Advanced Multi-Technology for Medical Industry v Uniserve Ltd
| Jurisdiction | England & Wales |
| Judge | Joanne Wicks |
| Judgment Date | 10 February 2022 |
| Neutral Citation | [2022] EWHC 264 (Ch) |
| Docket Number | Case No: BL-2021-000092 |
| Court | Chancery Division |
[2022] EWHC 264 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INSOLVENCY AND COMPANIES LIST (ChD)
Joanne Wicks QC
Sitting as a Deputy High Court Judge
Case No: BL-2021-000092
Mr E Knight (instructed by Trowers & Hamlins LLP) for the Applicants
Mr J Collins QC and Mr D Walsh (instructed by Holman Fenwick Willan LLP) for the Respondent
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Joanne Wicks QC
Joanne Wicks QC sitting as a Deputy High Court Judge:
Introduction
This is an application for summary judgment brought by the Claimants against the Defendant. The claim relates to a contract for the sale and purchase of personal protective equipment, specifically masks, entered into at the height of the COVID-19 pandemic in April 2020 (“ the Supply Contract”), and a related introduction and supply agreement (“ the Commission Contract”).
The First Claimant (“ Hitex”) is a manufacturer of medical supplies and devices based in Jordan. The Second Claimant (“ Caramel”) is an English company and the Third Claimant (“ Mr Popeck”) is its sole director and shareholder.
The Defendant (“ Uniserve”) is an English company in the business of supply of goods and logistics. The Third Party (“ Maxitrac”) was its agent. The Fourth Party, Dr Andrew Stead, is the sole director of Maxitrac, and also guaranteed Maxitrac's obligations to Uniserve.
Under the Supply Contract, Hitex agreed to supply 80 million masks to Uniserve on various dates in April – July 2020. It claims that Uniserve, in breach of contract, failed to receive and pay for some of the masks and it claims damages of US$23,100,000 and interest. Uniserve's defence is that Hitex failed to meet its contractual obligations as regards delivery of the masks and that it terminated the Supply Contract for Hitex's breaches.
Caramel claims against Uniserve the sum of US$300,000 which was part of the price under the Supply Contract and the subject of invoice UK004 (“ the UK004 Debt”) and interest and which it contends was assigned to it by Hitex. Uniserve denies that the UK004 Debt was effectively assigned to Caramel in compliance with the terms of the Supply Contract.
Caramel and Mr Popeck also claim £19,250,000 from Uniserve, which they contend is due under the Commission Contract, alternatively damages, and interest. Uniserve denies that that or any sum is due under the Commission Contract or that it is in breach of it.
Uniserve has brought Part 20 proceedings against Maxitrac and Dr Stead for declarations that they are liable in damages or to indemnify Uniserve to the same extent that Uniserve is liable to the Claimants and that Dr Stead is liable to Uniserve as guarantor of Maxitrac. Those claims are denied.
The Application
The application before me (“ the Application”) was brought by application notice issued on 23 July 2021. It was not supported by a witness statement, but in Section 10 of the form the Claimants indicated their intention to rely on certain documents appended to the form (forming part of Initial Disclosure), in addition to the Statements of Case.
The Application was originally for summary judgment on
(1) Hitex's claim against Uniserve on liability only, with damages and interest to be assessed;
(2) Caramel's claim against Uniserve for the UK004 Debt; and
(3) the whole of Caramel and Mr Popeck's claim on the Commission Contract, alternatively on liability only with damages and interest to be assessed.
However, prior to the hearing of the Application, the relief in (3) above ceased to be pursued by way of summary judgment application. It follows that the court is not concerned with the Commission Contract on this Application. Nor is it concerned with the Part 20 proceedings, save to the extent that the existence of those proceedings impacts on the Application against Uniserve.
Uniserve had a number of criticisms of the form of the Application. These were voiced first in its witness statement in response to the Application, made by Andrew James Williams, a partner of Holman Fenwick Willan LLP dated 3 December 2021, and developed in submissions. I shall deal with each of these in turn.
First, it was contended that the mandatory requirements for an application notice for summary judgment had not been complied with. CPR PD24 paragraph 2(3) states:
“ The application notice or the evidence contained or referred to in it or served with it must—
(a) identify concisely any point of law or provision in a document on which the applicant relies, and/or
(b) state that it is made because the applicant believes that on the evidence the respondent has no real prospect of succeeding on the claim or issue or (as the case may be) of successfully defending the claim or issue to which the application relates
and in either case state that the applicant knows of no other reason why the disposal of the claim or issue should await trial.”
As Floyd LJ said in Price v Flitcraft [2020] EWCA Civ 850 at [86], the requirement in paragraph 2(3)(b) is important because it prevents a claimant making an application and claiming the case to be straightforward when, in truth, he or she knows otherwise. In the present case the Claimants have inserted into Section 3 (“ What order are you asking the court to make and why?”) the statements “ The Defendant has no real prospect of successfully defending the claims” and “ The Claimants know of no other reason why the disposal of the claims should await trial.” It is true that the first statement is not a statement of the Claimants' belief but on instructions Edward Knight, Counsel for the Claimants, confirmed that it is in fact his clients' belief. In the circumstances of this case I have no reason to doubt that the Claimants do hold the belief stated (although whether I agree with it is a different matter) and Uniserve is not prejudiced by this error of procedure. It would not be appropriate in the circumstances to order under CPR 3.10(a) that the application notice be treated as invalid (nor did Uniserve seek such an order) and it would be sufficient remedy in my judgment if my order on the Application formally records the confirmation which Mr Knight gave on instructions. Uniserve argued that it was necessary for the statement that “ the Claimants know of no other reason why the disposal of the claims should await trial” to be stated in evidence, but I do not agree. The Practice Direction requires the statement to be made either in the application notice or in the evidence and the entry in Section 3 of the notice is sufficient.
Secondly, it is said that the precise nature of the application which Hitex makes is unclear, since summary judgment is sought on liability only with damages to be assessed, but at paragraph 4(d) of the grounds in support of the Application, it is asserted that “[Hitex] is entitled to damages pursuant to section 50 of the Sale of Goods Act 1979 and at common law.” Mr Knight explains that as Hitex seeks an order for damages to be assessed, it needs to assert an entitlement to damages. In my view Hitex's position is sufficiently clear and if Uniserve were genuinely in any doubt they would have asked for clarification in correspondence after having been served with the Application.
Thirdly, the Claimant's solicitor states that the facts stated in section 10 are true, but it is contended by Uniserve that section 10 is completed so as not to contain facts but only a statement that the Claimants will rely on the appended documents in addition to the Statements of Case. In those circumstances, the Statement of Truth is effectively superfluous. I cannot see any reason why this should prejudice Uniserve or invalidate the application notice.
Fourthly, in Section 10 (“ What information will you be relying on, in support of your application?) the Claimant's solicitor has not ticked the box referring to statements of case but instead states in the part of Section 10 which is available for the inclusion of evidence that statements of case will be relied on. Mr Williams says that it is “ unclear to me what reliance the Claimants place on the statements of case in support of the Application”. In my judgment there is nothing at all unclear: it is quite clear that the Claimants intend to rely on all of their Statements of Case.
Fifthly, complaint is made that at the time the application notice was served, the Reply had not been served, but the grounds on which the Application was made anticipate a claim of affirmation or waiver which was pleaded in it. If Uniserve was in any doubt about the nature of Hitex's case on this issue, that doubt would have been resolved when the Reply was served, which was before Mr Williams made his witness statement. In my view there is nothing in this point either.
Although I have rejected Uniserve's complaints about the application notice (save in respect of the issue addressed at paragraph 11 above), I agree with Uniserve that making the Application without a supporting witness statement was not best practice in a claim of this nature and scale. Had the Claimants produced a supporting witness statement there may have been a greater concentration on what exactly it had to prove for the purposes of the Application and an earlier identification of the issues between the parties which were argued before me.
Mr Williams' witness statement explains the difficulties which Uniserve has had in obtaining relevant documents and understanding the events on which the claim is based. All material dealings relating to the operation and...
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