BSS Group Plc v Makers (UK) Ltd (t/a Allied Services)

These appeals, brought with the permission of Leveson LJ, are against orders on liability and costs made by His Honour Judge O’Brien in Cambridge County Court on 8 September and 14 December 2010 respectively. As there were two orders, two appeals were required, although if the appellant were to succeed on the liability appeal, success on the costs appeal would follow.

The appellant, BSS Group Plc (‘BSS’), is the third party to a CPR Part 20 additional claim brought against it by Makers (UK) Limited (‘Makers’). Makers was the defendant to a claim brought against it by Stephen Daniel, Barry Daniel and B & S Mechanical Services Limited (‘the claimants’). That claim was disposed of by consent and the only matter tried by the judge (over 7 and 8 June 2010) was the additional claim.

The issue at the trial was whether, in supplying to Makers particular types of adaptor and valve for use in connection with a particular plumbing project, BSS was in breach of the implied term as to fitness for purpose imposed by section 14(3) of the Sale of Goods Act 1979, as amended. The problem was that the threads on the adaptor and valve were incompatible such that, despite appearances to the contrary, the connection of the two components became insecure under pressure; and, within hours, the valve blew off resulting in a damaging flood. The judge held that BSS had breached the implied term and found it liable accordingly. BSS challenges his decision.

Mark Diggle represented BSS and Neil Levy represented Makers. Both also appeared below. We had very able arguments from them.

As it is at the heart of the appeal, I shall set out its material provisions now:

Section 14(3) is a re-enactment, in slightly modified form, of section 14(1) of the Sale of Goods Act 1893. The 1893 Act was a codifying Act intended to reflect the pre-existing common law (see, for example, Henry Kendall & Sons (a firm) v. William Lillico & Sons Ltd and Others [1969] 2 AC 31, at 91H, per Lord Morris of Borth-y-Gest; Ashington Piggeries Ltd and Another v. Christopher Hill Ltd [1972] AC 441, 501, per Lord Diplock). In Jewson Ltd v. Boyhan [2004] 1 Lloyd’s Law Reports 505, Clarke LJ, at paragraph [15], identified the questions arising under a section 14(3) claim as being: (i) whether the buyer, expressly or by implication, made known to the vendor the purpose for which the goods were being bought; (ii) if so, whether they were reasonably fit for that purpose; (iii) if they were not reasonably fit for that purpose, whether the vendor has shown (a) that the buyer did not rely upon its skill and judgment, or (b) if it did, that it was unreasonable for him to do so.

I take these from the judge’s reserved judgment, as supplemented by agreed matters. In 2006 Greene King decided to renovate its Earl of Derby public house in Cambridge (‘the property’). It instructed Cubitt Theobald Limited to do the work and in July 2007 that company sub-contracted the plumbing work to Makers. The work included the installation of new water services.

In July 2007 Makers entered into a labour only sub-contract with the claimants for the installation of the piping for a fixed price of £4,100. It instructed them that they were to replace the existing copper piping with a new plastic piping system called ‘Uponor’ (also known as ‘Unipipe’: Unipipe is the product and Uponor the manufacturer). Makers was to provide the claimants with the materials. It ordered them from BSS, whose staff at its Cambridge branch dealt with the orders. The claimants began work on 9 July 2007 and from that date BSS supplied Makers with the materials that the claimants required. They included Uponor piping, Uponor compression adaptors and 22mm isolating valves. The valves supplied in July (described in evidence by Mr Denman, the BSS representative who supplied them, as a ‘cheap imported valve with no particular make’) caused no problem. The problem arose on 24 August when the claimants used a different type of valve that was supplied by BSS on 12 August. I must, however, first refer to the documents of central relevance to the issues. They were created in the second week of August.

On 8 August Mr Carter (of Makers) sent a fax to Mr Chamberlain (of BSS). It was stated to be ‘Re Earl of Derby, Cambridge’ (i.e. the property) and asked for a quotation ‘for the following items for the above project. ASAP.’ It listed 18 classes of items of specified dimensions. Three items were identified as Uponor items, being different lengths of pipe of 32mm, 50mm and 63mm diameter. Three other items were identified as specifically to be used with such Uponor pipes, namely (a) ‘16 x 1.1/4” BSP [British Standard Pipe] with adapter to 32mm Uponor’, (b) ‘1 x 2” stop tap with built in DOC adapters to 63mm Uponor’, and (c) ‘1 x 2” DCV 2” bushed adapter to 63mm Uponor.’ The other 12 items, such as bends, couplings, tees, rings and backplates and, in particular, ‘15 x 22mm Ballofix valves’, made no reference to Uponor. The list did not refer to Uponor adaptors although BSS had in July supplied such adaptors to Makers. The judge found that ‘by’ 8 August (which, in the light of the evidence, meant before 8 August) BSS knew that the Uponor system was being used for the pipe work at the property.

BSS responded to that inquiry by a quotation faxed back on 8 August and signed by Mr MumbyCroft. It was in respect of 25 items and included, for example, the three lengths of Uponor pipe referred to in Makers’ inquiry, although BSS described it under its alternative name of ‘Unipipe’, as it did in relation to all the Uponor items it quoted. Its response to the request for a quotation for 15 ‘Ballofix valves’ was for part no 86310113, namely ‘22m CXC CP/DZR Boss Miniball [Valve] CU [Compression] WRC’, the cost for 15 such valves being £151.65. Whilst there is a particular make of valve known as a ‘Ballofix’ valve, ‘Ballofix’ is, according to the evidence, also a generic term for valves of such kind. The Ballofix valve for which BSS was quoting was its own manufactured brand. It is designed for use with copper piping. It differed from the isolating valves BSS had earlier supplied in July.

Makers then placed orders with BSS on (as the judge found) 9 and 10 August, although the first order was apparently dated 8 August. The first order, marked for the attention of Mr MumbyCroft, was for 25 items, of which the seventh was ‘15 x 22mm. Boss Miniball [valves] CU [Compression] WRC’, the relevant valves, namely the ones for which BSS had just quoted. The second order, marked for the attention of Mr Pound, was for eight items, of which the fifth was ‘20 x 2.25mm Brass [Compression] Adaptor 770004 Unipipe’, i.e. Uponor compression adaptors. BSS delivered the items on 12 August. The Uponor adaptor comprises two brass components that can ostensibly be used in conjunction with a Ballofix valve to enable a Uponor pipe to be sealed off: one part of the adaptor fits into the other, the whole is attached to the pipe and the valve is then screwed into the adaptor..

The claimants were working in a bathroom at the property on 23 August. To enable them to do so, the water supply had been turned off. They replaced certain pipework and, at the end of the working day, had to seal off three pipes upon which they been working. This was necessary because when the property resumed service as a public house in the evening, the water supply would be turned on again. There was no evidence that all three pipes were sealed with like components, but what the evidence did show was that the claimants sealed one of the pipes by fitting to it a Uponor compression adaptor that Makers had bought from BSS (whether one ordered on 10 August or earlier was not proved) and then sealing the pipe off by screwing into the adaptor one of the 22mm Boss miniball valves that Makers had ordered on 9 August. The claimants turned the water back on, waited for half an hour to check for leaks and then left the property. During the evening, the water pressure increased. Early on 24 August, the valve blew off the end of the pipe resulting in a substantial flood and damage to the ground floor of the property.

An expert, James Garry, reported on 3 October 2008 on the cause of the valve failure and expressed two conclusions. First, the 22m Boss miniball valve was incompatible with the Uponor compression adaptor: the two components could not make a perfect fit because of conflicting screw threads. Second, however, they would appear to fit together to make a secure joint and, unless the claimants had undertaken a specific check on the threads, they would have been unaware of their incompatibility: once tightened, the joint would appear secure and it would only fail when subjected to significant pressure.

Makers’ case against BSS was that it had made known to BSS that it would be using the Boss miniball valve in conjunction with the Uponor adaptor and that BSS was in consequence in breach of the term implied by section 14(3) of the 1979 Act: the valves were not fit for their intended purpose since they were incompatible with the Uponor adaptor. Its primary case was that its contracts manager, Mr Carter, had told Mr Chamberlain, a BSS salesman, of the proposed joint use of the two items and that Mr Chamberlain had confirmed their compatibility. The judge, however, rejected that case and Makers does not challenge that finding.

Having rejected that case, the judge nonetheless found that Makers had specified a particular purpose to BSS, namely that the valves were being bought for use with Uponor pipes. For that conclusion, the judge relied upon the fax inquiry, quotation and orders. He found, first, that Makers thereby expressly made that purpose known to BSS, saying in paragraph 59:

The judge rejected BSS’s argument that this was an ‘idiosyncrasy’ case. He said:

He also found that, whether its purpose was made known expressly or by implication, it was clear that Makers was relying on BSS’s skill and judgment as to the compatibility of the valve and the adaptor. He therefore found for Makers on liability, ordered an inquiry as to damages and awarded Makers 80% of the costs of the liability issue.

Mr Diggle’s first submission in support of BSS’s appeal was that the judge did not direct himself correctly as to the test for determining whether or not, for the purposes of section 14(3), Makers had made known the purpose for which it would be using the Boss miniball valve. He referred us to Henry Kendall, supra, in which at [1969] 2 AC 31, 79F, in relation to section 14(1) of the Sale of Goods Act 1893, Lord Reid explained that if the relevant term is to be implied, the buyer’s purpose must be stated with sufficient particularity to enable the seller to exercise his skill and judgment in making or selecting appropriate goods. He also referred us to Slater and Others v. Finning Ltd [1997] AC 473, in particular to Lord Steyn’s words at 487C to G:

In his criticism of the judge’s conclusion, Mr Diggle submitted that he failed to mention the correct test to be applied; and failed to consider the matter from the perspective of the reasonable man ‘circumstanced as the seller was.’

Mr Diggle’s second submission was that an analysis of the documents upon which the judge relied anyway did not justify the conclusion that they either expressly or impliedly communicated a sufficiently particular purpose to BSS. They nowhere stated that the Boss miniball valve was to be used with the Uponor compression adaptor. Makers’ initial fax inquiry did not refer to Uponor adaptors. BSS’s fax response gave a quotation for the offending valve, but that was irrelevant as it was a BSS document. Makers’ order of 9 August was for valves, not for adaptors. Its order for adaptors was made on 10 August and so resulted in a contract strictly separate from the valve contract. The effect of all this was that BSS was unable to exercise its skill and judgment in selecting the components.

Mr Diggle also pointed out that Makers’ fax of 8 August and its orders of 9 and 10 August were addressed to different individuals at BSS and he said that it would be to impose too high a contractual duty upon BSS to require its staff to check each component for compatibility with components forming part of a different order. He submitted further that Makers is a large concern, with experience of projects of this kind such that, absent the communication of a particular purpose to BSS, BSS was entitled to rely upon Makers’ procedures to ensure that only compatible components were used together. It cannot, he said, have been BSS’s duty to test each component for compatibility with other components.

To the question as to the purpose for which BSS did foresee Makers using the valves, Mr Diggle replied that they were designed by BSS for use with copper piping. BSS’s position was that, even though the judge found that by 8 August it knew that Makers was changing the copper piping at the property for plastic Uponor piping and that all its orders from BSS were in relation to that particular project, it was nonetheless entitled to assume that Makers might also have been ordering copper piping for the project from some other supplier and that it would be using the valves in connection with such copper piping. In Mr Diggle’s submission, BSS did not have sufficient information to know that the project at the property was an exclusively Uponor plastic one.

Mr Diggle’s third submission was that the problem in the case only arose from what he said was an idiosyncrasy, namely the incompatibility between the Boss miniball valve and the Uponor adaptor, one which only emerged because Makers’ sub-contractors used the two components together. Slater, supra, supported the proposition that there will be no breach of section 14(3) where the failure of goods to meet the intended purpose arises from an idiosyncrasy (whether or not the buyer was aware of it) not made known to the seller by the buyer. Following his citation from Sir Wilfred Greene MR’s judgment in Griffiths v. Peter Conway Ltd [1939] 1 All ER 685, Lord Keith of Kinkel expressed the relevant principle as follows, at [1997] AC 473, 483C:

Mr Diggle’s final submission was that the judge dealt inadequately with the issue of reliance. He ought, he said, to have found that Makers did not rely on BSS’s skill and judgment. That was because, in the circumstances outlined, the fax inquiry did not refer to Uponor adaptors and BSS was unable to exercise any skill or judgment. Mr Diggle’s perhaps more significant point was that Makers apparently regarded the claimants as responsible for testing the components and was relying on their skill and judgment, not BSS’s.

In that connection, Mr Diggle relied on the witness statement of Paul Vickers of Makers made in early 2010 in support of the amended case that Makers was then advancing against the claimants. Makers’ case was that the claimants were negligent in failing to check the compatibility of the adaptor and valve. Mr Vickers did not give oral evidence before the judge but Mr Diggle put his statement in evidence and relied in particular on paragraphs 4 and 5:

The assurance to which Mr Vickers referred in the penultimate sentence was one the judge found had not in fact been given. Mr Diggle’s point, however, was that Mr Vickers was here disavowing any reliance by Makers on an exercise of skill or judgment by BSS in relation to the compatibility of the relevant components but was relying on the claimants to carry out a test necessary to ensure that they were in fact compatible.

Mr Levy, in supporting the judge’s decision, also relied on Lord Steyn’s words in Slater (see paragraph [18] above), in particular that the ordinary implication will normally be that goods sold are fit for the purpose for which they would ordinarily be used. He also submitted that it is sufficient that the seller knew that the purpose made known by the buyer was likely, or liable, or not unlikely, to include the particular purpose for which the goods were in fact used, in this case a use of the relevant valves in conjunction with a Uponor adaptor. In that context, he referred to Lord Guest’s observations in Ashington Piggeries [1972] AC 441, at 477E to F.

As for Mr Diggle’s assertion that the judge did not assess the position by reference to the perception of the reasonable man in the circumstances of BSS, that was not, Mr Levy said, of direct relevance because the judge’s primary finding was that Makers’ purpose was, by the relevant documents, expressly made known to BSS. A reference to the perception of the reasonable man strictly only arose in the context of the judge’s secondary finding that the purpose was made known by implication. In that context, in addition to the words of Lord Steyn, Mr Levy referred us to the similar observations of Lord Morris of Borth-y-Guest in Henry Kendall at [1969] 2 AC 31, at 91C to D. In the present case, the judge inferred from the facts that the requisite test was satisfied. In doing so, he was necessarily considering whether a seller, circumstanced as BSS was, would have understood that it was reasonably likely that Makers would use the valve and Uponor adaptor in conjunction with each other. That was a matter for his judgment and the Court of Appeal ought not to second-guess the way in which he exercised it.

In developing that submission, Mr Levy acknowledged that the documents did not state expressly that the valve was to be used with the Uponor adaptor. But that, he said, was an obvious inference from the fact that both parts were ordered together for the same project. He drew attention to some relevant history. Makers’ first order to BSS on 5 July 2007 (which was not in evidence) resulted in a delivery on 9 July. The despatch note of 9 July (which was in evidence) showed that the second item was for 18 x 22mm chrome isolating valves and the fifth was for 20 Unipipe adaptors. Those items were used together and gave rise to no problem. Those valves differed from the Boss brand that BSS quoted on 8 August BSS and supplied on 12 August.

The July order was handled by Mr Denman of BSS. In the course of cross-examination, Mr Denman accepted that the isolating valves supplied in July could be used with Uponor pipes but said that they could only be so used with adaptors and of course he accepted that Uponor adaptors were also supplied in July. His position appeared to be that the ordinary use of the valves would be with copper pipe but to Mr Levy’s question that ‘… it is just as likely, is it not, that [the adaptors] are for use with the valves?’ he replied that ‘It’s possible but then that wasn’t for me to concern myself with.’ Mr Denman also accepted that Makers’ fax of 8 August made clear that the project involved the use of the Uponor pipe system. Mr Levy relied heavily on the fact that the judge had found, in paragraph 59, that the August documents all placed the valves ‘squarely within an order for Uponor pipe and accessories’ (Mr Levy’s emphasis), and that BSS knew by 8 August that the Uponor system was being used for the job. That was sufficient to fix BSS with the knowledge that it was likely that the valves supplied in August would be used for sealing Uponor pipes in conjunction with Uponor adaptors. The fact that the valves and adaptors ordered in August were ordered on consecutive days made no material difference. Adaptors had been supplied in July and BSS knew that the project was a Uponor one.

Mr Levy acknowledged that the documents did not state that the Boss valve was to be used with the Uponor adaptor. The judge, however, found that the documents conveyed that ‘the purpose for which the valves were bought was for use with Uponor pipes’ and, Mr Levy said, BSS ought reasonably to have foreseen that they would be so used. He was dismissive of the point that the orders of 9 and 10 August were addressed to different individuals: the documents were addressed to BSS. Moreover, Makers’ original fax inquiry had merely asked for a quotation for ‘15 x 22m Ballofix valves’ and would, by inference, have been satisfied by the supply of isolating valves of the like type as BSS had originally supplied and which had caused no problem. The response to that inquiry was, however, that BSS quoted for its own brand Boss miniball valves. In addition, as the judge found, BSS promoted itself as a specialist distributor of pipeline, heating and mechanical services equipment, it was a supplier of Uponor products and it had the Uponor product brochure. That brochure, when referring to its compression adaptors, expressly warned that they were ‘[t]o be used with Uponor MLCP compression fitting bodies or bodies of a compatible thread. Please ensure that threads are compatible prior to fixing.’

The judge was, said Mr Levy, also right to reject the ‘idiosyncrasy’ argument. There was no evidence or finding that either component was defective. The problem was simply that they were not compatible. It was reasonably likely that the adaptors and valves would be used with the Uponor pipes but it was not a case in which there was some unforeseeable peculiarity in the particular circumstances of the use of the goods by Makers or the claimants.

As for the suggestion that Makers were relying not on BSS but on the claimants, Mr Levy accepted that in its amended Defence and Counterclaim, Makers had asserted that the claimants owed it, and had breached, a duty to test the valve for compatibility with the adaptor. That issue was never, however, adjudicated upon as the claim was settled. It did not, however, follow that any such reliance upon the claimants was exclusive and the judge found, in paragraph 66, that it was ‘perfectly clear that [Makers] was relying on the skill and judgment of [BSS] in this case whether the purpose was express or implied.’ Mr Levy was disposed to accept that Makers may have placed some reliance on the claimants, but said it could only have been doing so in relation to issues of compatibility that would have been apparent: Makers could not have placed any greater reliance on the claimants. It was, he said, apparent that Makers was relying upon BSS to provide appropriate components for the project.

I shall express my conclusions by reference to the four questions that Clarke LJ in Jewson (see paragraph [6] above) identified as material in assessing a claim for a breach of the implied term imposed by section 14(3).

Makers was using a Uponor system for its project at the property. BSS knew by 8 August 2007 that it was using such a system: BSS had in July supplied Uponor components for the project, including Uponor adaptors. It had also supplied isolating valves in July, in respect of which Mr Denman recognised that it was ‘possible’ that they would used with the Uponor adaptors. Makers’ fax inquiry of 8 August explained on its face that the items in respect of which it was inviting a quotation were for the same project. Six of the 18 items the subject of that inquiry were expressly described as, or to be used with, ‘Uponor’ items. Others were not, including item seven for ‘15 x 22mm Ballofix valves.’ It is, I consider, an irresistible inference from that fax inquiry that Makers was making known to BSS that it intended to use such valves as a device intended to regulate or control the flow of water in pipes used in the project. Moreover, it is I consider also an obvious inference that it was making known to BSS that it intended to use such valves in conjunction with the Uponor plastic pipe that BSS knew it was using. At the very least, it must have been apparent to BSS that Makers was likely so to use the valves.

Makers had therefore made known a particular purpose for which the valves were intended to be used; and it was likely that they would be used with the Uponor plastic pipes. Whilst I would, with respect, fall short of endorsing the judge’s finding that Makers made known its purpose expressly, I consider that the judge was entitled to find, as he did, that Makers impliedly made known to BSS the purpose for which it wished to buy the valves. When on 9 August it ordered 15 of the valves for which BSS had quoted in response to the fax inquiry – BSS’s own brand – it was obvious to BSS for what purpose Makers was buying them. I would uphold the judge’s finding that Makers made known to BSS the purpose of its request for a quotation in respect of 22m Ballofix valves and for its subsequent order of the Boss miniball valves for which BSS had quoted.

Were the valves so ordered fit for that purpose? The judge found they were not because their thread was incompatible with that of the Uponor adaptors with which they were likely to be used for the purpose of sealing off the plastic Uponor pipe. In my view there is no answer to this. The valves that BSS supplied were its own brand and were specifically designed for use with copper piping. They were incompatible for use with the Uponor adaptors with which they were likely to be used. BSS’s supply of its own valves appears to me to have been fairly remarkable bearing in mind that it had no basis for any assumption that Makers was going to be using any copper pipe in the project, but there is no need to say more than that. The valves that it supplied were not reasonably fit for the requisite purpose because they were incompatible with the Uponor adaptors and would be likely to (and on 24 August 2007 did) fail when used in conjunction with them.

A sub-issue arising in relation to this issue is whether, as Mr Diggle submitted, this is an ‘idiosyncrasy’ case. I do not, with respect, consider that there is any substance in this submission and the judge was right to reject it. The point is most easily illustrated by reference to Griffiths in which the buyer bought from the seller a coat made specially for her. The coat was apparently fit for its purpose save that, because the purchaser had an abnormally sensitive skin, the wearing of the coat caused her to contract dermatitis, a consequence that would not have been suffered by a purchaser who did not have such sensitive skin. The purchaser had not, however, made the seller aware of her sensitivity and, that being so, the seller was not in breach of the implied term as to fitness because he did not know that he had to cater for the needs of a person of such sensitivity. Only if he had been informed of that could he have exercised his skill and judgment as to the quality of coat he had to provide.

The present case is nothing like that. The Uponor adaptor and the Boss valve were each sound components. BSS supplied the former and it both manufactured and supplied the latter. On the premise (the applicable one in this context) that it knew that the adaptor and valve were likely to be used in conjunction for the purpose of sealing off Uponor plastic piping, it knew all that it needed to know in order to exercise its skill and judgment as to whether the items were compatible. As far as BSS knew, there were no relevant unknowns about either item. BSS was a specialist dealer and simply had to exercise its skill and judgment in assessing whether they both worked together. In this connection, and as a supplier of Uponor equipment, BSS had the Uponor brochure, which explained in relation to the relevant adaptor that it was ‘[t]o be used with Uponor MLCP compression fitting bodies or bodies of a compatible thread. Please ensure that threads are compatible prior to fixing.’ In applying its skill and judgment as to the suitability of its own Boss value for use in connection with such an adaptor, the application of the most modest skill and judgment ought to have informed BSS of the need to check the compatibility of the Uponor adaptor with its own brand of valve. It did not do so. It supplied its own valve without exercising any judgment as to its suitability for use with the Uponor adaptor.

The third question is whether BSS had shown that Makers did not rely on BSS’s skill and judgment. The judge recorded, in paragraph 64, BSS’s concession that reliance is normally inferred if the purpose is made known. That concession was rightly made. In Henry Kendall [1969] 2 AC 31, at 115G, a case under section 14(1) of the 1893 Act, Lord Pearce noted that ‘[t]he whole trend of authority has inclined towards an assumption of reliance wherever the seller knows the particular purpose.’ If the buyer’s purpose was shown, it was an easy step to infer reliance: see Ashington [1972] AC 441, at 477G, per Lord Guest; and, also at 505B to C, where Lord Diplock pointed out that a buyer who has made known the purpose of his proposed purchase and had selected a seller who made it his business to supply goods which are used for purposes of that kind will thereby convey to the seller that he is relying on the seller’s skill and judgment to ensure that the goods are fit for that particular purpose. Whilst the drawing of an inference of reliance was easier in a case in which the buyer had stated his purpose expressly, that was not a necessary precondition of the drawing of such an inference: see Henry Kendall [1969] 2 AC 31, at 81, per Lord Reid.

The present case, however, was brought under section 14(3) of the 1979 Act, and – as is implicit in Clarke LJ’s point (iii) referred to in paragraph [6] above and as was explained by Lord Steyn in Slater, supra, [1997] AC 473, at 486C to D - the burden under section 14(3) in relation to reliance has now been reversed. The position now is that in a case in which the buyer has made known his purpose, there is prima facie an implied condition of fitness which the seller can defeat only by proof that the buyer did not rely, or that it was unreasonable for him to rely, on the skill or judgment of the seller. Thus, having arrived at Clarke LJ’s third question, the only issue is whether BSS discharged the burden that was upon it.

It was argued both before the judge and us that because Makers arranged for the claimants to have some training in the fitting of the Uponor system (which was provided by two individuals, including one from Uponor), Makers was relying not on BSS to provide a valve that would be compatible with the Uponor adaptor but upon the claimants to check whether the supplied valve was so compatible, including by testing the system at five times normal pressure. Mr Diggle also placed particular reliance on the passages from Mr Vickers’ witness statement that I have quoted.

The judge rejected that attempt to disprove reliance and I consider that he was entitled to. The logic of the argument was apparently that Makers was content to buy any old 22mm valve, whether or not it worked with the Uponor system, and was relying exclusively on the claimants to do the tests necessary to ensure that it did so work. That appears to me to be unreal. BSS was a specialist dealer, which supplied the Uponor system and made and sold its own brand of 22mm valves, being valves that it recommended for purchase by Makers for use in its Uponor system. It appears to me to be obvious that Makers was relying upon BSS to quote for and sell it a valve that was compatible with that system. It may be that it was also relying upon the claimants to test the system when installed to make sure that it worked properly, but I would regard it as unreal to analyse that as reflecting that it was relying upon the claimants to satisfy themselves as to the compatibility of the component items which it had already bought from BSS.

As for the reliance that Mr Diggle placed upon Mr Vickers’ witness statement, I would not attach to it the significance that Mr Diggle suggested. First, if there was any ambiguity in what Mr Vickers was saying in the passage in his witness statement that I have emphasised, the judge did not have the advantage of oral evidence from him by which he might have explained it. Second, I am anyway unwilling to infer from that passage that Mr Vickers was saying that Makers had not placed reliance upon BSS as to the fitness for purpose of the valve that BSS had supplied. On the contrary, he there refers to the assurance as to compatibility which he claimed that BSS had given Makers, evidence which is consistent only with his position that Makers had placed reliance upon BSS, although in the event the judge rejected Makers’ case that an express oral assurance of compatibility had been given. His point in the emphasised passage goes no further than saying that he did not understand that anyone at BSS had given a like assurance of compatibility to the claimants; and that therefore, as the claimants had apparently been warned about incompatible valves, they ought to have taken special care to check the fittings. I would not accept that that evidence justifies a conclusion, contrary to the judge’s finding, that Makers had not relied upon BSS’s skill and judgment in selecting the appropriate valves. I consider therefore that the judge was also entitled to find the necessary reliance. He referred, at paragraph 65, to the observations of Lord Morris in Henry Kendall [1969] 2 AC 31, at 95, that ‘Nor does the fact that on arrival of the goods there will or may be analysis of them negative a reliance on skill or judgment.’ The authorities show that the reliance required for section 14(3) purposes need not be exclusive, but that partial reliance can suffice: see Ashington [1972] AC 441, at 468H, per Lord Hodson, and at 490B, per Lord Wilberforce; and Jewson [2004] 1 Lloyd’s Law Reports 505, at paragraphs [54] to [58], per Clarke LJ.

The final question is whether it was unreasonable for Makers to rely upon BSS’s skill and judgment. The judge did not deal with that expressly, nor is it clear that any separate argument was addressed to him on it; and I did not understand any such separate argument to have been addressed to us either. But he cannot have overlooked the ‘unreasonable’ issue, since he had quoted section 14(3) in paragraph 57, immediately before focussing on the issues he had to decide. The inference is that he was satisfied that there was no question of any reliance by Makers’ reliance having been unreasonable. Again, in my view there can be no criticism of such a conclusion.

I would dismiss the appeal.

I agree.

I also agree.