David Parratt KC (Scot) and Nick Kaplan successful in preliminary issues trial

24th March 2023

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3PB Barristers’ (3 Paper Buildings) specialist commercial and contractual dispute barristers David Parratt KC (Scot)David Parratt KC (Scot)Call: 1999Silk: 2017 and Nick KaplanNick KaplanCall: 2013 have successfully acted for the Defendants in Microlise Limited v James Kemball Limited & Anor [2023] EWHC 579 (KB), a preliminary issues trial between a transport logistics group of companies and the supplier of transport telemetry devices fitted into the cabs of lorries.

The case in questions revolves around the terms under which the Claimant (Microlise Limited) was engaged by the Defendant to produce 100 telematic devices under a three-year contract. The preliminary issues concerned: (i) contract formation/ incorporation of terms; (ii) the contractual effect of various limitation and exclusion clauses in particular whether on each set of terms in question, the statutory implied terms of “fitness for purpose” and “satisfactory quality” were excluded; and (iii) which entities were parties to the contracts. The preliminary issues raised an interesting point as the two competing sets of terms were both terms issued by the Claimant at the same time.

The Judge, Mr Healy-Pratt (sitting as a Deputy High Court Judge), accepted David and Nick’s submissions, on behalf of the Defendants, that when the negotiations of the parties were viewed in the round, they had agreed to contract on a detailed set of terms contained in an ‘umbrella’ agreement rather than the general terms and conditions contained on various order forms. The Judge also accepted the Defendants’ case as to the relevant parties.

Having won on the Issues 1 and 2 the judge did not need to determine Issue 3 as to exclusion and limitation clauses in the general T’s and C’s.

David and Nick were instructed by HFW Solicitors.

The judgment can be found here

David Parratt KC (Scot) is an experienced barrister, advocate and arbitrator with extensive court experience, regularly negotiating settlements in multi-million pounds claims. David’s practice includes areas such as arbitration, construction & engineering claims, energy disputes (including oil/gas upstream claims), general commercial litigation and commercial contracts. David is a Fellow of the Chartered Institute of Arbitrators (FCIArb), holds Chartered Arbitrator Status and is on the panels of many worldwide arbitration institutions.

Nick Kaplan specialises in commercial and contractual disputes, with particular emphasis on construction and engineering. Nick’s practice includes areas such as payment disputes, delay claims, claims for defective works, claims arising from defective construction materials and associated product liability, construction professional negligence, enforcement of adjudicators’ decisions and recovery of adjudicators’ fees and expenses.

To contact or instruct David or Nick, please contact David Fielder via email at [email protected] or telephone 020 7583 8055.