[2023] EWHC 1480 (IPEC)

Summarising Mr Muir Wood’s descriptions of the counterclaims, they are as follows:

As to unjustified threats, Mr Muir Wood’s submission was that the counterclaim should be struck out as the pleading is extremely brief, containing no particularisation of the threats said to have been unjustified nor of the damage that is said to have followed from such threats.

Mr Muir Wood further submitted that there is no legal basis for recovering the sum sought for the alleged lost profit on stock. He further noted that, even if a legal basis could be identified (which he submitted was fanciful) then in any event if the stock were counterfeit there would be no basis for arguing that JBC should compensate the counterclaimant for any loss incurred. If, on the other hand, the stock was ultimately held to genuine, it can be sold and no loss will be suffered. Mr Muir Wood noted, for the avoidance of any doubt, that JBC believes that any stock of 4fl oz Jamaican Black Castor Oil now held by the Defendants to be counterfeit.

As to any Sainsbury’s stock, Mr Muir Wood submitted that once again no legal basis for recovering the sum sought has been identified. JBC does not have a contract with Sainsbury’s, nor has it indemnified the Defendants against the possibility that stock sold by them to Sainsbury’s might be returned, if unsold. He further noted that, again, if the goods are genuine, they may be sold, and no loss will flow.

He submits that for these reasons, the counterclaims should be struck out entirely.

Ms McFarland did not engage with the arguments about the counterclaims in her written skeleton argument.

During oral submissions, Ms McFarland focused particularly on the threats counterclaim. She noted that Mr Muir Wood did not deny the factual basis for the pleading, and that his primary submissions were that any ‘threats’ were justified, and that no loss would flow. Ms McFarland observed that if the goods are held at trial not to be counterfeit, then the threats will have been unjustified, and the issue of loss will be further particularised at that stage. She also noted that in IPEC a claim of this type may have benefits, given the operation of the costs regime.

As to the other elements of the counterclaim, Ms McFarland submitted that if the goods were found to have been counterfeit and to have been supplied to the Defendants by JBC, then loss would flow and there would be a basis for the Claim.

Having considered the submissions on behalf of both parties, my conclusions on the strike out applications relating to the counterclaims are that: