[2003] EWHC 1730 (Comm)	Case No: A3/3000/3421

Esso Collection Litigation
 
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
COMMERCIAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19th December 2003 

B e f o r e :

THE HONOURABLE MR JUSTICE MOORE-BICK
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	ESSO PETROLEUM COMPANY LIMITED		Claimant	
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	DAVID and CHRISTINE ADDISON
and others	
Defendants	

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Miss Elizabeth Gloster Q.C. and Mr. David Cavender (instructed by Irwin Mitchell) for the claimant
Mr. Murray Pickering Q.C., Mr. John Tracy Kelly (solicitor advocate) Mr. Sean Snook (instructed by Ferdinand Kelly) and Mr. David Schmitz (instructed by Hindle Campbell) for the defendants

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SUPPLEMENTARY JUDGMENT

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version may be treated as authentic.

The Hon. Mr. Justice Moore-Bick

Mr Justice Moore-Bick:

1.	In paragraph 94 of the judgment I delivered in this matter on 15th July I  held  that the payment of TMA at a rate that was expected to keep the net cost down to 0.6 ppg on average over the life of the promotion as stated in Mr. Ledlie’s letter of 28th May 1987 was an essential term of any scheme contract.
2.	I do not think that there is any ambiguity in that paragraph, but at a subsequent hearing counsel for the licensees made certain remarks which led me to think that they might have misunderstood what I was saying. I therefore expressed the view that since the issue was one of general significance, it was desirable that I should put the matter beyond doubt before any claims were transferred to other courts for final disposal.
3.	Having now had the benefit of further submissions from Miss Gloster Q.C. and Mr. Kelly, I think it appropriate to confirm by way of clarification that in formulating paragraph 94 of my judgment I chose my words with some care. In particular, I did not say, nor did I intend to hold, that it was a term of the ‘scheme contract’ that Esso would pay TMA in such an amount from time to time as would ensure that the net cost of the promotion to any individual licensee did not exceed 0.6 ppg. Esso did not give any such undertaking and did not incur any such liability. The figure of 0.6 ppg was put forward as one that Esso aimed to achieve on average over the whole life of the promotion, but different licensees joined the promotion at different times and remained involved for different periods. It was recognised from an early stage that the net cost to any individual licensee would depend in part on when he joined the promotion and for how long he operated it.