Trinsic Collagen Limited v Procoll Limited [2026] EWHC 1793 (Ch)

[2026] EWHC 1793 (Ch)

Case No BL-2024-001317

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NL

Date Friday 17 July 2026

Before

Andrew de Mestre K.C.

Between

TRINSIC COLLAGEN LIMITEDClaimant

PROCOLL LIMITEDDefendant

Lee Jia Wei (instructed by Charles Russell Speechlys LLP) for Claimant

James Pearce-Smith (instructed by Temple Bright LLP) for Defendant

Hearing Hearing dates: 21-24 and 27 April 2026

Andrew de Mestre K.C. :

I Introduction

[1]These proceedings concern the supply by the Defendant, Procoll Limited (“Procoll”), to the Claimant, Trinsic Collagen Limited (“Trinsic”), of single alpha chain collagen pursuant to an agreement dated 7 November 2022 (“the Agreement”).

[2]In summary, Trinsic alleges that the Procoll was in breach of the Agreement because the collagen supplied in eight monthly batches between March and November 2023(i) had a microbial content which exceeded the contractually agreed specification and/or

(ii) was not validly tested against the agreed contractual specification under the Agreement and/or

(iii) was unfit for purpose.

[3]The consequence of these alleged breaches of the Agreement is, Trinsic says, that Procoll is liable to it in damages for a sum in excess of £7 million representing the profits which Trinsic would have made if the correct amount of compliant collagen had been delivered to it. If Trinsic is wrong about the claim for loss of profits, it advances materially smaller contractual and restitutionary claims in the alternative.

[4]Behind this relatively simple description of proceedings for breach of a contract for the supply of goods lies a wide range of evidential disputes (including allegations on each side that the other’s principal witness had lied both at the time of the relevant events and since to the court) and legal issues (including, in particular, whether Trinsic is precluded from claiming any loss of profits by the terms of the Agreement and, if so, whether those terms are reasonable or otherwise disapplied on the facts).

[5]Trinsic was represented at trial by Mr Lee and Procoll by Mr Pearce-Smith. I am grateful to them for their submissions, both written and oral, and to the parties for the smooth running of the trial. By the conclusion of the evidence at trial, such was the number of matters in issue that the parties had to deal with them at some speed in closing and to rely, in some cases, on the arguments made in their written openings without addressing matters orally. In producing this judgment, I have considered both the points focussed on in the oral closing submissions and, where they are still live, those made in the written arguments. The need to go back through this material to ensure that all relevant points are dealt with has complicated and lengthened the process of producing this judgment.

II The terms of the Agreement

[6]It is convenient to start with the relevant terms of the Agreement as many of the factual and legal disputes which I will come to below are explained or framed by those terms.

[7]The Agreement provided, amongst other things, as follows: 7.1. Recital (B) recorded that Procoll had agreed to supply food grade“Products” – defined so far as relevant for these proceedings as “food grade bovine single alpha chain collagen” - to Trinsic to use only within the “Exclusive Fields” – defined as “food & beverage and nutraceutical markets”. 7.2. Clause 2.1 recorded that the Agreement superseded and served to terminate an “Exclusive Manufacturing, Marketing and Sales Contract” entered into between the parties dated 6 January 2020. It also provided that the parties waived all claims under that original agreement. 7.3. Clause3.1 provided that Trinsic was to have exclusivity of supply of the Product and Procoll warranted that it would not enter into any other agreement for the supply of the Product to a third party in the Exclusive Field during the Term. The precise duration of the Term (as defined in clause 19) depended on when Procoll obtained Food Standards Agency approval but it was at least 20 years from 7 November 2022 (being the Commencement Date). 7.4. Clause

3.2 provided that nothing in the Agreement would preclude Trinsic from purchasing products that were the same as or similar to the Product from any third party. 7.5. Clause 4.4 provided for the purchase by Trinsic of a Minimum Purchase Amount (being 5000 grams) each month. This minimum purchase was to be supplied on a “standing order basis” pursuant to clause 7.1 with the order being made available for collection by Trinsic on the 28th of each month. 7.6. Clause 8 set out the contractual regime for manufacture, quality, testing and pricing of the Product. As clauses 8.3 and 8.8 to 8.11 occupied an important part of the trial, I set them out in full:

“8.3 The Products supplied to [Trinsic] by [Procoll] under this agreement shall: 8.3.1 conform to the Specification; 8.3.2 be fit for any purpose held out by [Procoll], subject to clause 8.10, including being fit for human consumption for not less than 18 months following Delivery in accordance with clause 8.10); 8.3.3 comply with all applicable statutory and regulatory requirements, including the Regulation; and 8.3.4 meet the quality criteria required by the Regulation. […..] 8.8 [Procoll] shall instruct a Product Tester, the identity of which to be agreed between the parties, from time to time and shall ensure that each container of Products is tested by the Product Tester following manufacture of the Product by [Procoll], and prior to delivery of the Product to the Delivery Location on the Delivery Date, to ensure that the Product meets the standards required by the Regulation and this agreement (“Product Testing”). [Procoll] shall provide a copy of all Product Testing results to [Trinsic]. 8.9 [Procoll] shall not sell, and [Trinsic] shall not be permitted to purchase, any Products that have not passed Product Testing. 8.10 Once the Products have been approved by the Product Tester, and have passed Product Testing, the Products shall be deemed to meet the criteria set in clause 8.3. Provided [Trinsic] stores and transports the Product in the manner specified by the Regulation, [Procoll] warrants that all Products that have passed product testing shall be fit for purpose in accordance with clause 8.3.2 and meet the Specification for a period of 18 months following delivery. 8.11 If the Products fail to pass Product Testing, [Procoll] shall, as soon as possible, supply a replacement batch of Product for testing by the Product Tester, which shall be repeated until such time that [Procoll] supplies a batch that passes the Product Testing. If any Order fails to be delivered by the Delivery Date as a result of failure to pass Product Testing (through no fault of [Trinsic]), [Trinsic] may charge [Procoll] a Late Delivery Fee.” 8.3.1 conform to the Specification; 8.3.2 be fit for any purpose held out by [Procoll], subject to clause 8.10, including being fit for human consumption for not less than 18 months following Delivery in accordance with clause 8.10); 8.3.3 comply with all applicable statutory and regulatory requirements, including the Regulation; and 8.3.4 meet the quality criteria required by the Regulation. 7.7. The Specification referred to in Clauses 8.3.1 and 8.10 was defined as “the specification of the Products set out in Schedule 2.”

That Schedule replicated the microbiological criteria and residue criteria set out in Part 3 of the Schedule to the Regulation (the definition of which is set out in paragraph 7.8 below). Importantly for the purposes of these proceedings, for “Total aerobic bacteria” the “Limit” was “10 3/g”. Schedule 2 also provided that “All product to be supplied at a pH level between 7-9”. 7.8. The Regulation referred to in the Agreement (and particularly in clauses 8.3, 8.8 and 8.10) was the Production of Bovine Collagen Intended for Human Consumption in the United Kingdom (Wales) Regulations 2005 as updated from time to time (“the Regulation”). It was common ground that the Regulation had been repealed by the time the Agreement was entered into and had not been replaced by any similar statutory instrument. Indeed, that repeal appears to have happened as far back as 2006. 7.9. Product Tester was defined as “the independent third party instructed by [Procoll] to test that the manufactured Products meet the criteria set by the Regulation.” 7.10. Order was defined as “an order for Products submitted by the Customer in accordance with clause 7 which is in excess of the Minimum Purchase Amount.” 7.11. The Late Delivery Fee referred to in clause 8.10 was defined as “an amount equal to 0.3% of the Product price applicable to the late Product for each day that the Product is late, starting from the day which is 72 hours after the Delivery Date up to a maximum of 10% of the total Product Price applicable to such Product.” 7.12. Clause 9.5 provided that: “…Delivery is completed when [Procoll] places the Products which have passed Product Testing, at [Trinsic’s] disposal at the Delivery Location….” 7.13. Clause 9.8 provided in material part that: “In the event that [Trinsic] does not collect the Products that are subject to an Order or a Standing Order within the timeframe stated in clause 7.1 or 9.1, [Procoll] shall be permitted to delay Delivery Dates and times for any subsequent Orders or Standing Orders by such time equal to the delay of [Trinsic’s] collection of the respective Order or Standing Order and shall not be in breach of this agreement due to such [Trinsic] caused delay ….Notwithstanding this, [Trinsic] shall still be required to make payment for the Orders and Standing Orders in accordance with clause `14.1 and 14.2 on their due date, regardless of whether the Products subject to the Order or Standing Order as applicable, are delayed in accordance with this clause 9.8.” 7.14. Clause 12.1 provided that the prices for Product for the first five years of supply would be as set out in Schedule 1 and that Schedule provided for prices per gram of £6 in year 1, £7 in year 2, £8 in year 3, £9 in year 4, and £10 in year 5. 7.15. Clauses 14.1 and 14.2 provided as follows: “14.1 [Procoll] shall invoice [Trinsic] for each Standing Order or Order on Delivery. Each invoice shall quote the relevant Order Numbers. 14.2 [Trinsic] shall pay invoices in full and in cleared funds within 30 days of the date of Delivery…..” 7.16. Clause 14.5 provided that all amounts due under the Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding. 7.17. Clause 17, dealing with limitation of liability, was also referred to extensively during the trial and is set out in full below (save for clause 17.4 and parts of clause 17.7.2 to which no reference was made): 17.1 References to liability in this clause 17 include every kind of liability arising under or in connection with this agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise. 17.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default. 17.3 Nothing in this clause 17 shall limit a party’s payment obligations under this agreement. 17.4 […] 17.5 Subject to clause 17.3 and 17.4, but excluding losses which arise under clause 16.1 [Procoll’s] total liability to [Trinsic] shall not exceed 100% of the total of the Product Price paid by [Trinsic] to [Procoll] in the 12 Months prior to the claim arising.” 17.6 Subject to clause 17.3 and 17.4, but excluding losses which arise under clause 16.2 [Trinsic’s] total liability to [Procoll] shall not exceed 100% of the total of the Product Price paid by [Trinsic] to [Procoll] in the 12 Months prior to the claim arising.” 17.7 Specific heads of excluded loss and exceptions from them. 17.7.1 Subject to clause 17.2, 17.3 and 17.4 clause 17.7.2 excludes specified types of loss from being claimed. 17.7.2 Types of loss excluded: 17.7.2.1 Loss of profits 17.7.2.2 Loss of sales or business 17.7.2.3 Loss of agreements or contracts […] 17.7.2.6 Loss of or damage to goodwill 17.7.2.7 Indirect or consequential loss” 17.8 The Supplier has given commitments as to compliance of the Products with relevant specifications in clause 8.3. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from this agreement.” 7.18. Clause 20.2 provided that “…[Procoll] may suspend provision of Products under the agreement….if [Trinsic] fails to pay any amount due under this agreement on the due date for payment. 7.19. Clause 27 contained a detailed dispute resolution procedure including a requirement to enter into mediation. I do not know whether this procedure was complied with prior to the commencement of these proceedings, but neither party referred to Clause 27 or took any point relating to it.

[8]Capitalised terms in this judgment are, unless otherwise stated, to those terms as defined in the Agreement.

III The Witnesses

[9]In the course of the trial, I heard evidence from five witnesses of fact and three experts.

[10]The only witness of fact for Trinsic was Mark Newby (“Mr Newby”), the founder of and driving force behind Trinsic. It was clear to me from his evidence that Mr Newby is a forceful individual who had conceived of the idea to use soluble collagen in high-value nutraceutical drinks and who felt he had been badly let down by Procoll. This strength of feeling is illustrated by the fact that, in 2025, Trinsic had instructed solicitors to threaten the directors of Procoll with a private prosecution based on many of the same matters which were ventilated before me. Of more direct relevance to his evidence to me, Mr Newby had to accept in cross-examination that, on various occasions, he had said (or caused things to be said) which were not true. By way of example when negotiating the Agreement in 2022, Trinsic said, through its lawyers, that some research-grade material which had previously been supplied by Procoll had been rejected and disposed of. However, that material (which was not for human consumption) had been mixed into drinks and sold profitably to an overseas customer. This willingness to mislead means that I approach his evidence with a significant degree of caution.

[11]The witnesses of fact for Procoll were: 11.1. Dr Jonathan Widdowson (“Dr Widdowson”), one of the founders of Procoll and a former director. Dr Widdowson, a research scientist at Swansea University had, as part of the research for his PhD, identified a method for the extraction of collagen in a soluble form. Dr Widdowson was cross-examined at some length about the events leading to these proceeding between Procoll and Trinsic and it was put to him, in particular, that he had lied frequently and consistently to the Court about those events and particularly the testing of the collagen which was supplied to Trinsic. As these matters are of central importance to Trinsic’s claims, I will deal with them and make the necessary findings in section V below. 11.2. Dr Christopher Wright (“Dr Wright”), the other founder of Procoll and Dr Widdowson’s PhD supervisor. Dr Wright gave his evidence in a straightforward manner and seemed to me to be seeking to assist the Court albeit that he had only limited involvement in and recollection of the relevant events. 11.3. Mr Edward Snow (“Mr Snow”), one of the current directors of Procoll. Mr Snow had relatively limited involvement in the events of 2023 and his evidence seemed to me to be of largely peripheral relevance to the key issues in the proceedings. Indeed, the majority of his cross-examination concerned interactions with a potential investor in Trinsic in early 2021 and whether or not Mr Snow’s behaviour had played a role in the loss of this potential investor. This was another area of the case which contributed to Mr Newby’s strength of feeling against Procoll but neither party suggested that I needed to make any findings of fact about these events. 11.4. Ms Charlotte Fricker (“Ms Fricker”), a lab technician at Procoll between January and September 2023. She gave evidence about the arrangements for the testing of the Product by Celtic Food Labs (“CFL”), the Product Tester appointed by agreement between the parties. There was very limited cross-examination in relation to her evidence, principally in relation to the testing protocols or methodology applied by CFL. There was no suggestion that I should not accept Ms Fricker’s evidence.

[12]Each of Procoll and Trinsic served expert evidence in microbiology directed in particular at whether or not the collagen supplied by Procoll suffered from reformation properly so called (i.e. aggregations of single alpha chain collagens into clumps) and/or microbial contamination: 12.1. Trinsic’s evidence was from Dr Peter Wareing, a food safety consultant. 12.2. Procoll’s evidence was from Mr Stephen Kershaw.

[13]I am satisfied that both experts were seeking to assist the Court but they were hampered by the fact that they were having to give an opinion about the nature of the reformation without having been able to see or test the relevant batches of Product or to review results for any tests carried out on the reformation at the time. Moreover, other than the evidence from Mr Newby and Dr Widdowson about the nature of the reformation, there was little other evidence for them to rely on other than some sporadic photographs. I deal with the nature of the reformation and the substance of the expert evidence further in paragraphs 194-197 below.

[14]Trinsic also served expert evidence from Mr Gordon Hodgen, an accountant, on the quantification of the loss of profit said to have been suffered by Trinsic. Procoll did not serve any evidence in this field. I deal with Mr Hodgen’s evidence in section VI below.

[15]One issue I should also mention is that both of Trinsic’s experts appeared to have had discussions with Mr Newby in which he provided them with additional information on which they then relied but this information was not, as far as I could see, set out clearly in the expert reports (or in the joint statement in the case of Dr Wareing). This meant that the basis on which the experts had reached their conclusions was not always evident. This was unsatisfactory. If an expert is to be provided with additional factual material or assumptions on which to rely, then it is important that this material is clearly identified both to the other party and the court.

IV The Relevant Events

[16]Prior to the trial, the parties had helpfully agreed a narrative chronology which set out those parts of the relevant events which were agreed. In the following paragraphs I build on that chronology by reference to the events on which particular emphasis was placed at trial and I identify where further findings of fact are necessary.

[17]Procoll was incorporated on 29 September 2018 by Dr Widdowson and Dr Wright, who served as its first two directors. It was a vehicle through which Dr Widdowson and Dr Wright conducted research into manufacturing collagen in various formats, to be scaled for commercial use.

[18]Mr Newby and his partner, Charlotte Nuttall (“Ms Nuttall”), first learned of Dr Widdowson and Procoll in September 2019, when they happened to meet Dr Widdowson’s parents at a beach near Swansea University. Mr Newby and Ms Nuttall learned that Dr Widdowson was an academic at Swansea University, who had managed to develop a new type of collagen.

[19]Mr Newby and Ms Nuttall became interested in the possible commercial applications of the collagen product which Dr Widdowson had developed. Mr Newby reached out to Dr Widdowson via LinkedIn, whereupon Dr Widdowson set up a meeting between Dr Widdowson, Ms Nuttall, Mr Newby, and Dr Wright in October 2019.

[20]Shortly after this initial meeting, on 25 October 2019, Mr Newby caused Trinsic to be incorporated for the purposes of developing health drinks and purchasing the Product.

[21]Trinsic and Procoll entered into a contract for the manufacturing, marketing and sale of bovine single alpha chain collagen, dated 6 January 2020 (the “OriginalAgreement”). Neither party formally instructed lawyers to represent them in negotiating the terms of the Original Agreement, and it was drafted with the assistance of a friend of Mr Newby. Neither party referred to the detail of the Original Agreement at the trial although it formed a relevant part of the background to the Agreement.

[22]The Covid-19 pandemic and the resulting lockdowns began shortly after the Original Agreement was signed. There was also a fire in the laboratory which Procoll was using at Swansea University. As a result, the first deliveries due under the Original Agreement were delayed for nearly a year. Procoll’s production only properly restarted in early 2021. In or around March or April 2021, 1kg of research-grade ovine collagen was supplied to Trinsic.

[23]Some attention was given by the parties at the trial to events in the first quarter of 2021 when Trinsic was seeking investment and, to this end, both Trinsic and Procoll participated in calls and e-mail exchanges with one potential investor, Conan Capital. The principal disputes between the parties in relation to these events appeared to be whether or not Mr Snow had acted appropriately during a video call with the investor (when he said that the Original Agreement was over) and the extent to which Procoll and Dr Widdowson in particular had been involved in and knew of Conan Capital’s interest in other forms of collagen which might be developed. However, neither side invited me to, nor said that I had to, resolve these disputes in order to deal with the issues in the proceedings.

[24]A dispute then emerged between the parties about each party’s alleged non-compliance with the Original Agreement. On 25 February 2022, Taylor Wessing LLP, acting on behalf of Trinsic, sent a pre-action letter to GS Verde Law, acting on behalf of Procoll, alleging various breaches of the Original Agreement. This letter also asserted that the parties remained bound by the Original Agreement and that Trinsic would seek both specific performance of Procoll’s obligations under that Agreement and damages in excess of £4.7 million made up of ongoing loss of profits estimated of at least £3.5 million and loss of investment of approximately £1.2 million from Conan Capital.

[25]The parties ultimately agreed to settle the dispute on terms that they would enter into a new contract for the supply of collagen. The parties agreed heads of terms dated 30 June 2022 and negotiations then followed. An initial draft agreement was prepared by Taylor Wessing LLP but GS Verde Law did not consider that the draft was appropriate and drafted what was, in effect, a completely revised version which then formed the basis of the substantive negotiations. I will need to consider these negotiations in the context of Trinsic’s argument that certain of the final provisions of the Agreement are unreasonable and therefore ineffective within the terms of the Unreasonable Contract Terms Act 1977 (“UCTA”).

[26]The parties agreed, in the course of those negotiations, to include the specific microbiological standards which Procoll’s Product should meet. Dr Widdowson proposed the use of specifications contained in the Regulation, which was adopted by the parties and incorporated into the Agreement. As I have referred to in paragraph 7.8 above, the Regulation had long been repealed by this time although it does not appear that the parties were aware of this.

[27]The Agreement was executed on 7 November 2022. I have set out the material terms in section II above. With the agreement of Trinsic, Procoll appointed CFL to carry out the Product Testing envisaged by clause 8 of the Agreement.

[28]On 13 February 2023, whilst Procoll were still awaiting final approval from Neath Port Talbot Council (“NPT”) to commence production, Trinsic collected a further batch of research-grade Product.

[29]Conditional approval from NPT was received on 28 February 2023 and the first batch of food-grade Product was supplied and collected on 23 March 2023 (the “March Order”).The Agreement provided (in paragraph 4 of Schedule 1) that Procoll would supply an additional 1kg of Product free of charge with the first order. The contemporaneous documents (including the WhatsApp exchanges referred to below and an internal Procoll management update) confirm that the March Order consisted of 5kg under the standing order and the additional free 1kg of Product. Mr Newby accepted in cross-examination that this additional 1kg was received because Trinsic had said that it had not been able to use the original 1kg supplied in April 2021, but this was not true. The 6kg in the March Order was provided in six 5-litre containers each containing 1kg of collagen.

[30]A sample of the March Order was delivered to CFL for testing on 25 March 2023. It was common ground that Procoll supplied and Trinsic took delivery of the March Order before the Product Testing provided for in clause 8 of the Agreement had been completed. WhatsApp exchanges between Dr Widdowson and Mr Newby on 22 and 23 March 2023 show that both parties were aware that Trinsic planned to use the Product immediately as Mr Newby said that “we plan to run late tomorrow night [i.e. 23 March] to get the product out to customers by courier Friday am; that the external lab results would not be available at that point as Dr Widdowson said “Good to get it into final product bottles ready to ship, but I strongly recommend waiting until the external lab results come back before shipping to customers”; and that the test results were expected to take 2-3 working days although up to 10 working days had been mentioned for some tests.

[31]After collecting the March Order, Trinsic carried out a production run of its nutraceutical drinks towards the end of March 2023 and commenced supply to its customers. There was some confusion in Mr Newby’s evidence about precisely how much of the March Order was used in this production run. His witness statement said (at paragraph 45) that three containers were used so 15 litres of liquid (or c.2.5kg of Product). However, he had to correct this figure at the start of his evidence to the effect that the March production run used one full container plus 2-3 litres from another. This corrected detail was broadly consistent with Trinsic’s internal production documents which recorded that 5,500 bottles (each holding 60ml of liquid including 255mg of collagen) were made using 8.451 litres of Product. These bottles were labelled as “Sport Elite”.

[32]Procoll received the microbial result for the March Order (but not the residue test result) from CFL on 6 April 2023. The test returned a total aerobic colony count (or “TACC”)of 6,900 cfu/g (colony forming units per gram). It was common ground at the trial that this result exceeded the 10 3 cfu/g standard stipulated in the Regulation and the Agreement. However, there was a separate (and important) issue about whether Dr Widdowson knew that this result was outside the parameters laid down by the Regulation and the Agreement. Dr Widdowson’s evidence was that he did not know.

[33]Pausing there, the question of whether I accept Dr Widdowson’s evidence as to the state of his knowledge about the meaning of “10 3/g” and its impact on his understanding of the results for the March Order was the first of a number of issues where it was alleged by Trinsic that Dr Widdowson had been dishonest. While I will have to make findings about each of the allegations, particularly in relation to the issue of “deliberate default” referred to in paragraphs 148-179 below, it is useful at this stage to note that they formed part of a wider case theory advanced by Trinsic in which Dr Widdowson appreciated from the microbial result relating to the March Order that the Product had failed product testing and, more generally, that Procoll was producing a product which was microbially unstable.

[34]Trinsic said that, in order to cover this up, Dr Widdowson engaged in a dishonest plan to try to hide this fact from Trinsic. This dishonesty by Dr Widdowson in 2023 was then compounded by his evidence at the trial. The case advanced by Trinsic included that Dr Widdowson: 34.1. Knew from April 2023 that the microbial limit in the Specification for the Product was 1000 cfu/g; 34.2. Knew, when he saw the test result for the March Order, that that Order had failed product testing because the microbial TACC was above 1000; 34.3. Sought out a “random website” on Google to create ambiguity rather than speaking to Danielle Evans (the CEO at CFL) or Mr Newby about the results for the March Order; 34.4. Sought comfort from Mr Huw Jones (“Mr Jones”) at the NPT Environmental Health team about the results using a technical argument which he knew that Mr Jones would not understand; 34.5. Gave an express instruction to CFL that the Product should only be tested “neat” in order that the largest microbial result which would be reported would be 300; 34.6. Deliberately failed to provide Trinsic with the microbial test results for the March Order; and 34.7. Misled Mr Daniel Court (“Mr Court”) also from NPT Environmental Health team about the results for the April Order.

[35]Given the way that the various strands of this case are said to fit together into an overall package, it seems to me to preferable to set out the relevant events and evidence below but to reach a conclusion about Dr Widdowson’s motivations and state of mind (and to make any necessary findings of fact about disputed events) in section V below where I analyse the claims made by Trinsic to which these allegations are relevant.

[36]On 11 April 2023, Dr Widdowson emailed Dr Wright referring to the ISO standards for aerobic colony count testing and later that day sent an email to Mr Jones, an officer working for the NPT’s Environmental Health team. In this latter email, he stated that the March Order had returned a microbial result with a TACC of 6,900 cfu/g, and asked for clarification as to whether this fell within the limit stipulated by the Regulation in the following terms: “We have had the sample report back, but the regulation we follow for bovine collagen (schedule attached) is a little ambiguous in parts, and I am hoping your experience in this area can help. The CoA from Celtic Food Laboratories has the aerobic colony count result of 6900 Cfu/g (6.9 x10 3) and the legislation states in part 3 the limit is 10 3/g. Can you clarify if this is within this limit? If it was 1x10 3 it would be 1000, but as it is just 10 3it would seem to suggest that the value within the 10 3range is acceptable given the legislation doesn’t say less than. This is based on my understanding when looking at government documents such as the attached, where we seem to be closest to category 3 Cooked foods chilled but with minimum handling prior to sale or consumption; canned pasteurised foods requiring refrigeration. Where the limit is indicated as <10 4i.e. any value 10 3 or lower. This seems to be in line with information from sites such as https://techni-k.co.uk/inspection-testing/log-cfu/#A_log_result. Where they explain that a value such as 1600 would be classified as 10 3. Further, the lab results have the other items in the regulation – coliforms, Escherichia coli B- Glucuronidase +ve Coagulase +ve Staphylococci inc S. aureus, Clostridium perfringens as <10 or <20 CFU. After contacting Celtic food labs, they have said that there was not growth seen, but the UKAS ISO standard test uses a 1/10 or 1/20 dilution and this means they cannot give a 0 value (unless they run neat). While we will specifically be asking for neat testing going forward, I want to ask whether these values are acceptable here, given the context of no growth on their test sample and against the way in which these seem to usually be reported in the attached guideline.”.

[37]Dr Widdowson sent a chasing email on 17 April 2023.

[38]Dr Widdowson’s evidence was that he had a telephone call with Mr Jones on either 25 or 26 April 2023, in which Mr Jones confirmed that a result of 6,900 cfu/g fell within the scope of the Regulation. The high point of Trinsic’s case in its opening written argument was that it would show at the trial that “this alleged conversation with Mr Jones is a fabrication” in the sense that it never even happened. However, in its closing submissions, Trinsic did not contend that the call did not take place but asked me to find that Dr Widdowson’s account of the call was unreliable and false and that Mr Jones did not give an unequivocal assurance.

[39]By an email dated 26 April 2023, Mr Newby arranged to collect a further 5kg of Product on 28 April 2023.

[40]Dr Widdowson emailed Mr Newby on 27 April 2023 saying that “We have confirmation from EH [Environmental Health] that the testing carried out by Celtic Food Laboratories is correct and all good to go for the 1st batch” (original emphasis). However, the result for the March Order was not sent to Trinsic at this point (or indeed at any point until 30 July 2024).

[41]Also on 27 April 2023, Ms Fricker emailed CFL seeking confirmation that a second sample could be dropped off for testing on 28 April and asking, “in future, could the microbial tests please be done neat to get a parameter limit ˃1 as previously agreed on.”

[42]The second 5kg batch of Product was produced by Procoll and collected by Trinsic on 28 April 2023 (the “April Order”). The Product supplied in this Order (as with all subsequent orders) was in a less concentrated form than the March Order and consisted of 5kg of collagen in eight 5-litre containers and one container with 1.7 litres (for a total of 41.7 litres at 0.6kg per 5-litre container). Procoll sent a sample from the April Order for testing by CFL on 28 April 2023. It received the microbial results for the April Order on 8 May 2023. The result recorded a TACC of “>300 CFU/g”.

[43]Dr Widdowson’s evidence was that, having received a result of >300 cfu/g, he telephoned CFL’s CEO, Ms Danielle Evans (“Ms Evans”), to discuss and understand these results and that he was told by Ms Evans that where a neat plate was full, but subsequent dilutions were “0”, then they would report a >300 figure. Trinsic contended that Dr Widdowson was lying about the alleged conversation with Ms Evans.

[44]On 8 May 2023, Dr Widdowson sent an email to Mr Court at NPT which included the following:

“We have had a second batch set of results from Celtic Food Labs, which is after implementing the inline water filter for the purification tank, and the results seem much more in line with what we would expect. 300 CFU/g (See attached). Annoyingly CFL are still ignoring our request to test neat to ensure a 0 result but the <1 / <2 values on other tests indicate no growth, but they are diluting the samples prior to carrying out the test (as per their SOPs). Our ATP swab testing is also coming back as 0 RLU on all cleaned pipework / bottles. We ran a test against the door handle, bottom of shoe etc, to ensure that the machine can give a positive result (this was 70 RLU!) so this is also promising that the cleaning protocols are working well….”

[45]A copy of the microbial result for the April Order was sent to Trinsic on 13 October 2023. Prior to that point, Trinsic was not informed that TACC on the April Order was >300 cfu/g.

[46]The residue test result for the March Order was sent by CFL to Procoll on 10 May 2023.

[47]By an email dated 23 May 2023, Mr Newby arranged to collect a further 5kg of Product on 26 May 2023. The third 5kg batch of Product was produced by Procoll on 23 May 2023 and collected by Trinsic on 26 May 2023 (the “May Order”). CFL sent the microbial result for the May Order to Procoll on 30 May 2023. This returned a TACC of 30 cfu/g.

[48]By email dated 2 June 2023, Mr Widdowson sent the microbial result for the May Order to Mr Newby along with the residues test result for the March Order. However, he did not attach the microbial result for the March Order. It was said that this was deliberate on Dr Widdowson’s part and I deal with this below. However, this email also generated some additional evidence from Mr Newby which I will also have to consider. He said during cross-examination that Dr Widdowson had told him that the microbial result which was, on its face, for the May Order was, in fact, for the March Order because CFL had lost the original sample and tested a further sample from that Order in May.

[49]By email dated 22 June 2023, Mr Newby contacted Dr Widdowson to arrange a collection of a further 5kg of Product on 7 July 2023. The fourth batch of Product was produced by Procoll on 6 July 2023 and collected by Trinsic on 7 July 2023 (the “July Order”). A sample from the July Order was sent to CFL for testing on 6 July 2023. The Microbial and Residue Results were ready by 14 July 2023 and 26 July 2023 respectively, and were sent by CFL to Dr Widdowson by email dated 26 July 2023. The microbial result returned a TACC of <1 cfu/g. A copy of the microbial result for the July Order was sent by Dr Widdowson to Mr Newby on 13 October 2023.

[50]Trinsic commenced a second production run of its drinks in July 2023, shortly after collecting the July Order. On 13 July 2023, Mr Newby contacted Dr Widdowson by WhatsApp, informing him that “we are doing a production run and we have that spiders web effect of stuff in the product is that because its reforming” and that this was “only in one of the March containers”. Mr Newby asked if it was “OK to use”. Dr Widdowson replied that, if there was any concern, to leave the single container aside. Mr Newby stated that he would leave the container aside and return it to Procoll when collecting the next order.

[51]Trinsic further contends that it carried out a check of the remaining containers of Product which it received to date and did not detect any similar such reformation. Therefore, Trinsic set aside the container with the reformation, and continued its production run. There was again some confusion in Mr Newby’s evidence about precisely which Orders were used in the July production run. His witness statement said (in paragraph 48) that the run was done using Product from “other Orders” i.e. not the March Order but at the start of his evidence he corrected this to say that the July production run used three full containers and one partial container from the March Order.

[52]There was also a factual dispute about whether or not the container from the March Order which contained the reformation was a full (and so unused) container or a partially used container (and so most likely the container which was partially used in the March production run). I deal with this dispute in paragraphs 185-186 below.

[53]The fifth 5kg batch of Product was produced by Procoll on 28 July 2023 and collected by Trinsic on 1 August 2023 (the “August Order”).At the same time, Mr Newby also returned the container from the March Order which contained the alleged reformation. The documents which accompanied the August Order as well as the Trinsic “Goods in” record” refer to 46.7 litres of Product (or 5.6kg of collagen) in this Order. This was because Procoll supplied an extra 5-litre container to replace the one from the March Order returned by Mr Newby.

[54]A sample from the August Order was sent to CFL for testing on 28 July 2023. The microbial result, dated 9 August 2023, returned a TACC of >300 cfu/g, and was sent to Procoll by CFL on 20 September 2023. This microbial result was later forwarded to Mr Newby on 13 October 2023.

[55]The sixth 5kg batch of Product was produced by Procoll on 31 August and collected by Trinsic on 8 September 2023 (the “September Order”). A sample from the September Order was sent to CFL for testing on 31 August 2023. The microbial result, dated 8 September 2023, returned a TACC of >300 cfu/g, and was sent to Procoll by email dated 8 September 2023. The microbial result for the September Order was later forwarded to Mr Newby on 13 October 2023.

[56]On 4 October 2023, Trinsic was planning to carry out a further production run. Trinsic said that in the course of carrying out an inspection on the Product they initially detected reformation in Product from the April and May Orders before later detecting that, in fact, similar reformation was discovered in every batch of Product received apart from the research grade batch supplied in February. Mr Newby contacted Dr Widdowson on the same day by email, notifying him of the reformation which had occurred in the April and May Orders. Dr Widdowson replied asking which batch numbers were affected, and stating that “We need to get a plan to prevent this from happening clearly”. Mr Newby replied to this shortly afterwards, stating that in fact “It’s every batch with the exception of the research grade”. He also stated that he would return all Product with reformation in it to Procoll.

[57]On 10 October 2023, Mr Newby drove to Procoll’s premises to return 37 x 5L containers of the Product, as well as 1 x 1.7L container. Trinsic said that this returned product represented part of the April, May and July Orders (some of which had been used in the previous production run in July) as well as all of the August and September Orders. At the same time, Mr Newby also collected a half-batch of the Product produced by Procoll on 5 October (the “October Order”), Trinsic having decided that they would not commit to a full order given the reformation issues identified. Trinsic paid half of the invoice for the October Order (so £15,000). Part of the October Order was used by Trinsic to manufacture a test run of equine drinks.

[58]A sample from the October Order was sent to CFL for testing on 10 October 2023.

[59]Mr Newby sent an email to Dr Widdowson dated 12 October 2023 setting out his concerns about the Product. In reply, Dr Widdowson sent copies of the microbial results for the April, May, July, August and September Orders, as well as the Residue Results for the April, May, July, and August Orders. The microbial result for the March Order was not attached to this email.

[60]Trinsic arranged to have a sample from the October Order tested by a different testing house, Precision. Precision sent an email to Mr Newby on 14 October 2023, stating that the sample from the October Order had a TACC of 2,900 CFU/g. On the same day, Mr Newby informed Dr Widdowson of this result, stating that the results had “come back at 2,900cfu/ML which is way over the permitted legislation.” Dr Widdowson replied on the same day, stating that: “That is unusual, and annoying that we are still awaiting our testing from CFL to check against. … If it is indeed 2900 CFU/ml then do not use and we will discuss getting you a replacement ASAP. I will chase CFL our end to see what their result is also”.

[61]After this exchange of emails with Mr Newby, Dr Widdowson sent an email to CFL chasing for the microbial result for the October Order. This was sent to Procoll by email dated 15 October. The microbial result, dated 15 October 2023, returned a TACC of >300 CFU/g.

[62]Dr Widdowson sent the microbial result for the October Order to Mr Newby by email dated 15 October 2023, stating in the covering email that “The CFU for aerobic colony count is well within levels”, and questioning if the fault lay with the temperature procedures or equipment which Trinsic was using. Mr Newby replied stating that he agreed something was awry, but was confident that there were no issues with storage or temperature control, and proposing that he take a sample from the remaining three containers provided in the October Order and have them tested.

[63]In the days following receipt of the microbial results for the October Order, both Trinsic and Procoll instructed further tests on the Product: 63.1. On 17 October 2023, Trinsic sent samples from the October Order for testing with CFL. Mr Newby sent a follow-up email to CFL, dated 19 October 2023, stating that Trinsic would like the October Order samples “tested as per the test you perform for Procoll”, and requesting confirmation of the process used to test the collagen. 63.2. On 18 October 2023, Procoll also sent samples to CFL for testing limited to the TACC on each sample only. The submission form attached indicates that there were five samples from the October Order, and one sample from the September Order. Dr Widdowson’s evidence was that the five samples had been left at room temperature for 24h prior to being sent to CFL. Trinsic did not accept this. 63.3. Thereafter, on 25 October 2023, Procoll sent another sample from the October Order. Dr Widdowson explicitly instructed CFL that Procoll “only want Total aerobic bacteria (10^3/g) TESTED NEAT for this sample please.” Dr Widdowson’s evidence was that this sample had been left out at room temperature for one week. Trinsic did not accept this.

[64]The results for Procoll’s tests came back as follows: 64.1. The microbial results for the samples sent by Procoll on 18 October 2023 were dated 23 October 2023, and they returned TACCs for each sample of >30,000 cfu/g. 64.2. The microbial result for the sample sent by Procoll on 25 October 2023 were dated 30 October 2023, and it returned a TACC of >300,000 cfu/g.

[65]Neither of these sets of results was sent to Trinsic by Procoll.

