“9. The parties shall have permission to adduce expert evidence from one expert in the fields of (1) Engineering and compliance and (2) forensic accounting.”
“1. … The claim concerns a vertical diamond cutting lathe (the ‘Lathe’) supplied by D for c.£28k (plus VAT). It is advanced on the basis of alleged misrepresentations and/or breaches of a collateral contract. C’s principal loss claim is directed at alleged loss of profits, alternatively (in the event that such a claim is determined to be limited) loss of profits together with other losses or alternatively (in the event that is determined that C is not entitled to recover loss of profits) other losses. 2. Although there are factual disputes that the court will or may need to resolve, there has been a good measure of agreement between the accounting experts, and some measure of agreement between the engineering experts, with both engineering experts in agreement (but not full agreement) that the Lathe exhibits defects and that the Lathe (ignoring those defects) is unsafe and did not (and still does not) meet the applicable safety standards mandated in this jurisdiction and D should not have declared that it was safe; on safety grounds alone, the consequence is that the Lathe should not have been placed on the market and supplied to C, and any use of the Lathe by C would have placed it in breach of its own obligations under applicable health and safety legislation. In addition to those defects and safety concerns, it ought to be common ground that the Lathe has material limitations, none of which were communicated to C until after the Lathe was supplied, or in any literature supplied by D (prior to ordering the Lathe or in this litigation). Accordingly, the claim is also directed at what was not communicated to C in circumstances where it is its case that D well knew what it intended to achieve with the Lathe.”
“5. Following the above meeting, by letters dated6 November 2019 and19 December 2019 , Mr Myers provided to Mr Birrell a quotation for the Lathe (the Quotation) along with the additional information, which included the following statements or representations: 5.1. ‘The [Vixen Wheel] Lathe uses state of the art technology to create a top-quality finish, removing kerb damage or imperfections and reproduces the original diamond cut finish’. 5.2. ‘One of the unique features of the [Vixen wheel] Lathe is the laser probe system which maps the original wheel profile ... in under a minute’. 5.3. ‘The tool is designed specifically to cut alloy wheels with high precision and accuracy’. 5.4. ‘Your first point of contact will be me, I specialise in the lathe and other machines related to wheel refurbishment. After that we have an after-sales department and over 8 field engineers to support you": together the Written Representations’. In fact, this statement is contained in the covering letter from Mr Myers to Mr Birrell dated6 November 2019 , rather than in the quotation document itself. But nothing turns on that. 6. Further: 6.1. In November 2019 Mr Myers stated and represented that the Lathe offered by Vixen was a ‘brand new’ lathe (the Oral Representation). 6.2. ln offering the Lathe in the circumstances outlined above, Vixen impliedly warranted and represented that if Car Wizard placed an order for the Lathe: 6.2.1. The Lathe supplied would be ‘brand new’/‘new’. 6.2.2. The Lathe supplied would be the best on the market due to its ability to map a wheel with the laser quicker. 6.2.3. The Lathe would be of merchantable quality i.e. satisfactory quality. 6.2.4. The Lathe would be fit for purpose i.e. suitable for Car Wizard's needs, viz the repair of alloy wheels and capable of producing a top-quality finish, removing kerb damage or imperfections and reproducing the original diamond cut finish of the wheel undergoing repair. 6.2.5. The Lathe would be capable of mapping the original wheel profile and cutting alloy wheels with high precision and accuracy: together the Collateral Warranties. 6.3. Yet further, the Quotation included a quotation for an ‘Ex-demo Wheelblaster Cabinet’ in addition to ‘1 x Vertical Wheel Lathe’, thereby impliedly representing that the Lathe was a ‘new lathe’ and not ‘used’ or ‘Ex-demo’ (the Implied Representation).” 5.1. ‘The [Vixen Wheel] Lathe uses state of the art technology to create a top-quality finish, removing kerb damage or imperfections and reproduces the original diamond cut finish’. 5.2. ‘One of the unique features of the [Vixen wheel] Lathe is the laser probe system which maps the original wheel profile ... in under a minute’. 5.3. ‘The tool is designed specifically to cut alloy wheels with high precision and accuracy’. 5.4. ‘Your first point of contact will be me, I specialise in the lathe and other machines related to wheel refurbishment. After that we have an after-sales department and over 8 field engineers to support you": together the Written Representations’. In fact, this statement is contained in the covering letter from Mr Myers to Mr Birrell dated6 November 2019 , rather than in the quotation document itself. But nothing turns on that. 6.1. In November 2019 Mr Myers stated and represented that the Lathe offered by Vixen was a ‘brand new’ lathe (the Oral Representation). 6.2. ln offering the Lathe in the circumstances outlined above, Vixen impliedly warranted and represented that if Car Wizard placed an order for the Lathe: 6.2.1. The Lathe supplied would be ‘brand new’/‘new’. 6.2.2. The Lathe supplied would be the best on the market due to its ability to map a wheel with the laser quicker. 6.2.3. The Lathe would be of merchantable quality i.e. satisfactory quality. 6.2.4. The Lathe would be fit for purpose i.e. suitable for Car Wizard's needs, viz the repair of alloy wheels and capable of producing a top-quality finish, removing kerb damage or imperfections and reproducing the original diamond cut finish of the wheel undergoing repair. 6.2.5. The Lathe would be capable of mapping the original wheel profile and cutting alloy wheels with high precision and accuracy: together the Collateral Warranties. 6.3. Yet further, the Quotation included a quotation for an ‘Ex-demo Wheelblaster Cabinet’ in addition to ‘1 x Vertical Wheel Lathe’, thereby impliedly representing that the Lathe was a ‘new lathe’ and not ‘used’ or ‘Ex-demo’ (the Implied Representation).”
“1. This is a claim for damages arising out of the hire purchase of a vertical wheel lathe, serial number 118 20 (the Lathe) by the Claimant (CW) from Paragon Business Finance PLC (Paragon) under a hire purchase agreement entered into in March 2020 (the HP Agreement). 2. CW’s essential complaint is that the Lathe does not work as it should do. However, CW has not sued its contractual privy, Paragon. Rather, CW paid the instalments due under the HP Agreement in full before launching this claim against the Defendant (VST), which was the company which sold the Lathe to Paragon. 3. The result is a deeply flawed claim, in which the primary allegations are that certain statements made in the Defendant’s sales literature as to the qualities and/or capabilities of its vertical wheel lathe were fraudulent misrepresentations, which induced CW to enter into the HP Agreement. 4. There is not a shred of evidence to support a claim of fraud (or the alternative claim of negligent misrepresentation) which should never have been made. In truth, CW has prosecuted this claim as if it were a sale of goods case, with no or no proper focus upon what a claimant must prove in order to establish liability in tort for misrepresentations in the context of a damages claim. 5. … VST’s case is that the Lathe was well capable of all the tasks outlined in the sales literature, and that any problems CW encountered when using it are attributable to the inexperience of the operator, CW’s controlling mind Oliver Birrell, and not to any defect in the Lathe. 6. … there is no evidence to support CW’s core allegation that the Lathe was delivered in a defective condition and/or was not capable of carrying out the functions advertised in the sales literature. … 7. In addition to the liability dispute, there are substantial issues between the parties on mitigation of loss and quantum. These points arise in the context of a claim for loss of profits which appears from CW’s expert accountancy report (but not its pleading) to be valued at over£1m … 8. As to mitigation, despite having made clear by the end of September 2020 that it would not be using the Lathe and then stating repeatedly that it would be obtaining a replacement lathe in order to mitigate its loss, CW did not obtain a replacement. … 9. As to quantum, there is an (as yet) unexplained disconnect between the pleaded case and the case advanced in CW’s expert accountancy report in respect of loss of profits. The period over which lost profits are claimed is unclear. 10. More fundamentally, the claim for loss of profits is founded exclusively upon Mr Birrell’s predictions as to the revenue which would have been generated by what he acknowledges was an entirely new aspect of CW’s business. The predictions far exceed any profit CW made before acquiring the Lathe, or since. … [ … ]”
“20. Our procedural system is and remains an adversarial one. It is for the parties (subject to the control of the court) to define the issues on which the court is invited to adjudicate. This function is the purpose of statements of case. The setting out of a party's case in a statement of case enables the other party to know what points are in issue, what documents to disclose, what evidence to call and how to prepare for trial. It is inimical to a fair hearing that a party should be exposed to issues and arguments of which he has had no fair warning. If a party wishes to raise a new point, he should do so by amending a statement of case.”
“41. The question whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria, for which the decision of the Court of Appeal in Wisniewski v Central Manchester Health Authority [1998] PIQR P324 is often cited as authority. Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.”
“311. … the fact that in the present case both (i) documents have been deliberately destroyed and (ii) witnesses have not been called by the guilty party whose evidence would likely bear upon the (presumed) contents of the destroyed documents, takes this case a step further forward than in the case of drawing inferences from the mere absence of witnesses. Although it might rarely arise in practice … I consider that the court is entitled in such a case, depending upon the particular facts, to draw adverse inferences as to (i) what the destroyed documents are likely to have shown on the issue on question, and (ii) the evidence that the witnesses are likely to have given on the issue in question but which was withheld, without the need for some other supporting evidence being adduced by the innocent party on that issue. The two factors combined make the case for the drawing of an adverse inference without other supporting evidence an extremely strong one, at least so far as establishing a defence to a claim is concerned.”
“All documents contained in bundles which have been agreed for use at a hearing shall be admissible at that hearing as evidence of their contents, unless – (1) the court orders otherwise; or (2) a party gives written notice of objection to the admissibility of particular documents.”
