CA-2024-001949 & CA-2024-001935 - [2025] EWCA Civ 1212

For these reasons I would allow the appeal so far as the supply contract is concerned, with the consequence that Hitex’s claim for damages against Uniserve should be dismissed.

The commission contract provided for Uniserve to pay a commission to Caramel/Mr Popeck on each shipment under the supply contract. It went on to provide for the amount of the commission to be calculated by reference to the date on which each shipment arrived in the United Kingdom. Commission was paid on the 3 million masks which were supplied under the supply contract, but Caramel and Mr Popeck claimed commission, or damages for its non-payment, on the 77 million masks which (they said) Uniserve had wrongfully failed to accept and pay for. The judge dismissed that claim on the basis that commission was only payable on masks which were delivered to the United Kingdom; that the supply contract was terminated by Hitex’s acceptance of Uniserve’s repudiation; and that no commission was payable once the supply contract was terminated.

The commission appeal was advanced on the basis that the supply contract was not terminated but remained alive, and that Uniserve had wrongfully failed to accept and pay for the 77 million masks which were not supplied. On that basis a question arose whether commission would only be payable on shipments which arrived in the United Kingdom or whether the clause providing for the calculation of commission was no more than non-mandatory machinery which did not prevent commission being earned, or damages being payable, in the event of wrongful failure by Uniserve to accept and pay for shipments under the supply contract.

As I have held that Uniserve was entitled to terminate the supply contract, it seems to me that this question no longer arises and the commission appeal must be dismissed. Mr Edward Knight, who argued the commission appeal for Caramel/Mr Popeck, did not at any stage suggest that the appeal could succeed if Uniserve had validly terminated the supply contract.

Following circulation of the draft judgment to the parties, Mr Lewis and Mr Knight sent an email to the court submitting that there was or might be an oversight in the judgment. They submitted that the facts set out in paras 79 and 80 above show that Hitex was able to meet the cumulative total due under the revised delivery schedule on 14^th and 28^th June 2020, and was therefore entitled to damages for Uniserve’s failure to collect and pay for those two shipments. However, no case was advanced in the court below or in Hitex’s Respondent’s Notice that, even after taking account of the 15% reserved for the Jordanian government, Hitex was still entitled to recover damages in respect of these two shipments, and there was only very brief allusion to such a possibility in Hitex’s skeleton argument for the appeal and in oral argument. In my judgment it is too late for such a claim to be advanced for the first time on appeal. If it had been advanced in the court below, it would have brought into sharp focus the issue whether Hitex needed to tender delivery of those shipments which is discussed at paras 69 to 73 above and the parties and the judge would have been able to address that point properly. Because the point was not live in the court below, this did not happen.

I agree.

I also agree.