COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER DISTRICT REGISTRY MERCANTILE COURT
QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE HEGARTY QC)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BUXTON
LORD JUSTICE MOORE-BICK
| ICI CHEMICALS & POLYMERS LIMITED
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TTE TRAINING LIMITED
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MS L ANDERSON QC (instructed by Messrs DLA Piper UK LLP) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Moore-Bick:
". . . this advance will remain outstanding as a debt owed by the Centre to each Party until such time as the Centre has sufficient funds to fully or partially repay the Advance, or the Centre is wound up, or until a Party withdraws its membership of the Centre and from this Agreement. If the Centre is wound up, the Advance will be re-paid to the Parties less any outstanding Operating Expenses or costs of Capital Items attributable to that Party. If a Party withdraws its membership of the Centre and from this Agreement, the advance will be re-paid to that Party less any outstanding operating expenses or costs of Capital Items attributable to that Party at the end of that particular Academic Year."
It is common ground that none of those events had occurred at the time of the agreement with which this appeal is concerned. By clause 15 the agreement of 6 March 1990 was expressed to remain in force until terminated by agreement between all the parties or until TTE was wound up.
. . . . . . . . . .
B) C&P wishes to cease to be a member of the Centre
"C) Ineos has agreed to become a member of the Centre and wishes to become a party to the Principal Agreement in place of C&P on the terms of this Agreement.
"D) This Agreement is supplemental to the Principal Agreement."
"2. Principal Agreement
With effect from the date of this Agreement:-
2.1 Ineos will assume the rights and be bound by the obligations of C&P under the Principal Agreement or otherwise in respect of the Centre (other than any obligations in relation to which C&P may be in breach of the Principal Agreement);
2.2 The expression "the Parties" and any similar expression contained in the Principal Agreement will be read and construed as though they included Ineos; and
2.3 Shell, Octel and the Centre release and discharge C&P from any further obligations under the Principal Agreement.
2.4 C&P will cease to be a member of the Centre.
3.1 Save as expressly amended by this Agreement, the Principal Agreement will continue in full force and effect and this Agreement and the Principal Agreement will be read and construed as one Agreement."
It is unnecessary to refer in detail to clauses 3.2 and 3.3.
"Ineos will assume the rights and be bound by the obligations of C&P under the Principal Agreement or otherwise in respect of the Centre (other than any obligations in relation to which C&P may be in breach of the Principal Agreement)."
"However, the purpose of this letter is to record with you that the amount shown in your records as owing to [C&P] (£359,763) should continue to be shown as owing to [C&P] and not to Ineos Chlor Ltd."
It is possible that this letter was written before the agreement dated 10 June 2002 was finally ratified but its context is not otherwise explained.
Lord Justice Buxton:
"Ineos will assume the rights and be bound by the obligations of C&P under the Principal Agreement or otherwise in respect of the Centre."
I would emphasise the last part of that statement. The liability that C&P asserts under the agreement and under this claim is indeed that a liability arises under the principal agreement or otherwise in respect of the Centre as shown in the Centre's accounts. That debt may well be shown as an asset in the company accounts of C&P, but it is not a claim in respect of an asset that C&P asserts under the principal agreement. The claim is quite clearly one to a right to repayment and is certainly so stated in the points of claim.
Lord Justice Ward:
Order: Appeal allowed.