Rotamead Ltd v Durston Scaffolding Ltd & Ors

The background to these claims and counterclaims is as follows. The Claimant is a supplier of scaffolding equipment. The Claimant claims £226,711 for the unpaid charges for the hire of scaffolding plus accruing charges. The Claimant also claims delivery up of the scaffolding in the Defendants’ possession with damages in the alternative. Originally the Claimant dealt with a company owned by the Third Defendant called Paul Durston Limited (“PDL”). The Third Defendant had entered into a personal guarantee and indemnity agreement in respect of PDL’s liability to the Claimant.

It is common ground that in early 2017, PDL was in serious financial difficulty. At that time, PDL had in its possession considerable scaffolding equipment on hire from the Claimant which it was using on its building projects. The Claimant’s case is that by the end of March 2017, PDL owed the Claimant £186,564.48.

The Claimant’s case is that PDL’s obligations were novated to the First Defendant at the end of March 2017. The Third Defendant also had entered into a new personal guarantee and indemnity agreement in respect of the First Defendant’s obligations on 28 March 2017. Separately, some but not all of PDL’s scaffolding projects with third parties were novated to the First Defendant. PDL entered creditors voluntary liquidation on 24 May 2017.

In June 2017 the Claimant contends that the the First Defendant entered into a payment arrangement in respect of the historic balance owed to the Claimant and agreed to reschedule ongoing charges. As a condition of that arrangement, the Second Defendant entered into a written contract of indemnity and guarantee in respect of the First Defendant’s obligations.

In essence, the Defendants’ defence is that the novation agreement, the payment arrangement, and the surety agreements are void or ineffective due to coercion, economic duress, or unfair pressure. The First Defendant also contends he has overpaid hire charges and counterclaims for a sum to be assessed.

The Defendants contend that the Second Defendant and Mr Paul Winston who was engaged by the First Defendant as its accountant carried out a reconciliation exercise and discovered that the First Defendant had overpaid for the scaffolding suggesting that the total amount invoiced by the Claimant to the First Defendant was £297,839.28 and in turn the total sum paid to the claimant was £314,963.18 inclusive of VAT.

I have heard evidence from the following witnesses:

In January 2013, PDL was incorporated and all three of its directors, including the Third Defendant, gave personal guarantees in respect of PDL’s liabilities. Mr Durston gave his guarantee without objection because it was the price a newly incorporated company reasonably had to pay to obtain a credit arrangement with Rotamead Limited.

In June 2016, Mr Durston discovered his finance director had been stealing large sums of money from PDL to pursue his gambling habit. Thereafter, I accept the evidence that Mr Norfolk was not told about the theft by Mr Durston’s co-director until 21 March 2017. Mr Durston’s evidence was that he told Mr Norfolk a few days after discovering the fraud is inconsistent with his pleadings and I do not consider that it took place. Throughout this period, PDL continued to hire scaffolding from Rotamead and were often in severe arrears.

By January 2017, Mr Durston and Mr Ryan were forced to accept that PDL could not be rescued. They formed a joint venture to endeavour to rescue as much of the ongoing business as possible and set up DSL. Mr Durston said as much when cross-examined (see

From the founding of this joint venture the records of shareholdings and directorship, I find, were not intended to reflect the true ownership and control. DSL was incorporated on 17 February 2017. At that date, Mr Durston was listed as the only director and shareholder. However, true ownership and control was always jointly between themselves.

The next time span is the three March meetings: 21 March 2017; 28 March 2017; and 31

On 21 March 2017, it is at this meeting that Mr Norfolk was finally told of the fraud. From my assessment of the evidence of the witnesses the suggestion that Mr Norfolk was trying to bully Mr Durston into doing anything or enter into any kind of unfavourable agreement is not made out. Mr Norfolk was understandably angry but he listened to Mr Durston as Mr Durston explained his and Mr Ryan’s plan to novate PDL’s contract with third parties to DSL with the suggestion of a novation of Rotamead Limited’s contract with PDL to DSL. I do not accept Mr Norfolk subjected Mr Durston to verbal abuse, threats and profanities.

On 28 March 2017 at this meeting Mr Durston met Mr Norfolk to set up the necessary credit account with Rotamead for DSL. The position facing DSL was clear: (1) they needed Rotamead’s scaffolding; (2) they could not buy the scaffolding; and (3) they could not pay any hire charges up front. In respect of this meeting, I accept Mr Norfolk’s evidence that there was no bullying, no unreasonable behaviour, and no duress. This was a commercial agreement favourable to both parties. Mr Durston signed the credit account set out at B8 of the Bundle which included the Personal Guarantees which stated: -

On 30 March 2017, Mr Norfolk sent to Mr Durston an email setting out the terms upon which Rotamead was prepared to offer to DSL. That email is to be found at C44 of the trial bundle and states as follows:

“Morning Paul, if the debt and materials currently on hire are to be novated to a different company, we will require two separate letters on headed notepaper for the company, stating:

Paul Durston Limited trading as Durston Scaffolding:

(1)

As from 27 March 2017, Paul Durston Scaffolding Limited trading as Durston Scaffolding, transfers all hire duties and obligations as detailed on hire invoice numbers H29872 and H29873, and monies owed £186,564.48, to Durston Scaffolding Limited;

Durston Scaffolding Limited:

(2)

As from 27 March 2017, Durston Scaffolding Limited accepts all hire duties and obligations and agree the hire material quantities as detailed in hire invoices number H29872 and H29873 and accepts the outstanding debt of £186,564.48 from Paul Durston Limited trading as Durston Scaffolding.

Kind regards, Barry.”

Mr Durston must have shown or explained the terms being offered by Rotamead to Mr Ryan because the next day, a meeting took place. On 31 March 2017, Mr Durston and Mr Ryan had a meeting with Mr Norfolk and either signed letters there and then or signed letters thereafter all dated 31 March 2017 on behalf of PDL and DSL transferring and accepting all hire duties and obligations as set out on invoice numbers H29872 and H29873, and the outstanding debt of £186,561.48. The purpose of this meeting was to finalise the novation and all parties knew that. All parties agreed that the historic balance

I find, having heard the evidence from the parties, that no pressure was placed on Mr Durston or Mr Ryan to sign those letters. It was a commercial deal which reflected the commercial realities which must have been obvious to all parties, which were:

The next time span deals with the meeting on 18 April 2017. The Claimant contends that on 18 April 2017, it was agreed at a meeting held at Higgins’s head office in Loughton that PDL and Higgins would terminate their contracts in respect of the Sutherland Road and

I consider that the Defendant’s submissions as to the impact and the effect of this passage of the letter dated 18 April 2017 to be wrong. The reasons why the Defendants’ case is wrong can be analysed as follows;

In any event, Mr Norfolk’s evidence as to what was discussed on 18 April was clear. At paragraph 57 of his witness statement, he states that the letter dated 18 April 2017 confirmed that Higgins would terminate the agreement with PDL and would take over the hire of the Claimant’s equipment at the Sutherland site. Paragraph 58 of his witness statement states he had doubts that all his equipment was at the Sutherland Road and Bramber House sites. This was confirmed by Mr Sargeant’s evidence (see paragraph 13 to 20 of his witness statement quoted above).

Perhaps more fatal to this new unpleaded case based upon the alleged tripartite agreement is that it is not supported by Mr Durston. He makes no reference in his Witness Statement to the ‘crucial’ meeting on 18 April 2017 or the crucial letter dated 18 April 2017. Mr Ryan’s witness statement is far from clear. He does state at paragraph 26 that Higgins took over responsibility for the payment of the hire of Rotamead’s equipment at the Sutherland site on 18 April 2017. However, he makes no reference in his witness statement to any agreement that Higgins were liable for all shortages.

Then in respect of contemporaneous correspondence, the correspondence from the parties from 18 April to 23 May 2017 is completely inconsistent with the submissions that Higgins took over the responsibility for everything on Mr Norfolk’s schedules including shortages

This unpleaded and unsupported claim, whether one looks at the witness evidence or contemporaneous documents, that Higgins became responsible for the hire of all the Rotamead scaffolding and any shortages I find is simply wrong. I remain surprised that it was pursued when Mr Ryan and Mr Durston knew that Rotamead’s scaffolding equipment was on other significant sites including the Croudace sites. See for instance the Agreed Chronology. What, in fact, happened is that all the scaffolding on the Sutherland and Bramber sites were cleared by D & B Scaffolding and Mac Scaffolding and returned to the Rotamead site. The evidence of Robert Jones is clear that he personally counted the scaffolding in and the off-hire notes relating to the Higgins sites are meticulously set out in the supplemental bundles which, for reasons of their own, the Defendants never reviewed in any detail. It was never put to Mr Jones that those detailed records were not complete or correct. Indeed, it is relatively clear that all the scaffolding returned in respect of Sutherland Road and Bramber House sites were taken off hire from the unchallenged records of Rotamead Limited.

The June agreements are summarised in Mr Norfolk’s letter to Mr Ryan dated 15 June 2017. The letter stated as follows: -

“Dear Jamie,

Further to our telephone conversations and in light of your proposal to fully repay the total outstanding account balance by the 30th September 2017 from the sale of Mr Paul Durston’s property. (Daniels Farm, Wash Road, Basildon Essex, SS15 4AZ), please find below Rotamead’s agreement to a short term amendment to our payment terms.

-

The May 2017 hire invoices totalling £23,207.21 are to be paid by the 7th July 2017.

-

The June 2017 hire invoices are to be paid by the 7th August 2017

-

The July 2017 hire invoices are to be paid by the 7th September 2017

In addition a minimum monthly payment of £5,000.00 is to be paid by the 7th July 2017, 7th August 2017, and 7^th September 2017.

The account will revert back to your current terms of payment (30 days net monthly) on the 30th September 2017.

This agreement is subject to the completion of a credit application form and continuing guarantee.

Yours sincerely”

The personal guarantee was signed by Jamie Ryan as a director of DSL and stated as follows:-

“In consideration of your agreeing to grant credit facilities to the company or limited liability partnership described above (“the company"). I hereby unconditionally guarantee as both-Guarantor and Principal Debtor the due and punctual performance and observation by the company of it’s obligations herein and under your General Terms and Conditions of Supply overleaf and agree to indemnify and keep you indemnified against any breach or non-observance thereof by the company and I further agree that the extent of my liability under the guarantee shall not be limited by any

credit limit Imposed on the company or in any other way.”

On the back of that form were the General Terms and Conditions of Supply, which included the following clauses:-

“2.4.7

The Customer grants to the Company an irrevocable licence to enter upon the land occupied or used by the Customer in connection with the tasks for which the Equipment is bought or hired as the case may be.

The Customer warrants that he is able to grant such a licence mid chat any party whose consent is also required has agreed to be bound by such a licence.

3.4

Payment In all cases for approved accounts is due within thirty days from the date of the Company's invoice. In all other cases, payment in full is required before the Equipment will be despatched or collected. All sums paid late are liable to Interest at the rate of the higher of 1.75% above the base rate of Barclays Bank Plc or the rate allowed from time to time by the Late Payment of Commercial Debts (Interest) Act 1998 or any replacement or modification thereof.

5.2 The Customer will at all times during the period of hire:

(i)

keep the Equipment In his custody and control.

(ii)

ensure that the Equipment is erected and dismantled in a proper manner and only by those persons having the appropriate qualifications and experience to erect and dismantle the Equipment and in accordance with any instructions given out by the Company.

(iii)

ensure that the Equipment Is used ONLY within its designed load limits and other requirements. The Customer warrants that he is aware of all such limits and requirements.

(iv)

take proper care of the Equipment and ensure that It Is safely and properly stored.

(v)

retain possession and control of the Equipment at all times and not sell, loan, charge or part with possession of It

(vi)

return the Equipment In good order to the place of hire and to ensure that the Equipment Is clean, fully usable and loaded in such a manner that unloading may be carried out by forklift. The Customer will be responsible for the Cost of repair and cleaning and any missing or damaged Equipment will be charged at the list price subject to any applicable Customer discount. The Company may In Its absolute discretion decline to sell any damaged item to the Customer,

Having heard the factual evidence I do not accept that economic duress or illegitimate pressure forced Mr Ryan to sign this personal guarantee. It was an agreement, which was to the commercial benefit of both parties. The Defendants were given more time to pay and the Claimant had the benefit of Mr Ryan’s personal guarantee.

The Second Defendant’s Written Closing Submissions state that the elements of economic

Mr Norfolk did not put Mr Ryan under any illegitimate pressure. He merely stated that obvious which was if DSL could not pay the hire charges they could not keep the scaffolding on hire. I agree with the Claimant’s closing submissions that Mr Ryan signed the guarantee because it got him what he wanted – more time to pay.

However, DSL continued to be late in paying invoices. I reject the suggestion that the First

It is now necessary to review the Defendants’ defences and challenges to these claims. The written closing submissions for the Second Defendant very helpfully summarise the reasons why Mr Ryan contends he has no liability for the sums claimed (see paragraph 69 of those submissions):

“a.

The Rotamead procured Mr Ryan’s consent for DSL assuming responsibility for PDL’s Historic Debt on 31 March 2017, and to enter into a personal guarantee on 15 June 2017, through the use of economic duress. These agreements should be regarded as void.

Taking each point in turn. First, it is said that Rotamead procured Mr Ryan’s consent for DSL assuming responsibility of PDL’s historic debt on 31 March 2017 and entering into a personal guarantee on 15 June 2017 through the use of economic duress and that agreements should be regarded as void. The First and Second Defendant in their written

However, having heard the evidence of Mr Norfolk, Mr Ryan, and Mr Durston, I do not consider that Mr Norfolk either procured Mr Ryan’s consent for DSL to assume responsibility for PDL’s historic debt or forced Mr Ryan to enter into personal guarantees through the use of economic duress. These submissions of duress simply do not sit easily with the nature of Mr Ryan and Mr Durston’s character as revealed during their crossexamination. Neither individual, whilst being cross-examined, gave the impression they could be bullied into signing documents they did not want to sign.

In any event, there is a fatal flaw to this argument of economic duress which as a matter of law it cannot be economic duress if Mr Norfolk decided not to enter into a contract with the Defendants. DSL had no right to use Rotamead’s scaffolding without Mr Norfolk’s consent. Finally, even if that was all incorrect, Mr Norfolk’s statement was that in the absence of the novation, he would enter the sites and reclaim his equipment was a legitimate right for the following reasons:

Finally, if all that is wrong, the Defendants’ case still cannot succeed. It was not put to Mr

The Court of Appeal in Times travel UK Limited & Anor v Pakistan International Airlines Corporation [2019] 3 WLR 445 held as follows: -

“Contract - Validity - Economic duress - Contract entered into following exercise of lawful pressure in good faith - Whether contract voidable on grounds duress

The claimant travel agency, whose business was almost exclusively the sale of flight tickets for travel to and from Pakistan, was very largely dependent on its ability to sell tickets with the defendant airline, which, was the only airline operating direct flights between the United Kingdom and Pakistan. When a number of the defendant’s agents brought proceedings to recover substantial sums said to be due by way of commission, the defendantterminated existing agency contracts, offering each a new contract on terms that it included a waiver of the agent’s claim for unpaid commission. The claimant was one of the agents which accepted those terms. Subsequently the claimant brought proceedings to recover the commission and other payments which it said were due under its previous contract. The judge allowed the claim, holding that the claimant was entitled to avoid the new contract on the grounds that it had been procured by economic duress, even

though the defendant’s actions had been entirely lawful.

On the defendant’s appeal –

Held, allowing the appeal, that where A used lawful pressure to induce B to concede a demand to which A did not bona fide believe itself to be entitled, B’s agreement would be voidable on the grounds of economic duress, but the doctrine of economic duress would not apply where A believed in good faith that he was entitled to the demand, whether or not, objectively speaking, he had reasonable grounds for that belief; and that, accordingly, since the judge had found on the facts that the claimant had failed to establish bad faith on the part of the defendant, the claimant had not been entitled to avoid the contract (post, paras 62, 70, 105-107, 113-115, 116, 117). CTN Cash and Carry Ltd v Gallaher Ltd [1994] 4 All ER 714, CA applied.

Dicta of Leggatt LJ in Al Nehayan v Kent [2018] EWHC 333 (Comm) at [187]—[188] not applied.

It was not put to Mr Norfolk that he did not have a bona fide belief he was entitled to possession. It is also suggested the novation agreement did not make commercial sense. I disagree. The Defendants’ intention was to take over as much of PDL’s business as possible. It was commercially sensible and common for a new company to take on an old company’s trade debt to ensure the continuity of supply. Furthermore, the business was coming to DSL without the burden of the £421,044 of VAT owed to HMRC. In the circumstances, I find that DSL is bound by the novation agreement. Even if DSL could make out its case in respect of economic duress, the effect of that would be to make the novation agreement voidable not void. DSL clearly affirmed that contract by its later dealings with Rotamead. So DSL is, in any event, bound by the novation.

Secondly in paragraph 69 of the Second Defendant’s written closing submissions it is contended that on a proper construction of either the 31 March letter or the terms of the personal guarantee, Mr Ryan cannot be held personally liable for either the historic debt or the debts incurred by DSL prior to 15 June 2017. The wording of the guarantee clause is set out above in paragraph 29 of the Judgment and is clear and unambiguous and cannot attract the contra preferentem rule as alleged by the Second Defendant.