“Where the evidence of an expert is to be relied on for the purpose of establishing primary facts, as well as for the purpose of providing their opinion to the Court on a matter within their expertise, as for example where a surveyor, assessor, adjuster, or other investigator instructed as an expert witness will (also) give evidence about the condition of a ship or other property as found by the expert at a particular time, that part of the expert’s evidence which is to be relied upon to establish the primary facts is to be treated as factual evidence and should be put into a factual witness statement from the expert, to be exchanged in accordance with the order for the exchange of factual witness statements. It is not proper practice to postpone disclosure of a party’s factual evidence by including it in or serving it with expert reports.”
“23. I should mention one further practical matter, which I think is relevant to large commercial disputes. It is inevitable when there is a dispute between commercial entities that covers a long period of time (as this case does) and concerns a very large sum of money, that a huge amount of documents will have to be considered. There is a natural tendency of parties and their advisors to consider employing experts to assist in digesting this material, particularly if it relates to any area that might be recondite, such as trading in Russian debt in the 1990s. There is a tendency to think that a judge will be assisted by expert evidence in any area of fact that appears to be outside the ‘normal’ experience of a Commercial Court judge. The result is that, all too often, the judge is submerged in expert reports which are long, complicated and which stray far outside the particular issue that may be relevant to the case. Production of such expert reports is expensive, time-consuming and may ultimately be counter-productive. That is precisely why CPR Pt 35.1 exists. In my view it is the duty of parties, particularly those involved in large scale commercial litigation, to ensure that they adhere to both the letter and spirit of that Rule. And it is the duty of the court, even if only for its own protection, to reject firmly all expert evidence that is not reasonably required to resolve the proceedings.”
“1.2. I have been requested by Wards Solicitors LLP acting for the claimant, to prepare a report dealing with the alleged losses suffered by Car-Wizard Limited, … resulting from the supply and installation of a Vertical Wheel Lathe … by the defendant Vixen Surface Treatments Limited …which the claimant contends was faulty. [ … ] 1.4. The matters pertaining to this case fall within my professional experience and are such that I am qualified to provide an expert opinion thereon … [ … ] 1.6. I have not been specifically requested to undertake any audit or similar verification work to substantiate the information or documentation provided to me for the purpose of this report. [ … ] 2.6. As a result of the issues with the lathe supplied, the claimant has provided information regarding the loss of both trade and retail revenue, costs relating to the acquisition of the lathe including finance costs, storage costs and accountancy charges in relation to advice provided … ”
“1. Unless otherwise specifically agreed in writing by Vixen Surface Treatments Limited (Vixen), these terms and conditions shall apply to all quotations and contracts for the supply of goods or services by Vixen and shall at all times override any conflicting terms and conditions which the purchaser may seek to impose. [ … ] 6. Goods supplied shall substantially conform to the specification thereof current at the time of manufacture, varied if applicable by drawings or modifications agreed between Vixen and the purchase [sic] at the time of contract. Vixen warrants that goods of their own manufacture will be free from defects in materials workmanship or design for a period of 12 months from date of delivery (labour charges payable after a period of 3 months). Vixen makes no warranty as to fitness for any particular purpose. Any warranty claims that arise due to lack of maintenance would be deemed invalid and therefore chargeable. 7. Vixen shall not be liable for any loss (including consequential loss) or damage sustained or incurred by the customer or any third party resulting from any breakdown of our [sic] fault in any product supplied, unless such breakdown or fault is caused by the negligence or wilful misconduct of Vixen, its employees, agents or sub-contractors, in which event (except in the case of death or personal injury) Vixen’s liability shall be limited to the invoice value of the goods.”
“It’s definitely leaking fairly heavy. I wiped the floor on the outside yesterday”
“How can I check that the chucks are running true Terry? I've just carried out a speed check and at a slower speed and you can see the distortion as it rotates. It's got a fluctuation as it rotates. I'm reluctant to want to cut anything else at the moment as every wheel has cut top heavy.”
“I have a measuring gauge that does that job. It's not something that can be done by eye really. Can you send me a video?”
“The video doesn't capture it so well. It's definitely out though. Those wheels cut identical yesterday. It's too much of a coincidence. Not one wheel has cut straight. If I run a slow speed test with out a wheel it's got a clear distortion. I've just put a spirit level on the arms. They are all out.”
“Right, we need to find out if it's the jaws first. Take off each jaw and put it on a straight edge. If you can see daylight through it then its bent. That will make every wheel act as though its buckled.”
“Can you possibly dowel to your head office and organise for a technician to come out sooner if possible please? I've got no confidence in using it. Being new it 's difficult to determine if you're doing things wrong, more so when I don't feel the chucks are running true … ”
“I'll do my best ollie. The jaws are held on by two bolts mind. Very quick easy job. I'll get back to you.”
