RE: PERSONA 1 LTD
OPINION
INTRODUCTION
I am asked to advise PERSONA 1 Ltd (‘PERSONA1’) in relation to a dispute with PERSONA 2 Plc ( PERSONA 2’). PERSONA 1wishes to claim the remainder of the price on various deliveries of steel beams made to PERSONA 2 between February and April 2021. PERSONA 2 has indicated that they do not accept the agreed price of the goods, that some of the beams supplied were not to specification and that they intend to counterclaim against PERSONA 1 for consequential loss arising from the failure to fulfill their final Purchase Order (number 705).
I am referred to draft statement of PERSONA 1 for full details. For the reasons set out in PERSONAS’s statement, Phantom were not able to supply the steel beams requested by PERSONA 2 in its Purchase Order numbered 705. It is PERSONA 1’s case that they were frustrated from making delivery of these beams.
I am instructed to generally advise on the liability, the quantum of damages and what further information is required. Precisely, to advise on the merits of:
PERSONA 1’s claim in respect of monies due for the orders numbered 701 and 704 amounting to £62,500 plus VAT; and
PERSONA 2’s counterclaim for consequential loss in respect of replacement beams amounting to £65,000 plus VAT as set out in the letter from solicitors dated 21 January 2022.
FACTS
Tom Burs has been the Managing Director for Phantom Steel Ltd (‘Phantom’) since their inception in March 2014 but have worked in the steel construction parts industry for almost 20 years. PERSONA 1 Ltd is a small to medium size company who are involved in providing specialist parts and components to construction companies specializing in the leisure and hotel market. PERSONA 2 Plc )are a well-known large company in the industry with a good reputation and known to be involved in some of the biggest projects around.
In a meeting arranged by PERSONA 2 on 9 December 2020 PERSONA met with PERSONAS( Lead Engineer and Surveyor). They informed me that they had in the pipeline various projects primarily with developers of luxury leisure complexes and hotels. They had approached PERSONA 1 having heard of our work from reputable sources.
They informed he told me they would like PERSONA 1to manufacture and supply steel beams as part of their various project commitments. Due to problems with their previous supplier of steel beams they were looking for someone new quickly. They went so far as to provide clear specifications of what they needed. These were the same specifications referred to in my letter addressed she the following day.
I had not expected things to move so quickly in the meeting and was slightly ill prepared as a result with regard to our current pricing structure. She, however, had at hand a document which had a breakdown of works and materials for this type of contract with their “should cost price” of £350 + VAT for each steel beam. The term “should cost price” is not a technical term. I understood it to simply mean the price that PERSONA 2 thought was the cost price. Having examined this document in detail I was of the view this was lower than our normal pricing structure for such work. I informed them that this looked to be lower than we would charge and that I needed to check our current pricing structure and get back to them. Given the need to avoid any cash flow problems on our part I recall us all agreeing that purchase orders and invoices would be raised at the “should cost price” until final agreement as to price.
In total PERSONA 1 Co Ltd received 3 purchase orders from Titan numbered 701, 704 and 705. PERSONA 1 were provided with invoices on delivery of items in accordance with these orders.
The first order (701) was for 100 beams. These were delivered on time on 16 February 2021. PERSONA 2 paid the initial invoice raised at the “should cost price” for these beams. PERSONA 2made no complaint in relation to the specification of the beams supplied.
The second order (704) was for 50 beams which were delivered on time on 15 April 2021. It is this order that the complaint relates to. The specifications have always been as agreed in our initial meeting. He accepted the beams supplied in respect of this order were 4m rather than 4.5m as stated on the Purchase Order. This was still well within the range agreed at our original meeting in December 2020.
There was then a rather unfortunate turn of events which meant that PERSONA 1 Limited were not able to supply any beams in respect of PERSONA 2’s third order (705). Due to an unforeseen change of Government policy and privatization of its aluminum and steel mills, our main supplier of steel in Brazil informed us in mid-April that they would not be able to meet their delivery targets for the rest of April through to August 2021.
PERSONA 1 Limited wrote to PERSONA 2 on 23 April to inform them that unfortunately we could not deliver the beams in respect of Purchase Order 705. PERSONA 1 Limited also took the opportunity to attach a supplemental invoice in relation to order 701 charging for the difference between the “should cost” price and the actual price of £650 plus VAT per beam.
PERSONA 1 responded in an email dated 31 May. She did not accept the reasons given for being unable to supply the beams for their order 705 and she indicated that PERSONA 1 would not pay our supplemental invoice in respect of order 701.
