Midal Cables Ltd v Mec Foster Wheeler Group Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fraser |
| Judgment Date | 29 March 2019 |
| Neutral Citation | [2019] EWHC 1155 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | CLAIM NO: HT-2018-000263 |
| Date | 29 March 2019 |
[2019] EWHC 1155 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
The Rolls Building,
7 Rolls Buildings,
Fetter Lane,
London EC4A 1NL
Mr Justice Fraser
CLAIM NO: HT-2018-000263
Mr T Owen (instructed by ASV Law) for the Claimant/Respondent
Mr T Crangle (instructed by Pinsent Masons LLP) for the Defendant/Applicant
Approved Judgment
This is an application by the defendant for certain preliminary issues. Before I identify what they are I will explain the nature of the litigation. The claimant is a company called Midal Cables and it brings what is essentially an invoice claim in respect of the supply of very many kilometres of what is called conductor to the defendant, Amec Foster Wheeler Group Limited (“Amec”). These are lengths of conductive material in cable form.
The Particulars of Claim make it clear that an initial supply of conductor was provided to the defendant. That was said by the defendant to be defective. Then a re-supply was provided as well. The claim is very slightly in excess of £2 million. There are two separate supplies which are the subject matter of the litigation. One is referred to in the Particulars of Claim as the Araucaria conductor, and that was for works being performed by the defendant to the National Grid in Monk Fryston in West Yorkshire. There was another supply of what is called Sorbus conductor, and that was supplied for works to the National Grid at the Rochdale Whitegate Refurbishment Project, which (as anyone who knows their geography will know) is also in Yorkshire.
Amec challenges the claim on a number of grounds. One of them is what is called in some of the other cases a “battle of the forms”, namely which party's terms and conditions applied to the provision of the conductor. However, Amec also brings a counterclaim for losses, substantially losses for delay, together with other prolongation costs said to have been caused by the supply of defective conductor. The total value of the counterclaim is £7,509.385, i.e. just in excess of £7.5 million.
Mr Crangle, for Amec, has provided a drafting of preliminary issues which he submits ought to be disposed of first. I am just going to explain what they are. The question of preliminary issues was raised at an earlier stage in the proceedings by Amec's solicitors, but the issues themselves had not been identified, and when the parties were before me more recently I explained that the issues themselves needed to be identified precisely. At paragraph 9 of Mr Crangle's very helpful skeleton he identifies what he calls the “proposed issues”, and I will read out what they are.
“a. Did AMEC and Midal enter into an agreement on 6 March 2013 pursuant to which it was agreed that any future contract for the supply of goods by Midal to AMEC would be governed by AMEC's Standard Terms and Conditions?
b. Was the Araucaria Contract governed by:
i. AMEC's Standard Terms and Conditions of Purchase; or
ii by the terms contained in the Araucaria quotation and Araucaria revised offer; or
iii By a number of terms and conditions from each party's standard terms and by implied terms?
c. Was the Sorbus Contract governed by:
i AMEC's Standard Terms and Conditions of Purchase; or
ii by the terms contained in the Sorbus quotation; or
iii by a number of terms and conditions from each party's standard terms and by implied terms?”
Mr Crangle has explained that if these preliminary issues are resolved they will have the following benefits. One is that, depending on the outcome, they may render a full trial on the cross claim or counterclaim wholly unnecessary, because (and this is an ironic position) if he loses on the preliminary issues then the effect of Midal's terms and conditions on the terms printed on the back of the relevant documents by Midal means he would not be entitled to bring a counterclaim at all. He also explains that there would be limited or, on his case, no evidence of fact necessary to resolve these issued, and that the matter could be resolved predominantly on the documents, and that, in his submission, the hearing of these issues could all be dealt with in less than a day. He also submitted that the point as to whose terms govern the supply of the contract has proved a fairly intractable point in terms of settlement discussions, and there will be the effect of encouraging or facilitating ADR if the TCC resolves these issues separately and hives them off in useful way and deals with them first.
This application is opposed by Mr Owen for the claimant on a number of grounds. I will explain briefly what they are. He points out that because of the way the case is pleaded a trial would be necessary in any event, regardless of the outcome on any preliminary issues tiral. He has also drawn my attention to paragraph 16 of the defence, which says (and I paraphrase):
“Owing to the fact that the Auraucaria supplied by Midal was defective, an agreement was reached between Mr Master and Mr Hatton and/or a variation to the Auraucaria contract was concluded that Midal would supply an additional 18 drums of Auraucaria conductor on a sale or return basis as spare material in order to prevent further delay to Amec's programme.”
The defence pleads that agreement was contained in and/or evidenced by an email exchange between...
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Litigation
...J; DM Drainage & Constructions Pty Ltd v Karara Mining Ltd (No.2) [2017] WASC 231; Midal Cables Ltd v Amec Foster Wheeler Group Ltd [2019] EWHC 1155 (TCC). 909 See, eg, Leading Rule v Phoenix Interiors Ltd [2007] EWHC 2293 (TCC) at [11], per Akenhead J; Chandra v Brooke North [2013] EWCA Ci......
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Table of cases
...Micro Design Group Ltd v Norwich Union Ltd [2005] EWHC 3093 (TCC) I.3.207, III.17.56 Midal Cables Ltd v Amec Foster Wheeler Group Ltd [2019] EWHC 1155 (TCC) III.26.221 cccvii TaBLE OF CaSES Middlemiss & Gould v hartlepool Corporation [1972] 1 WLr 1643 II.9.133, III.25.198, III.25.217, III.2......