[66]The sample sent by Trinsic to CFL on 17 October 2023 was tested on 23 October 2023. The microbial result, dated 30 October 2023, was sent to Trinsic on the same date. This returned a test result of >300 cfu/g.

[67]On 3 November 2023, Trinsic sent one more 60ml sample of blended Product from the October Order to CFL for testing. The microbial result for this sample returned a TACC of >30,000 cfu/g, and was sent to Trinsic on 8 November 2023. On 10 November 2023, Mr Newby sent an email to Dr Widdowson, attaching this microbial result, and proposing a meeting to discuss matters.

[68]The eighth 5kg batch of Product was produced by Procoll on 9 November and collected by Trinsic on 11 November 2023 (the “November Order”). The invoice for the November Order was dated the same day but was never paid by Trinsic. The November Order was used in part by Trinsic to manufacture 1000 bottles of equine drinks.

[69]On 11 November 2023, Procoll sent further samples of Product from the November Order, and one sample from each of the April, May and August Orders (which Dr Widdowson stated came from material which Trinsic returned on 10 October 2023) to CFL for testing. The microbial results for the November Order sample returned a TACC of <10 CFU/g. The microbial results for the returned April, May and August Orders returned TACCs of >30,000 cfu/g. These microbial results were sent to Procoll on 16 November 2023.

[70]On 20 November 2023, Mr Newby sent an email to Dr Widdowson summarising the tests that Trinsic had done to date, and requesting a copy of each month’s test certificates. Mr Newby also confirmed that “following your advice not to return the product we collected on [10] October, if faulty, we have disposed of it…” indicating that Trinsic had disposed of the entire October Order. Mr Newby did not reveal at this stage that the October Order, or at least part of it, had been used to make a test batch of an equine product as referred to above.

[71]Dr Widdowson replied on 21 November 2023, attaching a copy of the microbial results for(i) the October Order, dated 15 October 2023, which returned a result of >300 CFU/g;

(ii) the July Order, dated 14 July 2023, which returned a TACC of <1 CFU/g;

(iii) the November Order, dated 16 November 2023, which returned a TACC of <10 CFU/g; and the April Order, dated 16 November 2023, which returned a result of >30,000 CFU/g. Dr Widdowson summarised the test results in his email.

[72]The parties continued, over the course of November and December 2023, to carry out more tests on the Product: 72.1. On 23 November 2023, Trinsic sent a sample from the November Order to Precision for further testing. Precision sent the microbial result by email dated 27 November 2023, and later followed with a formal certificate of analysis dated 29 November 2023, which returned a TACC of 1,300 cfu/g. 72.2. On 24 November 2023, Dr Widdowson sent a sample of Product from the November Order to CFL for further testing. Dr Widdowson states that these samples had been exposed to various different conditions, such as being left at room temperature, or in a refrigerator with no lid. The microbial result for this sample was sent to Procoll on 29 November 2023, and it returned a TACC of 30,000 cfu/g. 72.3. Three additional samples were sent to CFL on 1 December 2023 for testing, but it is not clear if they were ever tested, since no microbial result for such samples were provided by CFL to Procoll.

[73]On 5 December 2023, Mr Newby sent an email to Dr Widdowson explaining his reservations about the excess TACC in the Product supplied by Procoll to date (focusing in particular on the October Order), and requesting an investigation into the root causes of the excess TACC. Dr Widdowson replied formally on 20 December 2023, stating, amongst other things, that they had hoped to ask CFL to confirm exactly what they have tested, and whether they were not carrying out testing to specification, but that Ms Evans had unfortunately died in an explosion that occurred at CFL’s industrial site.

[74]On 3 January 2024, Dr Widdowson sent an email to Mr Newby, explaining the results of some internal testing that had been done by Procoll, and that Procoll had appointed a testing lab called Minton Treharn and Davies (“MTD”) to replace CFL. The email also said that there was(a) reprocessed material from the April, May and July Orders ready for collection with the July and September Orders being “unopened material, awaiting reprocessing” and

(b) 9 bottles manufactured in November which were “due for collection end Nov”. Item (b) appeared to be a reference to the Product which would have constituted the next Standing Order in December 2023.

[75]On 21 January 2024, Mr Newby sent an email to Dr Widdowson complaining that reformation had now occurred in the October Order and November Order.

[76]On 8 February 2024, Procoll and Trinsic met to discuss the issues Trinsic were facing with the Product. They agreed that the parties would arrange for further testing from two different testing houses, Precision and MTD. It was also agreed that the testing would be done both on samples from Product retained by Procoll, and Product returned by Trinsic. Therefore, on 4 March 2024, Mr Newby returned 1 x 1L container of research-grade collagen collected in February 2023, 3 x 5L containers of Product from the October Order, and 2 x 5L containers of Product from the November Order.

[77]15 samples of Product were tested in total, and the microbial results sent to Procoll on 11 March 2024. The microbial results, as well as a table summarising these results, were sent to Trinsic under cover of an email dated 14 March 2024. The table of results collated by Procoll indicated as follows: 77.1. Samples 1 – 2, 5 – 6 and 14 were from such of the November Order as was retained at the Procoll site. They respectively had TACCs of <10, <10, <1, <1 and <10 cfu/g. 77.2. Samples 3 – 4, and 7 – 8 were from such of the November Order as was collected and returned by Trinsic. They respectively had TACCs of 12, 34,000, 20 and <1 cfu/g. 77.3. Samples 9 – 12 were from such of the October Order was collected and returned by Trinsic. They respectively had TACCs of 2,900, 1,300, 220 and 97 cfu/g. 77.4. Sample 13 was from the February 2023 container of research-grade material returned by Trinsic. It had a TACC of 640,000 cfu/g. 77.5. Sample 15 was said to have come from “Reprocessed May – July Batches, Retained at ProColl Site since January”. It had a TACC of <10 cfu/g. There was a dispute about trial as to whether all of the Product returned by Trinsic to Procoll had been reprocessed and as to the origin of this sample (and particularly whether it included reprocessed material from the April and September Orders).

[78]The covering email from Dr Widdowson to Mr Newby stated: “The material previously returned to Procoll for reprocessing is ready for collection and can be collected alongside the next collection [on] the week of 25th March. The batch results for this can be found as MTC sample 15”.

[79]The reprocessed material, which had a colony court of <10 under the testing by MTD, was not collected by Trinsic. Further, Product which, according to Procoll (but disputed by Trinsic), was due to be collected in December 2023 was also not collected. Indeed, no further Product was collected after the November Order.

[80]Mr Newby replied to Dr Widdowson’s email of 14 March 2024 on 25 March 2024. Mr Newby continued, in this email, to ask why it was that the collagen was reforming, and seeking copies of all previous test results from CFL.

[81]On 4 April 2024, Trinsic instructed Precision to carry out a further test on a sample of the Product from the November Order. The microbial result was sent to Ms Nuttall on 9 April 2024, and the sample had a TACC of 880 cfu/ml. Mr Newby sent Dr Widdowson this test result on 22 April 2024, and offered a meeting at Trinsic’s manufacturing site. Thereafter, on 3 and 9 May 2024, Mr Newby continued to email Dr Widdowson, reiterating his offers to purchase a new batch of Product, as well as make a payment on account to ease with Procoll’s cashflow issues.

[82]Around the same time, Procoll consulted an insolvency practitioner via which Trinsic made an open offer to purchase Procoll by way of a share sale for the sum of £50,000. Part of Procoll’s case theory was that, from about October 2023, Trinsic had adopted a strategy of seeking to starve Procoll of cash in order to force it into insolvency which would enable Trinsic to purchase the intellectual property rights underlying the Product.

[83]In June 2024, both parties sent each other a formal claim. Procoll (through its then solicitors GS Verde Law) claimed payment of debts said to be due under the Agreement from Trinsic including both the amounts unpaid on the invoices for the October and November Orders and the cost of the Minimum Purchase Amounts from December 2023 onwards. Trinsic alleged breach of contract and claimed a refund of £172,000. As far as I am aware, neither side said at this stage that the Agreement was over or purported to terminate it.

[84]The parties were unable to agree a resolution, and in September 2024, Trinsic issued these proceedings.

[85]On 18 February 2025, the then directors of Procoll (including Dr Widdowson and Dr Wright) received a lengthy letter from Edmonds Marshall McMahon, a firm instructed by Trinsic to conduct a criminal investigation. The letter invited the recipients to attend an interview in connection with a potential private prosecution against Procoll and its directors for conspiracy to defraud Trinsic.

V Trinsic’s claims

(i) Summary

[86]At trial Trinsic advanced a range of claims in relation to the Orders of Product which it received from Procoll and which I have described in section IV above. These claims fell into two broad categories, those relating to Product Testing and those relating to fitness for purpose.

[87]As regards Product Testing, Trinsic said that: 87.1. Each of the March, October and November Orders failed to pass Product Testing because they had a TACC above the contractual Specification. As a result, Procoll ought to have delivered a compliant batch of Product in respect of those Orders pursuant to clause 8.11 of the Agreement but, in breach of the Agreement, did not do so. 87.2. Each of the April to November Orders was not subject to valid Product Testing because the testing methodology for all of these Orders was not appropriate and therefore those Orders were not tested to the standard required by clause 8.8 of the Agreement. This claim applied both to the May, July, and November Orders where the TACC results provided by CFL were, on their face, within the Specification and the April, August, September, and October Orders where the TACC figure in each case – “>300” – did not indicate whether it was above or below the limit set out in the Specification.

[88]As regards fitness for purpose, Trinsic said that Product from the March to September Orders which it did not use was subject to “reformation”, a general term which Trinsic uses to describe the process by which a substance formed in the Product rendering it (according to Trinsic) unusable and therefore unfit for purpose within both clauses 8.3 and 8.10 of the Agreement and the terms implied by sections 14(2) and 14(2B) of the Sale of Goods Act 1979 (“SOGA”). There was considerable debate at the trial as to whether or not the substance in the Product was either (in layman’s terms) collagen reforming into clumps or microbial growth. Trinsic’s position was that it did not matter which it was or which party had caused the reformation.

[89]The primary remedy which Trinsic sought in respect of each of these claims was the profits which it said that it lost by reason of not having compliant batches of Product. These profits were quantified in its supplemental expert evidence at either £8,281,680 or £7,181,538 depending on how much replacement Product it should have received. There was no other claim for damages, for example by reference to the difference between the value of the Product received and the value warranted or price paid.

[90]Trinsic also advanced alternative remedies for(a) £7,440 in Late Delivery Fees under the Agreement and/or

(b) £149,940 being the price for the Product which it was not able to use due to the reformation which it claimed on restitutionary grounds.

[91]Procoll’s response to the Product Testing claims was that: 91.1. The TACC figures for the May, July, and November Orders satisfied the Specification and so there was no breach of the Agreement as regards Product Testing for these Orders. 91.2. Although the March Order did not pass Product Testing prior to delivery, it was accepted and the majority of it was used profitably by Trinsic. Further, a replacement container (containing 0.6kg of collagen) was provided for the one container from the March Order which suffered from reformation. As such, Trinsic was not entitled to rely on the provisions of clause 8.11 of the Agreement to claim a new 5kg batch of Product to replace the March Order. 91.3. The April, August, September, and October Orders (where the TACC was “>300”) passed Product Testing on the basis of the test results from CFL coupled with an explanation given to Dr Widdowson by Ms Evans. 91.4. Any claim under clause 8.11 was limited to a Late Delivery Fee. 91.5. Insofar as Procoll was obliged to deliver replacement batches of Product to Trinsic pursuant to clause 8.11 of the Agreement, that obligation was suspended pursuant to clause 20.2 of the Agreement because Trinsic failed to pay for the October and November Orders.

[92]Procoll’s response to the fitness for purpose claims, was that: 92.1. The reformation relied on by Trinsic was irrelevant particularly where Orders passed Product Testing as there could be no breach of clause 8.3 (relating to fitness for purpose) because of deemed compliance with that clause (under clause 8.10). 92.2. The terms which would otherwise be implied by SOGA were excluded by clause 17.8 of the Agreement. 92.3. Any reformation was caused by the way in which Trinsic handled, transported and stored the Product.

[93]As regards remedy, Procoll said that claims for loss of profits (whether based on Product Testing or fitness for purpose) were barred by clauses 17.5 and 17.7.2 of the Agreement and that, in any event, any loss which Trinsic suffered was its own fault as it refused to take supply of replacement Product from Procoll in late 2023/early 2024 or because it failed to take steps to mitigate its loss.

[94]In response to Procoll’s reliance on the exclusion/limitation clauses in the Agreement, Trinsic said that: 94.1. The claims in respect of the Product Testing (but not fitness for purpose) arose from “deliberate default” by Procoll within the terms of clause 17.2 of the Agreement and so lost profits could be recovered on those claims. 94.2. The package of limitation clauses in clause 17 of the Agreement – namely the exclusion of the statutory implied terms as to fitness for purpose, the exclusion of claims for loss of profits, and the contractual cap on the amounts recoverable under the Agreement - were unreasonable and so ineffective by reason of UCTA. As such, lost profits could also be recovered on the claims related to fitness for purpose.

[95]It will be apparent even from this brief summary of the parties’ respective contentions that, for some Orders at least, there were multiple different and overlapping claims, and that the complexity in Trinsic’s claims was driven by the desire to bring some claims within clause 8.11 of the Agreement and the need to deal with the contractual exclusion/limitation clauses in the Agreement. The latter presented it with an obvious impediment to the most substantial of its claims, those for loss of profits. (ii). Claims relating to Product Testing

[96]In order to determine Trinsic’s claims relating to Product Testing, I have to consider the following points in particular: 96.1. Did the various Orders satisfy the Specification in the sense that they returned TACC figures at or below 1000 cfu/g and/or did they pass Product Testing? 96.2. More generally, did Procoll carry out valid Product Testing? 96.3. If not, in either case what were the consequences of that? In particular, was Procoll obliged by clause 8.11 to deliver a replacement batch of Product in respect of any of the Orders? 96.4. If Procoll was in breach of the Agreement in relation to Product Testing, is Trinsic’s claim limited to the Late Delivery Fee or can it also seek to claim loss of profits? 96.5. If the latter, was such a claim barred by clause 17 of the Agreement or was there “deliberate default” by Procoll within the terms of clause 17.2 of the Agreement?

[97]Pausing there, one oddity with the claims in relation to Product Testing is that the parties (and Procoll in particular) did not conduct themselves by reference to the regime for Product Testing set out in detail in clause 8 of the Agreement. That regime envisaged and was premised on the fact that only Product which had passed product testing “and had been approved by the Product Tester” would be delivered by Procoll to Trinsic. Indeed, clause 8.9 provided expressly that Procoll was not to sell and Trinsic was not permitted to purchase Product which had not pass Product Testing, and the provisions for delivery also referred expressly to Procoll making available Product which had “passed Product Testing” (see clause 9.5).

[98]Given these provisions, the role of clause 8.11 becomes clear – if a batch of Product failed Product Testing it could not be delivered and so, to ensure that Trinsic would get some Product, Procoll was obliged to supply a further batch (or batches) for testing until a batch did pass Product Testing and so could be delivered. Clause 8.11 does not contemplate the situation in which Product was delivered and used but test results were obtained later.

[99]However, from the first Order in March 2023, the Orders were picked up by Trinsic from Procoll’s premises before any test results had been received (and in some cases before or at the same time as samples were sent to CFL for testing). By way of example: 99.1. The March Order was produced by Procoll and collected by Trinsic on 23 March 2023. A sample was sent for testing on 25 March 2023 and the results were dated 6 April 2023 (for microbial testing) and 10 May 2023 (for residues). 99.2. The April Order was produced and collected, and a sample was sent for testing on 28 April 2023. The testing results were dated 8 May 2023 (for microbial testing) and 26 July 2023 (for residues). 99.3. The May Order was produced and a sample sent for testing on 23 May 2023. That Order was collected by Trinsic on 26 May 2023. The testing results were dated 30 May 2023 (for microbial testing) and 26 July 2023 (for residues).

[100]Indeed, as I understand it, there was no Order where delivery took place after the relevant Product had both been tested and the results were available to show that the Specification had been met in full.

[101]On the face of it therefore, the Product Testing regime was not followed for any Order and it might have been said by Trinsic that the breach of the Agreement consisted, for each Order, of a breach of clauses 8.8/8.9 of the Agreement without the need to rely on clause 8.11.

[102]However, Trinsic did not put its case in this way, particularly in relation to the March, October and November Orders. Those were the Orders which were used (or mostly used) by Trinsic to manufacture drinks either for human consumption in its March and July production runs (using, at least in part, the March Order) or for equine consumption (using the October and November Orders). These were also the Orders where, as I will come to below, there were test results which contained TACC figures in excess of 1000 cfu/g and so Trinsic argued that the relevant Product definitively failed to meet the Specification. I return to the implications of the way that the case was run below.

[103]For completeness, I note that clause 8.8 of the Agreement also referred to “each container of Product” being tested but I am not aware that any of the testing was done for each container (as opposed to each batch). No point was however, taken at trial about this. Did the Orders satisfy the Specification and/or pass Product Testing?

[104]The first issue I will address is whether the Orders passed Product Testing in the sense that they satisfied the requirements of the Specification as regards total aerobic colony count (or TACC). It was common ground by the time of the trial that this required the TACC to be 1000 cfu/g or less. The Specification also sets out limits for other matters (both microbial and residues) but the focus of the parties at the trial was on the TACC figures and no claims were made in respect of any other results (either for the other microbial tests or the residue tests).

[105]Further, as I have summarised in section IV above, once the issue of reformation arose, a considerable number of tests were carried out, particularly between November 2023 and March 2024. For the most part however, these were not relied on as Product Testing and the particular TACC figures on which most emphasis was put by the parties are summarised in the table below. The three columns are the test results for(a) the samples sent by Procoll to CFL at the time of or shortly after production of those Orders,

(b) the samples sent by Trinsic to a different tester, Precision, at the time of or shortly after production of those Orders, and

(c) further samples sent by Procoll to CFL again shortly after production of those Orders: Order TACC (cfu/g) from initial Procoll/CFL tests TACC (cfu/g) from contemporaneous Trinsic/Precision tests TACC (cfu/g) from subsequent Procoll/CFL tests March 6900 April >300 May 30 July <1 August >300 September >300 October >300 2900 >30,000 November <10 1300 >30,000 March, October and November Orders

[106]These were the Orders where Trinsic says that the TACC figure was in excess of the Specification.

[107]Starting with the March Order, there can be no dispute that it did not meet the Specification. The TACC in the test carried out by the agreed Product Tester, CFL, was 6900 cfu/g. This was in excess of the limit in the Specification.

[108]The position in relation to the October and November Orders is more complicated: 108.1. As regards the October Order, the first test result from CFL was inconclusive (“>300 cfu/g”). However, on 14 October 2023, Trinsic sent a sample from the October Order to a testing house called Precision and the result for this sample was 2,900 cfu/g. There were also other tests carried out by CFL for Procoll later in October 2023 on five samples from this Order each of which produced a figure of “>30,000”. Dr Widdowson’s evidence was that the later tests by CFL were on Product which had not been stored or treated in the required way in order to see what results would be obtained if there was not proper temperature control. Trinsic said this was untrue. 108.2. As regards the November Order, the first test result from CFL –“<10” – was within the Specification. However, Trinsic says that, given that Procoll had itself expressed reservations about the tests carried out by CFL, little reliance could be placed on the CFL test result. Instead, Trinsic relied (at least in its written opening) on a test by Precision (in January 2024) which gave a figure of 1,300 cfu/g and on another test carried out by CFL for Procoll in November 2023 which produced a figure of “>30,000”. Again, Dr Widdowson’s evidence was that the sample which produced this result had not been stored correctly. Trinsic said this was also untrue.

[109]The impact of these various tests was one area of the case where, as I understood it, Trinsic’s case narrowed between its written opening and its oral closing. It had initially relied on the tests by Precision referred to above as well as the additional tests by CFL. However, in closing reference was made only to the additional CFL tests.

[110]In support of its initial reliance on the tests by Precision, Trinsic had argued in its written opening that, on the proper construction of the Agreement, “Product Testing” was simply the standard to which the Product must be tested and the Agreement envisaged both(i) testing by third parties other than the Product Tester and

(ii) post-delivery testing carried out by either party. It was also argued that rejecting this construction would give rise to absurdity given that (as I have already mentioned) the regime in clause 8 was not followed on the facts of this case and so there would have been no Product Testing at all and every Order would therefore have fallen within clause 8.11.

[111]Given the references in closing only to the additional, CFL tests, it is unclear to me whether this argument remains live. However, for completeness, I will set out why I do not agree the initial submission made by Trinsic that the tests by Precision constituted Product Testing: 111.1. As a matter of the language, the definition of Product Testing in clause 8.8 refers to the whole of the process by which the Product Tester is to test the Product and not just to the words “the standards required by the Regulation and this agreement”. This is the only realistic way of reading that clause. The standard to which the Product Testing must be carried out is covered by the Specification and it would be contrary to the natural language to use the defined term, Product Testing, to be just the standard rather than the process as a whole. 111.2. However, if it were in doubt about that, the remainder of the provisions in the Agreement tie Product Testing and the Product Tester inextricably together. The Product Tester is a person who is instructed by Procoll (as provided for both in the definition and the first sentence of clause 8.8) but their identity must be agreed between the parties. The Product can only be “approved” at the first stage of testing by the Product Tester (clause 8.10). Then, if Products fail to pass Product Testing, Procoll must supply a replacement batch to the Product Tester for further testing (clause 8.11). In the circumstances envisaged in clause 8.11 it is only the Product Tester who can do the repeat tests so that Product Testing is passed. Neither stage envisages nor provides for tests by any other party.

[112]There is therefore no scope in the Agreement for Product Testing to be carried out by any party other than CFL – the agreed Product Tester in this case. Moreover, if CFL carries out Product Testing (which will by definition test the Product against the Specification) and the results meet the Specification, the Product which has been tested will fall within the deeming provision in clause 8.10. It may be the case that tests by other parties are relevant to demonstrate separate breaches of clause 8.3 (including whether the Product met the Specification for 18 months even if it had passed Product Testing). However, Product Testing is something done only by the Product Tester.

[113]Trinsic’s argument that the Agreement allowed for post-delivery testing was premised on the words “through no fault of [Trinsic]” in clause 8.11. It said that the only way Trinsic could be at fault was if it mis-handled the Product and so the clause must envisage post-delivery testing. This is reading too much into the words relied on. While I agree that it is not immediately obvious how Trinsic would be at fault for a failure to pass Product Testing, the fact that those words are of uncertain impact does not mean that they upend the remainder of the regime which clearly envisages and is premised on satisfactory Product Testing before delivery. They are most likely to have been included out of an abundance of caution and were not, in my view, directed at or contemplating Product Testing after delivery.

[114]More generally, I do not accept that rejecting Trinsic’s argument leads to the absurdity suggested by Trinsic, namely that where Product Testing was not carried out prior to delivery, clause 8.11 would be automatically engaged so as to require a replacement batch to be provided and this would apply to every Order I was concerned with. Despite the point I have made in paragraphs 97-101 above about the timing of the tests by CFL, neither side was arguing for this result and so this aspect of the case was not fully developed. However, it is not obvious to me that, if there was no Product Testing before delivery, clause 8.11 would be engaged. That clause was directed at cases where there is Product Testing and the result of that Testing is that the relevant Order fails to meet the Specification such that a replacement batch of Product was required. It is not aimed at a case where there is no Product Testing at all.

[115]As a result of these conclusions, I would not have accepted that the October or November Orders could be said to have failed Product Testing on the basis of the tests carried out by Precision.

[116]As regards the second set of tests carried out on the October and November Orders by CFL, Dr Widdowson’s evidence was that these later tests were on Product which had not been stored or treated in the required way (i.e. sealed and refrigerated) to see what results would be obtained. Although Trinsic put it to him that this was a lie, he denied that. I accept his evidence.

[117]The correspondence at the time shows Dr Widdowson thought that the issue with reformation lay in the handling and storage of the Product by Trinsic and it is consistent with that for him to have done some experimentation (even if not particularly scientific in nature) to see if he could reproduce higher results. The very high results reported by CFL are also consistent with something having been done to the samples because later tests on Product, particularly from the November Order retained by Procoll (and on Product from that Order returned by Trinsic), showed results broadly consistent with the original much lower CFL result.

[118]In these circumstances, even if the second, later set of tests by CFL could have been Product Testing (which I doubt in respect of November Order as the Agreement envisages one set of tests and, if the Product passes, then the consequences in clause 8.10 follow), the way in which they were carried out means that they were not Product Testing in fact.

[119]The November Order therefore passed Product Testing because the TACC was within the Specification and the October Order is in the same category as the April, August and September Orders which I deal with below. Orders with a TACC of >300

[120]Procoll said that the Orders where the TACC was “>300” nonetheless passed Product Testing because of the explanation that Ms Evans gave to Dr Widdowson as to why that apparently ambiguous figure nonetheless meant that the TACC was 1000 cfu/g or under in each case. That explanation was that, although the neat plates showed substantial colony growth, when the sample was diluted the dilution plates showed no growth. As a result, CFL recorded the highest figure observed (from the neat plate) being >300

[121]I do not agree with Procoll. As was submitted by Trinsic, the explanation which Ms Evans is said to have given to Dr Widdowson does not, looking at it now, make logical sense. While, as I will come to below, Dr Widdowson might have taken comfort from his conversation with Ms Evans, the question of whether any particular Order passed Product Testing must be judged objectively and as a matter of fact. Moreover, the Agreement envisages this this will be done via the “Product Testing results” which had to be supplied to Trinsic (clause 8.8). Even if it is permissible to rely on those results as supplemented by an oral explanation from the Product Tester (which I doubt), looked at objectively, Dr Widdowson’s evidence about what Ms Evans said to him does not satisfy me that the TACC for these Orders was, in fact, 1000 cfu/g or below. It is hard to understand how, if a neat plate showed sufficient growth that the TACC would be above 300 based on that plate alone, the dilution plates for the same sample would show no growth. It is possible that the dilution plates would show growth which allowed an accurate count a little below 300 but not a zero result. Dr Widdowson’s witness statement accepted that the explanation was “confusing”.

[122]I note also that Ms Evans was only asked about the ambiguous result for the April Order. Procoll does not rely on any explanation given about the other Orders because, as I understood the evidence, no such explanation was sought by Dr Widdowson. Even if I had accepted the explanation in relation to the April Order, I would not have been satisfied that it could simply be applied to the later Orders without evidence that the same issue between the neat plates and diluted plates had been observed by CFL.

[123]In these circumstances, the results for the Orders where the TACC was “>300” were ambiguous and did not reveal whether or not the Specification had been met. Was there a breach of the Agreement in relation to Product Testing?

[124]I have already made the point above that the parties and Procoll in particular did not follow the timing of the regime for Product Testing and it might have been said that none of the tests carried out by CFL were Product Testing properly so called as they were all carried out (or the results were only available) after the relevant Orders had been delivered contrary to the provisions of clause 8.8 and 8.9 of the Agreement.

[125]However, for reasons which no doubt suited their own particular positions, neither of the parties really wanted to grapple with this point and its implications. Trinsic came close in its written argument but only as part of its argument referred to above that tests by entities other than CFL and tests after delivery amounted to Product Testing.

[126]More generally, other than the issue about the test results for the October and November Orders which I have already dealt with, both sides argued the case on the basis that the CFL tests were (or were attempts at) Product Testing. I will therefore approach the question of whether there were breaches of the Agreement in relation to Product Testing on this basis. (a) Clause 8.11

[127]Trinsic claimed that Procoll was bound by clause 8.11 to provide a replacement batch of Product for the March, October and November Orders. October and November Orders

[128]I have explained above why I do not accept that the October and November Orders were outside the Specification and so those Orders did not fail to pass Product Testing in the manner alleged by Trinsic. In each case therefore, clause 8.11 was not engaged and I reject Trinsic’s claim that Procoll was obliged to provide it with a replacement batch of Product for the October and November Orders under that provision. March Order

[129]Turning to the March Order, this Order did not satisfy the Specification because the TACC figure was 6,900 cfu/g. On the basis that (notwithstanding the timing of the test by CFL) this result arose from Product Testing, then the provisions of clause 8.11 are engaged because this was a case where the Order did “fail to pass Product Testing”. That clause required Procoll to supply a replacement batch of Product for testing and there was no dispute that it did not do this after the test result had been obtained on 6 April 2023. Prima facie therefore, Procoll was in breach of clause 8.11 from shortly after this date because no replacement batch was supplied to CFL for testing “as soon as possible”.

[130]Procoll pointed out that the consequence of such a finding would be that Trinsic, which was able to use the majority of the March Order, would be entitled to an entirely fresh batch and would therefore make a windfall. I agree that this is a surprising result. However, that was because, if the Product Testing regime had been followed through, there would have been no question of a batch of Product being supplied which had not already passed Product Testing (see clause 8.9) and so no question of Procoll having to replace a batch which had been supplied and used. The issue for me is whether clause 8.11 should not apply where, as happened here, the Order was delivered but testing (which the parties both argued was Product Testing) produced results outside of the Specification.

[131]Procoll advanced a number of arguments. Insofar as these were directed at the specific obligation in clause 8.11 itself, Procoll said that: 131.1. Clause 8.11 did not apply because Trinsic had chosen to take delivery of and to use the March Order before Product Testing had been completed. 131.2. Clause 8.11 could only apply to Product which Trinsic did not use, and this was, at most, one container (either full or partially used) because five containers were used in the March and July production runs.

[132]Trinsic’s answer was to say that any windfall was simply a result of the regime provided by the Agreement.

[133]Procoll’s arguments would have produced a common sense result but they needed, in my view, to be backed up by a legal justification or explanation. I do not consider that the words of the Agreement can be construed to give the conclusion contended for by Procoll and there was no pleading of or argument directed at an implied term. When I asked Mr Pearce-Smith about the legal answer, he relied on “waiver” or “possibly an estoppel”. The problem is that neither of these arguments was pleaded or developed in the evidence, and waiver runs into an obvious problem with clause 30.1 of the Agreement which required a waiver to be in writing.

[134]Ultimately, I have concluded that Trinsic is correct. It seems to me that the Agreement placed the onus on Procoll to ensure that it only supplied material to Trinsic which had passed Product Testing. That process, and the timing of it in particular, were in Procoll’s hands and it must bear the consequences of the result of the testing being outside of the Specification. I do not reach this conclusion with any great enthusiasm but, ultimately, Procoll was not able to identify a coherent legal reason why Trinsic could not make a claim based on the obligation of Procoll to supply a replacement batch to the Product Tester.

[135]Procoll also advanced a number of arguments which related essentially to the relief which Trinsic could claim under, or by reason of a breach of, clause 8.11.

[136]First, it said that any obligation on Procoll to supply a replacement batch was suspended under clause 20.2 by Trinsic’s failure to pay in full the invoices for the October Order (which was only partially paid) and the November Order (which remains wholly unpaid). I do not consider that this is an answer to Trinsic’s claim on the March Order. As Mr Lee submitted, Procoll would have been in breach of clause 8.11 for a considerable period prior to any failure by Trinsic to pay those invoices as Procoll’s obligation was to supply a replacement batch to the Product Tester as soon as possible after the CFL test results were received on 6 April 2023. Thus, a replacement batch ought to have been provided to Trinsic well before clause 20.2 could have come into operation.

[137]Second, it said that Trinsic’s remedy was limited to the Late Delivery Fee provided for in the final part of clause 8.11. I do not accept this argument. There is nothing in clause 8.11 which says that this Fee is the only remedy for a case in which the replacement batch of Product is provided late. Further, clause 8.11 is premised on a replacement batch actually being provided and I do not read it as preventing other losses being claimed for a breach of this clause where no replacement batch is even provided to the Product Tester. Such claims would then have to contend with the exclusions/limitations in clause 17, but the existence of those provisions is not a reason to construe clause 8.11 as providing an exclusive remedy when the wording does not support that conclusion.

[138]Third, it said that any loss of profit was caused by Trinsic’s own actions. Trinsic refused to take delivery of replacement Product in late 2023/early 2024 when Procoll reprocessed the Product in which reformation had been observed and so, it was argued, it would have refused replacements for the March, October and November Orders. The impact of how Trinsic dealt with the reprocessed Product is an issue I will have to deal with in more detail in relation to the fitness for purpose claims but I do not consider that it provides an answer to the claim based on the March Order. The issues with reformation did not arise until July 2023 (in one container) with the real dispute commencing in October 2023. If Procoll had provided a replacement batch for the March Order “as soon as possible” after 6 April 2023, I consider that Trinsic would have accepted it and so would have had additional Product. Whether it would have been able to use that Product to generate the profits claimed is a separate matter which I deal with in Section VI below.

[139]Finally, it said that any claims for loss of profits or other consequential losses were barred by virtue of the limitation clauses in clause 17 of the Agreement. I agree that Trinsic’s claim for loss of profit based on Product Testing is, in principle, barred by these clauses. This is why Trinsic sought to establish deliberate default which I consider in paragraphs 148-179 below. (b) Clause 8.8

[140]Trinsic argued that, whatever the result from the CFL tests, the April to November Orders were not subject to valid Product Testing because the methodology of the testing would not have revealed the precise TACC count if it had been above 300. This was, it argued, a breach of clause 8.8 of the Agreement.

[141]Trinsic’s case was that Product Testing required a test which could establish whether or not the TACC was above or below 1000 cfu/g and that any test which did not do this in all circumstances would not be Product Testing. The April-November Orders were tested “neat” by CFL in that the Product was not diluted before testing and this necessarily limited the upper figure which the test could produce because, once the TACC goes above 300, the colonies begin to merge and cannot be counted. In order to obtain a precise figure above 300 it was necessary to carry out tests on Product which had been diluted (generally by a factor of 10 at each level of dilution). Once these dilution tests had been carried out, the number of colonies counted would then have been multiplied back up to work out the cfu/g for the original Product.

[142]I do not accept Trinsic’s case on this point. The purpose of the testing of the Product by the Product Tester was, as set out in clause 8.8 of the Agreement, to ensure that the Product “meets the standards required by the Regulation and this Agreement”. Although the Agreement is somewhat circular in clauses 8.3, 8.8, and 8.10, the relevant “standard” for this part of the claim was that the Product shall “conform to the Specification” (clause 8.3). The relevant part of the Specification was the limit for “Total aerobic bacteria” being 1000 cfu/g.

[143]Where the testing methodology used by CFL provided a result which was unambiguously within the Specification, then I do not consider that there is nonetheless a breach of clause 8.8 of the Agreement if that methodology would have given an ambiguous result in other circumstances.

[144]This conclusion deals with the May, July and November Orders where the TACC figures were 30, <1, and <10 respectively. These results were under the limit contained in the Specification and the Product in these Orders therefore met the Specification for total aerobic bacteria. The fact that the testing methodology would not have given a precise result if the TACC had been 300 or above does not seem to me to invalidate the testing or the results which were actually produced where the figures were well below the 300 threshold at which colonies start to merge. There was therefore no breach of the Agreement in relation to the Product Testing of these Orders.

[145]The position is different for the April, August, September, and October Orders. These were the Orders where the TACC figure on the CFL tests was “>300”. These results were, on their face, ambiguous and did not reveal whether or not the Orders had passed or failed Product Testing.

[146]This seems to have happened because, when Procoll sent samples from the Orders for testing by CFL, they were accompanied by a spreadsheet that set out the tests required and, from April 2023 onwards, included the words “TESTED NEAT” against all of the tests including for “Total aerobic bacteria”. Ms Fricker’s evidence was that although she did not remember adding these words she believed that she would have done that. Insofar as CFL only tested the samples neat after that, this may have been the source of the issue. I have to consider later whether there was “deliberate default” by Procoll in relation to this testing but, at this stage, it is sufficient to identify why the ambiguous results arose.

[147]In my view, the effect of the ambiguous result is that the April, August, September, and October orders neither passed nor failed Product Testing. The question is whether this gives rise to a breach of the Agreement by Procoll. It is fair to say that Trinsic’s case on this point was bound up with its case (which I consider later in this judgment) that the testing methodology was deliberately instructed by Procoll (through Dr Widdowson) because he wanted to avoid another result outside the Specification as had happened for the March Order. However, I consider that the ambiguity of the results, taken alone, establishes a breach of clauses 8.8 and 8.9 of the Agreement as these required Procoll to instruct the Product Tester to test the Product to ensure that the Product meets the required standards and not to sell any Product that has not passed Product Testing. These Orders had not passed Product Testing and so Procoll was in breach of clause 8.8 and therefore also clause 8.9. Compliance with the Agreement required Procoll on receipt of the ambiguous results to require the Orders to be retested so as to obtain a result which showed whether or not the Specification had been met. Was there “deliberate default”?

[148]Trinsic’s primary claim in relation to Product Testing was for loss of profits. On the face of the Agreement this claim is excluded by clause 17.7.2. However, Trinsic said that Procoll’s liability to it arose from the latter’s “deliberate default” and that, accordingly, clause 17.2 of the Agreement prevented Procoll from relying on the other limitations and exclusions contained in that clause.

[149]Trinsic submitted that deliberate default included blind-eye knowledge of breach of the Agreement. This would be established by proof of a suspicion of a truth which Procoll did not wish to know and a deliberate decision not to enquire because Procoll did not want to know for certain. The relevant suspicion had to be firmly grounded and targeted on specific facts (as referred to in Manifest Shipping Co Ltd v Uni-Polaris Shipping Co Ltd

[2001] UKHL 1

at [115]-[116]).

[150]I did not hear any detailed argument on this point and was not referred to any authorities in which the phrase “deliberate default” is considered. To my mind deliberate connotes something which is intentional, in other words that the party knows at the time of the relevant act that it is a breach of the contract. As Procoll did not suggest otherwise, I will assume that knowledge for this purpose includes blind-eye knowledge of the type suggested by Trinsic.

[151]Trinsic made its argument about deliberate default in three ways. It said that: 151.1. The March Order failed Product Testing because of the TACC result of 6900 cfu/g meaning that Procoll should have supplied a replacement batch of Product pursuant to clause 8.11 but (through Dr Widdowson) it decided not to do so knowing that it would be in breach of the Agreement. 151.2. To Procoll’s knowledge (again through Dr Widdowson), the April to November Orders were not subject to proper Product Testing and, more than that, Procoll instructed CFL to test to the wrong standard. 151.3. Procoll also deliberately failed, in breach of clause 8.11, to supply Replacement Product for the October and November Orders after receiving the additional microbial testing results for those Orders (as referred to in the third column of table at paragraph 105 above). This final point can be disposed of quickly as (at paragraph 116 above) I have already accepted Dr Widdowson’s evidence about the nature of these tests and so their receipt would not have indicated a failure to pass Product Testing and a need to comply with clause 8.11.

[152]The first two ways in which Trinsic alleged deliberate default on the part of Procoll arose from the course of conduct alleged against Dr Widdowson which I outlined in paragraph 34 above. As I said there, Trinsic alleged that Dr Widdowson: 152.1. Knew from April 2023 that the microbial limit in the Specification for the Product was 1000 cfu/g and therefore must have appreciated when he saw the test result for the March Order, that that Order had failed product testing because the microbial TACC was above 1000 cfu/g; 152.2. Thereafter engaged in a course of conduct designed to hide or obscure the true position from Trinsic and Mr Newby including:(i) Seeking out a “random website” on Google to create ambiguity rather than speaking to Ms Evans (the CEO at CFL) or Mr Newby about the results for the March Order;

(ii) Seeking comfort from Mr Jones of NPT Environmental Health about the results through the use of a technical argument which he knew that Mr Jones would not understand;

(iii) Giving an express instruction to CFL that the Product should only be tested “neat” in order that the largest microbial result which would be reported would be 300;

(iv) Deliberately failing to provide Trinsic with the microbial test results for the March Order; and

(v) Misleading Mr Court from NPT Environmental Health about the results for the April Order.

[153]In order to deal with these issues, I will draw together the evidence particularly relied on by Trinsic before setting out my conclusions on this part of Trinsic’s case and making the necessary findings in relation to Dr Widdowson. In doing so I have borne in mind that the standard of proof for these allegations is the balance of probabilities and nothing more or less but, given the serious nature of the allegations, I can consider the cogency of the evidence relied on and the inherent probability of Dr Widdowson having acted in a way that was, as was put to him by Mr Lee in cross-examination, serially dishonest.

[154]The starting point for Trinsic’s case was that Dr Widdowson was a scientist and that he must have appreciated that, as both the Regulation and the Agreement referred to the “limit” for “Total aerobic bacteria” as 10 3, and he had read the relevant ISO testing standard (as well as Health Protection Agency guidance), that must have meant to him that 1000 cfu/g was the maximum amount allowed. Trinsic also relied on two particular documents to support its case about Dr Widdownson’s knowledge: 154.1. An email exchange between Dr Widdowson and Mr Newby on 14 October 2023 in which Mr Newby referred to a TACC result of 2900 cfu/g as being “way over the permitted legislation” and Dr Widdowson responded by saying “That is unusual….If it is indeed 2900 CFU/g then do not use and we will discuss getting you a replacement ASAP.” Trinsic pointed to the fact that, if Dr Widdowson had thought that the legislative limit was 10,000 (and not 1,000), he would have said so. It also said that Dr Widdowson’s explanation in his oral evidence for telling Mr Newby not to use the Order – that his concern was that the sample had gone from a low to a high reading on one day - was a fabrication because Procoll had not yet received the test results for the October Order and so Dr Widdowson had no figure against which to compare the result referred to by Mr Newby. 154.2. A spreadsheet of test results sent by Dr Widdowson to Mr Newby on 14 March 2024 in which Dr Widdowson described three particular test results as being “above legislative limits” despite the fact that each was lower than 10,000 (but above 1,000).

[155]Building on this alleged knowledge, Trinsic said that Dr Widdowson’s dealings with Mr Jones (at NPT) and Ms Evans (at CFL) did not provide him with any confirmation or comfort that the March Order had satisfied the Specification and that he was now compelled to lie about these dealings. Moreover, his appreciation that the March Order had failed Product Testing caused him to take steps to hide this fact from Trinsic and Mr Newby in particular.

[156]As regards the dealings with Mr Jones at NPT: 156.1. Trinsic relied on various documents provided by NPT which it said demonstrated that NPT did not have expertise in interpreting microbiological results nor was that one of its functions. I was referred to the contract with Procoll for advisory services (dated 29 July 2022), a summary report from NPT dated 25 August 2022, the full approval of Procoll as a food business establishment on 1 June 2023, and an inspection report dated 13 June 2023. Trinsic also pointed out that NPT would not have been concerned about compliance with the Regulation as it was not in force (and had not been for more than a decade). 156.2. Trinsic then alleged that Mr Jones was not (as Dr Widdowson knew) an appropriate person to consult about the test results and that, in any event, Dr Widdowson presented the issue about the test results in such a way that Mr Jones would not understand it. 156.3. Trinsic also pointed to inconsistencies between the evidence which Dr Widdowson was now giving and the contents of an email to Mr Jones sent on 21 August 2024 in which Dr Widdowson referred to “meetings” and “discussions” in the plural whereas his written evidence referred only to one telephone call. It was also said that Dr Widdowson’s evidence now was that Mr Jones had confirmed that a product was within the Regulation if the TACC was under 10,000 whereas the August 2024 email recorded Mr Jones as having said that “the regulation was not crystal clear and that your professional interpretation was that a value within but not exceeding the 10 3 range was acceptable.”

[157]As regards the dealings with Ms Evans it was said that the explanation which she was said to have given to Dr Widdowson (referred to in paragraph 120 above) made no sense and so he could not have accepted it or thought that it explained why the ambiguous test results in fact meant that the relevant Orders were within the Specification. Trinsic also relied particularly on: 157.1. An email sent by Dr Widdowson to Mr Newby on 20 December 2023 in response to Mr Newby pointing to the ambiguous result for the October Order. Dr Widowson did not refer to having been given an explanation for this result back in May. 157.2. An earlier email to Mr Court on 8 May 2023 in which Dr Widdowson referred to CFL “still ignoring our request to test neat to ensure a 0 result…”. This email was said to be inconsistent with the explanation which Ms Evans was said to have given to Dr Widdowson which referred to neat testing.

[158]A further piece of evidence from this early period was the email from Dr Widdowson to Mr Court, the relevant part of which is set out in paragraph 44 above. Trinsic’s allegation was that Dr Widdowson wanted to “con” Mr Court into thinking that the product has passed product testing by referring to the test result as “- 300” rather than “˃300”. Although Dr Widdowson attached the test result which contained the correct figure to the email, it was said that Dr Widdowson must have known that Mr Court was never going to read it. Further, it was suggested that, unlike with the email to Mr Jones in which Dr Widdowson had set out in detail the argument which he was making about the meaning of “10 3”, the email to Mr Court was light on the detail of what CFL had supposedly said to Dr Widdowson.

[159]The final strand in Trinsic’s argument was that Dr Widdowson had deliberately failed to send the test results to Mr Newby despite various requests for those results. Trinsic relied, in particular, on the fact that: 159.1. On 2 June 2023, Dr Widdowson sent Mr Newby an email saying “Please see attached certificates of analysis from Celtic Food Labs as discussed” but attached only the microbial result for the May Order and the residues result for the March Order. 159.2. When further results were sent by Dr Widdowson (including on 13 October 2023), the microbial results for the March Order were not attached. 159.3. The result for the March Order was not sent until Procoll’s lawyers became involved in the dispute in 2024.

[160]Having considered carefully the submissions made by Trinsic and the material relied on in support of them, and attractively as those submissions were presented by Mr Lee, I am unable to accept the majority of the building blocks relied on by Trinsic to seek to make good its case of deliberate default.

[161]Starting with the deliberate default relied on in respect of the March Order, I do not accept that Dr Widdowson knew from the outset that the maximum TACC result was 1,000 and that the March Order was therefore outside of the Specification such that Dr Widdowson knew that Procoll was obliged to supply a replacement batch of product but caused Procoll not to knowing that was a breach of the Agreement.

[162]Although Dr Widdowson was a scientist, at the time when the first Orders were produced in March and April 2023, I accept that he was not intimately familiar with the methodology for microbiological testing or interpreting the results which were received. Further, when Dr Widdowson received the results for the March Order on 8 April 2023, I am satisfied that he did not understand that that Order had failed the microbiological testing because the TACC result was 6900 cfu/g. I accept his evidence that he was unsure whether or not they satisfied the requirements set out in the Regulation and Agreement, and that his email to Mr Jones on 11 April 2023 reflected both his genuine uncertainty on this issue and steps he had legitimately taken (such as internet searches) to understand the results.

[163]Moreover, I do not accept that Dr Widdowson thought or knew that Mr Jones at NPT was not an appropriate person to speak to about the results or he then effectively sought to bamboozle or con Mr Jones with an argument that he would not understand. As far as Dr Widdowson was concerned and as can be seen from the emails to Mr Jones and Mr Court, NPT were the organisation who were responsible for food sampling and safety and were aware that Procoll was working to the standards set out in the Regulation. The contract with NPT on which Trinsic relied referred expressly to advice on food sampling to comply with the Regulation and the evidence demonstrated that Procoll and NPT had discussed the Regulation as the standard to which Procoll was operating.

[164]Moreover, the e-mail which Dr Widdowson sent to Mr Jones was not, in my view, intended to deceive Mr Jones or drive him to agree with Dr Widdowson. It referred expressly to the limit in the Regulation and set out Dr Widdowson’s queries in a way which was readily accessible to Mr Jones.

[165]It is right of course that there is no record of what Mr Jones said to Dr Widdowson and that the account given in his witness statement (referring to a single call) is somewhat different from that in the 2024 email. However, the email sent to Mr Newby on 27 April 2023 refers to Procoll having had confirmation from “EH” (i.e. Environmental Health) about the results. This is consistent with Dr Widdowson having spoken to Mr Jones and I do not accept that the minor differences between the witness statement and the email undermine the important point that both are consistent with a discussion having taken place and with Dr Widdowson having taken comfort from that discussion about the result for the March Order.

[166]Turning to the two documents which were said to demonstrate that Dr Widdowson knew that the limit was 1000 cfu/g: 166.1. I am not satisfied that the email exchange on 15 October 2023 supports Trinsic’s argument to the extent alleged. The fact that Dr Widdowson did not respond to Mr Newby’s 14 October 2023 email by saying that the legislative limit was 1,000 cfu/g is explicable by the fact that the issue with reformation had already arisen and Trinsic had returned 38 containers of Product. The focus was therefore on identifying what was happening and why, and not on whether or not Product Testing had been passed. Further, although Dr Widdowson did not yet have back the results for the October Order (and so had no results of his own to compare with those sent by Mr Newby), Procoll had received the results for the April to September Orders which had not shown figures in the order of the 2,900 cfu/g referred to by Mr Newby. Although it was put to Dr Widdowson that this did not explain his email as many of these results were ambiguous – the ones which were “˃300” – this itself assumes that Trinsic is correct that Dr Widdowson had not taken any comfort from the explanation for these results. However, Dr Widdowson’s state of mind about a result of this kind can be seen the following day when he sent the result for the October Order – another result of ˃300 - to Mr Newby stating “The CFU for aerobic colony count is well within levels.” Dr Widdowson thought therefore that the ˃300 result (which can now be seen to be ambiguous) was fine and was happy to tell Mr Newby that and to send him the test result. 166.2. The email from March 2024 is a more potent piece of evidence as it is consistent with Dr Widdowson understanding at that date that the correct limit was 1000 cfu/g. Dr Widdowson’s explanation was that, by this time, he had had discussions with another tester who had explained the limit. This is a plausible explanation given the significant passage of time between April 2023 and March 2024 and the focus from October/November 2023 onwards on the multitude of different test results being produced by various testers.

[167]As regards the fact that Dr Widdowson did not send the microbial report for the March Order to Mr Newby at any point, I agree that this provides some support for Trinsic’s case, particularly in the months immediately following the receipt of that result. Mr Newby was asking for the results and there is some force in the point that, if Dr Widdowson had had no concerns about the result, then he would simply have provided it. However, that point only goes so far. The obvious opportunity to provide the results for the March Order was the email on 2 June 2023 to which only the residue result for March and the microbial result for May were attached. Dr Widdowson’s evidence was that he had intended to attach the results for the March Order but they did not attach properly.

[168]More generally, the results which were sent on 2 June were clear as to which batches they related to and there was nothing in the contemporaneous documents to show that there was anything underhand or deceptive about this. Possibly in recognition of this, Mr Newby’s evidence, given for the first time in cross-examination, was that Dr Widdowson had told him that the May result was, in fact, for the March Order but CFL had lost the original sample and so retested a sample in May. This was surprising evidence to come out for the first time at trial and I do not accept it. If this had been the case, it would have been at the forefront of Mr Newby’s written evidence and there would have been some hint of it in the contemporaneous documents.

[169]Further, I do not accept that failing to attach the results for the March Order to the email on 15 October 2023 is indicative of a desire to hide that result. By that point, the March Order had very largely been used in the July production runs and the one remaining container with reformation had been replaced. Further, Mr Newby had just returned containers from the April Orders onwards. It was natural in these circumstances that Dr Widdowson would attach the results for the Orders which had been returned.

[170]Another plank in Trinsic’s argument about the March Order related to the subsequent testing from the April Order onwards. However, I do not accept Trinsic’s allegation that, prior to the testing of the April Order, Dr Widdowson instructed CFL to test samples of Product “neat” (i.e. undiluted) in order to ensure that the maximum figure which could be obtained for the TACC was >300.In fact, Dr Widdowson’s evidence, which I accept, was that the instruction to test neat samples was given in order that specific results could be obtained for the microbial tests more generally. While the results for the March Order gave a specific TACC figure (6900 cfu/g), each of the other numerical results was reported only as “<10” or “<20” and testing neat was required in order for specific figures to be produced. Dr Widdowson’s evidence was consistent in this regard with the reason for neat testing given contemporaneously in his email to Mr Jones dated 11 April 2023 and in Ms Fricker’s email to CFL on 27 April 2023. It also featured in the email to Mr Court on 8 May 2023 where neat testing was to “ensure a 0 result”.

[171]I have already referred above to the fact that, when Procoll sent samples for testing by CFL they were accompanied by a spreadsheet that set out the tests required and that, from April 2023 onwards, the words “TESTED NEAT” appeared against all of the tests including for “Total aerobic bacteria”. Ms Fricker’s evidence was that although she did not remember adding these words she believed that she would have done that. Insofar as CFL only tested the samples neat after that, this may have been the source of the issue. However, I do not consider that this was anything other than inadvertent.

[172]It was also the case that, when Dr Widdowson ordered some testing by CFL of samples from the October Order which I have found that he exposed to higher temperatures or left unsealed, the same spreadsheet was used (attached to an email to CFL dated 18 October 2023) but Dr Widdowson was clearly expecting high results to come back. This was inconsistent with an instruction for neat testing so that a result above 300 would be eliminated.

[173]Likewise, I do not accept Trinsic’s case that Dr Widdowson was lying about the contents of his conversation with Ms Evans at CFL about the TACC results for April 2023 which was >300. I am satisfied that Dr Widdowson had a conversation with Ms Evans from which he took comfort that there was an explanation for the otherwise ambiguous result. While I would agree with Trinsic’s submission that, looked at now and in the light of the dispute which has now arisen, the explanation given by Ms Evans as now set out by Dr Widdowson does not hold together logically, the contemporaneous documents suggest clearly that Dr Widdowson considered that the ambiguous result was within the Specification: 173.1. This is what, in effect, he told Mr Court in the email dated 8 May 2023. 173.2. A Procoll management report (an internal Procoll document) produced by Dr Widdowson referred to the April Order and said “The test results were fine when they finally arrived…..” 173.3. When the issue with reformation arose in early October 2023, and Trinsic returned 38 containers of Product, Dr Widdowson sent a lengthy email on 13 October 2023 to Mr Newby to which all of the available microbial and residue results for the April-August Orders were attached. These included the ambiguous results but the email stated that “The materials supplied to date remain within the specification described by the agreement….” 173.4. When Dr Widdowson received the test results for the October Order, which had a result of “>300” he forwarded it the same day (15 October 2023) to Mr Newby saying “The CFU for aerobic colony count is well within levels.”

[174]Finally, I do not accept that Dr Widdowson was seeking to “con” Mr Court when he emailed him on 8 May 2023. If this had been his intention, he would have had no reason to attach the actual test results to the email. He would simply have asserted the result rather than taking the obvious risk that Mr Court would open the test results and see the actual figure. This is all the more so because Dr Widdowson suggested it would be good to have a call about the results and, in reply, Mr Court suggested 16 May for that call.

[175]More than that, the real importance of the email to Mr Court is, in my view, that it provides a valuable contemporaneous insight into what Dr Widdowson was thinking and how he had understood the test results. There are three aspects to this: 175.1. He considered that the results for the April Order were better than those from the March Order and did not appear to have any concern that they were outside the Specification. He attributed this to steps taken by Procoll to improve the manufacturing process including the addition of a filter to the water supply. 175.2. There was some confusion about whether or not neat testing was taking place but Dr Widdowson thought that there was no growth by reference to the results on the other tests. Although Trinsic relied on this email to say that Dr Widdowson could not have relied on Ms Evans’s explanation, in my view the email shows confusion on Dr Widdowson’s part about the testing being carried out by CFL and the impact of testing on neat or diluted samples. It also supports his evidence about the impact of the >300 result. 175.3. The purpose of neat testing was to get a zero result rather than (as alleged by Trinsic) to ensure that there would not be a result which was above the limits in the Specification.

[176]In the paragraphs above, I have dealt with the specific allegations made by Trinsic and the pieces of evidence principally relied on in support of those allegations. This inevitably involves quite a granular consideration of particular documents and, in some cases, individual paragraphs or sentences within documents.

[177]However, I consider that it is also important to stand back and to look at Trinsic’s case as a whole and to measure it against the totality of the contemporaneous evidence and the impression I had of Dr Widdowson having heard him give evidence for a day or more. The purpose of this holistic assessment is to see whether or not the various strands of Trinsic’s case spread out over more than a year (from March 2023 to well into 2024) can be drawn together to justify the conclusion sought by Trinsic.

[178]In my view they cannot. Although there were aspects of Dr Widdowson’s evidence which were confused or where, looking at matters now with hindsight, the comfort he took from conversations with NPT or CFL can be seen to be misplaced, I am not satisfied that Dr Widdowson acted dishonestly in the manner alleged by Trinsic. The effect of Trinsic’s case was that, from the receipt of the result for the March Order on 6 April 2023, Dr Widdowson set out to deceive not just Mr Newby but also the other directors of Procoll as well as Mr Jones. Moreover, this deception involved manipulating test results and putting in place a series of steps which he would be able to rely on later – notably his internet searches and his emails to Mr Jones and Mr Court - if a dispute arose in court. I am not satisfied however, that this pattern of deception is borne out by the contemporaneous documents or that Dr Widdowson’s oral evidence suggested that he was a calculating and deceptive individual. Rather, he struck me as a slightly naïve person who was grappling with translating successful research into a commercial operation for the first time and with the demands of Mr Newby who was keen to get his hands on the Product.

[179]In these circumstances, I reject Trinsic’s case that there was deliberate default in the manner alleged by Trinsic in relation to any of the Orders or groups of Orders. Conclusion on loss of profit claims for Product Testing

[180]As a result, Trinsic’s claim to loss of profits in relation to Product Testing is precluded by clause 17.7.2 of the Agreement. I will consider the claims to other relief in the final section of this judgment. (iii). Claims relating to fitness for purpose

[181]The purpose for which the Product was being supplied was not in dispute. It was common ground between the parties that the Product would be used by Trinsic to make nutraceutical drinks. This was reflected in the “Exclusive Field” as defined in clause 1 of the Agreement.

[182]Building on this, Trinsic said that one container from the March Order and the whole of the April to September Orders were not fit for this purpose because the reformation in those Orders meant that they could not mix the Product into their drinks. The consequence of this was that the Product supplied in those Orders was unfit for purpose within both clauses 8.3 and/or 8.10 of the Agreement and the terms implied by SOGA, sections 14(2) and 14(2B).

[183]Other than the common ground about the purpose of supply, there were substantial disagreements in relation to the remainder of the issues arising on these claims and I therefore have to consider the following points in particular: 183.1. To what extent was there reformation in the Product and what was the nature of that reformation? As part of this issue I have consider the extent to which it is necessary to determine the precise nature of the reformation. 183.2. Did the reformation render the Product unfit for purpose? 183.3. If so, was Procoll in breach of the Agreement? As part of this issue, I have to consider the extent to which it necessary to determine whether the occurrence of the reformation could be attributed to the conduct of either party. 183.4. Was the exclusion of the terms implied by SOGA unreasonable? 183.5. As regards the claim for loss of profit, was the exclusion of claims for loss of profit unreasonable? What was the nature of the reformation?

[184]March

[185]There was a dispute between the parties as to whether or not the container was a full one or partially used from the March production run, and as to the nature of the reformation. The evidence with which to resolve these disputes was however, limited, not least as no tests were carried out at the time on the substance and the whole container was, according to Dr Widdowson, disposed of shortly after its return to Procoll.

[186]Having considered the material which was available, I consider that it is more likely than not and I find that the container from the March Order in which the substance formed was the container which had been partially used in the March production run. As to this: 186.1. The written evidence of Mr Newby and Dr Widdowson did not address this point directly. However, Dr Wareing’s report stated (at paragraph 6.1.4 and again in his conclusions) that the part-used container was the first one in which the greenish-yellow substance had been discovered and it became clear in his cross-examination that Mr Newby had told him this on a visit to Trinsic’s premises. This seems to me to be the best evidence on the point. 186.2. Dr Wareing sought to distance himself from this in the Joint Statement on the basis that he had referred back to the evidence of Mr Newby who had stated that only whole containers were used in the March production run. This was, indeed, Mr Newby’s original written evidence (that three full containers had been used in March) but he had to change it in his evidence in chief to the effect that the March production run used one full container and one partial container. Thus the evidence of Mr Newby in its final form did not provide a basis for Dr Wareing to row back from his original report. 186.3. More generally, it would have been more natural for Mr Newby to have started preparations for the production run in July by going to a partially-used container of Product rather than starting with an unopened one. 186.4. Finally, given my conclusion about the nature of the reformation, namely microbial contamination, both experts considered that the partial use of a container could explain such contamination. It would also explain why the substance was found in one container (the partially used one) but not the others from the March Order (as they remained sealed as at July). 186.5. Against these points it was suggested by Trinsic that the two available photographs of the relevant container from July 2023 - one by Mr Newby and one by Dr Widdowson - showed that it was a substantially full container. This meant that the amount of Product left in it was too great for it to have been partially used in the March production run. As I have explained, that run used one full container and nearly 3.5 litres from another, so the partially used container from that run would only be about 30% full. Trinsic also referred to the fact that both Mr Newby and Dr Widdowson gave evidence that they had poured out some of the contents of the container to examine the substance and this would explain why it was not completely full. I do not accept that these matters displace the evidential factors I have referred to above. Neither of the photographs was particularly clear and, although the one taken by Dr Widdowson does have a darker line which might indicate the level of the liquid, that line is itself not straight and appears to be a shadow. It is not sufficient for me to conclude it shows the fill-level of the container. In addition, the evidence of Mr Newby and Dr Widdowson was that the amounts they had each poured out (adding up to 200-250ml) would not account for the missing liquid even on the hypothesis that the level of liquid in the container can be observed.

[187]As regards the nature of the substance which formed, I find that it is more likely than not that it was microbial contamination. This was Mr Kershaw’s opinion based particularly on the descriptions of the substance by Mr Newby and Dr Widdowson and the fact that Mr Newby had been unable to mix the substance into water. Dr Wareing was more circumspect because the substance had not been tested but did accept that it was most likely not collagen because collagen is clear in colour, and that it would appear to be some form of microbial contamination. It was also notable that, when he saw the substance in the March Order, Dr Widdowson decided that it was contaminated and should not be used. This reaction, consistent with microbial contamination, was different from that in relation to the later Orders where reformation occurred.

[188]April-September Orders: There was no dispute between the parties that a substance formed in at least some of the containers containing those parts of the April to September Orders which were not used in the July production run.

[189]However, the parties disagreed about whether this substance appeared in every container or just in at least one container from every Order. This was a dispute which emerged relatively late in the day as Mr Newby’s written evidence was that there was reformation in “every batch” and Dr Widdowson’s first statement did not cover the point. It was only in Dr Widdowson’s second statement, served very shortly before trial, that he said that all of the containers had been opened but that he only saw “little white flecks” in some but not all of them. In his evidence in chief Mr Newby said that he had only opened some of the containers.

[190]For the reasons which I will come to, the answer to whether or not all of the containers were opened and whether or not there was reformation in all of them, does not in my view affect the end result. However, my findings are set out below.

[191]The principal pieces of evidence on whether or not all of the containers were opened was as follows: 191.1. Mr Newby’s written evidence was that, when he found the reformation in the container from the March Order (which was only visible once the lid of the container had been removed), he “proceeded to double-check all of the other containers of Product we had then” (paragraph 47). Although a later paragraph (¶50) appeared to say that he had not checked any other containers, the passage I have referred to would be consistent with Mr Newby opening all of the containers from the April, May and July Orders. 191.2. On 4 October 2023, when Mr Newby first emailed Dr Widdowson about the reformation issue in the April-September Orders, he said the following:

“We went to do a production run today, but when checking the collagen before mixing (April’s collection), it is clear that the product (Aprils [sic] collection) has substantially reformed. We then opened May’s collection and again it has started to reform. We then opened some from every month we have collected and they are all at various stages of reforming.”

This email is consistent with all of the remaining containers from the April and May Orders having been opened and at least some from the other Orders (July, August and September). 191.3. On 21 November 2023, Dr Widdowson wrote to Mr Newby about the Product which had been returned and said “We notice however that most of the bottles of material have been opened…. 191.4. On 3 January 2024, in an email to Mr Newby, Dr Widdowson referred to “unopened material, awaiting reprocessing” from the July and August Orders.

[192]This evidence shows, and I find, that most but not all of the containers were opened by Trinsic to check for reformation. Overall, the contemporaneous documents on both sides are more consistent with this conclusion and I prefer this material to Dr Widdowson’s late evidence.

[193]As regards whether there was reformation in every container, I have concluded that there was reformation in every batch of Product and indeed in most, if not all, of the containers which were opened but not in every container. This is consistent with not every container being opened to check for reformation and the fact that none of the documents from the time refer to reformation in every container as opposed to every batch. It was suggested by Procoll in closing that Mr Newby would have no reason to return Product which was fine, but this misses the point that the reformation is likely to have been in the significant majority of the containers and so it is likely that the batches as a whole were treated as affected by Trinsic.

[194]That leaves the nature of the reformation. The evidence on this point was a little better than for the March Order as there were some photographs and more contemporaneous email correspondence. Overall however, it was still relatively limited as no tests were carried out at the time on the substance and the relevant Product was largely or completely reprocessed. The parties responded to these evidential difficulties in different ways: 194.1. Trinsic said that the reformation was most likely to be microbial contamination but it did not matter what caused the reformation as the Product was unfit for purpose either way. If it was microbial contamination, then both experts accepted that the Product was spoiled. If it was collagen reformation then it could still not be safely mixed into drinks. 194.2. Procoll said that the later reformation was different from that in the March Order and was most likely to be the collagen reforming rather than microbial contamination. This was important as it also relied on evidence from Mr Kershaw that such reformation ought to be capable of being corrected or removed simply by agitation of the Product.

[195]Looking at the evidence, both factual and expert, in the round I have concluded that the reformation in the April-September Orders was collagen reformation rather than microbial contamination. However, I am not satisfied that this reformation could simply be corrected by agitation. My reasons for these conclusions are set out below.

[196]Starting with the nature of the reformation: 196.1. The evidence from Mr Newby and Dr Widdowson about the nature of the reformation was more consistent with collagen reformation than microbial contamination. The evidence was that the later reformation had a different appearance from that in the March Order. Save for Mr Newby’s references to some “peppery flecks”, the description of the colour and consistency was more consistent with how Mr Kershaw expected collagen reformation to look. There was also a marked difference between how the reformation in the March Order was said to have looked when Mr Newby first identified it and the contemporaneous descriptions of the reformation observed in the other Orders. 196.2. The reformation in the April-September Orders appears to have happened to all batches and to containers which were sealed until the reformation was identified. By contrast, the contamination which was most obviously microbial growth occurred only in one container from the March Order which I have found was previously opened. 196.3. The TACC results for the April-September Orders were different with some ambiguous but above 300 (suggesting that the neat plate exhibited substantial growth) whereas others were very low. The evidence suggested that the reformation was the same or sufficiently similar in each container but the microbial starting points were somewhat different. 196.4. Although no testing on the reformed material was carried out, the contemporaneous correspondence from Dr Widdowson (who was the most experienced person with soluble collagen who saw the reformation) referred to collagen reformation rather than microbial spoilage. Moreover, after he had seen the nature of the reformation, he suggested that the affected Product could be reprocessed. By contrast, his immediate reaction to seeing the contamination in the one container from March Order was to conclude that the Product was unusable and should be destroyed.

[197]Turning to whether or not the reformation could have been corrected by agitation: 197.1. The evidence from Mr Kershaw about correction through agitation was, in my view, too speculative given that he had not been able to view the nature of the reformation or to test the Product or the effect of agitation on it. 197.2. Although, unlike for the March Order which Mr Newby did try to mix with alkaline water, the parties did not carry out any tests at the time to see if this would have worked, I would have expected Dr Widdowson to identify and try this solution if he had thought that it might work having seen the nature of the reformation. However, rather than try such an apparently simple option, Dr Widdowson offered to reprocess the reformed material. 197.3. More generally, there was some scientific material considered during the cross-examination of the experts which referred to agitation as potentially giving rise to collagen reforming and it was not clear to me where the boundary lay between agitation as a cause of reformation and agitation as a solution to reformation. Was Procoll in breach of the Agreement?

[198]Trinsic’s case was that the presence of the reformation in the various Orders meant that they were not fit for their purpose within the terms either of clause 8.3 and/or clause 8.10 of the Agreement or the terms implied by SOGA, s.14 which provides in material part that: (2) Where the seller sells goods in the course of a business, there is an implied term that the goods supplied under the contract are of satisfactory quality. [….] (2B) For the purposes of this Act, the quality of goods includes their state and condition and the following (among others) are in appropriate cases aspects of the quality of goods—(a) fitness for all the purposes for which goods of the kind in question are commonly supplied,

(b) appearance and finish,

(d) safety, and

(e) durability..

[199]Starting with the March Order, one (partly used) container suffered from what I have found was microbial contamination and Mr Newby explained that this Product was not capable of being mixed into drinks. Dr Widdowson’s evidence was consistent with this one container being unusable. In these circumstances and subject to the consideration below of whether Trinsic was at fault for the contamination, that one container was not fit for purpose for the period of 18 months referred to in clause 8.3.2, nor was it fit for purpose within the terms of SOGA.

[200]In reaching this conclusion, I have considered the fact that the March Order failed to pass Product Testing and so did not fall within clause 8.10 which included a deeming provision and a warranty from Procoll but only for Product which had passed Product Testing. However, it seems to me that the requirement of fitness for purpose in clause 8.3.2 is more general and applies to any Products supplied under the Agreement.

[201]As regards the April-September Orders, although the evidence was less clear than for the March Order, I have also concluded that the Product in these Orders was not, after the reformation issue arose, capable of being mixed into drinks. In order to be fit for that purpose, the collagen supplied needed to be soluble in order that the drinks did not, in colloquial terms, contain lumps or other solid material. The reformation and my conclusion in relation to correction by agitation, meant that this was not possible. Accordingly, and again subject to the consideration below of whether Trinsic was at fault for the contamination, the containers in which the reformation was identified were not fit for purpose for the period of 18 months referred to in clause 8.3.2 (or clause 8.10 where they had passed Product Testing), nor were they fit for purpose within the terms of SOGA.

[202]This is not however, the end of this issue. A substantial part of the witness evidence concerned which of the parties might have been at fault for the reformation and, in particular, whether or not Trinsic was to blame for the reformation because of the way that it had handled or stored the Product after collecting it from Procoll.

[203]This was relevant because(a) clause 8.10 of the Agreement provided that the warranty specifically given there applied only “provided [Trinsic] stores and transports the Product specified in the Regulation” and

(b) the requirement for the Product to be fit for purpose in clause 8.3.2 was itself “subject to clause 8.10.” Thus, if Trinsic had not stored or transported the Product properly, no claim could, it was said, be made. Procoll also relied on the first sentence of clause 8.10 to say that Product which had passed Product Testing was deemed to have complied with the relevant criteria in clause 8.3 and that ruled out a claim for breach of clause 8.3.

[204]Starting with the legal issue, as I understood Procoll’s argument, it was that the first sentence of Clause 8.10 would mean that no complaint of a breach of clause 8.3.2 could ever be made about the fitness for purpose of any Product which had passed Product Testing because that Product had already been deemed to be fit for purpose. This would be the case even if the Product became unequivocally unfit for purpose at some point in the 18 months after delivery. This would be a very surprising result given that Product Testing could only deal with the state of the Product at the time it was tested. It seems to me therefore that the deeming provision relates to satisfaction of the criteria in clause 8.3 at the time of delivery.

[205]Further, even if the effect of the deeming clause was to rule out a claim for breach of clause 8.3, the second sentence of clause 8.10 makes it clear that, where Products pass Product Testing, Procoll was warranting that they would be fit for purpose for a period of 18 months after delivery. Thus, if the Product became unfit for purpose in that period, then that warranty would be breached and Trinsic would have a claim under clause 8.10.

[206]In this case, Trinsic’s pleaded case relied on breaches of both clause 8.3.2 and clause 8.10 and so either clause 8.3.2 applies (where Product did not pass Product Testing) or clause 8.10 applies (where the Product did pass Product Testing).

[207]Further, although clause 8.3.2 is “subject to clause 8.10” this cross-reference is intended in my view to pick up the wording of the second sentence of clause 8.10 which starts “Provided [Trinsic] stores and transports the Product in the manner specified in the Regulation….” Thus the requirement in clause 8.3 and the warranty in the second sentence of clause 8.10 only operate where Trinsic has complied with the storage and transportation requirements.

[208]Turning to the factual issue, the requirement in clause 8.10 of the Agreement (and cross-referred to in clause 8.3.2) was only that Trinsic should store and transport the Product in the manner specified in the Regulation. However, the Regulation contained very little about the storage and transport of collagen save that it required (in Schedule 1, Part 1, paragraph 6) collagen intended for human consumption to be stored and transported under “satisfactory hygiene conditions”. There were also requirements in the Regulation relating to the contents of the markings on any wrapping or packaging and the documentation which had to accompany the collagen during transportation but these were not in issue at the trial.

[209]Clause 9.12 of the Agreement also required that Trinsic should ensure that the Product was transported in a climate-controlled vehicle in order to maintain the Products in an environment that protected them from degradation, contamination, or other physical or chemical change or spoilage. This requirement was bolstered by the documentation which accompanied the various Orders which included a “Safety data sheet” recording the “Conditions for safe storage” as “Tightly closed, at 2-5c. Avoid repeated freeze-thawing”

[210]The focus of the parties was therefore whether Trinsic had satisfied these requirements as to temperature even though the Regulation did not refer to such requirements. Mr Newby’s evidence was that Trinsic had transported the Product in a refrigerated van and stored the Products at its premises in a commercial refrigeration unit. The contemporaneous documents also included some temperature records for the van or refrigeration unit.

[211]Although Procoll questioned this evidence, its case on this point was, in reality, a more general one and was centred on the submission that the issues which arose with the Product all occurred in containers which were taken by Trinsic and stored at its premises. Moreover, it said that the extensive testing which was done on various batches of Product from October 2023 onwards showed generally that the issues with high TACC results were in Orders which had been held for some period by Trinsic. These factors were sufficient, it was said, for me to conclude that something must have gone wrong with the handling and storage of the Product by Trinsic such that the contractual requirements as to fitness for purpose did not apply. Trinsic said it would be unfair for me to reach any conclusion on this point in the absence of proper disclosure of documents relating to the manufacturing process at Procoll.

[212]There is some force both in Trinsic’s point about fairness and in Procoll’s general observations about the circumstances in which the reformation occurred. However, I am not satisfied that Trinsic failed to transport, handle and store the Product in the manner identified in the Agreement and the Regulation.

[213]I do not consider that the other issues with Mr Newby’s evidence such as his inconsistency about how much Product was used and the examples where he was shown to have made misleading statements in other documents mean that I should reject his evidence on this point, particularly as it was common ground that Trinsic used a refrigerated van and his description of the limited time taken to load that van (so that the Product was not out of refrigeration for long) was not challenged. Further, the particular points relied on by Procoll, such as the appearance in some photographs of flecks on the outside of containers or the yellowing of labels were, to my mind, of limited value as there was too much uncertainty as to the circumstances in which the photographs came to be taken.