Mr Ryan’s case on construction is that it is a guarantee which only covers hire invoices raised by DSL. I consider that submission to be incorrect. Firstly, PDL had an obligation under the general terms and conditions to pay the invoices that made up the novation balance. Secondly, the novation clearly transferred that obligation under the general terms and conditions to DSL. Thirdly, Mr Ryan clearly guaranteed the due and punctual performance of DSL’s obligations under the general terms and conditions and agreed to indemnify Rotamead in respect of any breaches by DSL and the liability is expressly not limited to any credit limit.

It is also clear from the letters sent on 16 June 2017 from DSL to the Claimant, copied to Mr Ryan between DSL, Mr Ryan, and Mr Durston, that Mr Ryan was liable for the historic debt. That letter stated:

This letter is not a very happily worded letter but clearly, at the time, the Defendants did not think the guarantee was limited so as to exclude the historic debt. I note that the Agreed Chronology also contends that on the 15 June 2017 a payment arrangement was agreed between Claimant and the First Defendants which included the historic balance.

Turning to Mr Durston’s guarantee, Mr Durston whilst being cross-examined accepted that he had given a guarantee and accepted, realistically, the personal guarantee was the reasonable price for the new company to hire material on credit.

Thirdly going back to paragraph 69 of the Second Defendant’s closing submissions, it is submitted:

“During the meeting of 18 April 2017, in which PDL, Rotamead and Higgins entered into a trilateral agreement to execute a further agreement for the release of PDL from its Sutherland Road subcontract and the novation of the relevant hire responsibilities to Higgins, Higgins had accepted that the quantities of material deployed at its sites amounted to 469,028 feet, as set

out in the Schedule presented by Mr Norfolk.”

For the reasons set out above, I do not accept any such trilateral agreement was pleaded or was supported by the evidence and was, in any event, inconsistent with the contemporaneous correspondence. I understand that this Defence was advanced on instructions from Mr Ryan but it is a defence without, in my view, any merit. It is only an aside but I note that Mr Ryan and Mr Durston must have known at all material times that Rotamead’s equipment out on hire was not just on the Sutherland Road site and Bramber House site. Indeed, Mr Durston in his witness statement said, in terms, that the scaffolding that PDL had on hire from Rotamead was located at a number of building sites but the largest by far were the two sites of Higgins and one building site with Croudace (see paragraph 18 of his witness statement). Higgins never accepted that they would be liable for “shortages” as contended by the Second Defendant’s counsel.

The final death knell of this unpleaded and unsupported Defence is Mr Ryan’s own evidence given when cross-examined on day two:

“MR SMITH: Mr Ryan, you are copied into this letter C62 dated 2

April and at no point do you respond saying “hang on, we have got a binding agreement”?

A. For all intents and purposes, it is not my battle.

Q. You are relying on that binding agreement now; you did not respond and say you had a binding agreement then?

A. As we established earlier, that has nothing to do with DSL, it is PDL.

Q. Is it your case that whatever was agreed between PDL and DSL, and Higgins and Rotamead, DSL’s obligations are unchanged; is that your case?

A. Those agreements are not DSL’s concern.

Q. I am going to go through them to make sure that we understand we are coming from the same position because your barrister has put very hard that there is a binding agreement that DSL is able to take advantage of and I do not want it to be said that I am making you abandon your case in cross-examination so I will continue. We looked at the email at the bottom of 62 where Mr Durston asked to confirm. He then chases on 4 May (bottom of C61). You have dropped off the address list in a moment, but we will see in a moment it does get forwarded on to you. Then on 10 May, at the bottom of C61, there is an email from Mr Sergeant to Mr Durston, which says they believe that the schedule is not exclusively for materials at Sutherland Road. This email again you are not on, but it is forwarded to you on 18 May, we see at the top of the page. There is no response from you saying, “hang on, that is the schedule I have accepted and that means DSL does not

have any hire charges to pay”?

A.

Again, the contract — DSL is not part of that contract so it is not my concern. That contract is between PDL, D&B Scaffolding, Higgins and Rotamead,”

So if there was any binding tripartite agreement it did not involve, on the basis of Mr Ryan’s own evidence, DSL. If Higgins was in breach of any tripartite agreement it was in breach of an obligation owed to PDL and that must be a matter for, Higgins, and PDL’s liquidator.

Finally, in its Written Closing Submissions, the Second Defendant contends even if the court is not persuaded as to the contractual arguments set out above and holds that all invoices issued by Rotamead and DSL are valid, on proper consideration of the reconciled accounts, DSL was in overpayment in the amount of £17,123.90.

There are two fundamental problems with the Defendants’ quantum case. Firstly,

Finally, I note that in Mr Durston’s closing written submission he does not pursue his counterclaim or make any assertion that the First Defendant has overpaid the Claimant or that the First Defendant is entitled to pursue any counterclaim against the Claimant.

So turning to the question of the quantum claims, I consider that the best evidence is that based on the Claimant’s comprehensive and unchallenged records. The statement of account for DSL can be found at B450 and B451 of the trial bundle. It represents transactions from 7 August 2017 to 4 June 2018. The opening balance is stated to be £221,798.19. It was not put to Mr Norfolk that the opening balance was wrong. Now, clearly, it would have been better if the opening balance had started on 31 March 2017 but the Claimant submits, and I accept his submissions, that it can be seen that £221,798.19 is a reasonably correct figure for the following reasons. The documentation establishes that

Payments in that period, according to the Defendants’ own schedule to be found at B386 and B387, total £36,650. If one adds the invoice to the opening balance and subtracts the payments, that gives the figure of £221,135.65. This difference amounts to some £662.50. I accept this difference is likely, on the balance of probabilities, to be attributable to the difficulties trying to reconcile accounting information from a fixed content bundle without access to the accounting system. I am invited to find the opening balance on the statement of account is correct and I do so find.

Further transactions can be seen on the statement of account at B471. This statement runs from 30 April to 31 October 2019. The balance as at 31 October, including continuing hire fees, is £325,321.14. The balance as at 23 September, which is the last invoice before the claim was issued (that is 201) was £226,711.21. That is the amount claimed in the Particulars of Claim. Ongoing hire is claimed at £247.14 per day. This daily rate is calculated by dividing any of the later invoice values by the number of days in the period, for example, £6,919.99 is £247.14 per day for 28 days. The amount of equipment still on hire is as seen from the later invoices, for example, the invoice of 29 September 2018 at

DSL is entitled to credit for the hire payments made by D & B and Max Scaffolding. The evidence of Mr Jones was that those amounts were £8,573.29 and £3,230.38. Therefore,

I have asked for these figures to be broken down into figures that are exclusive and inclusive of VAT. I have received a breakdown, which I reviewed and checked and I consider correct.

Finally the Defendants have raised during the course of trial is a VAT invoice point. The Defendants seem to rely upon the lack of VAT invoices issued to the First Defendant in respect of the historic balance. However the novation transferred PDL’s obligation to pay the historic balance to the First Defendant. There is no new supply which will attract VAT.

I consider that that is incorrect. Novation is a matter of contract law. It transferred the obligation to pay the invoices from PDL to the First Defendant. There is no write-off and no need for write-off and, therefore, I think the VAT invoice point is a bad point.

Accordingly in my judgment.

There be judgment for the Claimant on the Claim.

The First Defendant’s Counterclaim be dismissed.

The Second and Third Defendants are liable to indemnify the Claimant’s losses caused by the First Defendant’s breaches of the Claimant’s General Terms and Conditions.

The Defendants shall pay to the Claimant the sum of £492,514.19, which is made of the following:

The Defendants shall by 4 pm on 24 September 2020 deliver up to the Claimant the following scaffolding equipment belonging to the Claimant (which shall in a fit state to be re-hired by the Claimant):

The Defendants shall pay to the Claimant the sum of £247.14 (being £205.95 + VAT) for each day following the judgment that die Equipment is not delivered up. If some but not all of the Equipment is delivered up in accordance with this Order, the daily rate following the partial delivery up shall reduce to reflect the Claimant’s hire charges on the balance of

If, by 4 pm on 24 September 2020, the Defendants have not delivered up the Equipment to the Claimant, the Defendants shall pay the Claimant the sum of £230,889.60 (being £217,691.22 (£181,409.35 + VAT) plus the sum of £13,198.38 pursuant to CPR Rule 36.17(4)(d)) in lieu of delivery up. If, prior to 4 pm on 24 September 2020, the Defendants deliver up some but not all of the Equipment, the Defendants shall pay a sum in lieu of delivery up in respect of the balance of the Equipment that has not been delivered up to the Claimant, which will be calculated by reference to the rates set out at paragraph 11 of the witness statement of Robert Jones dated 21 November 2019 plus an additional sum pursuant to CPR Rule 36.17(4)(d).

The Defendants shall pay the Claimant’s costs of the Claim and defending the Counterclaim, such costs to be assessed on the indemnity basis if not agreed. The

The Defendants shall pay the Claimant the sum of £120,000 on account of the costs ordered at paragraph 8 above.

I am grateful to Counsel for agreeing the Terms of this Order.