Local Boy'z Ltd v Malu NV
| Jurisdiction | England & Wales |
| Judge | David Edwards |
| Judgment Date | 03 September 2021 |
| Neutral Citation | [2021] EWHC 2439 (Comm) |
| Docket Number | Case No: CL-2020-000699 |
| Year | 2021 |
| Court | Queen's Bench Division (Commercial Court) |
[2021] EWHC 2439 (Comm)
IN THE HIGH COURT OF JUSTICE
OF ENGLAND AND WALES
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
The Rolls Building
7 Rolls Buildings
Fetter Lane, London
EC4A 1NL
David Edwards QC (SITTING AS A JUDGE OF THE HIGH COURT)
Case No: CL-2020-000699
Tamara Kagan (instructed by Reynolds Porter Chamberlain LLP) for the Claimant
Helen Swaffield (instructed by VC LAW LTD) for the Defendant
Hearing dates: 23 June 2021
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.
David Edwards QC
David Edwards QC:
Introduction
The present application is an application by the Claimant, Local Boy'z Limited (“Local Boy'z”), for summary judgment against the Defendant, Malu NV (“Malu”), on the whole of its claim.
The application, made by Application Notice dated 19 February 2021, is made pursuant to CPR 24.2 on the grounds (as Local Boy'z asserts) that Malu has no real prospect of successfully defending the claim and that there is no other compelling reason why the case should be disposed of at a trial.
The application is supported by the first witness statement of Henry Priestley, a partner at Reynolds Porter Chamberlain LLP (“RPC”), Local Boy'z solicitors, dated 19 February 2021. A witness statement dated 10 May 2021 from Roger Van Craen, the owner and President of Malu, was served in response. On 4 June 2021 Mr Priestley served a second witness statement in reply.
At the hearing, I heard submissions from Tamara Kagan of counsel on behalf of Local Boy'z and from Helen Swaffield of counsel on behalf of Malu. I am grateful to them both (and to those instructing them) for their assistance.
The Contracts
Local Boy'z is a company incorporated in the United Kingdom. Its business is predominantly the import of goods into, and the sale of goods in, the United Kingdom. Malu is a company incorporated in Belgium that carries on business as an importer.
In April and May 2020, against the background of the Covid-19 pandemic, Local Boy'z and Malu entered into a number of contracts of sale whereby Malu sold and Local Boy'z purchased various quantities of face masks.
The contracts were for face masks of two different types, each connoting a different form of mask with a different level of protective effect. Adopting the terms used by the parties in the documents and in their submissions, these were:
i) KN95 masks; and
ii) Type IIR masks.
Both types of masks were manufactured in China, and were imported by Malu into the EU. Local Boy'z sold the masks on to an English company, UK Packaging Supplies Limited (“UK Packaging”), which itself supplied them to third parties.
Basic details concerning the contracts of sale are set out in Schedule 1 (the KN95 masks) and Schedule 3 (the Type IIR masks) to the Amended Defence and Counterclaim, the contents of which (aside from the question of whether the sums identified by Malu in the schedules as outstanding are, in fact, due) do not appear to be in dispute.
There is, however, a dispute between the parties as to how many contracts of sale there were.
Malu's pleaded case is that there was one “framework” contract for each type of face mask, i.e., one KN95 contract and one Type IIR contract, under which orders were placed by Local Boy'z at different times for different quantities of masks at different prices with invoices being issued at the time of, and in amounts reflecting, each delivery. Local Boy'z pleaded case, in contrast, is that there were as many contracts of sale between the parties as there were invoices.
Whilst this difference does not appear critical to the dispute between the parties, neither parties' case, as it seems to me, properly reflects the facts demonstrated by the documents exhibited to Mr Priestley's and Mr Van Craen's respective witness statements. Specifically:
i) In circumstances where Malu's supposed “framework” contracts are not alleged to have obliged Local Boy'z to purchase any particular quantity of masks at any particular price for delivery at any particular time, it is difficult to regard these as contracts of sale, or indeed as binding contracts at all;
ii) So far as Local Boy'z case is concerned, however, although multiple invoices were issued, these often appeared to reflect partial or instalment deliveries of a larger quantity of masks that had been the subject of a single order (and a single order confirmation) and thus a single contract of sale.
