Interface Europe Ltd v Premier Hank Dyers Ltd Airedale Chemical Company Ltd (Third Party)

JurisdictionEngland & Wales
JudgeHis Honour Judge Saffman
Judgment Date11 September 2014
Neutral Citation[2014] EWHC 2610 (QB)
Docket NumberCase No: 3LS40653
CourtQueen's Bench Division
Date11 September 2014

2014 EWHC 2610 (QB)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

LEEDS DISTRICT REGISTRY

MERCANTILE COURT

The Court House

Oxford Row

Leeds LS1 3BG

Before:

His Honour Judge Saffman sitting as a Judge of the High Court in Leeds

Case No: 3LS40653

Between:
Interface Europe Ltd
Claimant
and
Premier Hank Dyers Ltd
Defendant
Airedale Chemical Company Ltd
Third Party

Mr C Dougherty QC for the Defendant

Mr P Toms for the Part 20 Third Party

No attendance by Claimant

Hearing date: 2 July 2014

Circulated in draft to parties 17 July 2014

Handed down 11 September 2014

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.

Introduction

1

This is an application dated 23 April 2014 made by Premier Hank Dyers Ltd (Premier) for permission to amend their Part 20 Particulars of Claim in accordance with the draft attached to the application.

2

I have the benefit of a hearing bundle in which the application is contained from page 62. The draft amended Particulars of Claim are from page 75 and form part of the witness statement in support of the application the author of which is Premier's solicitor, Ms Alison Siniver. There is a further witness statements of Mr Robert Welfare filed on behalf of Premier which I have added to the bundle as 217/218.

3

The Third Party, Airedale Chemical Co Ltd (Airedale) does not object to the proposed amendments except in respect of those proposed in paragraphs 14A to 14H of the draft. Those to which Airedale do not object can perhaps be described merely as administrative or housekeeping changes or changes to reflect the outcome of the main action of which these Part 20 proceedings form part. The main action was one in which Premier was the defendant and the claimant was Interface Europe Ltd (Interface).

4

Paragraph 14A to 14H however seek to introduce a claim in negligence, the unamended Part 20 claim being confined to a claim for breach of contract. A witness statement of Mr James Staton has been filed in opposition to the application and is dated 12 May 2014. It runs from page 110 of the bundle.

5

Mr Charles Dougherty QC appears for Premier and Mr Paul Toms of counsel for Airedale. Airedale oppose the amendments in so far as they introduce a claim in negligence on the basis that such a claim is statute barred pursuant to section 2 of the Limitation Act 1980 and Premier cannot satisfy the criteria in CPR 17.4(2) by which the court may only permit amendments to add a new claim outside the limitation period if the new claim arises out of the same facts or substantially the same facts as an existing, in time, claim.

6

Premier's primary position is that CPR 17.4(2) is not engaged because, whilst it does not dispute that the claim in negligence is a new claim, it contends that the new claim is not statute barred.

7

Its secondary position is that even if the claim in negligence is statute barred then in fact it does arise out of the same or substantially the same facts as the original contractual claim and that thus the criteria imposed by CPR 17.4 are met.

8

Accordingly I have to determine whether in fact the negligence claim is statute barred. If it is then it becomes necessary to consider whether the criteria in CPR 17.4(2) are met and if so, whether the discretion to permit the amendment should be exercised.

Background

9

Premier dyes yarn for, amongst other things, use in the carpet industry. Airedale manufactures dyestuffs for natural and man-made fibres. Interface is a UK company within a global group carrying on the manufacture and supply of modular flooring and carpet tiles.

10

In February 2007 Premier was instructed by Interface to provide a colour sample for a specific shade of charcoal grey yarn to be incorporated into carpet tiles to be produced by Interface and which were ultimately to be fitted in the headquarters of Bank Vontobel in Zurich.

11

The specific shade of charcoal grey was created by Premier using dyestuffs supplied by Airedale and included a red dye, Acozine Red AD-GRL as well as blue and yellow dyes.

12

Once the shade had been approved by Interface it contracted with Premier for the dyeing to that shade of a substantial quantity of nylon yarn supplied for that purpose to Premier by Interface.

13

The contract or contracts were created by a series of purchase orders placed by Interface with Premier in the period 3 July 2007 to 3 April 2008.

14

In 2007/2008 Premier dyed the yarn with which it had been supplied by Interface who then used that dyed yarn in the manufacture of the carpet tiles which it then supplied to another company in the Interface group which then supplied them to a Swiss carpet contractor who fitted them at the bank's Head Office between August 2007 and May 2008.

