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

The Claimant’s submission is that Clause 6 contains a condition precedent to entitle the Defendant to a refund, the condition being the return of the goods if requested and since the Defendant has admitted that it did not comply with the condition precedent it therefore has no defence save for set-off and no counterclaim in respect of the Unpaid Contracts (the subject of the claim). This is subject to the Court’s decision on Issue 2 and both these issues are clearly interconnected.

The Claimant asks for summary judgment/strike-out on this issue. As already noted, at the 4^th July hearing the Claimant confirmed it was not seeking summary judgment in respect of the Unpaid Contracts but the Claimant does seek a summary determination that the Defendant’s counterclaims for the Paid Contracts are limited to the value of the product supplied. In the original summary judgment application, the Defendant’s alleged non-compliance with Clause 6 was the basis for the entire application.

The Defendant’s response to the issue puts into question whether the Claimant had itself complied with the condition precedent in Clause 6. It also refers to an email from Mr Skerratt on 30^th August 2024 when Mr Skerratt said:

“… as you know an RMA number is only provided when product is to be repaired or replaced. We are expecting to collect product that belongs to SMW (thus, that has not been paid for by Corrotherm), therefore an RMA number is not relevant.”

The Defendant says that this shows that the Claimant was not operating Clause 6 itself which is in line with its pleading to that effect. The Claimant disputes that this is what was meant by Mr Skerratt’s email. This is, however, in my view a clear issue of fact which cannot be determined at the summary judgment stage. The Defendant submits that Clause 6 requires the Claimant to seek the return of its product to comply with Clause 6, i.e., to replace/refund, and since the Claimant did not so request the clause is not engaged. In my judgment, that is a reasonably arguable reading of Clause 6 and the issue of whether either party complied with Clause 6 is not one which can be determined in this application. The effects that non-compliance with Clause 6 might (my emphasis) have on the counterclaims brought by the Defendant are clearly fact sensitive and might not arise if, for example, it is ultimately decided that the Claimant was in breach of Clause 6 itself, as the Defendant contends, and the summary determination sought seems to me to be purely hypothetical and I decline to answer this issue other than by noting that it is an issue for trial.