HT-2024-000379 - [2025] EWHC 2769 (TCC)

The Claimant claims the effects of Clauses 6 and 7(b) of its Terms and Conditions are to exclude all defences and counterclaims save for set-off in respect of the Unpaid Contracts, i.e., the claim. The Claimant submits that this excludes any attempt by the Defendant to take into account its lost profit against the claim for Unpaid Contracts ; to rely on estoppel by convention; to rely on misrepresentation and rescission; and to rely on unjust enrichment.

As to the defence based on lost profits, Clause 7(b) in terms refers to “… any loss of … profits …” The Defendant’s submission is that Clause 7(b) does not in terms purport to restrict any defence to liability to the Claimant. It seeks to restrict (subject to UCTA) the Claimant’s liability for any promises, representations or implied terms relating to the “description, quality or performance of the goods”. In my judgment, there is at least a reasonably arguable defence on the basis that Clause 7(b) does not restrict the buyer from relying on matters by way of defence to a claim for the price of the unpaid goods. It is not claimed that set-off is excluded which is itself a defence. It would have been easy to make clear in Clause 7(b) that defences were also being excluded, but the clauses do not say that. I note in this regard the decision of Cooke J in Air Transworld Ltd v. Bombardier Inc [2012] EWHC 243 (Comm) at p.75D-E:

“… the Court is unlikely to be satisfied that a party to a contract had abandoned valuable rights arising by operation of law unless the terms of the contract made it sufficiently clear this was intended. The more valuable the right, the clearer the language would need to be. Similarly, the more significant the departure from obligations implied by the law or ordinarily assumed under contracts of the kind in question, the more difficult it would be to persuade the court that the parties intended that result.”

I respectfully adopt that reasoning.

The Additional Contracts counterclaim is not the subject of the summary judgment application before the Court.

As to the defence of estoppel by convention, the Claimant’s submission is that this is caught by the words “or other undertaking” in Clause 7(b) and that in any event the pleaded estoppel defence is not reasonably arguable on the merits. As to whether estoppel by convention can be properly described as an “undertaking”, in my judgment it cannot, or at the very least it is strongly arguable that it is not so caught. Estoppel is not properly described as an “undertaking” and the Claimant’s Counsel did not seek to rely on any authority to that effect. It is more than a stretch of the normal meaning of the word “undertaking” for it to include the doctrine of estoppel by convention. As to whether the defence of estoppel by convention is unarguable for the purposes of this summary judgment application, in my judgment the issues addressed in the witness statements and pleadings are clearly dependent on findings of fact which may well be made at trial and it is not possible at this early stage to say that the defence of estoppel by convention is hopeless or unarguable.

The Claimant also claims that any counterclaims for misrepresentation are caught by the words “… shall not be liable whether in contract or tort”. In my view, there is no answer to that point. The Defendant’s Counsel accepted that the facts underlying the claim had to relate to a contract.

Lastly on this issue, I am not persuaded that a defence or counterclaim for unjust enrichment can be said to be a claim in contract or tort and the Claimant’s Counsel did not press that point in oral argument. It follows that my answer to Issue 2 is that apart from counterclaims for misrepresentation Clause 7(b) does not exclude any other defences pleaded by the Defendant. This answer is subject in any event to my answer to Issue 3. I also decline the application to strike out parts of the Amended Defence and Counterclaim since I have found that the pleaded case is reasonably arguable.