[214]In addition: 214.1. The test results did not speak with one voice. For example, in March 2024, both MTD and Precision tested samples which had come from the November Order which was collected, transported, and stored by Trinsic. These tests returned some very high TACC figures and some very low TACC figures. Likewise, very different results were obtained by Precision and MTD for tests on the October Order collected by Trinsic. The variable nature of these results is inconsistent with the issue being only at Trinsic’s end. 214.2. There was, in any event, a mismatch between the problem which arose with the majority of the Orders – the reformation – and test results which were relied on to show that high TACC results had been caused by Trinsic’s actions. I have found that the reformation was not microbial contamination and, although there were suggestions that a high TACC result could provide the conditions for the collagen to reform, the link between the two was not established. The evidence as to how and why poor handling and storage might lead to TACC results going up was clear, but there was no clear evidence as to whether and, if so, how poor handling and storage might cause the reformation which was not microbial contamination. 214.3. The one container from the March Order which suffered from microbial contamination, had started with a relatively high TACC result (6900 cfu/g) and had been part used. Neither of these matters, which are likely to have caused or contributed to the problem, could be ascribed to a failure by Trinsic to handle the Product in accordance with the Agreement. 214.4. Although there were references in the internal Procoll correspondence to Trinsic being responsible because it was unsealing the containers, on the evidence, the reformation occurred in some containers which were sealed.

[215]In these circumstances, I have concluded that Trinsic can rely on the provisions as to fitness for purpose in clauses 8.3.2 and/or 8.10 of the Agreement.

Impact of the Unfair Contract Terms Act 1977

[216]As with the claims based on Product Testing, the primary remedy sought by Trinsic on its claims relating to fitness for purpose is loss of profits. These claims are, on their face, barred by clause 17 of the Agreement: 216.1. Pursuant to clause 17.8 of the Agreement, the terms implied by sections 13 to 15 of SOGA were, to the fullest extent permitted by law, excluded from the Agreement, leaving only claims under clauses 8.3 and 8.10 of the Agreement where fitness for purpose is concerned; and 216.2. Insofar as Trinsic claims loss of profits for breaches of these clauses, these claims are, on their face, excluded by clause 17.7.2.1 of the Agreement and/or limited in amount by clause 17.5 of the Agreement to the amount paid by Trinsic.

[217]Mr Lee submitted, and I agree, that the impact of these clauses is not so much about clause 17.8 or clauses 17.7.2.1/17.5 in isolation but the fact that the former is coupled with the exclusion for loss of profits making a package which results in there being no available loss of profits claim if the Product is not fit for purpose.

[218]Trinsic said that these various clauses were therefore ineffective because they failed the test of reasonableness under s.6(1A) of UCTA, such that it could then rely on a claim for loss of profits for breach of the term implied under SOGA (but not, it accepted, for its claims based on breaches of clauses 8.3 and/or 8.10 of the Agreement).

[219]UCTA, s.6(1A) provides that: Liability for breach of the obligations arising from— (a)section 13, 14 or 15 of the 1979 Act (seller's implied undertakings as to conformity of goods with description or sample, or as to their quality or fitness for a particular purpose); (b)section 9, 10 or 11 of the 1973 Act (the corresponding things in relation to hire purchase), cannot be excluded or restricted by reference to a contract term except in so far as the term satisfies the requirement of reasonableness

[220]The requirement of reasonableness is explained in s.11(1) as follows: “the requirement of reasonableness for the purposes of this Part of this Act … is that the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made

[221]UCTA s.11(2) provides that, in determining for the purposes of s.6 of UCTA whether a contract term satisfies the requirement of reasonableness, regard shall be had in particular to the matters specified in Schedule 2 to UCTA. These include the strength of the bargaining positions of the parties relative to each other; whether the customer had an opportunity of entering into a similar contract with other persons; and whether the customer knew of the existence and the extent of the term.

[222]The parties also referred me to a range of authorities in their written arguments. On Trinsic’s side those cases emphasised the following factors as being of particular relevance: the relative width of the exclusion with the wider the exclusion the more likely it is to be unreasonable; the extent to which the party subject to the term could have avoided it by going elsewhere or negotiating the clause; and the potential unreasonableness of limiting liability while simultaneously agreeing to detailed standards for the product.

[223]On Procoll’s side, the focus was on cases in which the agreement was bespoke and was entered into between two commercial parties advised by solicitors. In relation to one such contract, Chadwick LJ said the following in Watford Electronic Ltd v Sanderson CFL Ltd

[2001] EWCA Civ 317

at [55]:

“Where experienced businessmen representing substantial companies of equal bargaining power negotiate an agreement, they may be taken to have had regard to the matters known to them. They should, in my view be taken to be the best judge of the commercial fairness of the agreement which they have made; including the fairness of each of the terms in that agreement. They should be taken to be the best judge on the question whether the terms of the agreement are reasonable. The court should not assume that either is likely to commit his company to an agreement which he thinks is unfair, or which he thinks includes unreasonable terms., Unless satisfied that one party has, in effect, taken unfair advantage of the other — or that a term is so unreasonable that it cannot properly have been understood or considered — the court should not interfere.”

[224]The authorities which were cited to me also recognised that the issue of unreasonableness is one to be decided on the facts of each particular case and by reference to the terms of the contract in question.

[225]Trinsic’s argument as to reasonableness on the facts focussed on what it said was an inequality of bargaining power between the parties because Procoll was the only supplier of water soluble collagen in the world and Trinsic could not manufacture its drinks without it. Trinsic was therefore compelled to contract with Procoll on the terms which Procoll would accept in order to obtain the product which it needed. Mr Lee also highlighted the events of early 2021 when, in the context of negotiations between Trinsic and Conan Capital, Procoll (through Mr Snow) said that the Original Agreement had fallen away but, by contrast, Trinsic didn’t want to end the relationship because they had no one else to turn to. Trinsic also said that it was relevant that clause 17 excluded liability for precisely the same types of liability as were in the parties’ reasonable contemplation; and that because the parties agreed exacting product specifications it would defeat the purpose of those provisions if Procoll could nonetheless rely on the exclusion clauses in relation to claims for loss of profits.

[226]I do not accept Trinsic’s argument for the following reasons: 226.1. While it is correct that Procoll was, at the time of the Agreement, the only source of alkaline water soluble collagen and that Trinsic had made substantial investment in equipment advance of the Agreement, this is only part of the picture in relation to the bargaining power between the parties. At the time when the Agreement was negotiated in 2022, Trinsic had asserted via its lawyers that it had both an ongoing contract with Procoll for the supply of collagen which it could enforce (the Original Agreement) and a viable claim against Procoll for at least £4.7 million for breach of the Original Agreement. A claim of anywhere near this level would have wiped out Procoll. Such was Mr Newby’s confidence in this claim that, in his oral evidence, he referred to Procoll as having “surrendered” in the face of it as their position was untenable. In these circumstances, rather than there being an inequality of bargaining power between sole supplier (Procoll) and a customer who had no choice (Trinsic), the customer entered the negotiation holding both the Original Agreement and this substantial claim over the supplier if an agreement could not be reached for future supply on terms acceptable to both parties. While Mr Lee relied on the fact that Procoll could not have paid the amount of the claim which Trinsic was threatening in 2022 that does not detract from the choice which Trinsic had and, in any event, it could have sought to enforce the Original Agreement which had no limitations or exclusions in respect of loss of profits. 226.2. I do not consider that the earlier events involving Conan Capital in early 2021 which showed that Trinsic wanted to continue the relationship or the investment in equipment made by Trinsic undermine this conclusion about the relative equality of bargaining power either. As regards the investment in particular, Mr Newby’s written evidence was that Trinsic committed to this because of how “urgently [Trinsic] needed to start production once the deal was in place.” This was therefore a choice made by Trinsic to avoid delays rather than anything for which Procoll was responsible or which was inherent in the relationship between the parties. 226.3. More generally, this was a bespoke and carefully negotiated contract where both sides engaged lawyers to assist and where the terms of the exclusion clauses were specifically negotiated. I was shown drafts of the agreement in which Trinsic sought to remove the clause which became clause 17.7.2.1 and Procoll resisted this with Procoll ultimately winning the day on this point in the negotiation. 226.4. The nature of the negotiations can also be seen from the fact that there were other points where Trinsic was successful. For example, the Heads of Terms set out the price for the supply of collagen (£6 per gram for the first 12 months, then £8 per gram for months 12-24, then £10 per gram for month 25 and onwards). However, Schedule 1 of the Agreement contained more beneficial terms as to price for Trinsic with the cost rising at £1 per year from £6 per gram in year 1. 226.5. The Agreement also contained terms which were in Trinsic’s favour. For example, only it had the right to terminate the Agreement without cause if it gave twelve months’ written notice (clause 20.5). Procoll had no such right to terminate. The exclusivity provisions were also in Trinsic’s favour as Procoll could only supply Trinsic with Product for use in the Exclusive Field (clause3.1 ) but Trinsic could purchase collagen for such use from any third party (clause

3.2 ). 226.6. The fact that the types of liability excluded in clause 17.7.2, and particularly loss of profits, were in the parties’ contemplation is a point which, in my view, weighs against Trinsic given that this contemplation arose from the facts that

(a) Trinsic had already advanced a substantial claim for loss of profits and

(b) the gains it was hoping to make were, as both parties knew, out of all proportion to the amount which Procoll was charging for the Product. Mr Newby anticipated revenue of £3.5 million per month against a monthly cost for the collagen of £30,000. As I have noted above, Mr Lee relied on the fact that Procoll could not have paid the amount of the claim which Trinsic was threatening in 2022 but, equally, there was no reason to think that it would be able to pay an equivalent amount claimed for loss of profits in the future either, and certainly not at the level anticipated by Mr Newby. 226.7. Far from regarding Trinsic as having been unfairly treated or taken advantage of, Mr Newby’s reaction to the signature of the Agreement was to describe it as “amazing news” in a message to an associate. 226.8. Looking just at clause 17.8, that clause itself expressly recognised that the terms implied by SOGA were being excluded because the parties had agreed a bespoke set of provisions in clause 8 relating to the quality of the Product and its fitness for purpose. Thus, it was not a case in which the statutory implied term was being replaced by nothing but instead by other terms which included an express requirement that the Product be fit for purpose. Further, just as with the exclusion clauses, the bespoke provisions relating to the nature of the Product to be supplied and its fitness for purpose were the subject of negotiation with, for example, Trinsic inserting the period of 18 months which appeared in the final version of clauses 8.3 and 8.10 of the Agreement.

[227]Standing back, I have concluded that clause 17.8 excluding the statutory implied terms, clause 17.5 limiting the amount of loss which could be claimed and clause 17.7.2.1 excluding claims for loss of profit were fair and reasonable clauses to have included in the Agreement. Ultimately this is a case in which the parties were essentially setting out on a new venture using a product which had not previously been produced or used in commercial quantities and where there was a material imbalance between the potential benefit to Trinsic and that to Procoll. Against the background of Trinsic threatening Procoll with a substantial claim for breach of the Original Agreement, the risk of this new product not being able to be used to generate these benefits was allocated by negotiation to and accepted by Trinsic. This was, in my view, reasonable. Causation/mitigation

[228]The conclusion I have reached above in relation to the exclusion/limitation clauses is sufficient to dispose of the claims for loss of profits based on fitness for purpose. As such, Procoll’s points on causation or mitigation do not arise. However, as there was argument on these points, I will set out my conclusions briefly below.

[229]Causation or mitigation were relevant because Procoll argued that any profits which Trinsic had lost due to the reformation were caused by its own failure or refusal to take Product which Procoll had reprocessed and/or its failure to take steps to mitigate the reformation in the Product such as freezing it or asking Procoll to provide it at a lower pH or concentration. In argument, Procoll also characterised the failure to take the reprocessed material as a failure to mitigate.

[230]The reprocessed material: the essence of Procoll’s argument was that Trinsic’s case was based on profits which it says that it would have made between 2026 and 2029 and so, if it had taken the reprocessed material which Procoll made available, then those profits (or at least a substantial part of them) could still have been made. It did not matter to Trinsic for the purpose of these profits whether or not it received the Product in the April-November Orders in 2023 or the reprocessed Product in 2024.

[231]There was a dispute about the extent of the reprocessing and (possibly) which reprocessed material had been tested: 231.1. Procoll said that all of the material returned by Trinsic from the April-September Orders had been reprocessed as this was Dr Widdowson’s evidence in re-examination where he said “As far as I am aware all batches were reprocessed”. It also relied on an email from Dr Widdowson on 14 March 2024 which said “The material previously retuned to ProColl for reprocessing is ready for collection” and the sample tested by MTD in March 2024 (sample 15 referred to in paragraph 77.5 above) which was said in a spreadsheet prepared by Dr Widdowson to have come from the “Reprocessed May-July batches”. Procoll also said that it did not make a difference whether all of the returned Orders had been reprocessed because, in refusing to accept the reprocessed Product which was offered, Trinsic demonstrated that it would not have accepted any other Product which had been available. 231.2. Trinsic relied on the same spreadsheet to say that not all of the reformed Orders has been reprocessed and/or tested. It also said that it was reasonable not to accept the reprocessed material without a more detailed investigation into what had gone wrong with the original Orders.

[232]On the factual dispute, Dr Widdowson’s witness statement did not advance matters as it did not deal in any detail with which Orders were reprocessed and in which order. Further, although Dr Widdowson thought that all the returned material had been reprocessed, this only really emerged in re-examination and was qualified by him saying “as far as I am aware”. Moreover, the reason given for only initially reprocessing part of the returned Orders – a lack of storage space – would have continued to apply.

[233]The contemporaneous evidence was also limited. It was clear that the April, May and July Orders had been reprocessed by early January 2024 but, at that stage, the August and September Orders had not been (as that is what Dr Widdowson told Mr Newby on 3 January 2024). The position by March 2024 was less clear. Although Dr Widdowson’s reference on 14 March 2024 to “the material previously returned” as having been reprocessed might be read as including the August and September Orders, the test results from MTD in March 2024 and Dr Widdowson’s explanation of them attached to the email – which refers to sample 15 being from the May-July Orders only – suggests that the August and September Orders had not been processed by March 2024. After all, if they had been reprocessed they would have formed a separate batch (with a different date of production) and I would have expected tests to have been done on that batch as well. In these circumstances, the more likely explanation is, and I find, that the August and September Orders had not been reprocessed.

[234]It also seems to me that the reference to “May-July” on the spreadsheet is an error and should have referred to April as well (consistent with the email on 3 January 2024). The error is likely to have arisen as only one container from the April Order was returned and so the very substantial majority of the reprocessed material was from the May and July Orders.

[235]On this basis, reprocessed material from the April, May and July Orders was and remained available for collection from early January 2024. It was this material which was tested by MTD in March 2024 and satisfied the Specification. The August and September Orders which were returned had not been reprocessed as at March 2024.

[236]The fact of partial reprocessing is not determinative however, as I agree with Procoll that it is the availability of at least some of the reprocessed material and Trinsic’s refusal to take it which is the relevant matter for causation. It is sufficiently clear that, even if all of the Orders had been reprocessed, Trinsic would not have taken them. The key question identified by the parties was whether or not it was reasonable for Trinsic not to take the reprocessed material.

[237]If Trinsic’s claim for loss of profits had otherwise been successful, I would have concluded, in all the circumstances, that Trinsic had acted reasonably and therefore that the refusal to take the reprocessed material would not have broken the chain of causation nor would it have been a failure to mitigate. This is because: 237.1. The loss of profits claim would have arisen because the Product had suffered from reformation and was not fit for purpose. In the absence of any clear explanation from Procoll as to the cause of the reformation and any clear evidence that the reprocessing would have prevented the same thing from happening again, Trinsic could not be reasonably satisfied that the cause of the original breach of the Agreement had been remedied. 237.2. The fact that some of the reprocessed Product (for April-July) was tested by MTD in March 2024 and the results were within the Specification does not mean that the reprocessed material passed Product Testing as provided for in the Agreement. The Agreement simply did not provide for or envisage the existence of or testing of reprocessed product. In any event, the original May and July Orders had been within the Specification but had suffered from reformation. As such, the testing by MTD was not an answer to the problem which had arisen and which caused a breach of the Agreement.

[238]Mitigation: If it had been necessary, I would also have concluded that there was no failure to mitigate by Trinsic. The starting point is that the measures suggested by Procoll – freezing, lower concentration, or lower pH – were all made after the reformation had occurred and the Product from the April-September Orders had been returned by Trinsic. They were therefore measures which might have been applied to future Orders/Standing Orders under the Agreement but could not be applied to the Orders in respect of which Trinsic claimed to have suffered a loss of profit because of the reformation.

[239]However, there were also particular points which arose in relation to each of the possible mitigations: 239.1. The pH of the Product was fixed by the Agreement at “between 7-9” and therefore it would not have been reasonable to expect Trinsic to ask for or accept a pH outside of the contractual range which Procoll had accepted and agreed to (even if Dr Widdowson thought it was a bad idea for the pH to be this high). 239.2. The concentration of the Product was not specified by the Agreement. As such, it was in the control of Procoll rather than being a measure that Trinsic could require or adopt to mitigate its losses. 239.3. Although there was much discussion between the parties of freezing the Product and steps were taken by both sides to take this course, it did not happen and, ultimately, there was insufficient evidence for me to conclude that freezing the Product would provide a solution. While Procoll had tested whether or not the containers would survive the expansion of the Product cause by freezing, there was no evidence of the impact of freezing on reformation over a longer period. In these circumstances, freezing was something which might have helped but I cannot be satisfied that, on the balance of probabilities, it would have worked.

VI Quantification of the loss of profits

[240]For the reasons given above, Trinsic is not entitled to claim loss of profits. However, in case the quantification of those profits becomes relevant, I will deal briefly below with my conclusions that issue.

[241]Trinsic’s primary claim was that, but for the various breaches of contract by Procoll which it alleged, it would have had available to it additional amounts of Product which it would have used to manufacture and sell nutraceutical drinks at a substantial profit. Trinsic’s calculation of the relevant amount of additional Product was not entirely easy to follow: 241.1. Its case as originally pleaded was based on 29.9kg of additional Product. 241.2. By amendments made in March 2026, this claim was changed to 32.39kg or 26.6kg of additional Product. These claims were made up of:(i) 5kg of Product to replace the whole of the March Order or 2.5kg of the March Order which was subject to reformation.

(ii) 19.99kg of Product which would have been supplied in lieu of the Product from the April-September Orders which reformed. This part of the claim excluded the Product (from the April and May Orders) which had been used in the July production run.

(iii) 7.4kg of Product to replace the October and November Orders, alternatively, 4.11kg of Product from those Orders which was not subject to valid Product Testing and was not used in the production runs of the equine product in October and November 2023. 32.39kg is the figure obtained taking the higher of any alternatives while 26.6kg takes the lower of any alternatives.

[242]It was difficult to reconcile these figures with Mr Newby’s witness statement or the other evidence. The reference to 2.5kg from the March Order which reformed was not correct as it was clear from the evidence at trial that the reformation of the March Order only affected one container. This was, at most, 1kg (as the concentration of that Order was 1kg per container) and not 2.5kg. Equally, Mr Newby’s witness statement referred to the use in production runs of 7 out of 12 containers from the October and November Orders but this would suggest that less than 4.11kg remained unused. If there were 5 containers left over that would be 3kg of Product (as the concentration of those Order was 0.6kg per container).

[243]Further, although I have found that Trinsic would have been entitled to 5kg of Product to replace the March Order, I rejected the claim that the October and November Orders needed to be replaced. Although it appears that 5 containers from those Orders were returned to Procoll, Trinsic’s pleaded case did not allege reformation in relation to these Orders. As such, I would have concluded that Trinsic’s loss of profits claim would have been limited to 19.99kg (reformation) plus 5kg (March Order).

[244]Trinsic relied on the expert evidence of Mr Hodgen to quantify the losses arising. Procoll did not adduce any expert evidence of its own on this issue, but relied simply on its cross-examination of Mr Hodgen. Moreover, Mr Pearce-Smith devoted very little of his time in closing to this issue on the basis, as he put it, that Procoll could not afford to pay any material amount by way of damages and so the precise quantification “almost makes no difference”.

[245]Mr Hodgen’s calculations as set out in his two reports proceeded as follows: 245.1. He first identified the actual sales which had been made from Trinsic’s sales data for the years ending 31 March 2024 and 31 March 2025. It emerged in his cross-examination that this data referred to Trinsic’s products for human consumption as “Pro” and “Elite” but these names had been switched in about July 2023 but Mr Hodgen had not been told this. 245.2. He then considered the identity of the purchasers of the drinks sold and the price they had paid. “Almost all” of the full price sales were said in his first report to have been made to “one customer” or “customers” labelled “UNHW Customer” (at ¶28). 245.3. He identified trends from this data and projected what he said was the most likely level of demand from customers. In particular, the growth in the sales to the UNHW Customer between 2024 and 2025 (from £410,880 to £731,880) was assumed to continue into 2026 and beyond. 245.4. In general, he assumed that the costs incurred by Trinsic would remain at 2025 levels save for certain costs for which he used the 2024 figures (as costs had fallen in 2025 when Trinsic was affected by a lack of Product) or where he produced an estimate. 245.5. The profits which would have been made depended on how much additional Product would have been available but, using the figures if 26.6kg of the Product had been available in November 2023, Mr Hodgen calculated the profits which would have been made as £1,996,589 in 2026, £2,999,750 in 2027, and £3,407,382 in 2028. 245.6. Future profits were discounted at an annual rate of 15% to come up with their net present value. Mr Hodgen described this discount as typical for a start-up business in its early years. There was no real challenge by Procoll to this figure. The application of this discount to the figures I have set out in paragraph 245.5 above, resulted in a total claim of £7,181,538.

[246]Mr Pearce-Smith’s broad submission was that Mr Hodgen’s evidence was unsatisfactory and was built upon various assumptions which did not withstand any scrutiny. These submissions were not, however, developed in any particular way and leave the Court in a difficult position not least as there were a number of points in relation to Mr Hodgen’s evidence which caused me concern.

[247]First, it was clear that Mr Hodgen had made a number of assumptions in preparing his Reports but these were not set out in those Reports, nor were they contained in any letter of instruction appended to the Reports. As such, it was not clear to me what those assumptions were.

[248]Second, Mr Hodgen had not been provided with details of(i) the number of bottles which Trinsic had produced in 2023,

(ii) the number of bottles which remained available for sales after 31 March 2025, and

(iii) the number of bottles which had been sold in that period. Rather, Mr Hodgen had assumed that there were no (or very few) bottles either available or sold after 31 March 2025. Given that Mr Hodgen’s calculations were based on assumptions from 1 April 2025 onwards, it was surprising that he had not been provided with materials about actual sales for the period between 1 April 2025 and his reports (in January and March 2026). The actual number of sales in that period seems to me to be a material factor in the calculation of any loss of profits in that period.

[249]Third, and linked to the second point, Mr Hodgen relied materially on the increase in sales to the “UNHW Customer” between 2024 and 2025 which he assumed would continue into 2026 and beyond. There was considerable uncertainty in the evidence as to whether this was one or more customers and/or whether it was a business buying for multiple customers or one customer buying for family members. This was important as this “Customer” effectively drove the calculations because Mr Hodgen took the increase in revenue from this source between 2024 and 2025, and applied this same increase (roughly 78%) year on year. This revenue was then reverse-engineered into the number of bottles sold so that, in the projections, sales increased from 6,092 bottles in 2026 to 19,329 bottles in 2028. Given the state of the evidence about this “Customer”, this seemed to me to be an ambitious assumption and one for which the actual sales data for 1 April 2025 to January 2026 would have been highly relevant.

[250]In these circumstances, I would not have accepted Mr Hodgen’s figures or methodology but would have directed further expert evidence to be produced to deal with the issues I have identified. I considered whether the correct outcome would have been simply to reject Trinsic’s evidence, but this would have been too extreme a measure given that further calculations would have been required in any event as the amount of additional Product which Trinsic would have had available was less than in any of Mr Hodgen’s projections.

VII Other remedies sought

[251]Trinsic’s alternative claims were for: 251.1. Late Delivery Fees in respect to the March, October and November Orders pursuant to clause 8.11 (albeit that the claim in respect of the November Order did not appear in the Particulars of Claim but was included in the List of Issues and Trinsic’s written opening); and 251.2. The return of the price paid for the Product which had not been used due to reformation. Late Delivery Fees

[252]I have rejected the claim under clause 8.11 in respect of the October and November Orders and so no Late Delivery Fees arise for those Orders.

[253]I have found that clause 8.11 was engaged in relation to the March Order and that a replacement batch should have been provided to the Product Tester but was not. Clause 8.11 then deals with the natural consequence of such a failure – that an Order may be delivered late but with a Late Delivery Fee being payable by Procoll. I note that such a Fee is also payable where there is a delay for other reasons (see clause 7.10).

[254]There are two oddities with the application of clause 8.11 in this case. First, the March Order was, in layman’s terms, delivered on time because Procoll made it available and Trinsic picked it up in accordance with the date for collection arranged between the parties. Second, there was no delivery of a replacement for the March Order and a Late Delivery Fee is not the obvious remedy to cover for no delivery.

[255]Trinsic’s answer to this was that Delivery is only completed when an Order which has passed Product Testing is made available for collection (clause 9.5) and, because the March Order did not pass Product Testing, there was therefore no delivery of the March Order.

[256]Ultimately, Procoll was not able to articulate a legal answer to this analysis and, in these circumstances, I have concluded that Trinsic is entitled to a Late Delivery Fee in respect of the March Order. This Fee, which accrues at 0.3% of the Product Price per day of delay after an initial grace period of 72 hours, is capped at 10% of that Price. The cap is reached after 37 days of delay (inclusive of the grace period) and, as no replacement was supplied for the March Order, that cap of £3000 (i.e. 10% of £30,000) was reached in this case and that is the sum payable by Procoll under this head of loss. Return of the price

[257]The other alternative was a restitutionary claim for return of the Product Price for the Product which had not been used (because it had reformed) because there had been, on Trinsic’s case, a total failure of consideration or basis. The issues between the parties on this claim related both to the availability of such a claim in this case and its quantification.

[258]Starting with quantification: 258.1. This claim as originally pleaded was for £172,200, a figure which appears to be based on total payments of £202,200 less £30,000 for Product actually used. As Procoll pointed out, the figure for the amount paid included £7,200 for a 1kg batch of research-grade product which did not otherwise feature in the claim and more than £30,000 worth of Product was used. 258.2. In its written opening, Trinsic’s restitutionary claim was quantified differently at £149,940 based on 24.99kg of Product from the April to September Orders which was unused at a price of £6 per gram. However, the loss of profits claim for the April-September Orders which I have referred to above was based on 19.99kg of Product from the April-September Orders which was not used (and not 24.99kg). 258.3. In closing, I understood it, this claim extended to the whole of the March Order (as it was outside of the Specification) and the claim in relation to the April-September Orders articulated in the written opening. This may explain the figure of 24.99kg (being 5kg from March and 19.99kg from April-September).

[259]This fluctuation in the way the claim was put, together with the uncertainty in the evidence of Mr Newby as to precisely how much product reformed and/or was used, made it difficult to identify the precise amount of the claim.

[260]The main point of principle was whether or not a claim in restitution could work where there had been delivery and use of at least some of the relevant Product. It was common ground that such a claim could apply if a contract was regarded as divisible and the failure could be apportioned to part of the contract (for which point Trinsic relied on Deveaux v Connolly (1849) 8 CB 640 and the wider principles expressed by the Supreme Court in Barnes v Eastenders Cash and Carry Plc

[2014] UKSC 26

at [114]).

[261]Trinsic said that the Agreement was for the supply of the Product by the gram (the price being £6 per gram) and that, accordingly, the Agreement could be divided into individual supplies by the gram and, when reformation occurred, the Product supplied could be divided between that which had been used and that which had not. Procoll denied this and also relied on the fact that the precise way in which Trinsic was making its case had not been properly pleaded.

[262]Procoll also said that the claim did not work because the Agreement had not been discharged by Trinsic (relying on Chitty on Contracts at 33-067 and BP Oil International Ltd v Vega Petroleum Ltd

[2021] EWHC 1364

) and this was particularly so where at least part of Trinsic’s claim was that it was entitled to a replacement batch of the Product under the Agreement. There could not have been a total failure of consideration where the Agreement was being relied on to obtain further Product. The authorities referred to by Procoll make it clear that the contract need not be discharged by the party making the claim in unjust enrichment. The requirement is simply that the contract has been discharged.

[263]Finally, Procoll said that, on the facts, there had not been a total failure of consideration because the reformation had only appeared in Product in Trinsic’s hands some material time after delivery and that Product had, it said, been useable in the meantime. Trinsic’s response was that the relevant “basis” for the Agreement was the supply of material which met the Specification and satisfied clause 8.3 in particular, and this basis had failed even if Trinsic had obtained some benefit from the Agreement.

[264]Restitutionary claims for failure of basis are a relatively complex area of law which, due to the exigencies of the time available at trial, received relatively little consideration by the parties save for their reference (largely in writing) to the general statements of principle referred to above. However, I have concluded that there are two answers to Trinsic’s claim in unjust enrichment which are sufficiently clear for that claim to be determined notwithstanding the lack of detailed argument.

[265]The first is the requirement referred to by Procoll for the relevant contract to have been discharged. Although the extract from Chitty I have identified refers to exceptional circumstances in which an unjust enrichment claim can be made in relation to a subsisting contract, there does not seem to me to be anything exceptional about this case. Moreover, it did not appear to me that either side in this case was saying that the Agreement had been terminated. Procoll’s set-off claim (referred to further below) was premised on a continuing obligation on the part of Trinsic to buy the Minimum Purchase Order each month while Trinsic accepted in argument that Procoll could still supply replacement Product for the March Order (which would depend on the Agreement subsisting).

[266]The second is that there was not a total failure of basis in fact.

[267]I accept that: 267.1. contracts for the sale of goods can be divisible and so part of the price paid for goods can, in principle, be recovered if particular goods are not delivered – Mr Lee’s example in closing was a contract for 10,000 widgets but only 5,000 are delivered; and 267.2. there can be a total failure of basis even where some benefit is obtained if that benefit is collateral - Mr Lee referred in closing to the purchase of a container of tea where the tea is bad and has no value but the container itself has some value to the customer.

[268]However, both of the analogies referred to by Mr Lee break down and illustrate the issues with the restitutionary claim in this case. In the case of the March, April, and May Orders, the Product was delivered and at least some of it was used in the production of nutraceutical drinks. Further, even for the other Orders for June to September, there was no shortage of delivery and it appears, based on the use of the Product from both the earlier and later deliveries, that it could have been used by Trinsic if it had done production runs on or soon after delivery. The problem which arose was that, some time after delivery, the reformation occurred meaning that the Product could no longer be used. However, Trinsic had received at least some of the contractual benefit for which it bargained. Put another way, the receipt of Product which it could and did use was not a collateral benefit but what it had contracted for.

[269]Trinsic’s case in relation to the March Order is particularly stark on this front. It received 6kg of Product in the March Order (1kg of which was provided for free) and used 5kg of that profitably and for the very purpose for which it was supplied. Its case however, was that the failure of that Product to meet the Specification meant that the consideration for its payment had totally failed. I do not accept this. The purpose of the Agreement was to obtain Product to use in nutraceutical drinks which were fit for human consumption and the March Order satisfied that purpose when delivered. The breach of the Agreement because that Order did not meet the Specification does not, in my view, undermine the basis of the entire Agreement. It may give rise to a claim for breach of the Agreement but that is a different matter.

VIII Set-off

[270]Procoll advanced a defence of set-off based on the obligations of Trinsic to(i) make continuing purchases of the Minimum Purchase Amount and

(ii) pay for the October and November Orders.

[271]As regards the first of these, Procoll argued that Trinsic continued to be under an obligation to purchase 5kg of Product per month at the price provided for in the Agreement. Procoll relied, in particular, on clause 9.8 to argue that Trinsic remained obliged to pay for the Standing Orders whether or not it took the Product and, indeed, whether or not the Product had even been manufactured and made available for Delivery. This gave rise, it was said, to a liability of £845,000 at the date of the original Defence and increasing each month thereafter.

[272]I do not accept however, that the Agreement works in this way. In relation to the Minimum Purchase Amount, it is right that Trinsic was obliged to purchase such an Amount each month (clause 4.4). The Agreement further provided that Trinsic would be supplied with this amount of Product on a standing order basis (clause 7.1) and would be invoiced by Procoll for each Standing Order on Delivery (clause14.1 ) with payment due within 30 days of the date of Delivery (clause

14.2 ). Thus, in the ordinary course of events, the payment obligation for each Standing Order arose from the rendering of an invoice which was itself dependent on Delivery which in turn required Procoll to manufacture and make the relevant Product available for collection.

[273]Procoll argued that this position changed by virtue of clause 9.8 which does contemplate both a delay in Delivery Dates and also a continuing obligation to make payment. It would however, be a surprising commercial result if the Agreement intended to oblige Trinsic to pay for Product which was not even manufactured and such a conclusion would, in my view, require clear language. However, clause 9.8 itself referred expressly to the requirement to make payment “in accordance with clause14.1 and

14.2 on their due date for payment” and those clauses contemplate actual Delivery and an invoice before the payment obligation would arise. Rather than seeking to amend the effect of clauses 14.1 and 14.2, clause 9.8 relied on and adopted them without modification.

[274]Procoll did not explain how these provisions could be read to provide for payment in the absence of these events without ignoring the language used. I have therefore concluded that, on its proper construction, clause 9.8 does not cause the obligation to pay to arise without Delivery. Rather, it is intended to make it clear that the payment provisions in clause 14 will apply on their terms to delayed deliveries.

[275]Further even on Procoll’s approach, it seems to me that a degree of formality would have been required. Procoll would have had to identify the relevant Delivery Dates and decide that they should be delayed, and then render invoices on the original Delivery Dates for the amount of Product which would have been delivered but for the delay. This is important because, although the Agreement provided for Standing Orders to be made available for collection on the 28th of each month (clause 7.1), in reality the parties agreed different dates for collection and so there is no one date from which the payment obligation could run.

[276]Although it appears that the December Order may have been made available, no invoice was rendered for it and there were no further Standing Orders made available from January 2024 onwards nor were any invoices rendered for such Standing Orders. Likewise, there was no suggestion at the time by Procoll that it was delaying the date or time of Delivery of any Standing Order.

[277]In these circumstances, no sums became due under clause 14.2 even if the reference to “Delivery” in clause 14.1 could (contrary to my earlier conclusion) be read as applying to “Delivery or the date on which Delivery would have been made but for it being delayed by Procoll pursuant to the provisions of clause 9.8”.

[278]I therefore reject Procoll’s argument that it is entitled to set-off £845,000 or any other sum by reference to Standing Orders for December 2023 onwards.

[279]As regards the second of the set-offs, it was much more modest, being limited to the amount of the unpaid invoices for the October and November Orders (£15,000 and £30,000 respectively) plus contractual interest. These were Orders which Trinsic took delivery of (in part for October and in full for November) and used, at least in part, for making the equine drink. It will be recalled that, leaving aside the timing of the tests, the November Order passed Product Testing and the October Order was ambiguous.

[280]Starting with the October Order, Trinsic took 2.4 kg of Product (rather than 5kg) and paid £15,000 for it. Procoll’s claim relates therefore to the remaining amount of Product which was available for collection but was not taken by Trinsic. This claim provides a further illustration of the problem caused by the fact that the Agreement contemplated only that any Product made available by Procoll would have passed Product Testing but that this regime was not followed by the parties. On the face of the Agreement, the trigger for the payment obligation was “Delivery” (clause 14.1) and, pursuant to clause 9.5, “Delivery” would be completed “when [Procoll] places the Products which have passed Product Testing” at Trinsic’s disposal. As I have explained above, the October Order did not pass Product Testing either before or after delivery as the result was ambiguous. I do not consider that, in these circumstances, Procoll can have a claim for the balance of the invoice for the October Order.

[281]The November Order is different because it passed Product Testing (albeit after it was collected by Trinsic) and therefore the invoice for the November Order was payable by Trinsic without any set-off, counterclaim deduction or withholding (clause 14.5). As no payment has been made in respect of that invoice, Trinsic remains liable for the amount due, namely £30,000, and Procoll can set this liability off against any sum which it owes to Trinsic.

IX Conclusion

[282]The conclusions I have reached can be summarised as follows: 282.1. Clause 8.11 of the Agreement was engaged in relation to the March Order and Procoll was obliged but failed to supply a replacement batch. Under that clause Trinsic is entitled to a Late Delivery Fee capped at £3,000. 282.2. Clause 8.11 was not engaged in relation to the October and November Orders. 282.3. There was a breach of clauses 8.8 and 8.9 of the Agreement in relation to the Orders for April, August, September, and October where the results of Product Testing were ambiguous. 282.4. There was however, no deliberate default by Procoll within the terms of clause 17.2 of the Agreement. As such, Trinsic’s claims for loss of profit arising from the Product Testing claims are precluded by clause 17.7.2 of the Agreement. 282.5. There was a breach of clauses 8.3 and/or 8.10 in relation to those parts of the March-September Orders which suffered reformation and were therefore unfit for purpose. 282.6. The limitations or exclusions contained in clauses 17.5, 17.7 and 17.8 were reasonable within the terms of UCTA and so Trinsic’s claims for loss of profit arising from the fitness for purpose claims are precluded by clause 17.7.2 of the Agreement. 282.7. Trinsic’s restitutionary claims are rejected. 282.8. Procoll has a set-off in relation to the unpaid sum for the November Order (which set-off exceeds the claim at paragraph 282.1 above).

[283]The result of these conclusions is that there is no sum due from Procoll to Trinsic by way of damages and/or under the restitutionary claims.

Order

There was no dispute between the parties that, by 13 July 2023, one container from the March Order had developed some form of reformation. Mr Newby described it at the time as having a “spiders web effect” and in his witness statement as a “slightly gooey, green and yellow substance” while Dr Widdowson described it in his second witness statement as a “green like substance which looked to me like algae”. Mr Newby’s evidence was that he tried to blend some of the Product in this container with water but that it would not blend. Mr Newby also sent a picture of the container to Dr Widdowson.