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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Computer 2000 Distribution Ltd & Ors v ICM Computer Solutions Plc  EWCA Civ 1634 (17 November 2004)
Cite as:  EWCA Civ 1634
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM READING COUNTY COURT
(HIS HONOUR JUDGE CATLIN)
B e f o r e :
LORD JUSTICE CHADWICK
LORD JUSTICE LATHAM
|(1) COMPUTER 2000 DISTRIBUTION LIMITED|
|(2) MICRO PERIPHERALS LIMITED|
|(3) IMAGO MICRO LIMITED||Claimants/Respondents|
|ICM COMPUTER SOLUTIONS PLC||Defendant/Appellant|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR A PETO (instructed by Messrs Lester Aldridge, Bournemouth BH8 8EX) appeared on behalf of the First Respondent
MR J EVANS (instructed by Messrs Pannone & Partners, Manchester M3 2BU) appeared on behalf of the Second Respondent
MR R CASE (instructed by Messrs Boyes Turner, Reading RG1 3BD) appeared on behalf of the Third Respondent
Crown Copyright ©
"Please supply the goods or services described in this purchase order subject to our standard conditions of purchase."
It identified the goods, the date delivery was requested, the unit price, the total price for the number of units to be supplied, and the VAT chargeable on that price. It contained the following delivery instructions:
"Delivery AMEC Plc
Address South Bank House
Black Prince Way
London SE1 7SJ."
Under a heading "Special Instructions", the purchase order identified the person at the supplier with whom the order had been agreed, and the person (Mr Timothy Evans) at ICM who had originated and authorised the order. Also under the heading "Special Instructions" there appeared the words:
"Shipment Inst.: SHIP FAO: RICHARD COLE."
"The building at South Bank House does not display the names of the licensees. It is common ground that neither the name of AMEC or AMEC PLC appeared on the outside of the building or in the reception area. It is also common ground that AMEC PLC have no presence at South Bank House, no connection with AMEC and that AMEC PLC did not order any goods from ICM."
He went on to say:
"It is plain that the name AMEC was used by the fraudster, Richard Cole so as to mislead those dealing with him into thinking that they were dealing with AMEC PLC, a reputable, large business."
"All of the computer goods the subject of the three claims have been lost to the parties in these three proceedings. The three Claimants have not been paid for the goods that they dispatched; putting the matter simply because the Defendant submits that each of the Claimants have not carried out their contractual obligations and therefore are not entitled to the price of the goods in question. The theft and dishonesty has been perpetrated by a man calling himself Richard Cole who received all of the goods dishonestly, and both the goods and Richard Cole have not been traced. There is no allegation that any of the parties or indeed any of the witnesses who appeared to give oral testimony are in any way implicated in the dishonesty."
"Ownership of the goods will be vested in us only after delivery in accordance with the Purchase Order notwithstanding that the goods are collected by our own transport and the Supplier will remain responsible to make good loss or damage to the goods howsoever occasioned at any time prior to delivery."
That term, although relied on, really takes the matter no further. The question remains: what is delivery in accordance with the purchase order in that context?
"Where under a contract the seller of goods is required to deliver them at the buyer's premises he fulfils his obligation if he delivers them there to a person who apparently has authority to receive them, taking care to see that no unauthorized person receives them. If therefore the goods are received by an apparently respectable person, who has obtained access to the buyer's premises, and who signs for the goods in the buyer's absence and misappropriates them, the loss must fall on the buyer and not on the carrier or seller."
"A vendor who is told to deliver goods at the purchaser's premises discharges his obligations if he delivers them there without negligence to a person apparently having authority to receive them. He cannot know what authority the actual recipient has. His duty is to deliver the goods at the proper place, and, of course, to take all proper care to see that no unauthorized person receives them. He is under no obligation to do more. If the purchaser has been unfortunate enough to have had access to his premises obtained by some apparently respectable person who takes his goods and signs for them in his absence, the loss must fall on him, and not on the innocent carrier or vendor."
The judge had not considered the question whether the carrier had exercised all proper care in handing the goods over to the person who took and signed for them. So the matter was sent back for a new trial on that single question.
"Counsel for the defendant does not understand the basis on which I made my finding. If anything, that may be a criticism of me for not making myself clear. What I said on page 13 of my [earlier] judgment when talking about apparent authority was that:
'I prefer the submission made on behalf of the Defendant that the delivery instructions were clear, that is the goods were to be delivered to AMEC PLC at the stated address to which my judgment can only be performed in each case by each claimant proving that the Goods were delivered to a servant or agent of AMEC PLC with actual or apparent authority to receive them on behalf of AMEC PLC.'
It was for practical commercial considerations that I made this decision. I was not using apparent authority in the technical sense. I think the expression here is giving business understanding to the contract. You have to look at the practicalities. You cannot deliver goods to a limited company as it has no physical presence. They have to be delivered to a person, as I have identified."
ORDER: Appeals dismissed with costs; the costs judge is invited to ensure that there is no duplication in relation to items of costs; with effect from 18th June ICM to pay Imago's costs on an indemnity basis with interest to be paid at the rate of 9%, either from 18th June or the date when payments were made to their solicitors after that date; there to be a payment of costs on account by ICM in the sum of £5,000 for Imago and £4,000 for C2K within 14 days.