Uniserve (Northern) Ltd v Birkart Globistics Ltd, Court of Appeal - Mercantile Court, January 11, 2008, [2008] EWHC 11 (Mercantile)

Resolution Date:January 11, 2008
Issuing Organization:Mercantile Court
Actores:Uniserve (Northern) Ltd v Birkart Globistics Ltd
 
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Neutral Citation Number: 2008 EWHC 11 (Mercantile)

Case No: 2006-1221

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MERCANTILE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 11 January 2008

Before :

MR JUSTICE ANDREW SMITH

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Between :

(1) MATRIX EUROPE LIMITED

(2) ADOVE TRADING LIMITED

And

(1) UNISERVE HOLDINGS LIMITED

(2) UNISERVE (NORTHERN) LIMITED

(3) BIRKART GLOBISTICS LIMITED

AND BETWEEN

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MR JEFFREY BACON (instructed by CLYDE & CO) for the CLAIMANT

MR NEVIL PHILLIPS (instructed by PYSDENS) for the DEFENDANT

Hearing dates: 7-8 November 2007

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Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

.............................

MR JUSTICE ANDREW SMITH :

  1. These proceedings concern a claim in respect of the loss of a consignment of Bluetooth mobile telephone adaptors in January 2003. Matrix Europe Limited (``Matrix'') were selling the goods to Adove Trading Company, who were then called Oversea Chinese Limited and to whom I refer as ``OCL''. They were sending the consignment to Hong Kong, and, as they claim and I do not understand to be disputed, they engaged Birkart Globistics Limited (``Birkart''), a company of freight forwarders, to arrange their carriage by air. Birkart instructed Cheadle Courier Company Stockport Limited (``Cheadle'') to have the goods collected from Matrix's premises in Altrincham, and Cheadle in turn subcontracted that work to a driver called Trevor Lancashire. According to Birkart, they instructed Cheadle to deliver the goods to the premises of Robins Transport Limited (``Robins'') at Manchester Airport. In fact, Mr Lancashire delivered them on 10 January 2003 to the warehouse premises of Uniserve Northern Limited (``UNL'') at Claverton Road, Wythenshawe, which were also near the airport, and UNL received them there. The Claverton Road premises were UNL's principle ``hub'' in the North of England. On 11 January 2003 there was a burglary there, and the goods were stolen and have not been recovered.

  2. Matrix and OCL have brought proceedings in respect of the loss against both Birkart and UNL, although the proceedings against Birkart are presently stayed. (Proceedings were also brought against Uniserve Holdings Limited but they have been struck out.) UNL have brought part 20 proceedings against Birkart in which they claim damages for breach of warranty of authority and an indemnity from Birkart in respect of any liability to Matrix (and the costs and expenses of the proceedings). The basis of both these claims, as I understand it, is UNL's contention that they dealt with Birkart upon what have been referred to as ``BIFA terms'', the standard terms from time to time of the British International Freight Association, to which both they and Birkart belonged. The relevant BIFA terms, the 2000 edition, provide:

    i) (by clause 3) that ``The Customer warrants that he is either the Owner or the Authorised Agent of the Owner and also that he is accepting these conditions not only for himself but also as Agent for and on behalf of the Owner''.

    ii) (by clause 20) that ``the Customer shall save harmless and keep the Company indemnified from and against'' all relevant liability, costs and expenses.

  3. In response to the part 20 claim, Birkart's case is that ``UNL were simply their (accidental) sub-bailees of the goods, and no standard or other terms applied to or were incorporated or implied into the sub-bailment'': see para 31(3)(c) of the re-amended defence in the part 20 proceedings. They have argued, inter alia, that whatever the arrangements between them and UNL as to doing business upon BIFA terms, they did not apply in the circumstances of this case because

    i) ``It is not possible for an erroneous or uncontemplated delivery to be within the scope of the agreed terms which the parties must necessarily have agreed should apply to deliveries which were foreseen as being within the scope of such agreement - there can be no intention that agreed terms should apply to an event which the parties never intend or contemplate will occur; there is no consensus ad idem with regard to any such event'': see para. 31(4)(a) of the re-amended defence in the part 20 proceedings.

    ii) ``The BIFA Terms do not (on a true construction thereof) have the effect of applying to a mistaken and erroneous delivery'': see para. 31(4)(b) of the re-amended defence in the part 20 proceedings.

  4. It was ordered that there be a preliminary trial to determine two questions in the part 20 proceedings, namely:

    i) Whether delivery into UNL's premises of the relevant goods was, as a matter of fact, unintended by either party; and

    ii) If so, whether such delivery could have been subject to the terms of the British International Freight Association (Edition 2000).

  5. At the trial of these issues, UNL and Birkart, but not Matrix, were represented and presented evidence. I enquired whether the parties were in agreement about whether my findings were to be binding between Matrix on the one hand and UNL and Birkart on the other hand. When this point was raised with Messrs Hill Dickinson, who act for Matrix, they wrote that:

    ``Matrix accept `that the Court's findings in relation to these two preliminary issues will apply in the main action as well as in the Part 20 proceedings'''.

    I am grateful to them for that prompt response. My understanding is that Birkart accept that my findings should be binding upon them as against Matrix as well as between them and UNL. UNL, on the other hand, were unwilling to accept that my findings were binding upon them as against Matrix. I shall revisit this question in light of my judgment. My present impression is that the position adopted by UNL about this is not sustainable, and it might be that in light of my judgment UNL will not seek to argue otherwise.

  6. I am concerned that the determination of the preliminary questions will do little to resolve this litigation. It is to be observed that the first question is directed to whether the parties intended delivery of the goods to the premises of UNL (and not to whether the delivery was made and received by persons acting with actual or ostensible authority of the parties). The second question is whether the delivery, if unintended by either party, could have been subject to the BIFA terms, not whether it was subject to the BIFA terms. However, the parties prepared for the hearing on the basis that the trial would be of these specific issues, and it did not seem to me possible to re-formulate them at the hearing or do other than simply determine these questions, not least because Matrix agreed to be bound by my determination of those questions and no others.

  7. Birkart called five witnesses to give evidence. They were:

    i) Mr Andrew Checkley, who at the relevant time was employed by Birkart as an Airfreight Supervisor, and was responsible for dealing with airfreight exports.

    ii) Mr Michael Royan, who at the relevant time was the managing director of Cheadle.

    iii) Ms Angela Kennedy, the general manager of Birkart.

    iv) Mr Williams Stynes, who was the general manager of Robins.

    v) Detective Constable Paul Caine of the Greater Manchester Police, who was involved in investigating the burglary at UNL's premises.

  8. UNL called to give evidence Mr Iain Liddell, who is the managing director of the Uniserve Group and their sole shareholder.

  9. I am satisfied that all six witnesses were seeking to give the court truthful and accurate evidence.

  10. Birkart also put in evidence under the Civil Evidence Act 1968 a statement of Mr Walter Marsh, who until his recent retirement was employed by Birkart as...

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