High Court of Ireland Decisions

1. For the purpose of convenience in the judgment I will refer, because it is confusing when a Plaintiff is effectively a Respondent, to Pat O'Donnell & Co. Limited either by name or as Defendants to the Counterclaim and to Truck & Machinery Sales Limited either as Counterclaimants or by their corporate name.

2. The primarily factual issues to be determined upon the hearing of this Counterclaim relate to an agreement between both parties of the 12th February, 1992, for the sale and exchange of a substantial quantity of mechanical shovels; as further set forth in a signed written consent of the 23rd March, 1992, which also detailed the related basis of compromise of pending proceedings involving the Counterclaimants and German vendors of like equipment who may be referred to as Zettelmeyer.

3. The agreement was concluded between the respective managing directors of both companies, Mr. James Mansfield and Mr. Pat O'Donnell, each of whom had traded in the business of earth moving equipment for in excess of 25 years, and who were the most crucial witnesses in the hearing.

4. On both the liability and potential measure of damage issues, there transpired to be a particularity of detail, to such an extent that the trial's projected duration was more than trebled. But the particular circumstances giving rise to the agreement may be summarised as follows.

5. As Mr. Mansfield's business of leasing earth-moving equipment in Ireland, primarily to those working quarries and gravel pits, and selling on such equipment both in Ireland and internationally, increased, he came to have need of a substantial consignment of four-wheeled mechanical shovels. He had dealings with Mr. O'Donnell's company who had held the franchise in such equipment for the Volvo Group since 1970 back in 1988 when a substantial and mutually satisfactory agreement for the purchase of several Volvo dump trucks was concluded between them.

6. The range of mechanical shovels available for purchase in Ireland at the time comprised of the American Caterpillar, the then market leader; the Japanese Komatsu; Volvo; and Zettelmeyer.

7. Of these, Mr. Mansfield bought 11 Zettelmeyers for approximately £900,000 of two different types, in late 1989 and 1990, and had cause to regret the decision, for they proved unreliable.

8. Upon getting no satisfaction from Zettelmeyer personnel, Mr. Mansfield commenced High Court proceedings in May 1991. His problems in this regard were compounded when Mr. O'Donnell informed him in 1991 that Volvo were in the course of taking over Zettelmeyer, and this acquisition duly took place.

9. Mr. Mansfield's need to address a situation in which shovels that were unsatisfactory might also acquire built-in obsolescence provided a heaven-sent sales opportunity for Mr. O'Donnell, for in 1991 Volvo were in the course of launching on the market a new model, the L150, with a view to competing much more effectively with the highly regarded mid-range Caterpillar 966 model than had its predecessor the L160.

10. Knowing Mr. Mansfield to be the largest potential purchaser in Ireland, Mr. O'Donnell made intense efforts in the latter portion of 1991 to interest Mr. Mansfield in purchasing L150's, emphasising excellent performance in demonstrations held in a range of Irish locations subsequent to the launch. It became clear to Mr. O'Donnell that if an agreement was to be finalised it would have to be on the basis that included returning the 11 Zettelmeyers or otherwise resolving the ongoing litigation in regard to them.

11. Matters came to a head at a meeting between the two men at Mr. Mansfield's Rathcoole office on the 29th January, 1992. Following discussion of various permutations, mutual interest favoured a basis of dealing whereby the 11 Zettelmeyers would be returned to Mr. O'Donnell for shipping on a basis of a one-for-one exchange with new L150 Volvo models, accompanied by a further cash purchase of other L150's.

12. One immediate problem arose, however. The L150's were specified as being supplied with twenty-three and a half by twenty-five inch tyres, ("the smaller tyres") whereas Mr. Mansfield was adamant that to comply with the requirements of his rental customers, and merit appropriately enhanced rates of rental, he would only be prepared to enter into an agreement if all the L150's could be provided with twenty-six and a half inch by twenty-five inch tyres, ("the larger tyres"). Mr. O'Donnell stated that he would check whether this alteration was feasible with Volvo personnel in Sweden. He did so and upon again meeting with Mr. Mansfield on the 12th February, 1992 stated that it would be feasible to supply the shovels with the larger wheels. What was said or unsaid between the two in the context of it being a less than desirable option to take the shovels with the larger wheels for work in quarries and gravel pits is one of the principal matters of controversy on the evidence.

13. It was common case, and must in any event have been apparent to two experienced professionals, that the revision of specification would inevitably to some degree impact upon performance, but a significant gap exists in the recollection of the witnesses.

14. However, in the course of the latter meeting an agreement was speedily concluded whereby 11 Zettelmeyers would be replaced by eleven L150's with a further nine such models to be purchased at a price of £900,000. Whilst an order form recording essential details was then signed by both Mr. Mansfield and Mr. O'Donnell, it was agreed that the formal terms of the Agreement, in particular, having regard to the basis of settlement of the Zettelmeyer litigation; would be subsequently drawn up in conjunction with legal advisors. A written consent was accordingly prepared by Messrs. Goodbodys, Solicitors to Volvo in Ireland, and executed by all relevant parties on the 23rd March, 1992.

15. Pursuant to the agreement, the 11 Zettelmeyer shovels were returned and a schedule of delivery of L150's was embarked upon. Payment was duly made by the Counterclaimant to the Defendants in respect of those models requiring payment, save that by consensual variation of the agreement Mr. Mansfield sought that two of the latter models should be changed to the larger and more expensive L180 model. It is in respect of non-payment for those two shovels that the present proceedings were instituted by Pat O'Donnell & Co. Limited.

16. However, the first sign of overt controversy between the parties related to events far beyond Ireland.

17. Mr. Mansfield caused eight of the new L150's to be shipped to the Middle East as part of a large consignment of varying types of equipment intended for resale. The consignment came to be stored in Dubai, and currency and other problems arose, which greatly hampered the Middle East venture, and have given rise to further and unrelated proceedings instituted by Truck & Machinery Sales Limited.

18. What is primarily relevant for present purposes is that efforts to sell L150's to the Pakistan Army appear to have antagonised local Volvo sales personnel with like intentions. It was in this context that what came to be known in the proceedings as "The Volvo letter" was written. This was a document of the 24th September, 1992 written by Mr. Liljan-crantz, of local Volvo personnel, to the representative retained by the Pakistan Army decrying, inter alia, the absence of oil bath filters in the exported L150's, the fitting of the larger and unrecommended tyres as tending to make the shovel become "sluggish" and the fitting of "old" axles in contrast to a new and preferable version locally available.

19. Although there is again conflict in the evidence as to whether or not Mr. Mansfield had exclusively committed the L150's acquired in the agreement to the Irish rental market and a term to that effect has been pleaded in the Defence and Counterclaim, it seems to me that on the evidence, as a whole, the probabilities fall appreciatively short of Mr. Mansfield having furnished any such binding undertaking on behalf of the Counterclaimant.

20. However, from a Volvo standpoint, it is not difficult to conceive of the reaction when what was thought of as a discounted Irish purchaser for a home market re-emerged as a competitor to local Volvo agents in the Middle East. A copy of the letter quickly reached Mr. Mansfield who taxed an initially incredulous Mr. O'Donnell with it, and he in turn ascertained on contacting Volvo in Sweden that the letter was genuine.

21. Being in possession of the two new L180 shovels which had not yet been paid for, Mr. Mansfield resolved to withhold payment until he received some realistic satisfaction for what had transpired in relation to the L150's sent to the Middle East, although he acknowledged in evidence that he had initially purported in dealings with Mr. O'Donnell to ascribe payment delay to more critical cash flow problems than he was in fact experiencing.

22. Mr. Mansfield demanded that a Volvo representative of appropriate standing should come to Ireland to deal with the position. In response to this, Mr. Paul Kallmin, Marketing Director of Volvo International Sales Division, came to Dublin and met with Mr. Mansfield and Mr. O'Donnell on two occasions at the end of October 1992.

23. Upon Mr. Mansfield forcefully stating his grievances in regard to the repercussions of the letter upon his Middle East venture, Mr. Kallmin undertook to enquire into what redress, including compensation, might be forthcoming. At the later meeting, he stated no compensation would be paid and Volvo would not go beyond providing a letter, shown in draft form, which would seek to reassure intending purchasers; a course utterly unacceptable to Mr. Mansfield.

24. The parties were now plainly on a collision course. Solicitors' letters were exchanged, and proceedings were instituted by the issue of a summary summons by Pat O'Donnell & Co. Limited for the unpaid purchase price of the two L180 shovels and accrued interest thereon.

