COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
His Honour Judge Toulmin CMG QC
sitting as a Judge of the High Court
HQ05X03095
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE KEENE
and
SIR PAUL KENNEDY
____________________
(1) BSM Marketing Limited (2) Barrie Stanley Morley |
Appellants |
|
- and - |
||
Také Limited |
Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Sinai (instructed by Messrs Bookers & Bolton) for the Respondent
Hearing date: Tuesday 3rd February 2009
____________________
Crown Copyright ©
Lord Justice Keene:
Existing products:
"75. It seems to me that Dreams may well have succeeded in reducing significantly the price which it paid and on which the profit margin of 37% contended for by Také is based.
76. On the other hand, the prices would not have been reduced to the level to provide the profit margin of 5% to 10% contended for by Mr Morley, or the 15% which he was asking for to cover the commissions for himself and Mr Low.
77. On the other hand, in my view, Dreams would have succeeded in reducing the profit margin well below the 37% contended for by Také.
78. I prefer to take the more conservative figure of 20.68%.
79. It so happens that this is the profit rate, taking the price of the Highgrove bed at the Defendants' price rather than the price contended for by the Claimants, which would have produced an overall profit of 30.17%.
80. On this issue Mr Sadaghiani says that the price in the one price list which I have seen was an exceptional one-off price, because Také had to pay for the mould cast of the product in the first container from Malaysia.
81. It should not be taken that I disbelieve Mr Sadaghiani because, for other reasons, I take the lower monthly gross profit. I reach the figure because I am concerned to take a conservative view of the profit margin."
(1) find what the historic profit margin had been; and
(2) adjust that figure if necessary to allow for future change
New Products:
"As far as the volume of orders is concerned, I accept the figure of 850 units per month, as set out in appendix (iv) of the expert's report."
That is a reference to the accountant's report. The figure of 850 units per month is indeed set out there, but she makes it clear that that is a figure supplied to her by the claimant, not one which she is in any position to justify.
Sir Paul Kennedy:
Lord Justice Pill:
(a) There was no justification for the starting point of 37% stated by the judge at paragraphs 75 and 77.
(b) There was no justification for taking 20.68% as a final figure. It could only be a starting point, one based on the view of the evidence for which the defendant contended.
(c) Following the cross-examination of Mr Sadaghiani, it was perverse to find that his evidence about the price of the Highgrove bed was true, so that 20.68% was the appropriate starting point.