the Minutes of Site Meetings, to which PHJ will refer for their full terms and effect. (g) Costain named Tesco’s Design and Construct Contract Issue No. 7 as the main contract in its (Costain’s) sub-contracts in respect of the Redditch store. (iii) PHJ believed, at all material times, that Costain had been engaged by Tesco as Design and Build Contractors; and acted, at all material times, in reliance upon this belief. PHJ will rely, inter alia, upon the following facts and matters: (a) That PHJ would otherwise have acted as Employer’s representative, and taken responsibility for the communication of Tesco’s requirements from Tesco to Costain; and would have issued Instructions to Costain, rather than acting at Costain’s direction, as was in fact the case. (b) That PHJ would have assumed responsibility for the direction and co-ordination of design sub-contractors, rather than Costain, as was in fact the case. (c) That PHJ would otherwise have assumed responsibility for the administration of the terms of the contract, including certifying payments, assessing and, where justified, granting extensions of time, certifying Practical or Partial Completion, and listing defects. (d) That PHJ would otherwise have chaired and minuted Site Meetings, rather than Costain, as was in fact the case. (e) That PHJ would have held separate Design Team meetings with Tesco and other members of the design team, and not left such matters to Costain. (iv) PHJ’s belief that Costain had been engaged by Tesco as Design and Build Contractors was a belief induced by both Tesco and Costain. So far as concerns Costain, PHJ relies in support of this contention upon the facts and matters set out above. (v) In the premises, and whether or not there was in fact a Design and Build contract concluded between Costain and Tesco, whether as alleged by Tesco or otherwise, it is averred that Costain is estopped, by convention and/or conduct, as against PHJ and/or Tesco, from denying that it was retained by Tesco as a Design and Build Contractor on Tesco’s Design and Construct Contract Issue No. 7; alternatively is estopped from denying that it undertook the obligations of a Design and Build contractor in relation to the Redditch store. (vi) It is further averred that PHJ’s contractual obligations were in fact transferred by novation from Tesco to Costain, in accordance with the Design and Build arrangements set out above. In this regard, PHJ says further as follows: (a) PHJ did in fact, on 4.5.90, execute a novation agreement, as had been contemplated in the letter to PHJ dated 22.2.89, pursuant to which its contractual obligations were purportedly transferred from Tesco to Costain. This document was not so far as PHJ can now ascertain, ever executed by either Tesco or Costain. (b) It is, however, PHJ’s case that there was a novation by conduct, in about April 1989, as a result of which PHJ’s contractual obligations were in fact transferred from Tesco to Costain. (c) Further or alternatively, it is averred that Tesco, Costain and PHJ each conducted themselves, at all material times from April 1989 onwards, on the common assumption that there had been such a novation; on the common assumption that Costain was engaged by Tesco as Design and Build Contractors; and on the common assumption that PHJ was engaged as Costain’s architect. PHJ will rely in support of each of these averments upon, inter alia, the facts and matters set out above. (d) In the premises, Tesco and Costain are each now estopped by convention, or by conduct, from denying that there was such a novation at or about that time.” “Any variations to existing drawings, other than those specifically requested by an official Tesco instruction, must be issued to ourselves in preliminary form, for a cost analysis prior to issue as a construction detail.”
“9.1 For all purposes, the Terms and Conditions contained in this letter shall be deemed to have been made under seal by the parties.” (ii) It is denied that the contract between PHJ and Tesco was in fact a specialty within the meaning ofsection 8 of the Limitation Act 1980 , and it is accordingly denied that the period of limitation applicable to Tesco’s claims in contract herein is 12 years. (iii) Further and in any event, all of the work carried out by PHJ which it is now contended by Tesco was carried out in breach of contract was completed in 1989 and in any event prior to 8.1.90. Accordingly, even if, which is denied, PHJ was in breach of contract as alleged, the breach(es) of contract alleged occurred more than 12 years prior to the date of issue of these proceedings and are statute barred even if the applicable period of limitation is that provided for insection 8 of the Limitation Act 1980 .”
“ … in anticipation of Tesco’s formal instruction, we confirm our verbal request to your Mr. Heckles for the supply of all drawings relevant to fire protection/prevention works at the Redditch store.” 20B. PHJ knew, or ought reasonably to have known, that Costain asked for these drawings for the purposes of carrying out an inspection of the Redditch store. PHJ thereafter supplied these drawings knowing that Costain would use them in carrying out an inspection of the Redditch store. 20C. In this respect, Costain, as contractor, would have assumed, and was entitled to assume, that the design depicted in the drawings complied with the Statutory Regulations prevailing at the time of construction. PHJ knew, or ought reasonably to have known, that Costain would assume that the drawings complied with the Statutory Regulations prevailing at the time of construction. PHJ did not say at any time prior to the inspection (or afterwards) that the design of the Redditch store failed to comply with the Statutory Regulations prevailing at the time of construction. 20D. An inspection of the Redditch store took place in September/October 1993. 20E. Costain avers that, on the balance of probabilities, PHJ carried out the inspection of the Redditch Store in September/October 1993 jointly with Costain and agreed that fire stopping works complied with the requirements of the Design and Statutory Regulations prevailing at the time of construction. In support of this proposition Costain will rely upon the following: a. That Mr. Heckles’ recollection at the time appears to have been that PHJ inspected jointly with Costain. b. That Mr. Gibson-Leitch’s recollection at the time appears to have been that all four Midlands Stores were inspected by Costain “with architects”. c. That it was Tesco’s practice to ask the contractor and the architect to inspect. d, That it was Costain’s practice to carry out these inspections jointly with the architect, as it was on any occasion where queries were raised which would have involved design/regulation issues. e. That Mr. Heckles (in the context of recollecting his agreement with the Fire Officer in relation to New Oscott) recalled that someone from PHJ had done “a similar exercise with Costains for Redditch” – which is to say that this person carried out an inspection jointly with Costain and found to the same effect i.e. “no problems but properly protected as agreed with LA Fire Officer”. f. That PHJ were asked to issue the relevant drawings, and did issue (around September/October) the relevant drawings, in relation to the Redditch store. g. That Mr. O’Connor’s reference at the end of the note: “P. S. Robert has checked his daybook – his survey was at the end of September” is a reference to “someone from our group” i. e. PHJ inspecting the Redditch store in September 1993. h. That PHJ was the designer and Costain the contractor. 20F. On19th October 1993 , Costain wrote to Tesco (copied to PHJ) in the following terms: “Although we did not receive a letter specific to this store, we have taken it upon ourselves to carry out a detailed inspection of fire barriers as per other stores constructed by our Company in the Midlands. We are pleased to report that further to this inspection we can confirm that fire stopping works comply with the requirements of the Design and Statutory Regulations prevailing at the time of construction”. 20I. [sic] On28th April 1994 Tesco wrote to PHJ in the following terms: “I understand that you were the appointed Architect for the above Development which has been carried out within the last 6 years. Could you please arrange to have an inspection carried out by yourselves in conjunction with the main contractors in order to determine the condition of the fire stopping works and if necessary a report should be provided and returned to myself. If the fire stopping works are unsatisfactory then could you please forward a letter informing us of same, or alternatively, providing a building regulation completion certificate as soon as possible.” 20J. On27th May 1994 , Costain wrote to Tesco (copied to PHJ) in the following terms: “We are pleased to report that further to a detailed inspection of the [Redditch] store last autumn, we can confirm that fire stopping works comply with the requirements of the design and statutory regulations prevailing at the time of construction.” 20K. On3rd June 1994 , as alleged at Paragraph 20 of the Particulars of Claim, PHJ wrote to Tesco in the following terms: “Thank you for your letter dated28th April 1994 . We were in fact approached by Costain Construction last October in respect of this matter, and they have carried out the inspection to which you refer, as part of their review of all four Midlands Tesco projects with which they were involved. From discussion with Costain, it appeared they may not have returned a report to you in respect of the Redditch project, but they confirmed to us that they would do so, and I see that they have now written. We hope this is satisfactory and closes the matter.” 20L. PHJ’s letter dated3rd June 1994 implicitly confirmed that it was satisfied by its previous inspection with Costain and/or that it was satisfied that the drawings which it had supplied to Costain expressly for the purposes of inspection complied with the Statutory Regulations prevailing at the time of construction. Otherwise, PHJ’s letter dated3rd June 1994 was not a proper response to Tesco’s letter dated28th April 1994 . 20M. In all the circumstances: a. PHJ owed Tesco a duty of care to inspect the Redditch store with that degree of skill and care to be expected of the reasonably competent architect carrying out such an inspection. b. Further and in any event PHJ owed Tesco a duty of care to identify any element of the design of the Redditch store which did not comply with the Statutory Regulations prevailing at the time of construction. Costain will contend that this duty of care arose as early as9th September 1993 , and that it had certainly arisen by3rd June 1994 . c. Yet further and in any event PHJ owed Costain a duty of care to identify any element of the design of the Redditch store which did not comply with the Statutory Regulations prevailing at the time of construction. Costain will contend that this duty of care arose as early as9th September 1993 , and that it had certainly arisen by3rd June 1994 . 