#15447 - Defence Counterclaim Contract - BPC Drafting

IN THE HIGH COURT OF JUSTICE Claim No: HQ17 7392

QUEEN’S BENCH DIVISION

BETWEEN:

DOVER STREET CATERING LIMITED

Claimants

-and-

WORKWEAR CLOTHING LIMITED

Defendants

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DEFENCE AND COUNTERCLAIM

________________________________

DEFENCE

1. Paragraph 1 of the Particulars of Claim is admitted.

2. Paragraph 2 is admitted, save that it is denied that the Defendants agreed to provide the Uniforms in their ‘livery colours’. Under the Agreement, the Claimants placed an order by sample for standard French Navy fabric (‘French Navy’), a colour which featured in the Defendants’ standard colour palette. The samples were provided by the Defendants on or about 1 June 2016.

3. The price under the Agreement, evidenced by a letter dated 20 July 2016, was 67,680, inclusive of VAT, comprising:

600 x Caps, total 3,360

800 x Dresses, total 48,000

600 x Pinafores, total 2,880

2,000 x Logos, total 2,880

4. Paragraph 3 of the Particulars of Claim is admitted subject to paragraph 2 above.

5. The requirements set out at Paragraph 4 subsections (i) to (iii) of the Particulars of Claim are admitted. Otherwise Paragraph 4 is denied. The Claimants’ requirements were agreed and adjusted over multiple discussions held between April 2016 and 14 July 2016, between the said agents but also Ms Sophie MacLennon, a Design Assistant employed by the Defendants. In particular, requirements were set out at a meeting on a date unknown in April 2016, by the said letter dated 4 May 2015 and by a telephone conversation on 23 May 2016.

6. The Claimants’ requirements were qualified by the express terms of the Agreement that:

   1. The garments would be made out of the cheaper ‘Standard Woven’ fabric which the Claimants selected on 23 May 2016 against the Defendants’ recommended ‘Premium Woven’ fabric, for which they had given assurances on durability.

   2. The garments would be made in a slim-fitting style, redesigned to order after the Claimants rejected Ms Sophie MacLennon’s breathable and ‘cool to wear’ design on 23 May 2016.

7. It was an implied term of the Agreement that the Claimants would use a commercial laundry system to clean the clothes, per general business practice.

8. At all material times the Claimants did not specify that the Uniforms would be used by cooking staff as well as waiting staff.

9. Paragraph 5 of the Particulars of Claim is admitted, qualified to the extent set out at Paragraphs 6 to 8 above.

10. Paragraph 6 of the Particulars of Claim is admitted, except that it is added that the Claimants failed to make payment as agreed under the Agreement within the agreed 30 days from delivery of the second batch on 1 September 2016, or at all.

11. Paragraph 7 of the Particulars of Claim is denied. The Defendants deny that they breached the Agreement as alleged or at all. They rely on the express and implied terms set out at paragraphs 6 to 7 above, in that:

    1. The Claimants expressly qualified the ‘cool to wear’ requirement by their selection of a design which would necessarily and clearly restrict breathability. The Claimants also failed to specify that the Uniforms would be worn by cooking staff.

    2. If, which is denied, the Uniforms retained stains, it is the Defendants’ case that improper garment care by the Claimants or their staff is the cause of the complaint.

    3. ‘Standard Woven’ fabric is purpose-built to withstand reasonable commercial wear-and-tear, but is less durable than the recommended ‘Premium Woven’ fabric.

    4. French Navy is used on a regular basis by the Defendants and has never been found to fade.

    5. The Defendants employ a rigorous quality control system on all their products including a random sample review. The first batch of Uniforms underwent this process.

    6. The Claimants have made no complaint of the caps supplied under the Agreement and have admitted that they are faultless and fit for purpose.

12. The Claimants are required to prove alleged loss and damage. If it is proven,...