Yam Seng Pte Ltd (a Company Registered in Singapore) v International Trade Corporation Ltd

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Leggatt
Judgment Date01 Feb 2013
Neutral Citation[2013] EWHC 111 (QB)
Docket NumberCase No: HQ11X00722

[2013] EWHC 111 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Leggatt

Case No: HQ11X00722

Between:
Yam Seng Pte Limited (a Company Registered In Singapore)
Claimant
and
International Trade Corporation Limited
Defendant

Adrian Salter (instructed by Benson Mazure LLP) for the Claimant

David Eaton Turner (instructed by Edwin Coe LLP) for the Defendant

Hearing dates: 31 October, 21-23, 26-27 November 2012

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.

Mr Justice Leggatt Mr Justice Leggatt

A. INTRODUCTION

1

On 12 May 2009 the parties to this action entered into a written contract entitled "Manchester United Distribution Agreement". Under this Agreement the Defendant ("ITC") granted the Claimant ("Yam Seng") the exclusive rights to distribute certain fragrances bearing the brand name "Manchester United" in specified territories in the Middle East, Asia, Africa and Australasia. The rights were for the most part limited to duty free sales but also included "domestic" sales in Hong Kong, Macau and two provinces of mainland China. The contract period initially ran from 12 May 2009 until 30 April 2010 but was later extended until 31 December 2011.

2

To begin with, the business relationship between the parties was a warm one, despite some strain caused by delays in supplying products. In 2010, however, the relationship soured and in July 2010 it ended acrimoniously with Yam Seng informing ITC that it was terminating the contract as ITC was in breach.

3

In this action Yam Seng claims damages for alleged breaches of the Agreement which are said to have consisted in late shipment of orders, failing or refusing to supply all the specified products, undercutting prices agreed with Yam Seng and providing false information. Yam Seng also claims damages on the alternative ground that it was induced to enter into the Agreement by misrepresentation.

4

Both claims are strenuously denied by ITC. As regards the claim for breach of contract, ITC denies that it committed any breach, or any breach which caused loss, and in any event denies that it committed any breach which was repudiatory and justified Yam Seng in terminating the Agreement. As regards the claim for misrepresentation, ITC denies that any misrepresentation was made or, if made, was relied upon by Yam Seng. ITC also disputes the quantum of damages claimed.

The Parties

5

Although the contract in this case was made between two companies, the business relationship was essentially one between two individuals.

6

The Claimant, Yam Seng, is a company incorporated in Singapore which is controlled by Mr Sunil Tuli. Mr Tuli was born in India but now lives in Singapore. He is employed by King Power Group (Hong Kong) as managing director of its Duty Free Travel Retail Division; but he also carries on business ventures through his own company, Yam Seng. Mr Tuli has extensive experience of duty free sales, particularly in the Asia Pacific region, having been in this business for some 28 years.

7

The Defendant, ITC, is an English company controlled by Mr Roy Presswell. Mr Presswell is also a very experienced businessman, who has been selling fragrances for some 40 years. Since 1990 he has carried on business through ITC.

The Evidence

8

Mr Tuli and Mr Presswell were the only two witnesses of fact who gave evidence at the trial. There are many matters on which they disagreed. Fortunately their business dealings are well documented. In particular, there are many contemporaneous emails. I approach the evidence on the basis that, as in almost every case where there is a contemporaneous documentary record, the documents provide the best evidence of what happened. Human memory is notoriously unreliable, and the strong interests and emotions to which disputes resolved through litigation give rise are powerful distorting factors, however honest and well-intentioned the witness. Indeed, the more patently honest and convincing the witness, the greater can often be the risk of placing reliance on their testimony.

9

That was not a risk presented by the evidence of Mr Presswell. It is clear from the correspondence that when his business relationship with Mr Tuli broke down, he felt angry and outraged at what he regarded as unwarranted attacks on his integrity. Those feelings were equally apparent when he gave evidence. Mr Presswell was completely unwilling to contemplate that in relation to the matters complained of he might have been in any way at fault. In seeking to justify his conduct, Mr Presswell made numerous claims about what he said or must have said on various occasions to Mr Tuli which were inconsistent with the documentary evidence. I have no doubt that Mr Presswell believed those claims, many of them made for the first time during cross-examination. I am unable, however, to attach any credence to his testimony.

10

Mr Tuli was a far more moderate and reasonable witness who was prepared to make sensible concessions in cross-examination.

11

In relation to the email correspondence, Mr Presswell pointed out that he does not use a computer or mobile phone and does not have direct access to emails, but relies on a secretary to print out messages received and type emails for him. He suggested that this explains why he sometimes did not respond promptly or at length to Mr Tuli's emails.

12

I bear in mind that Mr Presswell was not as avid in his use of email as Mr Tuli, but it is clear from the documentary record that Mr Presswell received Mr Tuli's emails and, when it suited him, replied to emails promptly. I do not consider that Mr Presswell would have inadvertently left unanswered significant email messages.

B. THE FACTUAL HISTORY

13

Before considering the allegations of breach of contract and misrepresentation, I will first describe the history of the parties' business relationship. In doing so, I will record my findings on material points of fact that are in dispute.

The Start of the Relationship

14

The first communication between the parties was an email sent by Mr Presswell to Mr Tuli on 23 January 2009. In that email Mr Presswell said that he had been introduced by a mutual friend and that his company, ITC:

"has recently signed an exclusive three year worldwide licence agreement with Nike/Manchester United to manufacture and sell Manchester United fragrances."

Mr Presswell went on to say that he intended to visit Hong Kong and would like to meet Mr Tuli to discuss a potential deal.

15

The statement that ITC had "recently signed" a licence agreement to manufacture and sell Manchester United fragrances was untrue. Documents disclosed by ITC on the morning of the second day on which Mr Presswell gave evidence put that fact beyond doubt. That disclosure showed that the only document which ITC had signed as at 23 January 2009 was a 2-page "Licence Deal Summary". There were two versions of this document, the first dated 24 October 2008 and the second dated 24 November 2008. Both documents started with the words (underlined in the original):

" The following details shall not constitute a legally binding contract, nor create any pre-contractual liabilities on either party. They are simply a summary of what has been discussed previously in relation to the proposed licence and are strictly subject to contract."

Both documents also ended with a statement that, by signing the deal summary, "you agree that this reflects what has been previously discussed as forming the basis on which we will proceed with negotiations."

16

I am sure that Mr Presswell knew perfectly well when he contacted Mr Tuli on 23 January 2009 that he had not signed a licence agreement and that his proposed deal with Manchester United Merchandising Limited was at that stage subject to contract. From my impression of Mr Presswell, however, I do not think that it would have struck him that he was making a false statement, as he undoubtedly was. Mr Presswell's attitude, both in his dealings with Mr Tuli and in giving evidence, was characterised by a striking ability to treat wishful thinking as fact.

17

Under cross-examination Mr Presswell would not admit that his statement that he had signed a licence agreement was untrue. He sought to justify the statement on the basis that the licence agreement for Manchester United fragrances which he did ultimately sign at the beginning of May 2009 specified the licence period as having begun on 1 January 2009. The fact that Mr Presswell was able to convince himself that this somehow made true the statement in his email to Mr Tuli is symptomatic of the attitude I have described.

18

The meeting proposed by Mr Presswell duly took place in Hong Kong on 26 February 2009. Mr Tuli and Mr Presswell gave very different accounts of what was said by Mr Presswell at this meeting about the availability of the products under discussion. According to Mr Tuli, Mr Presswell said that he already had stock of two products: Eau de Toilette ("EDT") 100ml and Deodorant Body Spray 150ml in red packaging. Other products were already in production including hair gel and body gel (referred to as "toiletries") and gift sets. Mr Tuli also claimed that Mr Presswell told him that ITC had a licence from Manchester United for the full product range. Mr Presswell's evidence, by contrast, was that he made it clear that there was no product on the market at that time and that the initial launch would be limited to EDT 100ml, packaged in red to match the Manchester United red home shirt. Subsequently he planned to launch EDT 100ml in black packaging in August 2009 to match Manchester United's new black kit for away matches. Thereafter he hoped to develop deodorant, toiletries and gift...

To continue reading

Request your trial
73 cases
  • Monde Petroleum SA v Westernzagros Ltd
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • 28 June 2016
    ...terminate the CSA. 245 An authority in support of his submissions, Mr Cogley relied upon the judgments of Leggatt J in Yam Seng Pte Ltd v International Trade Corp Ltd111 and in MSC Mediterranean Shipping Co SA v Cottonez Anstalt112. He laid stress in particular, upon Leggatt J's observation......
  • Flynn & Benray Ltd v Breccia & McAteer
    • Ireland
    • High Court
    • 13 August 2015
    ...plaintiffs rely principally on the ground breaking judgment of Leggatt J. in Yam Seng Pte Ltd. v. International Trade Corporation Ltd. [2013] 1 CLC 662. That case concerned a dispute between the plaintiff, a Singaporean company, and the defendant, a UK company, in relation to an agreement f......
  • The Law Debenture Trust Corporation P.L.C v Ukraine, represented by the Minister of Finance of Ukraine acting upon the instructions of the Cabinet of Ministers of Ukraine
    • United Kingdom
    • Queen's Bench Division (Commercial Court)
    • 29 March 2017
    ...is due. 323 There is an overlap between the implied requirements of acting in good faith ( Yam Seng Pte v International Trade Corp [2013] EWHC 111 (QB)), and the obligation not to prevent 324 The implication of such terms is orthodox, and is limited to Russia (in summary) not deliberately ......
  • Mid Essex Hospital Services Nhs Trust v Compass Group Uk and Ireland Ltd (trading as Medirest)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 15 March 2013
    ...of good faith is implied by law as an incident of certain categories of contract: see Horkulak at paragraph 30 and Yam Seng Pte Ltd v International Trade Corporation Ltd [2013] EWHC 111 (QB) at paragraphs 120–131. If the parties wish to impose such a duty they must do so 106 I turn now to ......
  • Request a trial to view additional results
35 firm's commentaries
  • Complex Commercial Litigation Law Review – England and Wales
    • United Kingdom
    • JD Supra United Kingdom
    • 27 January 2021
    ...v. TBP Industries Limited [1996] All ER 573.59 OBG v. Allan [2007] UKHL 21.60 Yam Seng Pte Ltd v. International Trade Corporation Ltd [2013] EWHC 111 (QB).61 MSC Mediterranean Shipping Company SA v. Cottonex Anstalt [2015] EWHC 283 (Comm).62 MSC Mediterranean Shipping Company SA v. Cottonex......
  • Complex Commercial Litigation Law Review – England & Wales
    • United Kingdom
    • JD Supra United Kingdom
    • 10 January 2019
    ...rescission or damages in lieu of recession. 38 OBG v. Allan [2007] UKHL 21. 39 Yam Seng Pte Ltd v. International Trade Corporation Ltd [2013] EWHC 111 (QB). 40 MSC Mediterranean Shipping Company SA v. Cottonex Anstalt [2015] EWHC 283 41 MSC Mediterranean Shipping Company SA v. Cottonex Anst......
  • No General Organising Principle Of Good Faith In English Law: The Court Of Appeal's Decision In MSC Mediterranean Shipping Company S.A. V Cottonex Anstalt [2016] EWCA Civ 789
    • United Kingdom
    • Mondaq UK
    • 10 October 2016
    ...BNP Paribas Security Services Trust Company (Jersey) Limited [2015] UKSC 72. 6. Yam Seng PTE Ltd v International Trade Corporation Ltd [2013] EWHC 111 (QB). 7. Bristol Groundschool Limited v Whittingham [2014] EWHC 2145 (Ch); D&G Cars Ltd v Essex Police Authority [2015] EWHC 226 (QB). 8......
  • Contractual duties of good faith in "relational contracts"
    • United Kingdom
    • JD Supra United Kingdom
    • 6 September 2019
    ...cut. 1Alan Bates and Others v Post Office Limited [2019] EWHC 606 (QB) 2Yam Seng Ptd Ltd v International Trade Corporation Limited [2013] EWHC 111 (QB) 3 [711] 4 [721] 5 [725] 6 [726] 7 [722] 8 [733] 9 [735] 10 [711] 11 [743] 12Bristol Groundschool Ltd v Intelligent Data Capture Ltd [2014] ......
  • Request a trial to view additional results
4 books & journal articles
  • The Journey of Good Faith: Where Does It belong in General Contract Law?
    • United Kingdom
    • Southampton Student Law Review Nbr. 9-1, January 2019
    • 1 January 2019
    ...“Adam Smith and the Social Foundation of Agreement: Walford v Miles as a Relational Contract” (2017) 21(3) Edin LR 376, 378. 63[2013] EWHC 111 (QB), [2013] All ER (D) 227. 64 Yam Seng Pte Ltd v International Trade Corp Ltd [2013] EWHC 111 [153]. 65 Ewan McKendrick, Contract Law (9th edn Pal......
  • Bridging the Gap: A Relational Approach to Contract Theory
    • United Kingdom
    • Journal of Law and Society Nbr. 41-4, December 2014
    • 1 December 2014
    ...Inc v. Mercator Shipping Inc (The Achilleas) [2008] UKHL 48,[2008] 3 W.L.R. 345.14 Yam Seng Pte Ltd v. International Trade Corp Ltd [2013] EWHC 111 Q.B., [2013] 1Lloyd's Rep. 526.15 Durham Tees Valley Airport Ltd v. bmibaby Ltd [2010] EWCA Civ 485, [2011] 1Lloyd's Rep. 68.16 Total Gas Marke......
  • Good Faith and the Ubiquity of the ‘Relational’ Contract
    • United Kingdom
    • The Modern Law Review Nbr. 77-3, May 2014
    • 1 May 2014
    ...School of Law. I am grateful to Jay Feinman, Catherine Mitchell, Adrian Salter,and an anonymous referee for their comments.1 [2013] EWHC 111 (QB). Judgment was handed down on 1 February 2013. As of 6 March 2014,Yam Seng had been considered in Hamsard 3147 Limited (t/a Mini Mode Childrenswea......
  • A 'First Look': The Canadian Courts' Treatment of Good Faith Contractual Performance Post-Bhasin
    • Ireland
    • Trinity College Law Review Nbr. XIX-2016, January 2016
    • 1 January 2016
    ...Ltd:153a refusal to recognise any general obligation of good faith would be “swimming against the tide.”154 152[2015] IEHC 547. 153[2013] 1 CLC 662. 154[2013] 1 CLC 662, at [124]. ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT