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IN
THE SUPREME COURT OF JUDICATURE
CCRTF
98/0827/2
IN
THE COURT OF APPEAL (CIVIL DIVISION)
ON
APPEAL FROM CENTRAL LONDON COUNTY COURT
(His
Honour Judge Diamond QC
)
Royal
Courts of Justice
The
Strand
London
WC2
Tuesday
18th May, 1999
B
e f o r e:
THE
VICE-CHANCELLOR
(Sir
Richard Scott)
LORD
JUSTICE SWINTON THOMAS
LORD
JUSTICE POTTER
-
- - - - -
(1)
DORIMEX SRL
(2)
TRADEX SRL
(3)
INTERTRADE SRL
Appellants
-
v -
VISAGE
IMPORTS LIMITED
Respondents
-
- - - - -
(Computer
Aided Transcript of the Palantype Notes of
Smith
Bernal Reporting Limited, 180 Fleet Street,
London
EC4A 2HG
Tel:
0171 421 4040
Official
Shorthand Writers to the Court)
-
- - - - -
MR
J GRUDER QC
(Instructed by Messrs Stephenson Harwood, London EC4M 8EH) appeared on behalf
of the Appellants
MR
P BROOK SMITH
(Instructed by Messrs Hay & Kilner, Newcastle Upon Tyne NE1 1EE) appeared
on behalf of the Respondents
-
- - - - -
J
U D G M E N T
(As
approved by the Court
)
-
- - - - -
©Crown
Copyright
Tuesday 18th May, 1999
JUDGMENT
THE
VICE-CHANCELLOR: This is an appeal from His Honour Judge Diamond QC, made in
the Central London County Court Business List on 22nd May 1998. The judge had
given a careful reserved judgment on 8th April 1998 or, at any rate, the
judgment is dated 8th April 1998. He dismissed with costs both the claimants'
claim and the defendants' counterclaim. The claimants have appealed, the
defendants have not.
There
are three corporate claimants. The first two are Dorimex Srl and Tradex Srl. I
am not quite sure what the part played in the story by the third of the
claimants is; there is no reference to the third claimant in the judgment.
Both
Dorimex and Tradex are companies incorporated in Italy. The individual who
funded and controlled the two companies is a Mr Gianni Dormi who, like the
companies, is Italian. The issues that relate to the two companies are
identical and, for convenience, I propose to refer simply to Dorimex.
Everything I say in relation to Dorimex will apply equally to Tradex.
Dorimex
carries on business as a supplier of ladies' and men's clothing, generally, as
I understand it, knitwear. It does not manufacturer the garments it supplies.
The manufacturing is done by sub-contractors. Dorimex buys the yarn and
supplies the yarn to the manufacturers. The manufacturers, after the garments
have been made, send the goods to freight forwarders in Italy, employed by
Dorimex. The forwarders, acting on instructions from Dorimex, despatch the
goods to the premises of the purchasers.
The
defendant in this case, the respondent before us, is Visage Imports Ltd. Visage
Imports carries on business in the north of England as an importer and
wholesaler of ladies' and men's clothing. The managing director of Visage is Mr
Muckesh Sehgal. He is known colloquially as Mac. His spoken English appears to
be not very fluent, and it seems most negotiations regarding contracts for
supplies were carried on by Mr Peter Watson, Visage's chief buyer. However, Mr
Sehgal seems to have been very much a hands-on managing director, under whose
authority and guidance Mr Watson negotiated with the suppliers.
A
business relationship between Dorimex and Visage began in July 1988. Visage
placed an order with Dorimex in December of that year, and in March 1989 placed
further orders for knitwear to be delivered for the autumn/winter season of
1989. Delivery of the goods, in order to enable them to be in the retail
outlets for the autumn/winter season was required to be made over the period
July to September 1989. Delivery, however, was late. Each side blamed the
other, at least to some extent, for the delay in delivery.
There
was a time when Visage was proposing or contemplating cancelling the orders on
the ground that they would not arrive in time to catch the crest of the
autumn/winter market. But following discussions between the parties (on
Visage's side the discussions were mainly carried on by Mr Watson, on Dorimex's
side the discussions were carried on by Mr Dormi) the parties compromised the
dispute between them on terms that were set out in a short written agreement
dated 1st November 1989. The terms of this agreement are important for more
than one aspect of the case, and I think I should read the agreement in full.
It said this:
"CONTRACT
BETWEEN DORIMEX SRL AND VISAGE IMPORTS LIMITED.
