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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Dowman Imports Ltd v 2 Toobz Ltd (Rev 1) [2020] EWHC 291 (Comm) (28 February 2020) URL: http://www.bailii.org/ew/cases/EWHC/Comm/2020/291.html Cite as: [2020] EWHC 291 (Comm) |
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BUSINESS AND PROPERTY COURTS IN BRISTOL
CIRCUIT COMMERCIAL COURT (QBD)
2 Redcliff Street Bristol BS1 6GR |
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B e f o r e :
(sitting as a Judge of the High Court)
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DOWMAN IMPORTS LIMITED |
Claimant |
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- and - |
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2 TOOBZ LIMITED |
Defendant |
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James Wibberley (instructed by Ashfords LLP) for the Defendant
Hearing dates: 12th, 13th, 14th and 15th November 2019
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Crown Copyright ©
HH Judge Russen QC:
Introduction
The Claim and Counterclaim
"Therefore we write to confirm that our client no longer intends to rely on expert evidence in this matter, not least because the parties can save the costs of instructing an expert. We invite you to confirm your client's position on this."
The Legal Principles
"It is now well established that a court must first ask itself four questions when faced with a claim for unjust enrichment as follows. (1) Has the defendant been enriched? (2) Was the enrichment at the claimant's expense? (3) Was the enrichment unjust? (4) Are there any defences available to the defendant? See Banque Financiθre de la Citι v Parc (Battersea) [1999] 1 AC 221, 227, per Lord Steyn; Investment Trust Companies v Revenue and Customs Comrs [2012] STC 1150, para. 38, per Henderson J."
"(a) Although the older authorities use the language of implied contract the modern approach is to determine whether or not the circumstances are such that the law should, as a matter of justice, impose upon the defendant an obligation to make payment of an amount which he deserved to be paid (quantum meruit): Lacey[1]; for that reason it does not seem to me that section 18 of the Estate Agents Act 1989 has any application to this claim;
(b) Generally speaking a person who seeks to enter into a contract with another cannot claim to be paid the cost of estimating what it will cost him, or of deciding on a price, or bidding for the contract. Nor can he claim the cost of showing the other party his capability or skills even though, if there was a contract or retainer, he would be paid for them. The solicitor who enters a "beauty contest" in the course of which he expresses some preliminary views about the client's prospects cannot, ordinarily expect to charge for them. If another firm is retained; he runs the risk of being unrewarded if unsuccessful in his pitch.
(c) The court is likely to impose such an obligation where the defendant has received an incontrovertible benefit (e.g. an immediate financial gain or saving of expense) as a result of the claimant's services; or where the defendant has requested the claimant to provide services or accepted them (having the ability to refuse them) when offered, in the knowledge that the services were not intended to be given freely;
(d) But the court may not regard it as just to impose an obligation to make payment if the claimant took the risk that he or she would only be reimbursed for his expenditure if there was a concluded contract; or if the court concludes that, in all the circumstances the risk should fall on the claimant: Jennings & Chapman[2];
(e) The court may well regard it as just to impose such an obligation if the defendant who has received the benefit has behaved unconscionably in declining to pay for it."
Golden Bear
Witnesses
Analysis
"As Golden Bear are so committed to this project we should have a meeting with them to discuss manufacturing and securing property rights as soon as possible. The new drawings for registering the designs will be ready today and we can then decide which other territories to register in. Although details have been passed in drawings and text to Golden Bear there is nothing like being shown how the toy is assembled in sequence."
"waiting on the final plastic tube designs to come through so I can then get production costs and time of delivery. The last two toys from the factory work really well and resolved the last few problems. I am confident this will be the blueprint we move forward with. "
"At the moment all the plastics are made and the factory is applying the fabric to the plastics as I want, the problem is more about future design work, communication and consistency. One of my problems is the supply of fabrics and I need to be closely involved in the selection. I am finding hard to relay what is required and how important some issues are with assembly. Any assistance will be most appreciated."
i) "I'm ready to work with the factory to develop samples anytime. Let me know how you think we can move things forward and factory approach to development costs and invoicing for future work. Is there a project manager I could work with at the factory who could oversee everything that is Little Handfuls?" (email 11 November 2014);
ii) "Thanks for the meeting yesterday, and for overseeing the BB/WB project. Good luck with the factory I honestly think we are not far away from what needs to be achieved." (email 26 November 2014);
iii) "Now that they can work with new pattern we just need to get the fabrics right. I need to see the fabrics used on their patters used with my pattern. .. Can you get Li Jian Guo to include some of the same fabrics and any other suitable fabrics so I can help make samples. Sorry to add to your work load I know how busy you are at the moment." (email 27 May 2015);
iv) "Many thanks for all your work developing this product. I know together we will make this a very successful selling toy." (email 1 July 2015);
v) "I am doing an autopsy on the toys this morning and will send the details to you later. If we can preserver (sic) a little longer I know things will come right. I have to say though the problem in the movement is an error that should have been avoided given the attention I paid to this in the original drawings and instructions. As the company have put so much time into this I will meet full production costs but the next consignment will have to see everything put right." (email 14 December 2015);
vi) "I am writing as a personal thank you for all the work and valuable help everyone has put in so far. It is a great achievement to have got where we are and I know how much work you have personally put in to make things happen. Although we are not quite there with the finished product you have shown from the first delivery that the toys look very good, are sewn and put together very well and most importantly the construction/assembly can work well in production. Following this first consignment I hope everyone feels the same way as I do that we can all work together on some small modifications to turn this into an exemplary (brilliant) all round soft toy. As outlined to Dominic yesterday there are still some very important changes to be made but although I was very disappointed with the ear movement of many of the toys I found in my determination to stretch and pull the fabric to free them they are incredibly strong and well put together. Dominic has very kindly allowed me to use a small section of Dowman's stand at the Spring Fair in February and I hope you will be able to produce a small quantify of toys that introduce the new details. There are no dramatic changes required, but with a few pattern changes at the top of the head we should achieve a lot more upward movement." (email 15 December 2015 to Mr Li);
vii) " . I have made some significant changes to ears. By using a much thinner fabric for the back and front of the ears the whole ear construction is lighter and easier to use. I have made samples and the sewing is more accurate and will help quality and consistency in production. Can you source an ear fabric which is thin and is the same or similar to the hands and feet? You and your factory have been a great help but we are not quite there at the moment. We are so close to making a truly original toy it would be a shame not to finish this last piece of development work. Could you pass on your comments to the new designs attached." (email 31 December 2015 to Mr Li); and
viii) "My apologies for the delay plastic are in a final stage of design. We are looking at mid June for new plastic components to be supplied. I want to start selling toys directly to the public from mid October. .. This is turning into a long protracted development process which does not make for an easy life please stick with me." (email 4 May 2016)
Disposal
Note 1 William Lacey (Hounslow) Ltd v Davis [1957] 1 WLR 932 [Back] Note 2 Jenning and Chapman Ltd v Woodman Matthews & Co. [1952] 2 TLR 406. [Back]