It is, of course, perfectly possible for parties to agree in advance upon a set of terms that will become part of any contracts of sale that are subsequently entered into between them if and when orders are placed. It seems to me that this is essentially what Mr Van Craen was saying when he said in paragraph 13 of his witness statement that orders would be placed “without repeating all of the frame terms”.
As indicated in Schedules 1 and 3 to the Amended Defence and Counterclaim, the entire quantity of ordered KN95 masks was delivered by Malu on dates between 10 April and 15 May 2020, and some, but less than half, of the ordered Type IIR masks were delivered on 20 and 21 May 2020. In each case, at Local Boy'z request, the masks were delivered by Malu directly to UK Packaging.
The Regulatory Regime
The regulatory regime is of some importance, in particular in relation to the dispute between the parties in relation to the KN95 masks, and it is appropriate that I set it out at an early stage.
(i) KN95 masks
The KN95 designation is a performance rating under the Chinese regulatory regime applicable to filtering half masks, i.e., to masks that contain one or more layers of filtering material and cover the nose, mouth and chin.
The closest equivalent standard to KN95 under the UK regulatory regime is BS EN149:2001+A1:2009 (“the EN149 Standard”). This is a harmonised EU standard reflecting the essential requirements set out in EU legislation governing personal protective equipment (“PPE”), namely EU Regulation 2016/425 (“the PPE Regulation”). 1
The PPE Regulation provides in part as follows:
“Article 5
Essential health and safety requirements
PPE shall meet the essential health and safety requirements set out in Annex II which apply to it.
…
Article 8
Obligations of manufacturers
1. When placing PPE on the market, manufacturers shall ensure that it has been designed and manufactured in accordance with the applicable essential health and safety requirements set out in Annex II.
2. Manufacturers shall draw up the technical documentation referred to in Annex III (‘technical documentation’) and carry out the applicable conformity assessment procedure referred to in Article 19 or have it carried out.
Where compliance of PPE with the applicable essential health and safety requirements has been demonstrated by the appropriate procedure, manufacturers shall draw up the EU declaration of conformity referred to in Article 15 and affix the CE marking referred to in Article 16.
…
Article 10
Obligations of importers
1. Importers shall place only compliant PPE on the market.
2. Before placing PPE on the market, importers shall ensure that the appropriate conformity assessment procedure referred to in Article 19 has been carried out by the manufacturer. They shall ensure that the manufacturer has drawn up the technical documentation, that the PPE bears the CE marking and is accompanied by the required documents, and that the manufacturer has complied with the requirements set out in Article 8(5) and (6).
… Article 11
Obligations of distributors
1. When making PPE available on the market, distributors shall act with due care in relation to the requirements of this Regulation.
2. Before making PPE available on the market, distributors shall verify that it bears the CE marking, is accompanied by the required documents and by the instructions and information set out in point 1.4 of Annex II in a language which can be easily understood by consumers and other end-users in the Member State in which PPE is to be made available on the market and that the manufacturer and importer have complied with the requirements set out in Article 8(5) and (6) and Article 10(3) respectively.
…
Article 14
Presumption of conformity of PPE
PPE which is in conformity with harmonised standards or parts thereof the references of which have been published in the Official Journal of the European Union shall be presumed to be in conformity with the essential health and safety requirements set out in Annex II covered by those standards or parts thereof.
Article 15
EU declaration of conformity
1. The EU declaration of conformity shall state that the fulfilment of the applicable health and safety requirements set out in Annex II has been demonstrated.
…
Article 16
General principles of the CE marking
The CE marking shall be subject to the general principles set out in Article 30 of Regulation (EC) No 765/2008.
Article 17
Rules and conditions for affixing the CE marking
1. The CE marking shall be affixed visibly, legibly and indelibly to the PPE. Where that is not possible or not warranted on account of the nature of the PPE, it shall be affixed to the packaging and to the documents accompanying the PPE.
2. The CE marking shall be affixed before the PPE is placed on the market.
3. For category III PPE, the CE marking shall be followed by the identification number of the notified body involved in the procedure set out in Annex VII or...
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