1.
Re Ladies Shipments.
It
was agreed today that all goods received into our warehouse by Tuesday 7th
November 1989 will be accepted at ordered price. Any goods received between
Tuesday 7th November and Tuesday 21st November 1989 are subject to 25%
discount. Any goods shipped after Friday 17th November 1989 are to be shipped
free of charge.
2.
Re Mens Shipments.
a.
...
b.
Re all other mens outstanding purchase orders. If these goods are shipped
before Friday 3rd November 1989 they are subject to 25% discount. If these
goods are shipped after Friday 3rd November 1989 they are subject to 30%
discount up until Friday 17th November 1989, after Friday 17th November any
outstanding menswear orders will be shipped free of charge."
The
agreement was signed on behalf of each party.
The
agreement does not seem to bear a date, but there is no dispute but that it was
made on 1st November. I have read both the paragraph relating to ladies'
shipments and that relating to men's shipments. In fact concentration has been
almost entirely on ladies' shipments; a small part only of the shipments in
respect of which dispute arises were shipments of men's garments.
There
was at one time a dispute between the parties, reflected in the pleadings in
the case, as to the validity of the 1st November agreement. Dorimex regarded it
as vulnerable on economic duress grounds. But it was eventually accepted,
before the hearing before Judge Diamond QC began, that the agreement
constituted an effective and enforceable contract.
The
provision in the agreement that any goods shipped after 17th November 1989
would be shipped free of charge justifies some comment. This was not, of
course, an open-ended commitment. The agreement related to, and only to, the
goods that Visage had ordered from Dorimex in March 1989 for the 1989
autumn/winter season. The orders had been accepted by Dorimex and Dorimex was
contractually obliged to supply them. The 1st November agreement compromised
the dispute that had arisen between the parties as to the delivery dates for
these goods.
The
evidence before the judge disclosed that the provision regarding goods shipped
after 17th November had been included in the contract not, as one might have
supposed, at Visage's request, but at Mr Dormi's own suggestion. The suggestion
appears to indicate great confidence on Mr Dormi's part that all the goods
would be shipped before that date, or would be shipped not later than that
date. It is, of course, also possible that the suggestion owed something to Mr
Dormi's own character. There may have been an element of bravado about it. It
must be remembered that Mr Dormi was not, nor was Dorimex as a company, in a
position directly to control the speed at which the sub-contracting
manufacturers made the garments that had been ordered from Dorimex. That was
under the direct control of the manufacturers. They could be given directions
and encouragement by Mr Dormi, but the actual work would be done by them and
would be subject to whatever ability to increase speed in a case of an
emergency that they might have.
At
any event, for good or ill that was the 1st November 1989 contract. As I have
said, it is accepted that it is a valid and enforceable contract. Events then
occurred which led Visage to demand even greater discounts than those provided
for in the 1st November contract. It appears that Dorimex, sometime prior to
1st November and fearful that Visage would refuse to accept late delivery of
the goods that had been ordered in March, had been testing the market to see
what alternative outlets for the goods might be available. Some contact had
been made by a Mr Lea, an agent for Dorimex in England, with other wholesalers,
jobbers as I think they were sometimes referred to. One of these wholesalers or
jobbers had told Visage that some of the Dorimex garments were on offer at
prices considerably below those at which it appeared Visage was proposing to
offer the goods for sale.
Visage
reacted to the news that this had happened by telling Dorimex that it, Visage,
had been placed in an impossible position. The judge found that Visage had
greatly exaggerated what had happened and had used its own exaggeration to put
pressure on Dorimex to agree, under the threat of refusal by Visage to accept
any further deliveries or to pay the full price for those goods that had
already been shipped, to allow Visage a further discount. This was, as the
judge found, substantial and heavy economic pressure being exerted on Dorimex.
In
the result a flurry of telexes, and at least one telephone communication, on
8th and 9th November between Mr Dormi and either Mr Sehgal or Mr Watson led to
a new agreement, apparently replacing the 1st November agreement. Under the new
agreement Visage would be allowed a 50 per cent discount on all goods that had
not yet arrived at Visage's warehouse, including a batch of goods that had been
already shipped on 3rd November. The final fax in this exchange of messages,
sent on 9th November by Mr Dormi, said this:
"In
reference to various telephone call and in view of keeping our relations for
future business, we accept 50% discount on goods that will be shipped and those
who are at the moment waiting to be unloaded.
