Tilcon Ltd v Land and Real Investments Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,LORD JUSTICE CROOM-JOHNSON |
| Judgment Date | 22 October 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J1022-6 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 86/0924 |
| Date | 22 October 1986 |
[1986] EWCA Civ J1022-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(HIS HONOUR JUDGE PAUL BAKER, Q.C., sitting
as a Deputy Judge of the Chancery Division)
Royal Courts of Justice.
Lord Justice Dillon
and
Lord Justice Croom-Johnson
86/0924
Ch. 1986 T. No. 2372
MR. G. PLATFORD (instructed by Messrs. Alastair Thomson & Partners) appeared on behalf of the Appellants.
MR. J. HARWOOD-STEVENSON (instructed by Messrs. Wragge & Co. of Birmingham) appeared on behalf of the Respondents.
The plaintiffs in this action, Tilcon Limited, seek leave to appeal against a decision of His Honour Judge Paul Baker, Q.C., sitting as a judge of the High Court in the Chancery Division, of the 23rd May, 1986 whereby the learned judge dismissed the plaintiffs' appeal against an order made by Master Barratt slightly earlier that month granting leave to the defendants to amend their defence and counterclaim.
The application for leave to appeal came before Lord Justice Nicholls, sitting as a single judge of this court, on the 1st July, 1986 and he then adjourned the application to be heard by a two or three judge court which would be able to hear the appeal immediately afterwards if leave to appeal was then granted. The matter thus comes before us today. All the argument was directed to the substance of the appeal. We grant leave to appeal, and I proceed to consider whether the appeal should succeed or fail.
The dispute arises out of a contract between the plaintiffs and the defendants, Land and Real Estate Investments Limited, in relation to the supply of clay or marl by the defendants from certain land they have near Tamworth in Staffordshire to the plaintiffs to carry on the business of manufacturing facing bricks. The contract is in writing and is dated the 8th June, 1983. It provided for the defendants to supply clay of a quality suitable for facing brick manufacture. The contract was to last for fifteen years. The price payable by the plaintiffs for the clay was fixed at £4.20 per tonne of clay for the first year of the agreement with provision for review annually. The plaintiffs were required to pay for a minimum of 50,000 tonnes of clay in each year unless their failure to pay was due to the defendants' default. There was then in clause 12(2) a provision that if the plaintiffs failed to remedy any breach after having received 14 days' written notice requiring them to do so, the defendants, while the default continued, could terminate the agreement forthwith by giving notice in writing to that effect.
The disputes arose between the parties because the defendants offered a first delivery of clay which they said was of a suitable quality for manufacturing facing bricks, and the plaintiffs rejected it as not being of a suitable quality on the construction of the agreement which the plaintiffs put forward.
The writ in this action was issued on the 22nd June, 1984. The plaintiffs claimed declarations as to the construction of the agreement to the effect that clay to be supplied by the defendants to the plaintiffs pursuant to the agreement should be of a quality suitable for facing brick manufacture of a particular quality and that the plaintiffs were required only to accept delivery of clay of that quality, and they claimed by way of damages certain sums in respect of testing the quality of the clay proffered by the defendants under the agreement.
The defendants served a defence and counterclaim on the 7th September, 1984. By the defence they dispute the plaintiffs' construction of the agreement and assert that the clay sought to be delivered and further clay which the defendants were ready and willing to deliver accorded with the contract and that it was of a quality suitable for facing brick manufacture. They say further that even if the contract were construed as referring to clay of a quality suitable for the manufacture of Wilnecote facing bricks, this clay was and is so suitable.
The defendants proceeded to counterclaim. In their counterclaim they set out the 15-year term of the agreement and the provisions for deliveries of 50,000 tonnes of clay a year, the price to be paid and the minimum royalty, and in paragraph 13 they plead:
"The Plaintiff failed to pay to the Defendants any sum during the year ended 30th June 1983. In the premises and by virtue of Clause 6(2) as aforesaid the Defendants were liable to pay to the Plaintiffs by the 14th July 1984 the sum of £210,000 (£4.20 X 50,000), none of which sum has been paid."
They further plead in paragraph 14:
"…by refusing to accept delivery of the said clay, the Plaintiffs have acted and are acting in breach of the said contract, in consequence whereof the Defendants have suffered and continue to suffer loss and damage in that they have incurred the cost of the extraction of the said 20,000 tonnes, presently stockpiled on the said land and have been deprived of the opportunity of profiting from a contract for the disposal of waste in the areas which would, but for the Plaintiff's said refusal, have been excavated."
So they counterclaimed for the £210,000 and damages under paragraph 14.
In this year the defendants applied to amend their counterclaim. That is the amendment which the master allowed by his order which I have mentioned. The amendment does two things. Firstly, it adds a further section to paragraph 13 of the counterclaim, which says:
"Further by their wrongful refusal to accept delivery of the said clay the plaintiffs have in breach of the said contract caused the defendants further loss and damage in that repudiation having been accepted (paragraph 15 below) the defendants suffer continuing loss by virtue of their not receiving further minimum payments in accordance with clause 6 of the said contract. Further or alternatively the defendants have suffered loss and damage in that they have been deprived of the opportunity of profiting from sales of the said clay."
Then they add a paragraph 15:
"Further or alternatively the plaintiffs by their aforesaid conduct have acted in repudiatory breach of the said contract which repudiation the defendants hereby accept. In consequence of such repudiation the defendants have suffered loss and damage as aforesaid."
So the relief sought is, apart from a consequential prayer which I need not mention, a declaration that the plaintiffs have repudiated the contract, such repudiation the defendants were entitled to accept, and have accepted, and damages in addition to the £210,000 already claimed.
The plaintiffs object on somewhat technical grounds to that amendment being allowed. Mr. Platford has referred to the notes in the 1985 Supreme Court Practice at the foot of page 338 and the top of page 339. There it is correctly set out that:
"An amendment duly made…takes effect, not from the date when the amendment is made, but from the date of the original document which it amends;…Thus, when an amendment is made to the writ, the amendment dates back to the date of the original issue of the writ and the action continues as though the amendment had been inserted from the beginning: 'the writ as amended...
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