Immingham Storage Company Ltd v Clear Plc
| Jurisdiction | England & Wales |
| Judge | Mr Justice David Richards |
| Judgment Date | 09 February 2011 |
| Neutral Citation | [2011] EWCA Civ 89 |
| Docket Number | Case No: A2/2010/1321 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 February 2011 |
[2011] EWCA Civ 89
His Honour Judge Mckenna
(sitting as as Deputy Judge of the High Court
Before : The President of the Queen's Bench Division
Lady Justice Arden
and
Mr Justice David Richards
Case No: A2/2010/1321
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Dov Ohrenstein (instructed by Zatman & Co) for the Appellant
Mr Paul Infield (instructed by Morrisons Solicitors) for the Respondent
Hearing date : 1 February 2011
Mr Justice David Richards :
This is the judgment of the court.
Introduction
The issue on this appeal is whether a contract for the storage of derv at the claimant's fuel storage facilities was made in the course of email exchanges between the parties. At the conclusion of a two-day trial His Honour Judge McKenna, sitting as a deputy High Court judge, held that it was and gave judgment against the defendant for damages for breach of contract in a sum of £197,110.77 including interest. The defendant appeals with the permission of Patten LJ, limited to the issue of whether a contract was made.
The facts
The claimant, Immingham Storage Company Limited, provides storage facilities for petroleum and petro-chemical products at its terminal at Immingham, Lincolnshire. The defendant, Clear plc, was at the material time engaged in trading various commodities, including fuel.
The judge described the initial contact between the parties in para 4 of his judgment:
"The background to this claim is that in October of 2008, Ibrahim Kamisa, then a director of the defendant, approached the claimant and enquired about commingled storage space for between 3–4,000 cubic metres of ultra low sulphur diesel at the claimant's Immingham terminal. On 30 October 2008, Mr Kamisa and Mrs Whitter, the defendant's company accountant, visited the terminal and met Mr Stringfellow, who is the claimant's commercial manager and the terminal manager, to discuss storage requirements. It is clear from the subsequent letter from Mrs Whitter of 20 November that the defendant was keen to proceed with storage of ultra low sulphur diesel at the claimant's facility and she said that the defendant would have no problem securing a supply of the correct grade of ultra low sulphur diesel."
There were subsequent email exchanges referring to dates in 2009 when storage capacity at Immingham might become available and likely costs.
On 19 December 2008, Mr Stringfellow emailed Miss Whitter as follows:
"Thanks for your previous email and your expression of wishing to progress. We have looked at this very carefully and can now confirm that the very earliest start that we can offer is the 01 May as attached. As this is the only current available capacity at Immingham at this moment in time, please can you let us have a decision by 4.00 pm 03 January 2009 to avoid reallocation to other interested parties?
Sue, in order to allocate this tankage for your usage we will need to be in receipt of a faxed, signed copy of the attached quotation by the time stated above."
The quotation, which was attached to an email sent a minute later, was a two-page document, headed in bold capitals "Subject to board approval and tankage availability". It identified the defendant as the customer, the products as Derv (commingled), the installation as Immingham West Terminal, the capacity and type of the facilities, the commencement date and minimum storage period ("Subject to availability starting on 01 May 2009 for twelve months and continuing thereafter subject to minimum notice period", identified as six months in writing by either party), and the monthly charge (£22,250 per month) and method of handling.
Further matters were covered in the quotation, together with a statement that "all other terms will be as per our "General Storage Conditions" Version 2008 which shall be deemed to apply to this quotation." The final sentence of the document was "A formal contract will then follow in due course". It was signed by Mr Stringfellow for the claimant and contained space for signature for the defendant under the words "we hereby accept the terms of your quotation subject to your Board approval".
Also attached to the email was a copy of the defendant's General Storage Conditions version 2008. This was a detailed 13-page document. It contained definitions of terms used in the Conditions which included "Agreement":
"the storage agreement between the Company and the Customer formed by the Particulars into which these Conditions are incorporated."
and "Particulars":
"the particulars of the Agreement save that in the event that such particulars have not been signed by both parties any reference to the Particulars (including the Schedule) shall be deemed to be to such particulars as are set out in (i) any formal version of the Agreement in respect of such storage signed by the Company and sent to the Customer prior to the Products first being accepted for receipt into the Installation under the terms of the Agreement; or in the event that no such formal version of the Agreement has been sent (ii) the quotation signed by the Customer in respect of such storage notwithstanding whether or not such quotation remains subject to Board Approval; or in the event that no such quotation has been signed by the Customer (iii) the last quotation issued by the Company in respect of such storage prior to the Products first being accepted for receipt into the Installation under the terms of the Agreement save to the extent that the parties have agreed in writing to vary the terms of such quotation."
Miss Whitter replied on 22 December 2008 to say that she had forwarded everything to Mr Kamisa, Mr Kara, the managing director, and Mr Butt, the company secretary. She noted the deadline and stated that they appreciated "your attention to our storage needs in the current market!"
On 5 January 2009, at 3.59 pm, Miss Whitter emailed to Mr Stringfellow as follows:
"I can confirm that we wish to proceed and we are just waiting for Imran to return from his meeting so that he can sign the quotation. He was abroad last week and therefore unable to do this before now."
This was followed up at 4.09 pm with a further email:
"Further to my last email, Mr Butt (our Company Secretary) has spoken to Imran who has authorised him to sign the quotation on behalf of the company. This has been faxed to you."
Mr Stringfellow replied at 4.27 pm on the same day:
"Thanks for this and we can confirm safe receipt of your faxed agreement to proceed. We will now seek both our own internal Board Approval to proceed, along with availability of the necessary capacity and expect to be reverting to you by the end of the week latest, so as to confirm (subject to the foregoing) all aspects of our new contract together."
On 9 January 2009, Mr Stringfellow emailed Miss Whitter as follows, under the subject heading "Contract confirmation":
We are delighted to be able to accept your offer to take up 4,000m 3 commingled Derv storage at our Immingham Terminals (ISCo), starting from 01 May 2009 latest. Whilst remote at present, there may be the opportunity to start a little earlier than 01 May 2009 and we will keep in close contact with you on this point and also inform you of the exact tankage allocated as this becomes available. However, for the avoidance of misunderstanding, from no later than 01 May 2009 you are assured of 4,000m 3 of commingled Derv at ISCo and can now proceed to source your product accordingly.
In further confirmation of the above, our full contract for this business will now be raised over the next few days by our Head Office and sent for your signature and return.
Sue, trust the above clarifies the situation and meets with your satisfaction. Our Terminal Management/Operations Department will be in contact with you in due course, to appraise you of the necessary areas we need to cover, in order to prepare the tankage for your service."
Miss Whitter replied on the same day, using the same subject heading:
"Great news, thanks! We will notify the various parties accordingly and work towards our first shipment in May. I would be grateful if the contract could be sent electronically if possible as this will facilitate its swift return."
On 23 January 2009, a legal adviser employed by the claimant wrote to Miss Whitter as follows:
"Please find enclosed two originals of the contract, signed by our Managing Director, for the storage of your Products at our Immingham East Terminal. The contract will formalise the existing situation between us as detailed in our quotation to you."
There was enclosed a five-page document headed Storage Agreement Particulars, with the General Storage Conditions 2008 which...
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