This
is a very sad situation for everybody but we hope that future business will
cancel on both sides all the problems."
The
agreement that Mr Dormi was in that fax apparently recording was referred to by
the judge as the 8th November agreement. I will refer to it in the same way
whether the actual date of its contractual conclusion was 8th November or 9th
November.
The
remaining goods that had been comprised in the March 1989 orders were, over a
period running into December 1989, shipped by Dorimex and delivered to Visage's
warehouse. In relation to all these goods Visage paid 50 per cent of the full
contractual price that would have been paid had the goods been delivered in
September. The payment by Visage, based upon the 50 per cent discount, appeared
to be accepted by Dorimex. Discussions between the parties about orders for the
1990 spring/summer season and the 1990 autumn/winter season had taken place in
September and November 1989. Orders were placed by Visage for goods to be
delivered over the period between February and March 1990. This was, no doubt,
for the purposes of the spring/summer season. These goods were delivered by
Dorimex. They were paid for by Visage. The 50 per cent discount agreed in the
8th November 1989 agreement did not, of course, apply to these deliveries. The
final payment on account of these deliveries was made in June 1990. It was not
until after these transactions had been completed that Dorimex first protested
about the 8th November 1989 agreement. A solicitors' letter dated 30th July
1990 was sent to Visage and in it a claim to substantial additional sums in
respect of the goods comprised in the March 1989 orders, and that had been
shipped and delivered in November and December 1989, was made. Visage, not
surprisingly, rejected the claim. Then, by letter of 26th July 1990, Dorimex's
solicitors claimed for the first time that the agreements, both agreements, of
1st November and 8th November 1989 had been forced on to Dorimex by economic
duress and that Dorimex was entitled to avoid them. The proceedings that ended
up with the hearing before His Honour Judge Diamond QC were then commenced.
The
economic duress case, insofar as it applied to the 1st November 1989 agreement,
was, as I have said, dropped before the commencement of the hearing before
Judge Diamond. But the allegation of economic duress was persisted in so far as
the 8th November 1989 agreement was concerned. The allegation was, the judge
concluded, well-founded. He held:
"There
was however in my judgment illegitimate economic pressure applied by Visage. It
was a threat not to perform the contract as varied on 1st November. It amounted
to a repudiation of that contract. The threat left Mr Dormi with only two
practical alternatives; either to submit or to accept the repudiation and to
sue for damages. But the latter course was financially unattractive and
potentially disastrous."
I
am now on page 25. A little bit further down that page the judge says this:
"In
the result I find that there was illegitimate economic pressure applied by
Visage and that this pressure was one of several causes of the 8th November
agreement."
A
few lines further down he says:
"...
on the law as I understand it, I conclude that the 8th November agreement was
voidable on the grounds of economic duress."
Dorimex
had, in fact, argued also that the 8th November agreement was void for want of
consideration. The judge found that there was consideration. He referred to
Williams
v Roffey
[1991] 1 QB 1. However, Dorimex's consideration point was, in my view, in any
event misconceived. A lack of consideration does not render an agreement void;
it renders it unenforceable. If an agreement, unenforceable for want of
consideration, is carried into effect by the parties, there is an end of the
matter; unless of course there is some other vitiating feature. If A agrees
with B to do a job for £100 and does it so well that B agrees to pay him
an extra £50, the agreement as to the extra £50 is unenforceable, but
it is not void; and if B does pay the £50 he cannot get it back. So the
only real issue in the present case, as I think Mr Gruder has accept in
argument before us, was the economic duress issue.
Having
found that the 8th November agreement was tainted by economic duress, the judge
had then to consider whether Dorimex had affirmed it or whether it was still
open to Dorimex to have the agreement set aside. As to affirmation, too, the
judge found in Dorimex's favour. I am not entirely sure that I would have done.
But there is no challenge before us either to the judge's finding of economic
duress or his conclusion that in June or July 1990 it was still open to Dorimex
to claim to have the agreement set aside. So, before us, that is the basis upon
which the appeal must proceed.
The
judge had to consider next the consequences of the 8th November 1989 agreement
being set aside. As to the law, he directed himself, in my view impeccably, by
reference to the principle to be found in
Snell's
Equity
,
29th ed. (1990) and
Goff
& Jones
4th ed.. The passages he cited are worth repeating. The passage from
Snell
said this:
"A
person who rescinds a contract is entitled to be restored to the position he
would have been in had the contract not been
made.
Hence, property must be returned, possession given up, and accounts taken of
profits or deterioration."
The
passage from
Goff
& Jones
was to this effect:
"We
have already seen that an important limit to rescission is that there must be
restitutio
in integrum
.
The effect of this principle is that the plaintiff must ´be in a position
to offer and must formally tender
restitutio
in integrum
';
but the court will also, when rescinding the contract, order the restoration to
the plaintiff of benefits received by the defendant from him under the
contract. There ought to be ´a giving back and a taking back on both
sides.'"
Dorimex,
having had the 8th November 1989 agreement set aside, was therefore entitled to
be restored to the position it would have been in had the 8th November
agreement not been made. So what was that position?
First,
and obviously, if the 8th November 1989 agreement had not been made, the 1st
November 1989 agreement would have remained in force. Dorimex's contractual
entitlement to be paid for the goods delivered after 1st November would have
been in accordance with the 1st November agreement. Having regard to the
deliveries of goods actually made by Dorimex to Visage after that date, the
effect would have been that Dorimex would have been entitled to claim 75 per
cent of the contract price of the goods shipped not later than 17th November,
whereas in fact, under the 8th November agreement, Dorimex had been paid only
50 per cent of that price. On the figures, this difference amounted to
£81,052.93. But, under the 1st November agreement, Dorimex would not have
been entitled to any payment for goods shipped after 17th November 1989. In
fact, in respect of post-17th November shipments, Dorimex had been paid by
Visage 50 per cent of the contract price of the goods, namely £142,059.36.
So the revival of the 1st November 1989 agreement would, on those figures, have
produced a net loss to Dorimex. To put the point another way, on the rescission
of the 8th November agreement, Dorimex would have to give up the benefits it
had obtained under that agreement. The benefits taken were apparently the
£142,059-odd, which would not have been payable under the 1st November
agreement.
Dorimex
would be able to escape from this unattractive conclusion (unattractive to
itself that it is to say) only by establishing that it was the economic duress
which had brought about its, Dorimex's, failure to ship goods not later than
17th November. If Dorimex could show that that was so, its, Dorimex's,
entitlement to be restored to the position it had been in before the economic
duress had been applied to it, would have entitled it to be placed in the
position it would have been if it had shipped the goods not later than 17th
November.
Another
way of putting the same point is that, on the premise that the economic duress
had caused the postponement of delivery of the goods until after 17th November,
Visage would have had to have given up the benefit that it, Visage, would have
obtained by that means. In the event, of course, that the goods had been
shipped not later than 17th November, Dorimex would have received 75 per cent
of the price, not simply the 50 per cent that it in fact received under the 8th
November agreement. Not only would it in that event not have to restore the
£142,059, but it would be entitled to a further 25 per cent, i.e.
£71,030 or thereabouts in respect of those goods.
So
this was a critical issue. On the evidence, was it the economic duress that had
brought about Dorimex's failure to ship not later than 17th November? The judge
held that it was not. He reviewed the evidence and concluded that if the
economic duress events which gave rise to the 8th November agreement had never
happened, nonetheless the deliveries that were made after 17th November would
still not have been made until after that date. He therefore dismissed the
claimants' action. It is on that critical finding of fact by the judge that
Dorimex's appeal to us must turn.
Mr
Gruder QC, counsel for Dorimex, has challenged the judge's findings of fact. He
has done so partly in a reliance on the evidence of Mr Dormi, evidence that the
judge did not accept, and partly by protesting against the failure of the judge
to attribute much weight to certain items of documentary evidence. Before
considering the evidence, however, I want to say a word about the onus of
proof. Since the effect of setting aside the 8th November agreement was
undeniably to restore the 1st November agreement, and since under the terms of
the 1st November agreement Dorimex was undeniably overpaid by some
£142,059 in respect of post 17th November shipments, it is, in my
judgment, for Dorimex to show that its failure to ship not later than that date
was due to the economic duress.
The
evidence on this issue, if there is any, would necessarily be evidence
available to Dorimex. It is Dorimex that knows why it is that the shipments did
not take place until after 17th November 1989; it is Dorimex that knows what
instructions were given to the manufacturers and to the freight forwarders in
relation to those goods. It is Dorimex that knows what effect, if any, the
decisions taken by its bankers had upon the instructions it gave to the
manufacturers and freight forwarders.
Visage
can, in my judgment,
prima
facie
simply rely on the terms of the 1st November agreement. It is for Dorimex to
satisfy the court that the economic duress brought about the late shipments,
either of all or of some specified part, of the goods that were in fact shipped
after 17th November.
As
to the evidence, the judge thought very little of Mr Dormi as a witness. He was
plainly unimpressed by Mr Dormi's written witness statement. This, he thought,
as I think appears from his comments on it, had been over-manicured by the
lawyers. As to Mr Dormi's oral evidence, the judge commented:
"...
I was not altogether satisfied that Mr Dormi had fully addressed himself to the
questions put to him in cross-examination or that I could safely rely on what
he told me he recollected of the relevant events."
That
is an approach to the reliability of Mr Dormi's evidence that this court has
not been invited to, and in any event could not, go behind. It is a matter
particularly for the trial judge to come to conclusions as to the reliability
of the evidence of witnesses.
It
is consistent with his view of Mr Dormi's reliability as a witness that on a
number of occasions the judge declined to accept Mr Dormi's evidence. He also
commented adversely on the extent to which Mr Dormi or Dorimex had complied
with their obligations of discovery. There were a number of areas where
documentation would be almost bound to exist, but none or very little had been
produced. This was the background against which the judge reviewed, and was
entitled to review, Mr Dormi's evidence and the significance of the few
documents that Mr Dormi had produced.
The
evidence of Mr Dormi on which Mr Gruder particularly relied, in regard to the
issue which I have described as critical, was set out in paragraph 33 of Mr
Dormi's witness statement. This paragraph was endeavouring to explain why it
was that the goods to be shipped to Visage had not been shipped until after
17th November. The paragraph starts as follows:
"Visage's
actions on 7-9 November 1989 showed a complete disregard and disrespect of the
terms of 1 November 1989 agreement; in these circumstances the delivery
timetable set out in that agreement had become academic."
I
am well able to accept that these words were not Mr Dormi's words but were the
words of his lawyers. But the proposition that the delivery timetable had
become academic is simply ridiculous. It would not have been until the goods
were delivered that Dorimex could have obtained payment. Dorimex had entered
into commitments with its manufacturers and its freight forwarders. It would
have been in its interests to have obtained payment at as early a point as
possible. To say that the delivery timetable had become academic makes, to my
mind, no business sense whatever. The paragraph goes on:
"In
addition, upon seeing the irrevocable payment instructions compared to the
underlying invoices, my bank refused to advance me the monies (as they would
ordinarily do against the prospect of forthcoming payment in full from Visage
in the form of irrevocable payment instructions from Visage's bank) which would
enable me to pay my suppliers. Even though, therefore, the suppliers had the
goods or the bulk of them by 8 November 1989, ready for despatch, they would
not release them without payment."
The
judge did not make any express comment on this part of Mr Dormi's evidence.
But, for my part, I would have regarded it as thoroughly unsatisfactory. A
bank's refusal to advance money to a customer under previously made
arrangements because of some such change as that to which Mr Dormi refers, the
change effected by the 8th November agreement in the percentage of the original
price that he was to recover, would have been a matter of very great
importance. I simply do not believe that if this is what the bank decided,
there was no written record of that decision at all. Moreover, the proposition
that the advance the bank would have been willing to make, on the basis of
payment of 50 per cent of the original contracting price, would not have been
sufficient to have enabled Mr Dormi to have dealt with those to whom he owed
money, the manufacturers, and as Mr Gruder put it, the suppliers of the buttons
and the thread, or perhaps those from whom the yarn had been purchased if that
had not yet been paid for, is dependent on the figures. No figures, no details,
no documents whatever are given in support of this bland statement. The judge
did not deal with it but I, for my part, would not regard the evidence as even
approaching the minimum standard necessary to satisfy a court of the important
underlying fact that seems to be contended for, namely, that it was the bank's
refusal to supply funds as a result of the harsh terms of the 8th November
agreement that put Mr Dormi and his company in a position of being unable to
pay their suppliers.
As
to documentary evidence in support or confirmation of the bank's alleged
refusal, as I have said, none at all was offered. Mr Gruder relied also on a
number of documents in the bundle before us. He referred us to a document dated
3rd November, sent by Mr Dormi to his Italian freight forwarders, giving
instructions for deliveries to be made during the month of November. Shipments
were to be made on 10th November, 13th November and 16th November of goods
which had been ordered by Visage. The significance of these instructions, as Mr
Gruder pointed out, is that they show Mr Dormi making firm arrangements in
relation to substantial quantities of goods for shipment before the critical
17th November date. But those instructions were countermanded by Mr Dormi on
8th November. A note of that date addressed to the freight forwarders, Albini
and Pitigliani said:
"Please
cancel every shipment for Visage Ltd due to various problems we have with that
company. We repeat, contrary to our request to you in our fax cited above,
[that is the fax of 3rd November] all shipments or transport/lorry bookings to
this company are suspended and, therefore, all goods are to remain in your
warehouse until further notice."
In
his witness statement Mr Dormi has said that this note to the freight
forwarders was sent after the 8th November agreement had been concluded. I do
not believe that for one moment. This note has all the signs of a response to
the threat being made by Visage to refuse to accept the goods that they had
ordered, and so, of course, in that case the instructions previously given to
the freight forwarders would be put on hold. But the notion that it made any
sense to cancel the instructions after the 8th November agreement had been made
is unacceptable. I remained unclear at the end of Mr Gruder's submissions what
his explanation for this was. He contended that we should accept that this was
a note sent after the 8th November agreement, and that it was probably
attributable to the state of shock in which Mr Dormi found himself. He was all
of a flutter, so to say, not knowing where to turn, so he cancelled the
instructions. This is not, in my opinion, in the least credible. Accepting that
the expectation of receiving only 50 per cent of the contract price, instead of
75 per cent, was a serious jar for Mr Dormi, nonetheless it became the more
urgent that he should receive such money as he was going to receive at as early
a time as possible. Here we have, apparently, goods ready for despatch in the
Albini warehouse, but instructions were given not to send them. The
instructions were, I have no doubt, given before the 8th November agreement had
been finally concluded. What happened after that, whether any instructions were
given to Albini, and if so what instructions, and, if none, why none were
given, is simply not explained at all.
On
the next day, on 9th November, the freight forwarders, Albini and Pitigliani
responded to say: "We are really very disappointed to learn that all work
scheduled by us has been temporarily suspended." They ended by saying: "We
await your instructions". Deathly silence on that. The court below was not told
what subsequent instructions were given, or what then happened. If no
subsequent instructions were given, why were they not given? It simply is not
shown in any satisfactory way, so far as the evidence before the court is
concerned, why it was that the goods held by these freight forwarders were not
shipped to Visage on or before 17th November.
Mr
Gruder relied also on a letter dated the 8th November from one of the
manufacturers, who goes by the name of Maglificio Giulia. This simply says:
"We
refer to our telephone conversation and confirm that all the orders for the
above company [Visage] will be despatched by, and no later than, 16th of
[November] this month."
We
do not know to what order that note is referring. We do not know why the orders
to which it is referring were not despatched not later than 16th November.
There was no evidence before the court at all from any of the manufacturers, as
there was not from any of the freight forwarders. There was no documentation in
relation to instructions given to the manufacturers or, bar the few documents
to which I have just referred, instructions given to the freight forwarders.
Mr
Gruder invited us to place weight on Mr Dormi's evident confidence that the
goods would all be shipped before the 17th November deadline, as evidenced by
his inserting the relevant sentences into the 1st November agreement. The
judge, however, treated this submission with considerable reserve. In my
opinion he was entitled to do so.
In
his judgment the judge reviewed all the relevant evidence that was before him
on this critical issue. His conclusions were expressed in the following
passages from his judgment, page 50 of the judgment. He said:
"There
is little if any evidence that fewer goods were shipped in this period [he is
speaking of the period up to 17th November] than would have been shipped if the
8th November agreement had not been made."
He
referred, a few lines down, to:
"...
the evidence before the Court which, taken as a whole, leads to the inference
that the intimidation exerted by Visage on 8th November had either no impact or
minimum impact on the rate of shipment of the goods."
He
expressed the final conclusion that:
"...
the plaintiffs are not entitled to avoid the agreement without bringing into
account the benefits accruing to them from that agreement ..."
The
findings of fact made by the learned judge on this issue were, in my opinion,
findings to which he was entitled to come on the evidence before him. At the
very least, in my judgment, Dorimex failed to show, in relation to any of the
post 17th November deliveries, that, but for the economic duress, shipment of
those deliveries would have been on or before 17th November. In those
circumstances, the judge's dismissal of the claimants' claim was in my view
right. I would dismiss this appeal.
LORD
JUSTICE SWINTON THOMAS: I agree.
LORD
JUSTICE POTTER: I also agree.
ORDER:
Appeal dismissed with costs, to be taxed if not agreed.
(Order
not part of approved judgment)
____________________
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