“I don't want to mess with it Terry. It needs a technician to diagnose it. The arms are definitely not running true though. It's been every wheel, and I've been thinking it's me, or wheels or buckled. I can't work with it like this. It's a stressful skill to learn as it is, let alone when it's not functioning correctly.”
“Good news ollie, one of my training appointments has cancelled for next week. I'll be with you thursday/friday and get it all sorted.”
“Terry has advised that there was a buckled wheel on the commissioning but the jaws were not bent My colleague has informed me that on the 4th of September you called the office and explained that you had broken some tips. However, due to the cost of the Saturday delivery you bought tips elsewhere. If you have had an impact this can cause the jaws to bend We sell the jaws for£698.21 , however as a goodwill gesture I will apply a 50% discount to this … ”
“I do not appreciate this email one bit. You've not even had the decency to send an engineer to thoroughly diagnose the machine before having the audacity to offer a 50% gesture at nothing more than a guess. How do you even know the arm is bent without viewing the machine? Yet you're happy to request money from me. I can not believe what I'm reading. It's an absolute disgrace. Can you tell me what tests were carried out to check that the arms were not bent when Terry was operating the machine please? This aside, I'm convinced it's the hub area that's running distorted. I can put the spirit level on any one of the arms, and in a particular position, they all give the same reading. Today I've run it at slow speed without a wheel, and you can clearly see that it ovulates out of sync. The two wheels that Terry cut during the training have been checked on the straightener. They are not buckled. The third wheel we cut successfully. Although, I was taught to rotate the wheel 180 degrees which likely makes up for the fact the chuck is not rotating true. This was all before I'd even touched the lathe myself. I've only cut six wheels since training, and every one of them I've been advised is buckled and challenges I have to face in the alloy refurbishment industry. This is despite the most recent two reading straight on the straightener. I've yet to see a wheel run true on the lathe. The most recent two were identical wheels. They both cut an uneven cut with exactly the same issue. It's too much of a coincidence to suggest nine wheels, including the three in training are buckled. I still have all three wheels to verify this. Furthermore, Terry did comment on the movement of the wheel/chuck during training. He actually checked to see if the wheel was tightened securely after a speed check as he stated "the chuck is moving a lot more than it usually would". I have this recorded on my phone if you would like me to share this with you? The lathe was shaking so much during the training it was also making the aluminium partition shake erratically which he was concerned about it enough to check to see that it was tightened sufficiently. Regarding breaking the tip, there was no 'impact' whatsoever. This tip was broke was when bringing the tool to the edge of the rim to detect set tool position at x10 speed. If you're not familiar with this, it's unbelievably, slow and delicate. It left the smallest indentation on the edge of the rim. This would definitely not bend a thick metal arm. This is nothing more then a disgraceful attempt to defraud me out of money without taking any responsibility for your equipment. We have CCTV all around the workshop area, I'm sure we can substrate this. It's completely out of order of you to suggest this without having the decency to speak with me personally or have an engineer inspect the lathe. You still don't even know that it is bent, but you're happy to demand money from me because you don't have an engineer that can get to me for three weeks, which is four weeks at the point of raising my concerns regarding an oil leak I've reported several times since the lathe was first delivered. I will also clarify I was definitely not prepared to pay£74 to post an item no bigger than a stamp. This only highlights the level of customer service at Vixen. The£90 requested for the tip is also grossly overpriced when they can be found all over the internet for£25 . Even at£25 , they are marked up from the$7 they can be purchased at on Ali Express. They have exactly the same serial number the ones you're requesting£90 for. I'm not surprised you have gone down the route of suggesting I've damaged the machine. Naturally, I've become concerned about the lathe, and I've started to ring around in the industry. I've been told that Vixen will tell first me that you've bent the arms and request payment for a new set without even inspecting. This is exactly what you've done. I've also been advised if I buy the arms it will not resolve the problem. I've been assured Vixen will do absolutely everything and anything to not take responsibility for any issues you have with the lathe. People are taking in the industry, sharing the experiences. There are far too many unhappy customers of yours who have experienced the same issues. The fact your dedicated lathe engineer Ian can not get to me for over three weeks only highlights the scale of the issues you're having with the lathe, and how poor your after-sales service is. You have nowhere near the level of service you present yourselves to have on your website, which is a clear misrepresentation. My business is now suffering financially as a result of this. Going back to the oil issue, this has been leaking heavily from the moment it was delivered, but was advised it was due to loose-fitting that had not been reconnected to which he resolved during training. The lathe has continued to lose oil since the training on August 20 2020. To the point, the oil alarm has been going off continuously. Terry has advised I loosen one screw from the oil tank, so the tank tilts and manipulates the tank into thinking the level is full. This is despite stressing my concerns about the fact that the machine is losing an awful lot of oil since May. I've attached some images below. Most importantly, I'm convinced the lathe is not brand new. It arrived incredibly grimy. Terry even commented on arrival in training that it was a little messy inside. The internal partition was damaged on arrival. There is also damage to the back inner casing which that looks like damage from a loose wheel at some point. There is also masking tape and folded card in the internal left side door shut. It has been used to stop the partition door from vibrating. There are signs of tape residue inside the lathe, and a broken pipe, which I've also photographed below. Lastly, there were several maps already on the PC when Terry first logged on to the screen. He even chuckled at some of the maps/test files saved stating 'HELP', passing it off as an internal joke between colleagues. I'm certain the machine had been used previously, refurbished and sold to myself as brand new. I do not mean general testing; there are signs of wear and tear everywhere internally. The masking tape in areas is someone's else's personal preference and not something you would find on a brand 'new' machine. The warning signs were there the moment I took delivery of the equipment. Nobody from Vixen was present on the day to help take delivery of two very large bits of machinery. The delivery driver could not believe it, as to remove the lathe from the pallet, it's actually quite a task. The lathes rear and side partitions need to be removed in order to fit the feet of the lathe. I was expected to do all of this without any pre-warning with a driver putting me under pressure. It was just fortunate I had an array of tools to hand even to be able to sort the incredibly difficult task with Terry's guidance over the phone. Terry only told me on the morning of the delivery he would not be present. This is the customer service I got in return for spending thousands of pounds with you. All of this aside the lathe is not fit for purpose. It can not cut and roll the outer edge of alloys, or certain alloys. Virtually every diamond-cut alloy on the road have a tapered edge. I've been advised to sand the rounded part of the outer edge of an alloy with a hand DA sander, which is ridiculous. I have invested in machinery to offer a professional diamond-cut service, and I'm being told I have to hand sand edges to make up for the fact the lathe can not cut where the majority of alloys are damaged. To achieve an OEM finish I've been shown a 'trick' where the wheel is spun at speed, and the side safety door is opened while I hand sand the wheel with a DA. This is an utterly unprofessional approach to refurbish an alloy and is a safety hazard I would never expect my employees to implement. It's not what I expect from a£30k investment. During the training, I've also been advised the laser can not read gloss black wheels which is the majority of our work. Most diamond-cut rims have black inserts. To overcome this, I've been advised to apply masking tape to the wheel so the laser can read it. Again, this is not something I'm prepared to do when I've invested so heavily in equipment I was lead to believe is the best in the industry. If it can not accurately read all finishes on the market, especially one so common, it should not be on the market. You're selling a lathe in the market place that is far from fit for purpose. You're messing with people's lively hoods in the process, as you are fully aware of the issues this lathe has, but are happy to keep selling it. The machine with heavily leaking oil, loose cables, and a chuck that ovulates is a safety hazard. I've completely lost confidence in it, and your ability as a company to even offer any respectable level of aftercare service to support the ongoing issues I'm likely to have based on your previous customer's feedback. I'm not prepared to put any more of my customer's wheels at risk, step around leaking oil, or hand sand the edges of alloys. I'm also not prepared to go down a rabbit hole of weeks/months of buying parts at my expense with no engineer turning up to diagnose the problem. This experience is what others have reported. Your actions right from the off have suggested I'll be treated no differently. I'm also not prepared to watch my business suffer financially with loss of earnings while paying finance a machine because you have no engineers to send to diagnose a lathe that is clearly not fit for purpose. Or while you make ludicrous guesses over the internet at the probable causes at my expense. I'm also not prepared to turn a blind eye to the fact the machine has numerous signs of previous ownership. Whether this was done intentionally by yourselves, or by your supplier in China, I'll remind you again; this is fraudulent. I will definitely not be removing or fitting any parts to the faulty machine either. I believe you've asked me to do so to void the warranty. As a result of the above, and supporting images attached, I would like the lathe collected immediately, and my finance company to be reimbursed in full. To make you aware I will not be paying any further finance payments against this machine for the reasons I've explained above. I have copied Paragon into this email, as I feel they should be aware the asset they have financed is not fit for purpose. I have videos, voice recordings, and the original three alloys used during training to substantiate my complaint. I trust you will act accordingly, and get this resolved quickly as my business is suffering financially.”
“I understand your frustration with the machine if it is had some snags and you are not yet fully confident as you only completed training on August 21st. Let me assure you we will ensure all warranty obligations are met and we will continue to offer additional ongoing support to assist your gaining the knowledge and experience in operation of the machine like we have done to the 140+ lathes both overseas and the UK. I would like to confirm on email that Terry Myers has changed his schedule so he can be onsite Thursday and Friday of this week. I understand you have told him he is wasting his time as you do not want the machine, but I believe this visit is essential to assess the machine and give you additional support to resolve your concerns. Terry will be able to give you information whilst onsite as he was the sales engineer who successfully conducted the training (sign off & certs attached). I can assure you the machine is a new and not second user lathe. For your information the lathes are thoroughly tested during production by the factory team with a final sign off by a senior member the factory team before they are shipped. During this process several wheels would have been mapped and cut successfully. Terry has then set up the machine onsite and trained for 2 days cutting the wheels available and no jaw issue was highlighted at any stage. If any issue was highlighted then of course we would of resolved during that period. Nothing was reported to aftersales until Friday 4th when you spoke with Terry and Nikki regards replacement tips you had broken yours. These were quoted for, including the additional Saturday delivery premium but you decided to purchase the tips elsewhere which is your choice. We have done extensive trials of various tips and the one sourced offered the best cut and durability and are not easily damaged. I cannot comment on cheaper alternatives as we do not recommend them. As mentioned, I believe the best route would be for Terry Myers to visit site on Thursday to go through your concerns and give you more confidence in the machine whilst he’s onsite. Please advise you will allow Terry to support on Thursday?”
“The machine is not fit for purpose. It's not professional enough to meet my requirements, nor is your aftercare service. Please can you arrange the collection of the lathe as soon as possible. It is already heavily effecting me financially.”
“No further site visits will allow the lathe to roll out alloy edges, or map a black alloy”, and concluded: “Please do not email again, unless it's to arrange the collection of the machine.”
“2.2. A report is required in response to the BEMA Report, the phase 3 CNC Report and the report of Mr Wood to assess whether the Lathe was; New/Brand New/Second Hand/Refurbished; Faulty; Irrespective and inclusive of the above, of merchantable quality and was capable of enabling Car Wizard to provide services to its customers for the repairing of alloy wheels by removing kerb damage or imperfections and reproducing the original diamond cut finish of the wheel as per Car Wizard's requirements.”
“I think the authorities establish the following propositions: First, in order to sustain an action of deceit, there must be proof of fraud, and nothing short of that will suffice. Secondly, fraud is proved when it is shewn that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states. To prevent a false statement being fraudulent, there must, I think, always be an honest belief in its truth. And this probably covers the whole ground, for one who knowingly alleges that which is false, has obviously no such honest belief. Thirdly, if fraud be proved, the motive of the person guilty of it is immaterial. It matters not that there was no intention to cheat or injure the person to whom the statement was made.”
“68. Since Hedley Byrne, the principle [of assumption of liability] has been applied in a variety of situations in which the defendant provided information or advice to the claimant with an undertaking that reasonable care would be taken as to its reliability (either express or implied, usually from the reasonable foreseeability of the claimant’s reliance upon the exercise of such care), as for example in Smith v Eric S Bush, or undertook the performance of some other task or service for the claimant with an undertaking (express or implied) that reasonable care would be taken … ”
“(1) To the extent that this Part of this Act prevents the exclusion or restriction of any liability … sections 2 [, 6 and] 7 also prevent excluding or restricting liability by reference to terms and notices which exclude or restrict the relevant obligation or duty.”
“(1) Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made the facts represented were true. (2) Where a person has entered into a contract after a misrepresentation has been made to him otherwise than fraudulently, and he would be entitled, by reason of the misrepresentation, to rescind the contract, then, if it is claimed, in any proceedings arising out of the contract, that the contract ought to be or has been rescinded, the court or arbitrator may declare the contract subsisting and award damages in lieu of rescission, if of opinion that it would be equitable to do so, having regard to the nature of the misrepresentation and the loss that would be caused by it if the contract were upheld, as well as to the loss that rescission would cause to the other party. (3) Damages may be awarded against a person under subsection (2) of this section whether or not he is liable to damages under subsection (1) thereof, but where he is so liable any award under the said subsection (2) shall be taken into account in assessing his liability under the said subsection (1). [ … ]”
“50. In determining whether there has been an express representation, and to what effect, the court has to consider what a reasonable person would have understood from the words used in the context in which they were used. In determining what, if any, implied representation has been made, the court has to perform a similar task, except that it has to consider what a reasonable person would have inferred was being implicitly represented by the representor's words and conduct in their context.”
“215. A representation is a statement of fact made by the representor to the representee on which the representee is intended and entitled to rely as a positive assertion that the fact is true. In order to determine whether any and if so what representation was made by a statement requires (1) construing the statement in the context in which it was made, and (2) interpreting the statement objectively according to the impact it might be expected to have on a reasonable representee in the position and with the known characteristics of the actual representee: see Raiffeisen, supra, at [81]; Kyle Bay Ltd v Underwriters Subscribing under Policy No. 01957/08/01 [2007] Lloyd's Rep IR 460, 466, at [30]–[33], per Neuberger LJ. 216. In order to be actionable a representation must be as to a matter of fact. A statement of opinion is therefore not in itself actionable. However, as stated in Clerk & Lindsell para 18-13: ‘A statement of opinion is invariably regarded as incorporating an assertion that the maker does actually hold that opinion; hence the expression of an opinion not honestly entertained and intended to be acted upon amounts to fraud.’ 217. In addition, at least where the facts are not equally well known to both sides, a statement of opinion by one who knows the facts best may carry with it a further implication of fact, namely that the representor by expressing that opinion impliedly states that he believes that facts exist which reasonably justify it – see Clerk and Lindsell para 18-14, citing among other cases Smith v Land and House Property Corp(1884) 28 Ch D 7 , 15, per Bowen LJ, and Brown v Raphael[1958] Ch 636 . 218. A statement as to the future may well imply a statement as to present intention: ‘that which is in form a promise may be in another aspect a representation’ - Clerk & Lindsell, para 18-12, quoting Lord Herschell in Clydesdale Bank Ltd v Paton[1896] AC 381 , 394. 219. Silence by itself cannot found a claim in misrepresentation. But an express statement may impliedly represent something. For example, a statement which is literally true may nevertheless involve a misrepresentation because of matters which the representor omits to mention. The old cases about statements made in a company prospectus contain illustrations of this principle – for example, Oakes v Turquand (1867) LR 2 HL 325, where Lord Chelmsford said (at 342-3): ‘ ... it is said that everything that is stated in the prospectus is literally true, and so it is; but the objection to it is, not that it does not state the truth as far as it goes, but that it conceals most material facts with which the public ought to have been made acquainted, the very concealment of which gives to the truth which is told the character of falsehood’.” ‘A statement of opinion is invariably regarded as incorporating an assertion that the maker does actually hold that opinion; hence the expression of an opinion not honestly entertained and intended to be acted upon amounts to fraud.’ ‘ ... it is said that everything that is stated in the prospectus is literally true, and so it is; but the objection to it is, not that it does not state the truth as far as it goes, but that it conceals most material facts with which the public ought to have been made acquainted, the very concealment of which gives to the truth which is told the character of falsehood’.”
“The practice has grown up that the insurance company shall agree the sum for which it will stand surety and a contract is very often made by the repairer with the insurance company. Let it be so in this case. That does not, in my view, at all rule out the existence of a contract between the person who owns the car and the repairer.”
“In my view, there was a clear contract to be inferred from the facts between the garage proprietor and the car owner that in consideration of the car owner leaving his car with the garage for repair the garage would carry out the repairs with reasonable expedition and care, and that they would be paid by the insurance company.”
“ … the judge found, and was entitled to find, a contract on the basis of which he gave judgment in favour of the car owner against the garage — by inference; it must not be overlooked that inference is one of the modes of formation of a contract. Often enough the courts are concerned to infer facts from conduct; but the law itself will infer a contract between parties without any express statement from either of those parties, let alone both of them, of an intention to contract.”
“If, as is elementary, the consideration for the warranty in the usual case is the entering into of the main contract in relation to which the warranty is given, I see no reason why there may not be an enforceable warranty between A and B supported by the consideration that B should cause C to enter into a contract with A or that B should do some other act for the benefit of A.”
“As between A (a potential seller of goods) and B (a potential buyer), two ingredients, and two only, are in my judgment required in order to bring about a collateral contract containing a warranty: (1) a promise or assertion by A as to the nature, quality or quantity of the goods which B may reasonably regard as being made animo contrahendi, and (2) acquisition by B of the goods in reliance on that promise or assertion.”
“157. An important feature of [Shanklin Pier] was that the building contractors were at arm's length from the plaintiffs. It was the building contractors who needed to purchase the paint. All that the plaintiffs could do was to control the specification. The present case is different. CCC and CCE were not at arm's length. CCE was a subsidiary company. It would have been perfectly possible for Fuji and CCC to contract directly with one another if that was what they wanted to do, but neither company wished to adopt that course. Fuji wished to contract with an English company rather than an American company. CCC wished to run its European operations through a subsidiary company. CCC's contractual rights and remedies in respect of quality and fitness for purpose of the abatement plant would be regulated by the contract between Fuji and CCE. The extent of those rights and remedies would be a matter for commercial negotiation. If Fuji had any fears that CCC would not stand behind its subsidiary company, Fuji could quite easily have asked for a parent company guarantee. It is difficult to see any proper basis upon which CCC could or would have refused to give a parent company guarantee. However, Fuji did not request this. Fuji, for its own business reasons, was content to rely upon its contract with a subsidiary company. 158. In my view, this situation is a far cry from that prevailing in Shanklin Pier. It is not appropriate for this court to supplement the contractual arrangements which experienced and well-advised commercial parties choose to make. Fuji and CCC chose not to enter into any direct contract. In my judgment, no form of collateral warranty between those two companies can be read into or derived from the pre-contract documents.”
“3. (1) This section applies as between contracting parties where one of them deals ... on the other’s written standard terms of business. (2) As against that party, the other cannot by reference to any contract term— (a) when himself in breach of contract, exclude or restrict any liability of his in respect of the breach; or (b) claim to be entitled— (i) to render a contractual performance substantially different from that which was reasonably expected of him, or (ii) in respect of the whole or any part of his contractual obligation, to render no performance at all, except in so far as (in any of the cases mentioned above in this subsection) the contract term satisfies the requirement of reasonableness. [ … ] 6. [ … ] [(1A) 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.] [ … ] 11. (1) In relation to a contract term, the requirement of reasonableness for the purposes of this Part of this Act,section 3 of the Misrepresentation Act 1967 andsection 3 of the Misrepresentation Act (Northern Ireland) 1967 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. (2) ln determining for the purposes of section 6 or 7 above whether a contract term satisfies the requirement of reasonableness, regard shall be had in particular to the matters specified in Schedule 2 to this Act; but this subsection does not prevent the court or arbitrator from holding, in accordance with any rule of law, that a term which purports to exclude or restrict any relevant liability is not a term of the contract. [ … ] (4) Where by reference to a contract term or notice a person seeks to restrict liability to a specified sum of money, and the question arises (under this or any other Act) whether the term or notice satisfies the requirement of reasonableness, regard shall be had in particular (but without prejudice to subsection (2) above in the case of contract terms) to— (a) the resources which he could expect to be available to him for the purpose of meeting the liability should it arise; and (b) how far it was open to him to cover himself by insurance. (5) lt is for those claiming that a contract term or notice satisfies the requirement of reasonableness to show that it does. [ … ] 13(1) To the extent that this Part of this Act prevents the exclusion or restriction of any liability … sections 2 [, 6 and] 7 also prevent excluding or restricting liability by reference to terms and notices which exclude or restrict the relevant obligation or duty. [ … ].”
“It is not strictly a ‘duty’ to mitigate, but rather a restriction on the damages recoverable, which will be calculated as if the claimant had acted reasonably to minimise their loss. The onus of proof is on the defendant, who must show that the claimant ought, as a reasonable person, to have taken certain steps to mitigate their loss, and that the claimant could thereby have avoided some part of their loss. Any loss which is directly caused by a failure to meet this standard is not recoverable from the defendant.”
“The claimant is under a duty to mitigate the losses resulting from the defendant’s tort. (Damages are equally not recoverable for such losses as the claimant has actually avoided by taking action subsequent to the tort: the general principle of compensation implies that he can claim only for losses actually sustained.)”
“1. Unless otherwise specifically agreed in writing by Vixen Surface Treatments Limited (Vixen), these terms and conditions shall apply to all quotations and contracts for the supply of goods or services by Vixen and shall at all times override any conflicting terms and conditions which the purchaser may seek to impose.”
“6. Goods supplied shall substantially conform to the specification thereof current at the time of manufacture, varied if applicable by drawings or modifications agreed between Vixen and the purchase [sic] at the time of contract. Vixen warrants that goods of their own manufacture will be free from defects in materials workmanship or design for a period of 12 months from date of delivery (labour charges payable after a period of 3 months). Vixen makes no warranty as to fitness for any particular purpose. Any warranty claims that arise due to lack of maintenance would be deemed invalid and therefore chargeable. 7. Vixen shall not be liable for any loss (including consequential loss) or damage sustained or incurred by the customer or any third party resulting from any breakdown of our [sic] fault in any product supplied, unless such breakdown or fault is caused by the negligence or wilful misconduct of Vixen, its employees, agents or sub-contractors, in which event (except in the case of death or personal injury) Vixen’s liability shall be limited to the invoice value of the goods.”
“Had the company earned the profits represented by the losses outlined above, then those profits would have been subject to corporation tax. During the period under review, the rate of corporation tax was 19% up to31 March 2023 , following which the rate has remained at 19% for the first£50,000 of taxable profits, with the balance up to£250,000 at a marginal rate of 26.5% and profits in excess of£250,000 taxed at 25%. It is not possible to determine the actual corporation tax charge which would result as the ‘losses’ have been calculated on a September to August basis, assuming equal spread over a year, which does not coincide with the company's financial year which is April to March. However, if an overall rate of corporation tax of 20% is applied to the losses to31 August 2024 outlined in paragraph 4.2, a tax charge of£195,820 would arise.”
“351. [British Transport Commission v Gourley[1956] AC 185 ] establishes that deduction for tax from damages can only be made if (i) the sum for which compensation is ordered would have been subject to tax, while by way of contrast, (ii) the damages compensating for this loss would not have been subject to tax. 352. The onus of proving that the damages have to be reduced because the Gourley principle applies is on the paying party, who in this case would be the Claimant. It would have to show that "it is clear beyond peradventure" that the sum received would not be taxable in the hands of the receiving party (see Stoke on Trent City Council v Wood Mitchell[1980] 1 WLR 254 ). A similar approach was adopted by Ouseley J in Finley v Connell Associates [2002] Lloyds Rep PN 62, who observed that that it is for Claimant, as the paying party, who has the burden of proof of what is an exception to the normal rule in relation to the incident of tax.”