25. In response to the grounding affidavit of Mr. O'Donnell seeking leave to enter final judgment before the Master, Mr. Mansfield filed a detailed replying affidavit. Whilst it would not be correct to state that this omitted to make complaint in relation to the L150's consigned to the domestic hire market, undoubtedly, the primary thrust of Mr. Mansfield's complaint in that affidavit, and in the subsequent initial Defence and Counterclaim of the 21st June, 1993, centred upon what had transpired in the Middle East. Both Volvo and Zettelmeyer in their appropriate corporate forms were joined to the Counterclaim. A notice for particulars in relation to the Defence and Counterclaim was issued, but not apparently replied to, and cross-discovery proceedings duly took their course. Beyond some correspondence by the solicitors to Truck & Machinery Sales Limited to the solicitors who had acted for Volvo in relation to the earlier consent, no steps were taken by the said Counterclaimant's solicitors to serve Volvo and Zettelmeyer.

26. Following unsuccessful applications by the said Counterclaimant's solicitors to adjourn, the matter came before Costello P., and by his Order of the 21st November, 1995, judgment was granted in favour of Pat O'Donnell & Co. Limited for the purchase price of the two L180's as claimed, together with accrued interest. A stay upon the said judgment was also thereby ordered pending the due determination of the present counterclaim.

27. Leave was granted to Truck & Machinery Sales Limited to amend its Defence and Counterclaim, the resultant amended pleading being delivered on the 22nd December 1995, and notice of discontinuance of proceedings against Volvo and Zettelmeyer was served. Just prior to the commencement of the Counterclaim hearing, on the 15th April, 1996, the Counterclaimants sought to amend the commencement date of matters complained of so as to be operative from the time of the Agreement between the parties rather than in or about the time of the Volvo letter.

28. Save in respect of one aspect to which I shall shortly return, the legal principles applicable to the various alleged causes of action and entitlement to damages are well settled. I am obliged to Counsel and solicitors on both sides for speedily and fully setting forth submissions on both law and fact in oral and written form.

29. The headings of claim that have caused me least difficulty are the alleged breaches of Section 14, subsections 2 and 4, of the Sale of Goods Act 1893 and 1980, respectively, the implied provisions in contracts for the sale of goods that items purchased shall be of merchantable quality and shall be reasonably fit for the purpose for which purchased. It does not appear necessary to set forth the respective subsections verbatim or consider the applicability of any particular subclauses. In the light of the authorities opened to me in the submissions by the parties, in addition to relevant portions cited from Benjamin on the Sale of Goods, allied to the findings of fact that I feel are appropriate to the evidence in its entirety, I am satisfied that on no realistic appraisal of appropriately proven defects in the L150's supplied can it be said that they were not of merchantable quality or reasonably fit for the purpose for which required.

30. Even on a breach of warranty, ex post facto basis, it seems to me, construing the evidence in its totality as best I can, that given such factors as the relative prices obtained on resale in varying circumstances, the overall hire records, durability and income generated in favour of the Counterclaimants by those shovels which became part of the hire fleet, the relative incidence of repairs required and the apparent evaluation of the L150's in Ireland and other marketplaces by other purchasers and users that neither term has been shown to be infringed.

31. For some piecemeal items in respect of which defects were either admitted or not seriously contested, a contractual basis of redress might still remain arguable but on the view that I have taken in regard to the Counterclaim as a whole, I believe those items may properly be deferred for consideration under alternative headings.

32. The remaining causes of action relied upon in the Counterclaim are those of negligent misrepresentation and statutory misrepresentation pursuant to Section 45(1) of the Sale of Goods and Supply of Services Act 1980.

33. Following upon the decision of the House of Lords in Hedley Byrne & Company Limited -v- Heller & Partners Limited , (1964) AC 465, it was accepted by Davitt P. in Security Trust Limited -v- Hugh Moore & Alexander Limited , (1964) I.R. 417 that an action for negligent misrepresentation could succeed in this jurisdiction where a relationship between two parties was of such a nature that upon one seeking information from the other damage resulted from a breach of a duty to take reasonable care that the information furnished was correct. In Doolan -v- Murray & Ors . (unreported, 21st December, 1993), Keane J. approved the dictum of Lord Denning, MR, in Esso Petroleum Company -v- Marden , (1976) 2 ALLE.R.5, to the effect that:

34. In setting forth a statutory entitlement to damages for non-fraudulent misrepresentation in 1980, the Oireachtas did not require that a duty of care should exist between representor and representee. By Section 45(1) of the Sale and Goods and Supply of Services Act, 1980, it is provided that:

35. Having appraised the evidence on both sides, I am of the opinion that the Counterclaimants are entitled to succeed in respect of misrepresentation both on a basis of negligent misrepresentation and statutory misrepresentation, but primarily in respect of the former.

36. Patently, Mr. O'Donnell was under a duty of care in relation to the representations he made to Mr. Mansfield with a view to inducing sales. He was a specialised and experienced dealer and up to 90% of his business was Volvo-produced; he knew from previous dealings over dump trucks that Mr. Mansfield was not a person who would exhaustively study vehicle specifications, and he had, on his own evidence, assiduously canvassed Mr. Mansfield as a large potential purchaser of L150's, whilst further knowing of his difficulties regarding Zettelmeyer over whom Volvo had attained control.

37. Equally clearly, the recommendations made by Mr. O'Donnell in relation to the L150 were instrumental in persuading him to enter into the agreement. The actual elements of conflict in accounts given by both principal witnesses are in fact appreciatively less than in many other areas of controversy in the Counterclaim. Although there are conflicts it seems to me to be established as a relatively clear probability that in circumstances where he was made aware that Mr. Mansfield required shovels that were at least the equal of the Caterpillar 966 for arduous quarrying work, Mr. O'Donnell conveyed emphatically to Mr. Mansfield that the L150 was a new and entirely up-to-date model of the highest standard that would be equal to, and in some ways superior to, the Caterpillar 966.

38. Mr. O'Donnell was furnished with and was familiar with a significant amount of promotional and technical literature which conveyed to him that in such matters as speed in low gears, and in breakout force, a particularly significant attribute in a quarrying concept, the L150 was not equal to the Caterpillar 966.

39. He did not convey to Mr. Kallmin that he was selling L150's to Mr. Mansfield on a basis of being equal to or superior to the Caterpillar 966 nor did he tell him that quarrying was the main projected use by Mr. Mansfield's hirers.

40. Whilst I accept Mr. O'Donnell's evidence that he was surprised and dismayed at the content of the Volvo letter, and likewise accept the evidence of the Volvo witnesses that design modifications are part and parcel of the business of marketing an evolving product, it remains the fact of matters that on such significant aspects as the type of axle and the standard wheel fittings, significant preparations were in train and at an advanced state of development to adapt to a product more suitable to Mr. Mansfield's needs. In the context of the allegedly extensive dealings between Mr. O'Donnell and Volvo and the latter's detailed consideration of whether or not to proceed with the proposed agreement at all on a basis of larger tyre fittings, it would seem that these aspects ought to have been elicited and conveyed to Mr. Mansfield.

41. It would be an unwarranted finding to hold that the L150's supplied were no more than an experimental prototype, yet it remains noteworthy in the light of the representations made, that L150's supplied to Mr. Mansfield constituted a significantly high percentage of, approximately, 200 shovels manufactured in toto under the older format. It is difficult not to be inclined to a view that this may have reflected some differences between the design and marketing arms of Volvo. All this must be assessed in conjunction with the conflict of evidence in regard to what passed between the parties with regard to the provision of the larger wheels. Mr. Mansfield accepted that he insisted on larger wheels and acknowledged that some limited loss of traction and breakout force would result, but he denied the basis of repeated efforts to dissuade him and warnings and caveats advanced by Mr. O'Donnell.

42. On balance, and I have regard to a degree of difference in relevant testimony between Mr. O'Donnell and Mr. Kallmin, and to the complete absence of any contemporaneous written reference whatsoever, I am inclined to the view that no serious or adequate warning was given by or on behalf of the vendors with regard to the unsuitability of larger tyres for the existing specification.

43. Indeed, as neither principal witness conveyed to me any impression of seeking to give wilfully misleading or unworthy evidence, it is worth remembering that the inherent complexity of the proposed agreement may well have distracted attention from a fully reasoned appraisal of the likely repercussions of fitting larger tyres or indeed the place of use projected for the L150's sold.

44. The contract was indeed a large and crucial one for both parties, but the Zettelmeyer and other attendant complications may have diverted a degree of attention from aspects that would otherwise have been explored more fully. There remains an issue as to whether or not in law or in fact, in so far as the supply of L150's with larger wheels undoubtedly very significantly contributed to the losses complained of, Mr. Mansfield should be held to have contributed towards any resultant misfortune that accrued. By section 34(1) of the Civil Liability Act, 1961, it is provided that:

45. These provisions, expressly including breaches of contract as wrongs, are more widely drafted than equivalent English legislation and appear to reflect the view of Professor Glanville Williams that contributory negligence should be extended to contract law and that, as argued by him at page 215 of his work on Joint Torts and Contributory Negligence (1951), "Contributory negligence is appropriate even where the contractual duty broken is a strict one".

46. As recently as in Lyons -v- Thomas (1986) I.R. 666, Murphy J. noted and applied the wide definition of wrong as aforesaid. Further in Gran Gelato Limited -v- Richcliff (Group) Limited & Others , (1992) Ch. 560, it was held that in principle the concept of contributory negligence applied to statutory misrepresentation under the Misrepresentation Act, 1967, Nicholls, VC, holding that such a defence should be applicable in the context of statutory misrepresentation, no less than in respect of negligent misrepresentation founded upon the same representation.

47. In the light of the foregoing, I am of the view that contributory negligence is in principle applicable to a case such as the present Counterclaim, although I would readily accept that in many commercial cases involving representations or contractual terms it may be deemed inappropriate. Should it be applied in this present instance? Mr. Mansfield was an accomplished and experienced businessman who was able to recall in evidence that he had purchased 10 million pounds worth of equipment in the Falkland Islands. He was well versed in the practicabilities of mechanical shovels. He insisted on a relatively radical departure from the then standard specification for his own commercial reasons, in the knowledge that it must to some degree impact negatively upon performance, albeit not to the extent of a general sluggishness.

48. It accordingly seems to me that when dealing with redress, some appropriate discounting on a basis of contributory negligence will require to be ordered.

49. With regard to the contentions belatedly advanced on behalf of Defendants to the Counterclaim, that the Counterclaimants should be (a) precluded from recovering consequential losses pursuant to the standard conditions of sale set forth on the reverse of the signed order form and (b) precluded from recovering any losses that would seem to accrue to HSS Limited, the associate leasing arm of Mr. Mansfield's group of companies, I have decided that the entire substantive merits of losses flowing from the relevant misrepresentation should be adjudicated upon in the proceedings as presently constituted.

50. Apart from the issues now being more generically akin to negligence, than to a basis of contractual privity, the concurrent designation of the relevant companies as the Mansfield Group in the Consent of the 23rd March, 1992, and some possible argument as to whether all such standard terms were duly incorporated into the agreement for the purposes of the Counterclaim, these aspects have not been pleaded in the amended Reply and Defence to Counterclaim at the conclusion of the extensive and protracted pleadings. If I felt, nonetheless, in law constrained to uphold either argument I would of course do so. But it is difficult to see how the interest of either party could be advanced by leaving undetermined a small portion of the merits exhaustively canvassed at hearing.

51. I turn in conclusion to the issue of damages and whilst differences in the measure of damages appropriate to negligent misrepresentation and statutory misrepresentation may arise, it seems clear that what is applicable is such a sum of money as should suffice to place the Counterclaimants into the position they would have been in had the relevant misrepresentations been true.

52. The respective headings of claim alleged comprise:

53. I have to say that a purported claim exceeding three quarters of a million pounds, bears little reality to the substantive merits of the case as heard over 11 days of evidence.

54. Given that the critical focus of the Counterclaimants grievances until an advanced state of proceedings was on the general mishaps that had befallen the Middle East venture, an aspect expressly abandoned for the purposes of these proceedings at the outset of the hearing, and that minimal if any dissatisfaction with the L150's had been expressed until after the Volvo letter, it is difficult to repress a view that the entire basis of claim has been belatedly and implausibly recast.

55. This has entailed Mr. Richard Mahon and Mr. Brendan Gibbons, respectively, financial controller and maintenance fitter foreman to the Counterclaimants, advancing documents and figures that appear predominantly to me to import a high degree of artificiality, and in a process akin to the workings of revisionist historians, to Mr. Jim Corkery, Financial Controller to Pat O'Donnell & Co. Limited, and Mr. Leander of Volvo, furnishing detailed rebuttals. Whilst the gulf between competing figures on such aspects as projected sales losses, hiring, downtime, repair costs and realistic expectations is absurdly large, I find the evidence on behalf of the Defendants to the Counterclaim more cogent and impressive in this regard.

56. The evidence of purportedly disgruntled hirers and users of L150's adduced on behalf of the Counterclaimants had a mantra-like predictability, and whilst accepting that the contrary evidence of Mr. Tom Cleary of Roadstone did not reflect the most arduous of applications, I find it more in keeping with the general proposition that clearly emerged that the L150 model has been generally successful in this country and many others and has very significantly improved the Volvo market share in the comparatively low-volume, but important, market of mid-range shovels.

57. Similarly, the evidence and report of the motor engineer, Mr. Kenneth Robinson, was based upon one comparatively limited early examination of one L150 model, and thereafter was limited to an evaluation on paper between documentation applicable to both the L150 and the Caterpillar 966.

58. In assessing the totality of the evidence, documentation and submissions, as carefully as I can, I have had regard to what seems to me a veritable myriad of infirmities in the quantum of the Counterclaim as alleged. Despite a general evidential picture of machines that resold relatively competitively, required or were provided with relatively few repairs in the context of industry norms, and which worked and have continued to work long hours in a demanding market, thereby producing valuable economic returns for their hirers, it appears to me that unacceptable evidence has been advanced in an endeavour to support a Counterclaim that has been spuriously inflated to a high degree.

59. Taking the important issue of the realistic actual price paid by the Counterclaimants for the L150's, there has been considerable divergence as to the respective sums advanced. Undoubtedly, the whole basis of the sale and exchange agreement imported a wide measure of comparative imponderables for the Counterclaimants, who were both being forgiven a sizeable remaining payment in respect of the Zettelmeyers, and waiving any contingent entitlement in the action that was settled.

60. But it is axiomatic that what Mr. Mansfield generally obtained was a unit price significantly more favourable than the hundred thousand pounds ascribed to the nine shovels he agreed to pay for in cash. The gulf between that figure and the suggestion of a sum in the vicinity of £65,000 from Mr. Kallmin is vast.

61. I have considered the relevant evidence on both sides in relation to actual new and second hand L150's sales, the uncontrovertible fact that a purchaser buying an extraordinarily large number of shovels for the Irish market on a partly cash-funded basis will seek and obtain a significant discount, and the degree of highly effective agreed bargaining and haggling that enabled Mr. Mansfield to prevail with a £900,000 ultimatum appreciatively below the asking sum contemplated by Mr. O'Donnell and Mr. Kallmin.

62. It seems to me that in all the circumstances a sum of not more than £84,000 represents the realistic unit cost expended in the Agreement, which, given aspects such as depreciation and the circumstances of some of the sales subsequently made by Mr. Mansfield, has obvious repercussions on this heading of claim.

63. Whilst I have not exhaustively traversed several of the aspects that have caused me misgivings, I have to say with regret that I find the basis of quantification of losses advanced by the Counterclaimants so excessive, unreliable, and punctured by cross-examination and opposing testimony that I find only very limited reliance can be placed on it in quantifying loss.

64. It is difficult not to incline at least in part towards the opposing argument that faced with an indebtedness in excess of £600,000 in the judgment of Costello P., no stone has been left unturned to set forth a belatedly recast Counterclaim that unreliably seeks to exceed that sum. Faced with these conflicts, how are losses to be quantified?

65. Plainly a sum very significantly less then what is sought only is warranted; and whilst a court may not be enamoured of inflated or untenable versions advanced in sworn testimony, it is clear from McGregor on Damages and from the judgments of the Supreme Court in Callinan -v- Voluntary Health Insurance Board , (unreported, 28th July, 1994), that it must do the best it can to quantify a sum that is fair and appropriate.

66. I have contemplated a number of alternative modes of formulating a proper sum, either by awarding very heavily reduced figures under such of the heads of claim as remain applicable or by assessing an appropriate proportion of what I have found to be the actual unit prices paid by the Counterclaimants. The computation I have arrived at using the latter method broadly equates with that obtained from the former.

67. Whilst the submissions made on behalf of Pat O'Donnell & Co. Limited urge only nominal damages, if any, it still must be borne in mind that, given the overall structure of the agreement, some 18 L150 shovels were involved and the aggregate sums thereby were very substantial.

68. I award, in the first instance, a sum based on a one eighth or 12½ % discounting of the £84,000 I have found to have been paid in respect of each of the 18 units. Because of the finding as to contributory negligence, already dealt with, whilst bearing in mind that some limited aspects of the claim were not affected by that factor, I further discount that entitlement to 10%, thereby entitling the Counterclaimants to judgment in the amount of £151,200, being £8,400 multiplied by 18.

69. There remains some aspects such as set-off, interest and the like, and indeed the matter of costs, that I have been asked by the parties to hold over until further argument and perhaps to enable the parties to evaluate the present position. The case should be listed for mention speedily, approximately, a week or so from now, when the persons involved have had an opportunity to consider what has been stated today.