‘… there are 5 million available on 15th and 5 million on 22nd April. We can then produce 5 million a week from there on in.’
‘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.’
‘113 … if Hitex had made the representations that were made in the Waller email (which I do not consider to be the case) at least two of these representations were either false as a statement of Hitex’s honest belief, or that Hitex would have been reckless or careless as to whether it was true or false.’
‘In my view the judge was not entitled to find for the claimant on the basis of the third man theory. It is fundamental to our adversarial system of justice that the parties should clearly identify the issues that arise in the litigation, so that each has the opportunity of responding to the points made by the other. The function of the judge is to adjudicate on those issues alone. The parties may have their own reasons for limiting the issues or presenting them in a certain way. The judge can invite, and even encourage, the parties to recast or modify the issues. But if they refuse to do so, the judge must respect that decision. One consequence of this may be that the judge is compelled to reject a claim on the basis on which it is advanced, although he or she is of the opinion that it would have succeeded if it had been advanced on a different basis. Such an outcome may be unattractive, but any other approach leads to uncertainty and potentially real unfairness.’
‘38. In the present case, the possibility that the Croydon Properties were held on trust for Mr V Sharma does not appear to have been even canvassed by the Judge during the hearing, but, as far as we know, first emerged fully-formed in the Judgment. That, for the reasons given by Dyson LJ in Al-Medenni, was not a course that was open to him. Judges may sometimes think – and may even sometimes be right – that their own theory better fits the facts than that of either party, but if it is wholly outside the scope of the pleaded issues, that is nothing to the point, and to decide a case on a basis that has not been explored in evidence or addressed in submissions is likely to leave at least one, if not both, parties with a profound and justified sense of unfairness.’
‘61. It is common ground that a party seeking to rescind a contract for misrepresentation must show that the representation played a real and substantial part in inducing it to enter into the contract in question. As explained by Mr Justice Christopher Clarke in Raiffeisen Zentralbank Osterreich AG v Royal Bank of Scotland Plc[2010] EWHC 1392 (Comm) ,[2011] 1 Lloyd’s Rep 123 at [153], the misrepresentation need not be the only reason for the party’s decision to enter into the contract, but the representee will have no grounds for complaint if it would have entered into the contract on the same terms even if the representation had not been made. … 62. What would have happened if the representation had not been made is a question of fact, although (as with any counterfactual) necessarily hypothetical. Once it is proved that a false statement was made which was “material” in the sense that it was likely to induce the contract, it is a fair inference of fact, although not of law, particularly strong in a fraud case, that the representee was induced by the statement to enter into the contract. But that inference is capable of being rebutted.’
‘63.The court is therefore required as a first step to identify the hypothetical factual scenario in which the representation had not been made. In the present case, three possibilities were canvassed. The first was that the Owner said nothing about the vessel’s speed and consumption, as if the22nd November 2016 letter had never been sent. On that scenario, the judge found, not surprisingly, that no charterparty would have been concluded: in practice, a shipowner wishing to let out its vessel on time charter must offer performance warranties.’
‘129. Mr Liddell in his second witness statement claims that he would not have entered into the Supply Contract if he had not been told that the Hitex had 5 million masks available on15 April 2020 and 5 million masks available on22 April 2020 and have the production capacity to produce a further million facemasks every week from then on. In my view this is simply not true. 130. Mr Liddell sought in cross examination to distance himself from the due diligence efforts, saying that he was relying on Dr Stead. Nevertheless, he was copied into emails and was aware that the results of the due diligence contradicted the information in the Waller Email. By 23 April, Uniserve as an organisation was clearly aware that the predictions of supply and production information in the Waller Email were proving incorrect. This was known by Mr Bonnett, it was known by Uniserve’s representative Dr Stead, and it was known by Mr Liddell. 131. The question of inducement is one of fact. It is apparent from the authorities that the test is not necessarily whether the representation was believed but rather whether the representation in fact induced the contract. 132. As is noted at Chitty on Contracts at 10-045 in Hayward v Zurich Insurance Co Plc[2016] UKSC 48 at [44], the Supreme Court held that a settlement of an insurance claim could be avoided by the insurer when it discovered that the amount of loss had been exaggerated fraudulently, even though at the time of the settlement the insurer had doubts over the extent of the claim. It was sufficient that the false claim influenced the insurer in the sum offered in settlement. Lord Clarke said that even in a case in which the claimant knows that the representation was a lie, the claimant “may be able to establish inducement on the facts”. No doubt Lord Clarke is correct in this, but the cases where someone is induced by a statement that is known or believed by that person to be false are likely to be few. 133. In the case before me, I am satisfied that the facts are that the Waller Email did not induce Uniserve to enter into the Supply Contract. It is fanciful to believe that Uniserve was still relying on these in preference to its own due diligence which clearly contradicted these statements. … 136. I find that Uniserve was not relying on the Waller Email (or indeed on any of the other predictions as to production and stock availability that had been made) when it signed the Supply Contract on 23 April. It entered into the Supply Contract in the knowledge that these predictions were unlikely to be met.’
‘When one party wrongly refuses to perform obligations, this will not automatically bring the contract to an end. The innocent party has an option. He may either accept the wrongful repudiation as determining the contract and sue for damages, or he may ignore or reject the attempt to determine the contract and affirm its continued existence.’
‘I therefore conclude that the decision in Braithwaite[1905] 2 KB 543 is not an authority for the proposition advanced by the appellants, alternatively if it is, then it is wrong. When A wrongfully repudiates his contractual obligations in anticipation of the time for their performance, he presents the innocent party B with two choices. He may either affirm the contract by treating it as still in force or he may treat it as finally and conclusively discharged. There is no third choice, as a sort of via media, to affirm the contract and yet to be absolved from tendering further performance unless and until A gives reasonable notice that he is once again able and willing to perform. Such a choice would negate the contract being kept alive for the benefit of both parties and would deny the party who unsuccessfully sought to rescind, the right to take advantage of any supervening circumstances which would justify him in declining to complete.’
‘Ex works, etc. contracts Where goods are sold “ex-works”, “ex-factory”, warehouse”, “ex-store” or other similar terms, there is some uncertainty when the property passes, for the exact terms of such contracts are somewhat indefinite. In some situations the property may pass when the goods have been appropriated by the seller and placed at the disposal of the buyer at the designated works, factory, etc. provided the buyer has been given reasonable notice as to when the goods will be at his disposal. In others, it may be necessary that the buyer should have subsequently assented to the appropriation, or that the goods should have been delivered to him or to a carrier, before the property will pass.’
‘Goods to be delivered from seller’s works An ex works (or EXW) or ex store contract is, in a sense, not an overseas sale at all, but goods may be sold to an overseas buyer on the terms that they are to be delivered from the seller’s works. In such a case the normal rule applies, that the place of delivery is the seller’s place of business and the seller performs his duty to deliver by allowing the buyer to collect the goods. The expenses of and incidental to putting the goods into a “deliverable state” must be borne by the seller; he must provide such packaging as is customary, including, if the goods are sold for export, any special packing required for export. This appears to follow from the definition of “deliverable state” in s.61(5) to mean “such a state that the buyer would under the contract be bound to take delivery of them [the goods]”. The seller must also notify the buyer when the goods are ready for collection and indicate where they are to be collected. The buyer must pay in accordance with the terms of the contract.’
‘On18 February 2020 Hitex had received a letter from the [Jordanian Food and Drug Authority] (which I have been referred to for the purposes of recalling the date for this statement) stating that we were allowed begin [sic.] production but that we had to keep or sell 15% of production for local market. The Jordanian government were also able to make special requests, depending on the needs of the local market. I have been referred to a letter dated26 March 2020 from the Ministry of Health which required personal approval from the Minister of Health for any sale or export of masks. Hitex would retain about 15% of production across the warehouses to keep available in case the Ministry of Health came and said they wanted to take for government and military use.’
‘If there had been an occasion when Uniserve had turned up to collect masks and masks that were in the warehouse were unavailable for one of these reasons, then there might be something to this point. However, without having tested this point in that way, Uniserve cannot demonstrate that masks that were shown as available in the Production Reports were not in fact available to it. Hitex might have dealt with the requirements of other customers and of the Government of Jordan out of the reduction in the number of masks in the warehouse that we see in the table above between 31 May and 7 June. Hitex anyway might have preferred to let down other customers rather than its biggest customer, Uniserve. If Uniserve’s case is that Hitex could never have met the contract because its stock was being requisitioned by the Government of Jordan, it has not done enough to establish that case.’
‘376. Mr Lewis and Mr Knight support their argument that Hitex continued at all times to meet its obligations under the Supply Contract with the proposition that Hitex could “recycle” or as they preferred to put it “retender” deliveries. If 3 million masks are due on one date and Uniserve does not collect them on that date, Hitex can proffer the same 3 million masks to meet a requirement to provide 3 million masks at a later date.’