Clegg v Olle Andersson (t/a Nordic Marine)
| Jurisdiction | England & Wales |
| Judgment Date | 21 May 2002 |
| Neutral Citation | [2002] EWHC 943 (QB) |
| Docket Number | Case No: HQ01X02052 |
| Court | Queen's Bench Division |
| Date | 21 May 2002 |
[2002] EWHC 943 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
St. Dunstan's House
133–137, Fetter Lane,
London, EC4A 1HD
His Honour Judge Richard Seymour Q.C.
Case No: HQ01X02052
Jonathan Rich (instructed by Blake-Turner & Co. for the Claimants)
Helene Pines Richman (instructed by Lester Aldridge for the Defendant)
JUDGMENT: APPROVED BY THE COURT FOR
HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
H.H. Judge Richard Seymour Q.C.:
Introduction
These consolidated actions are concerned with the purchase of a yacht. The boat in question, to which I shall refer in this judgment as "the Yacht", was of a type manufactured by a Swedish company, Malo Yachts AB ("Malo"). The Defendant, Mr. Olle Andersson, carries on business at Salterns Marina, Poole in Dorset under the style "Nordic Marine". He deals in the products of Malo. The Claimants, Mr. and Mrs. Royston Clegg, reside at Guernsey in the Channel Islands, but Mr. Clegg is engaged in the insurance market in London. He is executive chairman of a company called Clegg Gifford & Co. Ltd. and he is involved with a number of other insurance companies, called, respectively, Tradex Insurance Co. Ltd., Tradex Underwriting Agencies Plc, Tradex Direct Dealing Ltd. and Tradex Claims Management Ltd. Mr. Clegg has been interested in sailing since about 1980. Over the last twenty years or so he has owned seven boats. Towards the end of 1999 he and his wife became interested in the possibility of purchasing a new yacht. Thus began the tale which has led to these actions.
The Contract
Malo, as I understand it, produces yachts to various standard designs. One of those designs, and that with which this action is concerned, is known as "Malo 42". The "42" in the designation indicates that yachts to the Malo 42 design are nominally of 42 feet in length, although in the standard specification put before me the length was specified as 13.15 metres. The standard specification also included:—
"Draught 1,95m*
Displacement 13,8 ton
Ballast (encapsulated lead keel) 5,5 ton……..
*Also available in a shallow draft version."
Mr. and Mrs. Clegg were interested in purchasing a shallow draught version of a Malo 42. A "shallow draught" version of a yacht is, it seems, sometimes called a yacht with "a shoal draught keel". In the standard Malo 42 the hull, including the fin below the hull properly so called, is moulded out of glass reinforced plastic and lead is then inserted as ballast into the hull. With the shallow draught version of the Malo 42 the fin part of the glass reinforced plastic hull is, as it were, cut off part way down, so that only the top part is moulded out of glass reinforced plastic. Onto this truncated fin is bolted a lead casting. That casting constitutes the ballast as well as the bottom of the keel. While, so it appears, something over one hundred Malo 42s in standard configuration had been manufactured prior to the end of 1999, up to that date only one Malo 42 with a shallow draught keel had been made.
By an agreement ("the Contract") in writing in the form of a standard form of order used by Mr. Andersson completed in typescript and signed by both Mr. and Mrs. Clegg and by Mr. Andersson, Mr. and Mrs. Clegg agreed to purchase and Mr. Andersson agreed to sell what was described in the Contract as:—
"….one new Malo Yachts 42, in accordance with the general conditions listed overleaf and in accordance with the manufacturers standard specifications and including extras as listed overleaf at
£236,000 (TWOHUNDREDTHIRTYSIXTHOUSANDPOUNDS)
excluding V.A.T."
The date typed on the Contract was 2 December 1999. The signatures of Mr. and Mrs. Clegg were each dated 7 December 1999. The signature of Mr. Andersson was dated 10 December 1999. One of the extras listed was a shoal draught keel. There were other extras, including a generator and a washing machine. From a quotation dated 17 November 1999 given by Mr. Andersson to Mr. Clegg, it appears that the extra cost of the shoal keel option was £2,575 exclusive of Value Added Tax. None of the other terms of the Contract is material for the purposes of this action. However, it is material to record that as part of the overall arrangement for the purchase of the Yacht it was understood between the parties that Mr. and Mrs. Clegg would make the Yacht available to Mr. Andersson for exhibition at the Southampton Boat Show in September 2000, and Mr. Andersson would provide berthing for the Yacht free of charge until 31 March 2001. The intention of Mr. and Mrs. Clegg was to call the Yacht, when delivered, "Absolutely So", the name given to at least one of the yachts owned previously by Mr. and Mrs. Clegg. That name, or a version of it, appears in some of the correspondence to which I must refer later in this judgment.
Discovery that the Yacht was overweight
Mr. Andersson's evidence in cross-examination was that the Yacht was delivered to his premises by road on or about 25 July 2000. He told me that it was not obvious to him when the Yacht was delivered that there was anything wrong with the keel. However, when the Yacht was put into the water and the tanks were filled, it seemed to him that the Yacht was lying lower in the water than it should. He reported this to Malo by telephone. Mr. Andersson told me that this was on 10 or 11 August 2000. According to the evidence in chief of Mr. Hans Leander, who is Malo's designer, it was on 10 August 2000. Mr. Andersson was asked by Mr. Leander to undertake some measurements, which he did, of the freeboard of the Yacht and he reported the results to Malo. Malo made some investigations and discovered that the foundry at which the lead casting which formed the bottom of the keel had been made had charged for a greater quantity of lead in making the casting than would have been expected. The excess was some 607 kilogrammes. Mr. Andersson told me that this had been reported to by him Mr. Leander on 10 or 11 August 2000. Mr. Leander in cross-examination was doubtful that he would have obtained the information as to the amount of lead mentioned in the invoice from the foundry as early as 10 or 11 August 2000. He thought it would have been rather later, perhaps in September 2000, but before 5 September 2000, Mr. Leander told me that the effect of the excess quantity of lead was to increase the size of the casting in all dimensions by some 6–8 millimetres. The maximum width of the casting was some 500 millimetres, so, Mr. Leander told me, the excess dimensions were not immediately obvious to the eye.
Delivery of the Yacht and use thereafter in August 2000
The Yacht was delivered to Mr. and Mrs. Clegg on 12 August 2000 at Mr. Andersson's premises in Poole. It is common ground between Mr. Clegg and Mr. Andersson that on that occasion something was said about the fact that the Yacht was lying lower in the water than it should have been by reference to the waterline marked on the hull.
Mr. Andersson said in evidence that he told Mr. Clegg on the morning of 12 August 2000 what Malo had said to him about there being too much lead in the keel. He also said that he told Mr. Clegg that anything which was wrong with the keel would be corrected free of charge under warranty. Save for an error in stating the date of the conversation as 11 August 2000, Mr. Andersson's pleaded case in the Defence and Counterclaim in the main action corresponded with his evidence. At paragraph 4 of the Reply and Defence to Counterclaim it was pleaded on behalf of Mr. and Mrs. Clegg in relation to that case:—
"It is admitted and averred that the Defendant notified the Claimants (who would have become aware of the very significantly heavier keel in any event) on or about 11th August 2000 of the fact that the keel on the boat as supplied was very significantly heavier than the specifications had provided for. The Claimants were not aware and were not made aware by the Defendant of the potential problems and dangers which were associated with the extra weight and the different size and shape of a keel."
On the parties' respective statements of case there thus seemed to be little between them as to the relevant conversation.
Mr. Clegg's evidence in paragraph 8 of his witness statement dated 8 March 2002 was somewhat different from the case set out in the Reply and Defence to Counterclaim. What he said was that:—
"Mr. Andersson told me that when I came back with the Vessel he would lift it out of the water and repaint the waterline. He said he would move it up a bit because it appeared to be low in the water. He joked about the amount of gear I must have had on board. There was no mention at that stage of the extra keel weight."
Mr. Clegg's evidence was that he used the Yacht during the two weeks or so following delivery, although not as much as he had hoped because of problems unrelated to the weight of the keel. In cross-examination he told me that he was unable to take the yacht out at all until about 16 August 2000. After that day's sailing he returned the Yacht to Mr. Andersson for further work to be done. That took three or four days. Then Mr. Clegg sailed the Yacht with his wife and family on board on a cruise lasting about eight days to Falmouth, Alderney and back to Poole. At paragraph 13 of his witness statement dated 8 March 2002 he said:—
"On one of the trips in that period Mr. Andersson told me for the first time, rather nonchalantly, that the yard had added 1,000 kgms too much weight to the keel when it was being cast and this was why the Vessel was lying too low in the water. He told me he had only recently been told this by the yard in Sweden although it now transpires it was the day before completion and payment of the final amount and he wanted to get back to them to find out what their...
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- Clegg v Olle Andersson (t/a Nordic Marine)