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

Hitex’s case in this action has been that Uniserve failed to collect the shipment due for delivery on 14^th June and all subsequent shipments, a total of 77 million masks; that on each occasion when Uniserve failed to collect a shipment, Hitex was discharged from any obligation to deliver that shipment; and that it had available sufficient masks to meet each (i.e. the next) instalment as it fell due. It contends that Uniserve was not entitled to terminate the contract and that, to the extent that it purported to do so, Hitex did not accept the termination so that the contract was kept alive. It claims damages under section 50 of the Sale of Goods Act which provides that:

‘50. Damages for non-acceptance

(1)

Where the buyer wrongfully neglects or refuses to accept and pay for the goods, the seller may maintain an action against him for damages for non-acceptance.

(2)

The measure of damages is the estimated loss directly and naturally resulting, in the ordinary course of events, the buyer’s breach of contract.

(3)

Where there is an available market for the goods in question the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted or (if no time was fixed for acceptance) at the time of the refusal to accept.’

Hitex’s case was that there was no available market for the goods by early July 2020, the previously flourishing market having collapsed due to massive oversupply and a dramatic reduction in demand. Its case was that there were no buyers ready and willing to absorb the 77 million masks still due for delivery under the contract and it put forward a calculation of damages amounting to US $23.1 million.