ON APPEAL FROM THE LONDON MERCANTILE COURT
His Honour Judge Mackie Q.C.
2009 Folio 52
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
LORD JUSTICE AIKENS
| RÖHLIG (UK) LTD
|- and -
|ROCK UNIQUE LTD
Mr. Paul Toms (instructed by Pysdens Solicitors) for the respondent
Hearing dates : 22nd November 2010
Crown Copyright ©
Lord Justice Moore-Bick :
"21(A) The Customer shall pay to the Company in cash, or as otherwise agreed, all sums when due, immediately and without reduction or deferment on account of any claim, counterclaim or set-off.
. . .
27(B) . . . the Company shall in any event be discharged of all liability whatsoever and howsoever arising in respect of any service provided for the Customer . . . unless suit be brought and written notice thereof given to the Company within nine months from the date of the event or occurrence alleged to give rise to a cause of action against the Company."
"The position of the Defendant is, first, to say that clause 21(A) is not applicable on its construction because it only operates when sums are "due". That argument fails because of Schenkers. The Court of Appeal and the trial judge, Mr. Geoffrey Brice Q.C., had regard to, among other authorities, the Stewart Gill case. The judge endorsed the view that the clause which did not cover transactions or debts not due but did cover other claims precisely like those in this case."
"In relation to a contract term, the requirement of reasonableness for the purposes of this part of this Act ... is that the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made."
" . . . should treat the original decision with the utmost respect and refrain from interference with it unless satisfied that it proceeded upon some erroneous principle or was plainly and obviously wrong."
Lord Justice Aikens:
Lord Justice Sedley: