John Raymond Transport Ltd v Rockwool Ltd

For many years, the claimant, John Raymond Transport Limited (“JRT”), provided Rockwool Limited (“Rockwool”), which manufactures insulation products, with haulage and warehousing services.

In July 2014, however, Rockwool gave notice to terminate certain contracts with JRT. In response, solicitors acting for JRT, McTaggart, disputed the validity of the termination. They also put forward the claim that forms the subject matter of the present proceedings, which were issued on 19 November 2014. That claim has two components. In the first place, it is alleged that Rockwool was contractually obliged to allocate a minimum number of haulage loads each year to JRT but failed to do so. In all, Rockwool is said to have provided some 15,000 too few loads in the six years falling within the limitation period and thus to be liable to JRT for £4,433,266.17 (plus interest). I shall refer to this element of JRT’s claim as “the Minimum Loads Claim”. Secondly, JRT asserts that its haulage charges fell to be adjusted annually pursuant to its contractual arrangements with Rockwool but the appropriate adjustments were not made. A schedule to the particulars of claim puts the resulting loss at £3,697,401.37. I shall refer to this part of JRT’s claim as “the Clause 7 Claim”. The total sought by JRT is stated in the particulars of claim to be £8,208,937.38 (although that is not precisely the aggregate of £4,433,266.17 and £3,697,401.37).

Rockwool now seeks to have the proceedings struck out under CPR 3.4(2)(a) and/or for summary judgment to be entered in its favour under CPR 24.2(a)(i) and (b). However, it was common ground before me that, in the circumstances of this case, CPR 3.4 adds nothing important to CPR 24. I can therefore concentrate on whether summary judgment should be granted.

The earliest contractual document in evidence is an agreement made in 2000. The agreement (“the 2000 Agreement”) was stated to run for three years from 1 June 2000, with the possibility of extension until May 2005, and provided for JRT to provide a variety of services. In particular, it undertook “to supply and manage all of the UK mainland transport requirements on behalf of [Rockwool]”.

In 2002, JRT told Rockwool that the 2000 Agreement was becoming increasingly uneconomic. New contractual arrangements were agreed as an interim measure. A written agreement (“the 2002 Agreement”) was entered into in respect of the period between 1 June and 31 December of 2002. This included, as clause 9(c), the following provision:

“Except as set out elsewhere in this Agreement, [Rockwool] shall provide a minimum of 30 loads per day (Monday to Friday) excepting the weeks that include Bank Holidays and Rockwool planned shutdowns notified to [JRT]. Any failure on Rockwool’s part to provide such loads will result in [JRT] being entitled to be paid £225 for each load less than 30”.

The agreement also stated (in clause 2):

“After 31^st December 2002, [JRT] confirms that it will discuss the possibility of a further Agreement with Rockwool which may include any warehousing requirement; any Rockwool on site shunting services and the provision of vehicles for the completion of a reduced number of loads per day, currently anticipated to be in the order of 10-15 loads per day”.

Rockwool proceeded to put its hire and haulage services out to tender. JRT tendered, and was ultimately chosen as a service provider. Paragraph 24 of the particulars of claim states that the invitation to tender documents “estimated” the total number of loads to be about 60 loads per day.

Several agreements were entered into between the parties. The key document for present purposes is the logistics contract for “Full and Multi Drop Loads” (“the 2003 Agreement”). Rockwool’s obligations were stated to include these:

“3.2

Rockwool will utilise [JRT] for the delivery of Products within the Territory subject to the following:-

i)

Deliveries to Wickes Limited and deliveries of small orders (groupage) are excluded from the Agreement.

ii)

Full trailer loads to a single Consignee and multi drop loads (Maximum of three per trip) will be shared equally by post-code destination on a daily basis between [JRT] and a second haulier who will be directly employed by Rockwool subject to clause 3.2iii) below.

iii)

Rockwool reserves the right to utilise a third haulier primarily for deliveries to post code destinations within Scotland and the North East of England. The maximum number of full and multi drop loads offered to a third haulier will be ten per working day up to a maximum of 20% of the full and multi drop loads measured on a daily basis. e.g. If Rockwool has 50 loads or more for delivery on a given day the third haulier will be offered a maximum of 10 loads. If the maximum number of loads available is 30 on a given day then the third haulier will be offered a maximum of 6 loads. Rockwool agrees that the third haulier will be required to deliver to the furthest destinations within Scotland and the North East of England as part of its allocation….

3.6

In the event of an industrial dispute or other event that causes the closure of the production process, Rockwool will guarantee a minimum of 10 loads per day at £275 per load until the end of the Agreement or one month whichever is the sooner.”

Clause 6.1 of the 2003 Agreement provided for the charges payable to JRT to be as “set out in Schedule 3”, and schedule 3 contained a “Full Load Price Matrix” listing prices for numerous different “districts”. For example, the rate for various destinations in Wales was as little as £95, while the cost of a Scottish trip could be as high as £819.06. Rockwool was to “advise [JRT] on a daily basis the Charges they are due for the single drop deliveries in accordance with Schedule 3” (clause 6.2), and JRT was to “invoice Rockwool the additional Charges for multi drop loads or other Charges properly due under this Agreement within five days of the end of the month during which the Charges were incurred” (clause 6.3).

Clause 7 of the 2003 Agreement was headed “Review of Charges”. It provided as follows:

“7.1

Charges may be increased or decreased on the anniversary of the Contract Year to reflect cost movements resulting from the effects of inflation or deflation or other cost movements beyond the control of [JRT] and

i)

the revised Charges will come into effect at the commencement of the new Contract Year and

ii)

in the event that the Charges are not agreed in writing until after the commencement of a new Contract year any changes to any Charges, which are subsequently agreed by the Parties, will be treated as having taken effect as at the commencement of such Contract Year.

7.2

[JRT] shall have the right to amend the Rentals at any time as a result of cost increases arising from changes in legislation or regulation and shall use its reasonable endeavours to provide 30 days notice to Rockwool.

7.3

The Charges relating to transportation have been calculated on the basis of a fuel cost of 61.64 pence per litre of diesel. Rockwool recognizes that movements in diesel fuel prices, whether resulting from market conditions or from Government intervention or legislation are outside the control of [JRT]. Accordingly, the Charges shall be adjusted to reflect changes in fuel cost as follows:

7.3.1

The Charges shall be adjusted to reflect the actual price of diesel paid by [JRT] at the Commencement Date.

7.3.2

Thereafter, in the event that diesel fuel prices increase or decrease by more than 2.0 percent when compared to the last price of diesel used to compute the Charges, the Charges shall be adjusted to reflect such increase or decrease and a revised price matrix issued. This will be on the basis that fuel represents 26% of [JRT’s] costs.”

Clauses 12 and 23 of the 2003 Agreement dealt respectively with “Claims” and “Waiver”. Clause 12 provided for “[a]ny claims of whatever nature arising out of the performance of the Services” to be “notified by the relevant party to the other in writing within a reasonable time of having learned of such a claim”. Clause 23 stated that “[n]o failure to exercise and no delay in exercising any right power or privilege hereunder” was to “operate as a waiver thereof”.

The 2003 Agreement was varied a number of times. The first variation was effected in 2004 by a document the front sheet of which recorded that the document had been prepared by Mr Paul Johns, JRT’s managing director, for Ms Janet Tupman, who was a manager with Rockwool, and which also stated:

“All other terms not included in this document as per previous contract 2002 to 2004”.

The section of the document concerned with “full loads” was in these terms:

“Charges as of 1^st April 2004

* As per 2004 Rate Schedule supplied.

Terms and Conditions

* Prices assume a contract until 28^th February 2007.

* Prices assume work allocation as per current allocation, i.e. current [JRT] and Edwards Logistics load allocation, i.e. 60% plus of total full outward loads produced at Rockwool Pencoed.

* Prices assume [JRT] have exclusive use of 218 Rockwool contract trailers.

* Annual reviews on proven costs ~ increases and decreases.

* Rockwool will require an operational review at the end of 2005.

If there are any significant Rockwool operational/production changes, [JRT] will be asked to review their charges to reflect these changes, and if these charges are agreed, the contract will run until 28^th February 2007. If agreement is not reached, 3 months notice to terminate the contract can be given by either parties.”

The 2003 Agreement was varied again, in a similar way, in 2007 (“the 2007 Agreement”). This time, the front sheet stated, “All other terms not included in this document as per previous contract signed in 2002,” but it seems clear that the “2002” was a mistake and that the document should in fact have referred to the 2003 Agreement. The section dealing with “full loads” read:

“Charges as of 8^th March 2007

* 7% increase on all rates excluding Scotland.

Terms and Conditions

* To be effective from Wednesday 8^th March 2007.

* Based on a fuel price of 78.15 pence per litre.

* Work allocation 225 – 260 full loads per week plus all Eurobond deliveries.

* Rates inclusive of current Severn Bridge rate @ £ 15.30

* Based on a contract until 30^th June 2008.

* Rates to remain effective until 30^th June 2008 excluding fuel increases and any increases due to government legislation.

* Fuel increases to be based on fuel being 32.5% of overall cost.

* Manitou deliveries plus £ 75 per delivery. [JRT] to provide 1 Manitou fork truck and 3 suitable trailers to provide this service.”

A third variation was agreed in 2008 (“the 2008 Agreement”). On this occasion, the front sheet stated, “All other terms not included on this document as per previous contract signed in 2002, all figures quoted ex VAT”; once again, the “2002” must be a mistake. Under the heading “Charges as of 1^st August 2008”, rates were stated to be “as per existing” subject to some specified exceptions (so that, for example, the rate for Birmingham was given as £305). A page headed “Full load terms & conditions” provided as follows:

“Rates to be effective from 1^st September 2008. To remain fixed until 31^st August 2010 excluding increases / decreases in fuel / changes in government legislation or operational changes by Rockwool.

Rates based on a fuel price of 103.50 pence per litre. Assuming fuel as 34% of overall cost.

Rates based on a weekly work allocation of :-

Year 1 ~ 225 to 300 full loads per week plus all Eurobond deliveries. Year 2 ~ 275 to 350 full loads per week plus all Eurobond deliveries.

We are confident we have the infrastructure and expansion plan in place within our business to grow in tandem with your business aspirations as the 3^rd line becomes fully operational.

Rates inclusive of current Severn Bridge rate @ £ 15.90. Increases / decreases will be added / deducted as and when they occur.

Night Deliveries ~ plus £85 (6pm to 6am) as of 1^st October 2008

(Charge not applicable to existing deliveries)

Saturday Deliveries ~ plus £85

Sunday / Bank Holiday Deliveries ~ plus £125

Performance Targets

Full Loads ~ Target 100% minimum requirement 95% on time

Site Deliveries (Full Loads) ~ Target 100% minimum requirement 99% on time”

The final document to which I should refer dates from 2011. JRT contends that this, too, served to vary the 2003 Agreement. Rockwool does not accept that the parties actually agreed the document, at least in all respects. For convenience, however, I shall refer to it as the “2011 Agreement”.

The format of the 2011 Agreement was comparable to that of the 2008 Agreement. The section dealing with “full load terms and conditions” began as follows:

“Rates to be effective from 1^st August 2011. To remain fixed until 31^st July 2012 excluding increases / decreases in fuel / changes in government legislation or operational changes by Rockwool.

Rates based on a fuel price of 115.00 pence per litre. Assuming fuel as 36% of overall cost.

Rates based on a weekly work allocation of :-

Year 1 ~ 150 to 375 full loads per week plus all Eurobond deliveries.”

A summary of the principles that apply to applications for summary judgment is to be found in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch). Lewison J there said (in paragraph 15):

“The correct approach on applications by defendants is, in my judgment, as follows:

i)

The court must consider whether the claimant has a ‘realistic’ as opposed to a ‘fanciful’ prospect of success: Swain v Hillman [2001] 2 All ER 91;

ii)

A ‘realistic’ claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8]

iii)

In reaching its conclusion the court must not conduct a ‘mini-trial’: Swain v Hillman

iv)

This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]

v)

However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550;

vi)

Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63;

vii)

On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent’s case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant’s case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725.”

As Lord Clarke noted in Rainy Sky SA v Kookmin Bank [2011] UKSC 50, [2011] 1 WLR 2900 (at paragraph 14), echoing Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 and Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] AC 1101, the “ultimate aim of interpreting a provision in a contract, especially a commercial contract, is to determine what the parties meant by the language used, which involves ascertaining what a reasonable person would have understood the parties to have meant”. As Lord Clarke also said (at paragraph 14), “the relevant reasonable person is one who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract”. “The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent” (Lord Hoffmann in the Investors Compensation Scheme case, at 913), but “it is always admissible to look at a prior contract as part of the matrix or surrounding circumstances of a later contract” (Rix LJ in HIH Casualty and General Insurance Ltd v New Hampshire Insurance Co [2001] EWCA Civ 735, [2001] 2 Lloyd’s Rep 161, at paragraph 83), though “a cautious and sceptical approach to finding any assistance in the earlier contract” is “a sound principle”.

The Minimum Loads Claim is advanced by JRT on the basis (as is explained in paragraph 43 of the particulars of claim) that Rockwool “agreed to allocate a minimum of 225 full or multi drop loads from 8 March 2007, varied to a minimum of 275 full or multi drop loads from 1 September 2009, varied to a minimum of 150 loads from 1 August 2011”. According to paragraph 39 of the particulars of claim, the 2008 Agreement:

“evidenced an oral or partly oral agreement and/or set out an agreement between the parties that there would be a minimum allocation of full and multi load drop deliveries by [Rockwool] to [JRT] of 225 per week from 1 September 2008 to 31 August 2009, and 275 from 1 September 2009 to 31 August 2010, plus all Eurobond deliveries in addition”.

Similarly, the 2011 Agreement is said (in paragraph 42 of the particulars of claim) to evidence “an oral or partly oral agreement” and/or to set out “an agreement that the minimum load allocation by [Rockwool] to [JRT] was further varied so as to be reduced to 150 full or multi drop loads, excluding Eurobond deliveries”.

Mr Ian Mill QC, who appeared for Rockwool with Mr Ben Lynch, argued that the Minimum Loads Claim is bound to fail. According to Mr Mill, neither the 2008 Agreement nor the 2011 Agreement obliged Rockwool to provide JRT with any minimum number of loads. Moreover, there is, Mr Mill argued, no real prospect of JRT establishing that any such obligation arose orally.

In contrast, Mr Hugh Sims QC, who appeared for JRT with Mr Oliver Mitchell, maintained that minimum loads obligations were imposed by both the 2008 and 2011 Agreements and, before them, by the 2007 Agreement. That, he said, flowed from the references in the 2008 and 2011 Agreements to rates being based on specified work allocations or, more baldly, from the 2007 Agreement’s:

“Work allocation 225 – 260 full loads per week plus all Eurobond deliveries.”

In any event, Mr Sims submitted, the factual matrix requires exploration before the claim is determined. In particular, so Mr Sims suggested, there needs to be enquiry into whether there were, as JRT contends, oral agreements (or components of the agreements).

On balance, however, I agree with Mr Mill that I can conclude at this stage that Rockwool did not undertake any relevant obligation to provide JRT with a minimum number of loads and, hence, that the Minimum Loads Claim must fail. My reasons include these:

The Clause 7 Claim is based on clause 7.1 of the 2003 Agreement. As already mentioned, that stated that charges “may be increased or decreased on the anniversary of the Contract Year to reflect cost movements resulting from the effects of inflation or deflation or other cost movements beyond the control of [JRT]”. According to the particulars of claim, “the charges have not been adjusted as required by the 2003 Agreement”.

The schedule to the particulars of claim assumes a cost per load of £225 in 2002 and applies successive increases (or, in one year, a decrease) by reference to the retail prices index. On this basis, the cost per load is put at £274.67 between May and December of 2008, £273.30 during 2009, £285.87 in 2010, £300.74 in 2011, £310.36 in 2012, £319.98 in 2013 and £325.74 between January and May of 2014.

In my view, the Clause 7 Claim cannot possibly succeed as regards the periods with which the variation agreements dealt. For example, the parties agreed in the 2008 Agreement on rates “effective from 1^st September 2008” and that those rates were to “remain fixed until 31^st August 2010 excluding increases / decreases in fuel / changes in government legislation or operational changes by Rockwool”. In the circumstances, it cannot be open to JRT to contend that the rates as at 1 September 2008 were other than those agreed in the 2008 Agreement or that those rates were other than fixed until 31 August 2010, subject only to any adjustments under clause 7.2 of the 2003 Agreement (cost increases arising from changes in legislation or regulation), under clause 7.3 of that agreement (to reflect changes in fuel cost) or in respect of “operational changes by Rockwool”. Likewise, since the 2011 Agreement similarly stated that rates were to be “effective from 1^st August 2011” and to “remain fixed until 31^st July 2012 excluding increases / decreases in fuel / changes in government legislation or operational changes by Rockwool”, JRT cannot be entitled to dispute that the rates in question were those applicable as at 1 August 2011 and fixed until 31 July 2012 (subject to the possibility of adjustments on the same grounds as those agreed in 2008). It follows, I think, that there can be no question of JRT having a claim under clause 7.1 of the 2003 Agreement except in relation to (a) the period between 1 September 2010 and 31 July 2011 and (b) the period from 1 August 2012.

Mr Mill argued that a claim with regard to even these periods must necessarily fail. He submitted that the use of the word “may” in clause 7.1 is reflective of the fact that there was no obligation on the parties to agree any increase or decrease and said that the provision would anyway amount to no more than an (unenforceable) agreement to agree. Mr Sims, however, maintained that the “may” is explicable by the simple fact that a relevant cost movement might or might not occur; that there would have been no need for contractual provision to permit the parties to discuss and, if able to do so, agree adjustments; and that the fact that JRT did not mount a claim under clause 7.1 at the time does not matter (compare e.g. Amherst v James Walker Goldsmith & Silversmith Ltd [1983] Ch 305 and Idealview Ltd v Bello [2009] EWHC 2808 (QB), [2010] 1 EGLR 39). In the end, I have concluded that, while Mr Mill’s contentions are not without substance, they are not in this respect so compelling as to justify summary judgment in his favour.

There are, however, other objections to the present version of the Clause 7 Claim so far as it relates to the periods between 1 September 2010 and 31 July 2011 and from 1 August 2012. In the first place, any claim under clause 7.1 of the 2003 Agreement must take as its starting point the rates actually in operation at the relevant time. If, for instance, a claim is to be mounted for an increase in rates between September 2010 and August 2011, it must be on the basis that all (or conceivably some) of the various rates fixed by the 2008 Agreement fell to be increased “to reflect cost movements resulting from the effects of inflation or deflation or other cost movements beyond the control of [JRT]” (to quote clause 7.1). Neither of the costs per load specified in the particulars of claim for 2010 or 2011 (viz. £285.87 and £300.74) is likely to be of any relevance. A second point is that it is probably necessary to look beyond the retail prices index. Clause 7.1 may well demand an analysis of the implications for JRT’s costs of inflation or deflation, and specific account may need to be taken of the fact that changes in fuel prices and costs increases arising from legislation or regulation are specifically catered for elsewhere in clause 7.

In the circumstances, I do not think any of the Clause 7 Claim can stand in its present form. On balance, however, I consider that JRT should be given a chance to reformulate its claim in respect of the periods between 1 September 2010 and 31 July 2011 and from 1 August 2012. In a re-worked form, such a claim could have a real prospect of success and, accordingly, not be susceptible to being dismissed under CPR Part 24.

I can summarise my conclusions as follows: