Microlise Ltd v James Kemball Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Healy-Pratt |
| Judgment Date | 20 March 2023 |
| Neutral Citation | [2023] EWHC 579 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QB-2020-000919 |
and
[2023] EWHC 579 (KB)
Mr Healy-Pratt
(sitting as a Deputy High Court Judge)
Case No: QB-2020-000919
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Martyn Naylor (instructed by Flint Bishop LLP) for the Claimant
David Parratt & Nicholas Kaplan (instructed by HFW Solicitors) for the Defendants & Third Party
Hearing dates: 17 & 18 January 2023
Approved Judgment
This judgment was handed down remotely at 10:30am on 20 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This judgment relates to the trial of three Preliminary Issues ordered by Soole J on 5 October 2022. The first two Issues concern contract formation: 1) which set of terms applied and 2) between which contracting parties were those terms agreed? The third Issue concerns the effect of certain pleaded limitation and/or exclusion clauses.
The dispute in its broader sense relates to the supply and maintenance of telematic devices and data technology by the Claimant to commercial haulage operators who are the first and second Defendants and Third Party. It is agreed that contractual relations were intended, at least between the Claimant and the first and second defendants. There is no agreement on which of the Claimant's sets of terms apply, and to whom. Remaining issues are fixed for a six-day trial commencing on 22 January 2024. This judgment has sixteen sections as set out below:
Relevant background
| Introduction | Paragraph 1–2 |
| Relevant background | 3–13 |
| The narrative | 14–49 |
| Witness evidence | 50–68 |
| Issue 1 law | 69–73 |
| Issue 1 submissions from Claimant | 74–80 |
| Issue1 submissions from Defendants | 81–87 |
| Issue 1 ruling | 88–98 |
| Issue 2 submissions from Claimant | 99–105 |
| Issue 2 submissions from Defendants | 106–110 |
| Issue 2 ruling | 111–117 |
| Issue 3 law | 118–129 |
| Issue 3 submissions from Claimant | 130–133 |
| Issue 3 submissions from Defendant | 134–135 |
| Issue 3 ruling | 136–150 |
| Conclusion | 151–154 |
The Claimant, Microlise, provides technology for trucks. This includes telematic devices, cameras and associated systems.
The second Defendant, Uniserve Holdings Limited (“UHL”), acts as the ‘holding company’ for a number of logistics and haulage companies which it wholly or partly owns, including the first Defendant, (“JKL”) and the Third Party Zenith Logistical Services (UK) Limited (“Zenith”).
JKL is a haulage company, purchased by UHL on 22 April 2016.
Zenith is a warehousing and distribution company, purchased by Uniserve UK on 9 October 2015.
Uniserve UK Limited is another warehousing and distribution company, which is owned by UHL. It is not a party in these proceedings.
There is no legal entity known as the ‘Uniserve Group’.
References to the Defendants and Third Party will be the “Defendants”. This is consistent with the terminology at the preliminary hearing.
Patrick Magee is the Claimant's Account Manager. He was the person responsible for negotiating elements of the contracts at issue. He prepared a witness statement for the hearing and gave evidence.
Peter Keates was formerly a director of the Third Party, the first Defendant and UUK. Alongside others, he was involved with negotiating elements of the contracts at issue. He has not been a director of any of the relevant companies since May 2018.
Iain Liddell is the CEO of the Defendants. He prepared a witness statement for the hearing and gave evidence.
The contemporaneous documents and communications between the parties are helpful in objectively establishing the intentions of the parties. This is because negotiations occurred over an extended period of time. It is necessary to set out that narrative in detail at paragraphs 14–50.
The narrative
Microlise had a longstanding business relationship with the truck manufacturer MAN Truck and Bus UK Limited (“MAN”). MAN would incorporate Microlise telematics technology into its vehicles, and then sell or lease those vehicles to its customer base under what was known as a “white label” agreement. One of those MAN customers was Zenith since 2010/11. Mr Keates was the CEO of Zenith at that time. He had experience of the Microlise technology on the MAN trucks operated by Zenith. Mr Keates had known Mr Magee of Microlise since 2012. Mr Keates requested a meeting with Mr Magee, which happened in October 2015, where Mr Keates explained that he had become involved with Uniserve. This is because Uniserve UK Limited had purchased Zenith that same month. Mr Magee understood that Mr Keates was responsible for dealing with the Uniserve fleet of trucks. That October 2015 meeting led to the start of a direct business relationship between Microlise and Uniserve. It led to various business quotes from Mr Magee to Mr Keates.
