CL-2024-000457, 000458, 000459 - [2025] EWHC 1803 (Comm)

I take next the seller’s first case (paragraph 19(i) above), by which these appeals were said to be “procedurally flawed”. The Awards state the Board of Appeal’s reasons concisely, but they are sufficient, and clear enough, for the court to be able properly to consider the appeals. It is not difficult to identify how the Board of Appeal directed themselves as to the meaning and effect of s.49(2) of the Sale of Goods Act 1979, or to consider whether as a result they misdirected themselves.

By what they said at paragraphs 10.8 and 10.9 of each Award (quoted at paragraph 14 above), the Board directed themselves that it was sufficient, for a claim to the price to be maintained under s.49(2), that there had been an admitted failure to pay the price when it fell due under the contract, and property in the goods had not passed. That seems from the Awards to have been the explanation of s.49(2) put to the Board by the seller. The Awards record the seller’s case to have been that since the amended payment clause created a definite (final) date for payment, and the buyer did not pay, the seller had a good claim under s.49(2) and it did not matter that property had not passed (see paragraph 8(iv) above). The Board’s brief reasons are, in substance, a simple acceptance of that case.

The seller’s first alternative case on appeal (paragraph 19(ii) above) effectively conceded that to have been erroneous, but defended the result under the Awards on the basis that the terms of the contracts as found by the Board provided for payment on a day certain irrespective of delivery within the meaning of s.49(2), properly interpreted, so that the claims for the price were sound notwithstanding the Board’s misdirection. That is the question arising on these appeals. It is a question of law and there is no difficulty over considering it on the basis of the Awards.

In places, particularly in writing, the buyer’s submissions criticising the Board of Appeal’s reasoning used the language of absence or inadequacy. However, the evident sense of the criticism was that, so the buyer said, the Board’s reasoning disclosed, as a matter of substance, an absence of justification in law, or inadequate basis in law, for upholding the seller’s claim for the price, given the facts found in the Award. In other words, the buyer’s language was only a way of articulating what it said was the error of law disclosed by the Award.

There was no room here for any correction by or additional award from the Board of Appeal under s.57 of the 1996 Act, nor was there an absence or insufficiency of reasons in respect of which the buyer might have made an application under s.70(4) of the Act. There was in my view no merit in Mr Debattista’s contention, relying on s.70(2) of the Act, that the appeals were premature and ought not to have been brought, and I therefore turn to the real point arising for determination.