HP-2020-000016 - [2025] EWHC 1451 (Ch)

There was a meeting with Smyths at its head office in Ireland on 10 May 2017, attended by Mr Sivner, Mr Michaelson, Mr Smyth and some of their buyers. Cabo’s case is that Smyths placed a verbal order for 16,000 items, including 8,000 globes. There is no doubt that there was a discussion of initial order quantities at the meeting, as evidenced by Mr Michaelson’s email shortly after the meeting saying:

“We are on the way to the airport but will firm everything up when we get back to Manchester for the following order:

8,000 x 2 Pk

3,000 x 5 Pk

5,000 x 10 Pk

All above to be delivered in mixed FSDU

Full requirements and delivery dates to be confirmed.”

Two days later, Mr Michaelson sent an email to Mr Cohen and Singleton saying that Smyths had placed a “verbal order” for the quantities set out above, noting that it would be necessary to “officially agree the order”. Mr Lazarus replied saying that Smyths would need to raise a purchase order. Mr Michaelson then acknowledged that he had not heard back from Smyths following his email to them.

Mr Michaelson claimed in his oral evidence that an order from Smyths “must have existed. It did exist.” There is, however, no evidence of a purchase order being raised by Smyths. As at 16 May 2017, an email between Singleton and Mr Michaelson said that they were expecting a purchase order “soon”. There were then various emails setting up a meet and greet event with Tiana at the Tamworth store (scheduled for the end of July). Smyths emailed Mr Michaelson on 23 May 2017 enquiring when stock would be available, and asking “Can we get stock now?”. On the same day Singleton asked Mr Michaelson and Mr Cohen for further information to send to Smyths, “so they can send PO”. It is apparent, therefore, that a purchase order had not been raised by Smyths at that point.

By 13 June 2017 (after the events described below) in an email exchange between Mr Smyth and Mr Sivner, Mr Smyth said that “we have none on order and not sure if are going to buy”. The evidence of both Mr Smyth and Mr Lazarus was that no formal purchase order was ever placed by Smyths.

Mr Michaelson’s claim that a final order was placed is therefore not supported by any of the contemporaneous documents or the other witness evidence. The evidence indicates that while provisional initial order quantities were apparently discussed with Smyths at the 10 May 2017 meeting, no purchase order was subsequently raised by Smyths either prior to MGA’s intervention or at any time after that.