On 21 October 2015, Mr Magee sent a Microlise Quotation/Order (“Q/O”) for 100 telematic devices under a three-year contract to Mr Keates at Uniserve. The Q/O form contained a full two-page copy of the Microlise General terms & conditions. The Q/O form also stated by way of a rider on page 2 that by accepting the quotation, “you agree to Microlise standard terms & conditions (available on request)”. I refer to this as the original rider. The ‘Company’ and ‘Invoice Address’ boxes on the Q/O form referred to the “Uniserve Group”. It is agreed that the Q/O form is sent out electronically to customers as a three-page pdf document, with the specific details of services and price on page 1, and the General terms and conditions on page 2 and 3.
At Uniserve, Mr Keates emailed Mr Liddell, the Group CEO on 13 December 2015, where he raised this potential purchase: “The cost demonstrates that Microlise is the best option and it is used by Zenith on all 80 trucks so it would work across the group…Another benefit for the roll out is that all the Zenith team are fully conversant with Microlise so we can get plenty of support for roll out.”. Mr Liddell replied by email on 15 December 2015 requesting that “You deal with it”. This was the only written record of Mr Liddell being involved at the contract negotiation stage.
On 18 December 2015, Mr Magee sent two further and updated Q/O forms for 100 telematic devices, with three or five year options to Mr Keates. Both Q/O forms were in the same format as the initial Q/O form of 21 October 2015.
Those updated Q/O forms on page 1 contained a Requirements Summary:
Microlise to provide Tracking & Telematics including the installation of 100 ML30 & DriveTab Incab Tablet…Interface with Uniserve… Software services and support including field based support for in cab hardware. Costs based on a 3(5) year lease terms with Uniserve owning the hardware at the end of contract.
Those Q/O forms were accompanied by a copy of Microlise's ‘new customer details’ form and a version of Microlise's “Supply of Products and Services Agreement” (“SPSA”), which referred to the “Uniserve Group” as the Customer. The SPSA is a much more detailed contractual document than the Q/O form General terms & conditions. Its purpose is as an umbrella or framework contract. Mr Magee sent those documents with a covering email message “As discussed please find attached quoted for 36 and 60 month lease option… I have also attached our standard contract and new customer form to start the process moving.”
The SPSA standard contract was for Microlise to provide hardware, software, professional services, support, maintenance and hosting including access to various Applications. That contract runs to 33 pages, including Schedules. Recital 3 states that the SPSA shall, “unless otherwise expressly stated in writing, apply to the subject matter of any agreement in respect thereof.” Section 1 defines Customer as “the individual, business, or other organisation with whom the Supplier contracts.” Section 2 states that “Customer Orders, if accepted by the Supplier, shall be subject to these Terms and Conditions and to the availability of all relevant Products and Services.” Q/O forms are used for Customer Orders. The SPSA was not signed or returned by anyone at Uniserve, JKL and/or Zenith.
The SPSA did not have a commencement date agreed, but was for a 36-month period. Notable other Sections include Section 29.1 that seeks to exclude indirect and consequential loss and Section 29.2 that seeks to limit liability to £1M. Sections 17, 18 and 19 refer to Fees and Payment, Applications and Training and have accompanying Schedules 1, 2 and 5. At that time, the Schedules had not been completed.
It is agreed that neither Mr Magee nor Mr Keates had authority to negotiate the terms of or sign the SPSA. This was reserved to the administrative departments of their respective companies.
On 19 December 2015, Mr Keates replied to Mr Magee's email, saying: “We will go with this. I just need to check some vehicle data to decide wether [sic] 3 or 5 years. I'll sign and scan everything back over the weekend.”
On 21 December 2015, Mr Keates returned a completed signed copy of the first page of the Q/O form (for the three year contract option) to Mr Magee. The form was completed with Uniserve (UK) Limited named in the ‘Company’ box, and Uniserve Group in the Invoice Address box. Pages 2 and 3 of the Q/O form containing the General terms and conditions were neither signed nor sent back. Later on 21 December 2015, Mr Magee emailed his own Sales Office attaching the signed Q/O form “Can you start to process this please, the new customer form will follow as well as the fleet list.”
On 5 January 2016, Mr Keates returned a completed copy of the...
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