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Issue 5 : Whether Clause 7(c) excludes all of the Defendant’s counterclaims for deliveries prior to 7 th February 2024
Issue 5: Whether Clause 7(c) excludes all of the Defendant’s counterclaims for deliveries prior to 7th February 2024
By the conclusion of the hearing before me, the effect of clause 7(c) was not substantially contested. For the avoidance of doubt, I am not satisfied that the word “claim” can mean legal proceedings. Any claim for the Paid Contracts which was not submitted within a year of delivery is accepted to be excluded by Cluse 7(c). It follows that the answer to Issue 5 is “No”. Clause 7(c) only excludes claims where the first notification of a defect has not been made within one year of delivery.
Conclusion
The answers to the issues before me are as follows:
Issue 1: Yes, although there is a valid bare express trust as contended for by the Claimant, summary judgment is not awarded.
Issue 2: Clauses 6 and 7(b) do not exclude any defences but do exclude counterclaims relying on misrepresentation.
Issue 3: This is a reasonably arguable issue and the arguments as to compliance with the condition precedent within Clause 6 are not suitable for summary determination.
Issue 4: This is a reasonably arguable issue and is not suitable for summary determination.
Issue 5: Clause 7(c) excludes any counterclaims in respect of goods delivered more than a year before the first notification of defects.
I leave it to the parties to draw up an appropriate Order for my approval.
If any consequential issues cannot be agreed the matter will be listed for a short remote hearing at which any such issues can be determined.
- Heading
- Introduction
- Issue 1 : Does the Defendant have a real prospect of defending the claim for breach of trust (including if this is a valid trust)?
- Issue 2 : What is the correct interpretation of Clauses 6 and 7(b) and to what extent do they exclude the Defendant’s defence and counterclaims?
- Issue 3 : The effect of non-compliance of the condition precedent within Clause 6 in respect of the Unpaid Contracts and whether Clause (c) otherwise has a limiting effect on claims under the Paid Con
- Issue 4 : Whether Clause 7(b) is reasonable having regard to UCTA
- Issue 5 : Whether Clause 7(c) excludes all of the Defendant’s counterclaims for deliveries prior to 7 th February 2024
- Conclusions