PERSONA 2still owe us £30,000 plus VAT in relation to Purchase Order 701 being the difference between the should cost price of £350 plus VAT and the final price of £650 plus VAT. In addition, they owe PERSONA 1Ltd £32,500 plus VAT in relation to Purchase Order 704. This is the order which PERSONA 2 claim does not meet specification, but they signed for and kept the beams and PERSONA 1Limited believe we should be paid in full at the rate of £650 plus VAT per unit.
ISSUES
The following issues arise from the question which I have been asked to address (as set out in paragraph 3 above):
Whether PERSONA 1’s claim in respect of monies due for the orders numbered 701 and 704 amounting to £62,500 plus VAT is valid; and
Whether PERSONA 1’s counterclaim for consequential loss in respect of replacement beams amounting to £65,000 plus VAT as set out in the letter from solicitors dated 21 January 2022 is valid.
ISSUE A: WHETHER PHANTOM’S CLAIM IN RESPECT OF MONIES DUE FOR THE ORDERS NUMBERED 701 AND 704 AMOUNTING TO £62,500 PLUS VAT IS VALID
The grant of a mandatory (or any) injunction is discretionary. PERSONA 1Limited will seek an injunction at trial requiring PERSONA 2 to pay the monied due for the orders numbered 701 and 704 amounting to £62,500 plus VAT is valid. If found to be in breach of covenant, Phantom Steel Limited’s likely position will be to argue that it should be Titan is bound to pay the sum for the supplied materials of Order Number 701.
In exercising its discretion whether to grant a mandatory injunction, the court will consider such factors as the extent of damage which would accrue to the claimant if relief is withheld, the cost to the defendant if it is granted, and the conduct of the defendant in rushing on with building works after notice of the claimant’s objections: paragraph 18-31 of Snell’s Equity (34th edition).
If PERSONA 2 fails to pay PERSONA 1 Limited, the court will generally grant a mandatory injunction: Wakeham v Wood (1982) 43 P & CR 40. Titan clearly knew that it was breaching the covenant by failing to pay the invoice for the goods delivered.
Finally, in applying the well-known test in Shelfer v City of London Electric Lighting Co Ltd [1895] 1 Ch 287, PERSONA 1Limited can argue that in case PERSONA 2 fails to pay for the goods supplies, it can be compelled by the court through issuance of a mandatory injunction.
ISSUE B: WHETHER TITAN’S COUNTERCLAIM FOR CONSEQUENTIAL LOSS IN RESPECT OF REPLACEMENT BEAMS AMOUNTING TO £65,000 PLUS VAT AS SET OUT IN THE LETTER FROM SOLICITORS DATED 21 JANUARY 2022 IS VALID.
Titan’s counterclaim for consequential loss in respect of replacement beams amounting to £65,000 plus VAT as set out in the letter from solicitors dated 21 January 2022 is invalid.
The counterclaim would amount to asking the court to grant the remedy of specific performance in the current instance from PERSONA 1Limited. Such is impossible given the circumstance. PERSONA 1 Limited explains that there was then a rather unfortunate turn of events which meant that we were not able to supply any beams in respect of PERSONA 2’s third order (705).
Further, due to an unforeseen change of Government policy and privatization of its aluminum and steel mills, our main supplier of steel in Brazil informed us in mid-April that they would not be able to meet their delivery targets for the rest of April through to August 2021. This was catastrophic for the company and it could not find sufficient alternative supply to meet all of our orders. PERSONA 1 Limited therefore had to inform PERSONA 2 and some of our other more recent customers without delay that we would not be able to fulfil their orders.
23. Wolverhampton Corp v Emmons [1901] 1 QB 515 and Johnson v Agnew [1980] AC 367 at 400. established that for specific performance to be granted, the other party must be capable of performing the contract. In the present instance, PERSONA 1 Limited is prevented by unavoidable circumstances from supplying the order. Hence the counterclaim for the supply of the same does not stand.
CONCLUSION
My conclusion on the issues are:
PERSONA 1’s claim in respect of monies due for the orders numbered 701 and 704 amounting to £62,500 plus VAT is invalid; and
PERSONA 2’s counterclaim for consequential loss in respect of replacement beams amounting to £65,000 plus VAT as set out in the letter from Brierley Khan solicitors dated 21 January 2022 is invalid.
DAVIES & DAVIES LLP
11 APRIL 2022
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