Matrix Europe Ltd & Anor v Uniserve Holdings Ltd & Ors, Court of Appeal - Commercial Court, May 08, 2009, [2009] EWHC 919 (Comm)

Reporting Judge: [2009] EWHC 919 (Comm)

President: Matrix Europe Ltd & Anor v Uniserve Holdings Ltd & Ors

Linked as:

Extract

Matrix Europe Ltd & Anor v Uniserve Holdings Ltd & Ors, Court of Appeal - Commercial Court, May 08, 2009, [2009] EWHC 919 (Comm)

Claim No: 2006 FOLIO 1221

Neutral Citation Number: [2009] EWHC 919 (Comm)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

LONDON MERCANTILE COURT

Date: 8 MAY 2009

Before:

His Honour Judge Mackie QC

Sitting as a Judge of the High Court

- - - - - - - - - - - - - - -

BETWEEN:

MATRIX EUROPE LIMITED (IN LIQUIDATION)

ADOVE TRADING LIMITED

(formerly OVERSEAS CHINA LTD)

Claimant

-and-

UNISERVE HOLDINGS LIMITED

UNISERVE (NORTHERN) LIMITED

LOGWIN AIR & OCEAN LTD (formerly BIRKART GLOBISTICS LIMITED)

Defendant

AND BY THE PART 20 CLAIM BETWEEN:

UNISERVE (NORTHERN) LIMITED

Part 20 Claimant

-and-

LOGWIN AIR & OCEAN (formerly BIRKART GLOBISTICS LIMITED)

Part 20 Defendant

- - - - - - - - - - - - - - -

Mr Charles Priday and Miss Sushma Ananda (instructed by Hill Dickinson) appeared for the Claimant).

Mr Jeffrey Bacon (instructed by Clyde & Co) appeared for the First and Second Defendants.

Mr Nevil Phillips (instructed by Pysdens) appeared for the Part 20 Defendant

- - - - - - - - - - - - - - -

JUDGMENTThis is a claim for the value of a consignment of 5,000 Bluetooth mobile telephone adaptors that were delivered to the wrong warehouse and then stolen in January 2003. Unfortunately what should have been a straightforward claim has taken more than six years to reach a trial which, despite preliminary points having been decided at an earlier hearing, occupied the court for eight days.

The Parties

The First Claimant (``Matrix'') is in liquidation. It contracted to sell the goods, which are worth some £375,000, to the Second Claimant (``OCL'') which has played no active part in the case. Around 9 January 2003 the Third Defendant (``Birkart'') contracted with Matrix to carry the goods from Matrix's premises in Altrincham to Manchester Airport and from there, by air freight, for delivery to OCL in Hong Kong. On Friday, 10 January 2003, Birkart's sub-contractor, Cheadle Courier Company Stockport Limited (``Cheadle'') mistakenly, by its sub-contractor, Mr Trevor Lancashire, delivered the goods to the warehouse of the Second Defendant (Uniserve (Northern) Limited (``UNL'')) at Claverton Road, Roundthorn Industrial Estate, Wythenshawe, Manchester. The First and Second Defendants are part of the Uniserve group of companies. On 11 January 2003 4,948 of the 5,000 adaptors were stolen. Although the Third Defendant is called Logwin Air & Ocean Limited I shall refer to it as ``Birkart'' as it was known in 2003. At that time Birkart was based in Hayes but had recently taken space in UNL's warehouse at Wythenshaw where it did local as well as general business.

Procedural Background

On 9 October 2003 Matrix sued UNL and Birkart in the Manchester District Registry over the loss of the goods but this claim is currently only pursued against UNL, the case against Birkart being stayed. UNL brought a Part 20 claim against Birkart alleging that there was a contract between them in respect of the goods on the terms of the British Institute of Freight Forwarders (`BIFA') 2000 conditions. Some fifteen months later the case was transferred to the Mercantile List at Central London where on 2 June 2005, on reading the papers, I agreed with the parties' proposal that there be a trial of two preliminary points. Changes in UNL's pleadings and case, of which there have been many, made it necessary for Judge Knight QC to reformulate the preliminary issues in June 2006. UNL unsuccessfully sought to appeal against that order. The preliminary points were heard by Mr Justice Andrew Smith on 7 and 8 November 2007 and he gave judgment on 11 January 2008. In what I will call `the 2008 Judgment' the Judge concluded, while expressing concern about how useful the answers to the preliminary points would be, first that Birkart did not intend to deliver the goods to UNL but that UNL intended to accept delivery of the goods and, secondly that such a delivery could have been subject to the BIFA terms. There has been a dispute between the parties about the extent to which passages in the judgment are findings of fact binding on me in the trial. I will turn to this but the position is essentially as put by Mr Justice Andrew Smith in the course o...

See the full content of this document