15

In February 2010 Premier were informed by Interface that a problem had developed with the carpet tiles in that they were exhibiting " off tonal fade due to exposure to sunlight". In fact they had turned from charcoal grey to a greenish colour.

16

It is not disputed that Interface wanted the dyed yarn to have a colour fastness to light 1 of 5 or more 2, nor is disputed that the level of colour fastness of the dyed yarn did not attain level 5 of the relevant scale. A report dated 1 March 2010 from the British Carpet Technical Centre (BCTC) at page 87 of the bundle indicates that the relevant rating is between 3 and 4 and states that the yarn suffered a manufacturing defect " with regard to poor colour fastness to light". That report was sent to Premier by Interface on 17 March 2010.

17

Shortly after Premier was advised by Interface of the problem Premier took the matter up with Airedale. At page 90 of the bundle is a letter of 20 April 2010 by which Airedale are put on formal notice that Premier consider that the dyestuffs supplied by Airedale for the dyeing of the yarn failed to meet the required standard.

18

I should say it seems to have been common ground even at that stage that the failure of the Acozine Red dye was thought likely to be the reason why the carpet tiles had assumed a greenish hue. If the red dye lacked the necessary

colour fastness then its failure would allow the blue and yellow dyes to assume an ascendancy which would cause the tiles to assume this greenish hue.
19

In February 2013 loss adjusters appointed by Airedale (Cunningham Lindsey) notified Premier's solicitors that their clients had undertaken an investigation of the dyestuffs supplied to Premier pursuant to the contracts between Premier and Airedale. The conclusion that was reached was that while the Acozine Red would achieve a colour fastness of 5 or more on either wool or wool/nylon blends it would not achieve that colour fastness when applied to pure nylon. There was therefore, it was contended, no defect in the dyestuffs per se, it was simply that Premier had created a recipe or formulation to use on nylon when that was not appropriate and, in fact, Airedale's literature stated that it was only suitable for wool or a wool/nylon mix.

20

Interface replaced the carpet tiles between October 2010 and June 2011 and subsequently brought proceedings against Premier for breach of contract to recover its outlay. Interface contended that it was a contractual term that the colour fastness to light of the dyed yarn would be at least 5. In fact, in their defence, Premier did not accept that and asserted that the obligation extended only to exercising reasonable skill and care to achieve that level. In any event Premier settled the claim by payment of £575,000 to include costs and interest.

21

Before the settlement was achieved Premier brought their Part 20 proceedings against Airedale limited to breach of contract. Broadly, Premier alleged that Airedale warranted that the Acozine Red would achieve a light fastness of at least 5, further that in any event there was an implied term under section 14 Sale of Goods Act 1979 that the Acozine Red would be of satisfactory quality for all purposes for which it would commonly be supplied. Its failure to possess light fastness of at least 5 constituted a breach of Airedale's contractual obligations.

22

As I have said, the proposed contested amendments seek to implement a claim in negligence for damages equal to the outlay incurred by Premier in settling the claim by Interface.

23

As Mr Toms sets out in paragraph 13 of his helpful skeleton argument, the essence of the new claim is a claim for negligent failure to advise Premier on the suitability of Acozine Red for use on the relevant yarn and/or negligent misrepresentation as to its suitability for use on this yarn.

24

The new claim is premised not only on the basis that Airedale represented that Acozine Red could be used on nylon but also on the basis that there was a very close relationship between Airedale and Premier and the latter relied on Airedale's technical expertise in particular in relation to the formulation of dye recipes.

25

Premier contend that the close relationship between the parties gave rise to a duty of care to exercise reasonable care in the provision of technical advice. It is not denied by Airedale that historically and typically Airedale had given technical assistance to Premier from time to time. Indeed the Part 20 Defence volunteers that one of their employees, Mr Wilkinson attended at Premier's premises on average twice per week. Not only that, at paragraph 19.4 of the Part 20 Defence Airedale criticise Premier in failing to consult Airedale as to the formulation of the dye recipe, contrary to typical practice.

Date of accrual of the cause of action in negligence

26

Inevitably the starting point as to whether a cause of action is statute barred is the date when the cause of action accrued.

27

Premier contend in this...

To continue reading

Request your trial
1 cases
  • URS Corporation Ltd v BDW Trading Ltd
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 3 July 2023
    ...were issued to the contractor for construction purposes. 11 See, by way of example, Interface Europe Ltd v Premier Hank Dyers Ltd [2014] EWHC 2610 (QB) at [108] where the judge said that Linklaters could not be reconciled with Co-op v Birse and that he preferred the reasoning in the 12 Tha......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT