John Raymond Transport Ltd v Rockwool Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Newey |
| Judgment Date | 21 April 2015 |
| Neutral Citation | [2015] EWHC 1069 (QB) |
| Date | 21 April 2015 |
| Court | Queen's Bench Division |
| Docket Number | Case No: A90CF195 |
[2015] EWHC 1069 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CARDIFF DISTRICT REGISTRY
Cardiff Civil Justice Centre
2 Park Street, Cardiff, CF10 1ET
Mr Justice Newey
Case No: A90CF195
Mr Hugh Sims QC and Mr Oliver Mitchell (instructed by McTaggart Solicitors) for the Claimant
Mr Ian Mill QC and Mr Ben Lynch (instructed by Hugh James) for the Defendant
Hearing date: 24 March 2015
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.
For many years, the claimant, John Raymond Transport Limited ("JRT"), provided Rockwool Limited ("Rockwool"), which manufactures insulation products, with haulage and warehousing services.
In July 2014, however, Rockwool gave notice to terminate certain contracts with JRT. In response, solicitors acting for JRT, McTaggart, disputed the validity of the termination. They also put forward the claim that forms the subject matter of the present proceedings, which were issued on 19 November 2014. That claim has two components. In the first place, it is alleged that Rockwool was contractually obliged to allocate a minimum number of haulage loads each year to JRT but failed to do so. In all, Rockwool is said to have provided some 15,000 too few loads in the six years falling within the limitation period and thus to be liable to JRT for £4,433,266.17 (plus interest). I shall refer to this element of JRT's claim as "the Minimum Loads Claim". Secondly, JRT asserts that its haulage charges fell to be adjusted annually pursuant to its contractual arrangements with Rockwool but the appropriate adjustments were not made. A schedule to the particulars of claim puts the resulting loss at £3,697,401.37. I shall refer to this part of JRT's claim as "the Clause 7 Claim". The total sought by JRT is stated in the particulars of claim to be £8,208,937.38 (although that is not precisely the aggregate of £4,433,266.17 and £3,697,401.37).
Rockwool now seeks to have the proceedings struck out under CPR 3.4(2)(a) and/or for summary judgment to be entered in its favour under CPR 24.2(a)(i) and (b). However, it was common ground before me that, in the circumstances of this case, CPR 3.4 adds nothing important to CPR 24. I can therefore concentrate on whether summary judgment should be granted.
Contractual documentation
The earliest contractual document in evidence is an agreement made in 2000. The agreement ("the 2000 Agreement") was stated to run for three years from 1 June 2000, with the possibility of extension until May 2005, and provided for JRT to provide a variety of services. In particular, it undertook "to supply and manage all of the UK mainland transport requirements on behalf of [Rockwool]".
In 2002, JRT told Rockwool that the 2000 Agreement was becoming increasingly uneconomic. New contractual arrangements were agreed as an interim measure. A written agreement ("the 2002 Agreement") was entered into in respect of the period between 1 June and 31 December of 2002. This included, as clause 9(c), the following provision:
"Except as set out elsewhere in this Agreement, [Rockwool] shall provide a minimum of 30 loads per day (Monday to Friday) excepting the weeks that include Bank Holidays and Rockwool planned shutdowns notified to [JRT]. Any failure on Rockwool's part to provide such loads will result in [JRT] being entitled to be paid £225 for each load less than 30".
The agreement also stated (in clause 2):
"After 31 st December 2002, [JRT] confirms that it will discuss the possibility of a further Agreement with Rockwool which may include any warehousing requirement; any Rockwool on site shunting services and the provision of vehicles for the completion of a reduced number of loads per day, currently anticipated to be in the order of 10–15 loads per day".
Rockwool proceeded to put its hire and haulage services out to tender. JRT tendered, and was ultimately chosen as a service provider. Paragraph 24 of the particulars of claim states that the invitation to tender documents "estimated" the total number of loads to be about 60 loads per day.
Several agreements were entered into between the parties. The key document for present purposes is the logistics contract for "Full and Multi Drop Loads" ("the 2003 Agreement"). Rockwool's obligations were stated to include these:
"3.2 Rockwool will utilise [JRT] for the delivery of Products within the Territory subject to the following:-
i) Deliveries to Wickes Limited and deliveries of small orders (groupage) are excluded from the Agreement.
ii) Full trailer loads to a single Consignee and multi drop loads (Maximum of three per trip) will be shared equally by post-code destination on a daily basis between [JRT] and a second haulier who will be directly employed by Rockwool subject to clause 3.2iii) below.
iii) Rockwool reserves the right to utilise a third haulier primarily for deliveries to post code destinations within Scotland and the North East of England. The maximum number of full and multi drop loads offered to a third haulier will be ten per working day up to a maximum of 20% of the full and multi drop loads measured on a daily basis. e.g. If Rockwool has 50 loads or more for delivery on a given day the third haulier will be offered a maximum of 10 loads. If the maximum number of loads available is 30 on a given day then the third haulier will be offered a maximum of 6 loads. Rockwool agrees that the third haulier will be required to deliver to the furthest destinations within Scotland and the North East of England as part of its allocation….
3.6 In the event of an industrial dispute or other event that causes the closure of the production process, Rockwool will guarantee a minimum of 10 loads per day at £275 per load until the end of the Agreement or one month whichever is the sooner."
Clause 6.1 of the 2003 Agreement provided for the charges payable to JRT to be as "set out in Schedule 3", and schedule 3 contained a "Full Load Price Matrix" listing prices for numerous different "districts". For example, the rate for various destinations in Wales was as little as £95, while the cost of a Scottish trip could be as high as £819.06. Rockwool was to "advise [JRT] on a daily basis the Charges they are due for the single drop deliveries in accordance with Schedule 3" (clause 6.2), and JRT was to "invoice Rockwool the additional Charges for multi drop loads or other Charges properly due under this Agreement within five days of the end of the month during which the Charges were incurred" (clause 6.3).
Clause 7 of the 2003 Agreement was headed "Review of Charges". It provided as follows:
"7.1 Charges may be increased or decreased on the anniversary of the Contract Year to reflect cost movements resulting from the effects of inflation or deflation or other cost movements beyond the control of [JRT] and
i) the revised Charges will come into effect at the commencement of the new Contract Year and
ii) in the event that the Charges are not agreed in writing until after the commencement of a new Contract year any changes to any Charges, which are subsequently agreed by the Parties, will be treated as having taken effect as at the commencement of such Contract Year.
7.2 [JRT] shall have the right to amend the Rentals at any time as a result of cost increases arising from changes in legislation or regulation and shall use its reasonable endeavours to provide 30 days notice to Rockwool.
7.3 The Charges relating to transportation have been calculated on the basis of a fuel cost of 61.64 pence per litre of diesel. Rockwool recognizes that movements in diesel fuel prices, whether resulting from market conditions or from Government intervention or legislation are outside the control of [JRT]. Accordingly, the Charges shall be adjusted to reflect changes in fuel cost as follows:
7.3.1 The Charges shall be adjusted to reflect the actual price of diesel paid by [JRT] at the Commencement Date.
7.3.2 Thereafter, in the event that diesel fuel prices increase or decrease by more than 2.0 percent when compared to the last price of diesel used to compute the Charges, the Charges shall be adjusted to reflect such increase or decrease and a revised price matrix issued. This will be on the basis that fuel represents 26% of [JRT's] costs."
Clauses 12 and 23 of the 2003 Agreement dealt respectively with "Claims" and "Waiver". Clause 12 provided for "[a]ny claims of whatever nature arising out of the performance of the Services" to be "notified by the relevant party to the other in writing within a reasonable time of having learned of such a claim". Clause 23 stated that "[n]o failure to exercise and no delay in exercising any right power or privilege hereunder" was to "operate as a waiver thereof".
The 2003 Agreement was varied a number of times. The first variation was effected in 2004 by a document the front sheet of which recorded that the document had been prepared by Mr Paul Johns, JRT's managing director, for Ms Janet Tupman, who was a manager with Rockwool, and which also stated:
"All other terms not included in this document as per previous contract 2002 to 2004".
The section of the document concerned with "full loads" was in these terms:
" Charges as of 1st April 2004
* As per 2004 Rate Schedule supplied.
Terms and Conditions
* Prices assume a contract until 28 th February 2007.
* Prices assume work allocation as per current allocation, i.e. current [JRT] and Edwards Logistics load allocation, i.e. 60% plus of total full outward loads produced at Rockwool Pencoed.
* Prices assume [JRT] have exclusive use of 218 Rockwool contract trailers.
* Annual reviews on proven...
To continue reading
Request your trial