20N. PHJ owed these duties because: a. PHJ was aware of the contents of the letters dated19th October 1993 and27th May 1994 ; b. PHJ was the architect and designer of the works and Costain was the contractor. Tesco had a policy of requiring inspections by both architect and contractor for these purposes, and Costain had a policy of inspecting with the architect for these purposes; c. Neither Tesco nor PHJ can have expected that Costain would have undertaken a review of the design of the Redditch store in order to ascertain whether the design complied with the Statutory Regulations prevailing at the time of construction; d. PHJ knew having received Tesco’s letter of28th April 1994 and in the circumstances above that Tesco (and, further or in the alternative, Costain) was/were dependent upon PHJ to report if the design of the Redditch store was not compliant with the Statutory Regulations prevailing at the time of construction. 20O. To the extent that Tesco establishes that the design of the Redditch store was not compliant with the Statutory Regulations prevailing at the time of construction, and to the extent that Tesco establishes, contrary to Costain’s Defences, if alleged, that Costain is liable for failing to point out such non-compliances in its letters dated19th October 1993 or27th May 1994 , then PHJ was in breach of those duties of care which it owed to Tesco identified in paragraphs 20M a. and b. above, and the duty of care which it owed to Costain identified in paragraph 20M c. above, in failing to identify those non-compliances either to Costain or to Tesco direct. Costain and Costain Limited repeat paragraph 4 above and Costain will further claim from PHJ damages for breach of the duty of care described in paragraph 20M c. above. 20P. Further and in any event, to the extent that Tesco establishes that the construction of the Redditch store was not compliant with the Statutory Regulations prevailing at the time of construction, and to the extent that Tesco establishes, contrary to Costain’s Defences, that Costain is liable for failing to point out such non-compliances in its letters dated19th October 1993 or27th May 1994 , then PHJ was in breach of those duties of care which it owed to Tesco identified in paragraphs 20M a. and b. above, and the duty of care which it owed to Costain identified in paragraph 20M c. above in failing to identify those non-compliances either to Costain or to Tesco direct. Costain and Costain Limited repeat paragraph 4 above. 20Q. As particulars of breaches of the duties of care described at paragraph 20M above, Costain and Costain Limited will refer to and rely upon the allegations herein and such of the allegations made by Tesco against Costain and PHJ as Tesco establishes at the trial of this matter.”
“…The observation has often been made, that a contract established by letters may sometimes bind parties who, when they wrote those letters, did not imagine that they were finally settling terms of the agreement by which they were to be bound; and it appears to me that no such contract ought to be held established, even by letters which would otherwise be sufficient for the purpose, if it is clear, upon the facts, that there were other conditions of the intended contract, beyond and besides those expressed in the letters, which were still in a state of negotiation only, and without the settlement of which the parties had no idea of concluding any agreement [ My [Lloyd LJ’s] emphasis] (4) Conversely, the parties may intend to be bound forthwith even though there are further terms still to be agreed or some further formality to be fulfilled (see Love and Stewart v. Instone per Lord Loreburn at p. 476). (5) If the parties fail to reach agreement on such further terms, the existing contract is not invalidated unless the failure to reach agreement on such further terms renders the contract as a whole unworkable or void for uncertainty. (6) It is sometimes said that the parties must agree on the essential terms and that it is only matters of detail which can be left over. This may be misleading, since the word “essential” in that context is ambiguous. If by “essential” one means a term without which the contract cannot be enforced then the statement is true: the law cannot enforce an incomplete contract. If by “essential” one means a term which the parties have agreed to be essential for the formation of a binding contract, then the statement is tautologous. If by an “essential” one means only a term which the Court regards as important as opposed to a term which the Court regards as less important or a matter of detail, the statement is untrue. It is for the parties to decide whether they wish to be bound and, if so, by what terms, whether important or unimportant. It is the parties who are, in the memorable phrase coined by the Judge “the masters of their contractual fate”
“It also seems to me clear that everyone behaved as if the Works Contract was in place. Payment was made under that Contract. The developing dispute about the ground conditions was being handled by WCM as if it was under that Contract.”
“Everything else that happened after then was in accordance with the Contract between WCM and Stent. This includes the procurement for WCM for Wiggins of the Bond and Warranty, which would not have been necessary, or at least as necessary if, as Mr. Steynor contends, the Letter of Intent had been a Contract between Wiggins and Stent which was still in existence.”” “It also seems to me clear that everyone behaved as if the Works Contract was in place. Payment was made under that Contract. The developing dispute about the ground conditions was being handled by WCM as if it was under that Contract.” “Everything else that happened after then was in accordance with the Contract between WCM and Stent. This includes the procurement for WCM for Wiggins of the Bond and Warranty, which would not have been necessary, or at least as necessary if, as Mr. Steynor contends, the Letter of Intent had been a Contract between Wiggins and Stent which was still in existence.””
“if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense.”
“Such cases are very different from, for example, a mere promise by a party to make a gift or to increase his obligations under an existing contract; such promise will not generally give rise to an estoppel, even if acted on by the promisee, for the promisee may reasonably be expected to appreciate that, to render it binding, it must be incorporated in a binding contract or contractual variation, and that he cannot therefore safely rely upon it as a legally binding promise without first taking the necessary contractual steps.” 93. A similar theme is involved in the distinction touched on by Robert Walker LJ in Gillett v. Holt at p.831G between “a mere statement of present (revocable) intention, and …. a promise.” 94. As I have already said, the fact that there was never any agreement to reach or even to set out the essential principles which might govern any legally binding long-term relationship indicates that neither party can here objectively be taken to have intended to make any legally binding commitment of a long-term nature, and the law should not be ready to seek to fetter business relationships with its own view of what might represent appropriate business conduct, when parties have not chosen, or have not been willing or able, to do so in any identifiable legal terms themselves. These considerations, in my judgment, also make it wrong to afford relief based on estoppel, including relief limited to reliance loss, in the present context.”
“It may well be, and for this purpose I accept, that Kirton were independent contractors so far as the work was concerned. Here Landbuild [the defendants], the main contractors, did absolutely nothing, except to hand over the work to Kirton to be done by them. The question therefore is whether or not they owed to Cynat a primary duty of care which they could not delegate to anyone else.”
“It seems to me that in entering into that contract in those terms with Cynat, Landbuild could properly be said to have established a sufficient relationship of proximity with Cynat such that, in the reasonable contemplation of Landbuild, carelessness or neglect on their part might be likely to cause damage to Cynat. Nor do I consider that there is any reason to take employer and contractor out of the class in which that duty of care can be said to arise. I take the view that Landbuild, in entering into this contract to erect a factory which was properly designed and built, were under a common law duty of care to take reasonable steps to see that this result was achieved. They took no such steps and, in the result, Cynat suffered damage in consequence of the collapse of the roof. The duty of Landbuild, as I have said, was a primary duty which they could not delegate to Kirton or anyone else. Accordingly, in my view, Cynat are entitled to judgment against Landbuild …. on the basis of breach of contract and tortious liability.”
“trite law that the employer of an independent contractor is, in general, not liable for the negligence or other torts committed by the contractor in the course of the execution of the work.”
“the issue was of importance only as bearing upon the liability of insurers to indemnify defendants”, and he appears to have treated it with reservation also for that reason. In Clerk & Lindsell on Torts, pp.229-230, para 3-37, the Cynat Products case[1984] 3 All ER 513 is referred to in a footnote to the consideration of Rogers v. Night Riders [1983] RTR 324, as constituting an illustration that the well-known categories of non-delegable duty may not necessarily be exhaustive and that it may, in the particular circumstances of any case, be arguable that a defendant has accepted a duty of care that is non-delegable. Finally, the decision is plainly regarded as an unusual one in Salmond & Heuston on the Law of Torts, 20th ed. (1992), p.477, where it is suggested that it is important as a matter of policy not to put a premium on the ignorant employer who confides all his affairs to independent contractors (cf. Sumner v. William Henderson & Sons Ltd.[1964] 1 QB 450 , 471). It is apparent from the report of Cynat Products Ltd. v. Landbuild (Investment and Property) Ltd.[1984] 3 All ER 513 that Landbuild were not represented at the trial, although by fourth party proceedings they were claiming an indemnity against Cornhill Insurance Co., which mounted arguments on their behalf. It is also plain that it was a case where Landbuild had given an express undertaking that work would be designed with such reasonable professional skill, care and judgment as an architect or consulting engineer would have exercised had he been appointed by the employee to perform the services. It seems to me that all those matters make the Cynat Products case distinguishable from this case, in which I do not consider that similar policy provisions dictate any finding of non-delegable duty for the purpose of the law of tort.”
“It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless.”
“The complaint made and upheld against the valuers in these cases is … not that they were wrong. A professional opinion may be wrong without being negligent. The complaint in each case is that the valuer expressed an opinion that the land was worth more than any careful and competent valuer would have advised.”
“If, in a contractual claim for negligence, the court would have awarded other than nominal damages, I do not see how it can be said that an action in tort based on the same negligence would have been bound to fail for want of any damage as an essential ingredient of the cause of action.”
“true, my design was faulty, but, of course, I saw to it that the contractors followed it faithfully” and be enabled on that ground to succeed in the action.”