Mackays Stores Ltd v. Topward Ltd [2006] ScotCS CSOH

OUTER HOUSE, COURT OF SESSION

[2006] CSOH 99

CA53/05

OPINION OF LORD CLARKE

in the cause

MACKAYS STORES LIMITED

Pursuers;

against

TOPWARD LIMITED

Defenders:

________________

Pursuers: Connal, Q.C., Solicitor Advocate; McGrigors

Defenders: Fairley; Semple Fraser

30 June 2006

Introduction

[1] In this commercial action the pursuers sue the defenders for £270,210.07 with interest. They do so on the basis of averments that the defenders have been supplying them with ladieswear since the 1980s. Put broadly, the pursuers aver that over the years of their trading relationship with the defenders, a discount system applied whereby initially a discount on the price normally charged for the goods was applied for prompt payment and subsequently, in addition, what is described as a distribution discount was also applied. The pursuers claim that between August 2001 and January 2005 they paid the defenders on invoices submitted to them for goods supplied without making the prompt payment and distribution discount therefrom. This, they say, came about because during 1999 to 2000 the parties operated a separate agreement regarding goods manufactured in Turkey, in respect of which the parties agreed no discount should be applied. It is averred that, in error, from August 2001 payments in respect of goods supplied by the defenders, under the ongoing contractual arrangements, whereby the discounts fell to be applied, were made, in error, by the pursuers to the account number of the distinct separate agreement regarding goods manufactured in Turkey. The pursuers, accordingly, claim that they have overpaid the defenders for goods supplied between August 2001 and January 2005 in the sum they now sue for.

[2] The pursuers aver, in Article 1 of the condescendence, that the terms and conditions of trade between the parties which applied to the goods supplied between August 2001 and January 2005, contained a term to the following effect:

"Any disputes or differences of whichsoever nature arising out of the order, the contract or the delivery of the goods shall be governed by the law of Scotland and the Supplier agrees that any such dispute or difference unless otherwise settled amicably between the Company and the Supplier shall be subject to the exclusive jurisdiction of the Scottish Courts and the parties hereby agreed to such jurisdiction."

The defenders are domiciled in England.

[3] The defenders have a preliminary plea to the effect that the Court has no jurisdiction. They also have a preliminary plea as to the relevancy of the action. In answer 1 they make the following averments:

"Explained and averred that esto the purported contractual term condescended upon by the pursuer formed part of any agreement between the parties which is relevant to this action (which is denied), such a term would not, in any event, have the effect of conferring jurisdiction upon this Court in relation to the subject matter of this action, the subject matter which is a claim for repetition and not a 'dispute ... arising out of the order, the contract or the delivery of the goods'. Separatim, the defender is not domiciled in Scotland. This court has no jurisdiction."

[4] The pursuers' first plea-in-law is to the following effect:

"The sum sued for having been paid for by the Pursuers to the Defenders in error, and it being equitable so to order, decree for payment by the Defenders to the Pursuers of the sum concluded for should be pronounced."

[5] The parties were originally allowed a debate on their respective preliminary pleas. Shortly before the debate diet the pursuers sought to lodge a minute of amendment. The defenders' counsel advised the Court that this would require to be answered, if allowed. Both parties were, however, in agreement that the debate should proceed to dealt with the relevancy of the pursuers' averments regarding jurisdiction, for if the defenders' attack on these was successful that would dispose of the action. I agreed that the debate should proceed on that footing.

The Defenders' Submissions

[6] In opening his submissions, counsel for the defenders immediately formulated his approach by identifying the pursuers' "claim" as being one based on unjust enrichment. The sub-heading of that general categorisation, upon which the pursuers appeared to rely on, was repetition, but counsel for the defenders suggested that, in truth, the claim was more properly described as one being based on restitution. In any event, the remedy sought and the legal basis upon which it was sought, it was submitted, required that the defenders be sued in the country of their domicile. Counsel for the defenders referred me to a particular averment in Article 1 of condescendence which is to the following effect:

"In the current action the Pursuers seek repetition of money paid in error to the Defenders under a contract of supply between the Pursuers and the Defenders."

That averment, it was said, sought, as it were, to elide the question of jurisdiction. For jurisdiction to exist in this Court the pursuers were required to base their claim expressly on rights arising from the contract, whereas in reality what they were driven to do was to base their claim on the legal basis of repetition.

[7] In support of his approach to the matter, counsel for the defenders sought to rely on certain obiter dicta of Lord Macfadyen in the case of Compagnie Commercial Andre SA v Artibell Shipping Co Ltd 1999 SLT 1051. In that case charterers of a ship for a voyage from France to Iraq raised an action against its owners, who were domiciled in Cyprus, and the owners' bankers who were domiciled in Scotland. Various claims were made in the action based on damages for breach of contract, restitution and constructive trust. The ship owners tabled a plea of no jurisdiction. The charterers claimed that jurisdiction lay against the ship owners on a proper construction of certain provisions of the Civil Jurisdiction and Judgments Act 1982. The ship owners also relied on a clause in the charterparty which provided that "all disputes arising out of this contract shall be governed in London" which, they asserted, operated as a clause prorogating the exclusive jurisdiction of the English Courts and thus excluded jurisdiction in the Scottish Court, under the 1982 Act, Sched. 8, Rule 5. The Lord Ordinary preferred the arguments of the charterers in respect of the application of the provisions of the 1982 Act. He, moreover, held that the words in the charterparty stating that all disputes arising out of the contract should be governed in London did not meet the requirements of clarity and distinct expression for the exclusion of a jurisdiction which would otherwise exist in a Scottish Court. His Lordship, for these reasons, repelled the plea of no jurisdiction tabled by the ship owners. The pursuers' claim related, inter alia, to the repayment of freight charges made in respect of a voyage which was abandoned by the ship owners. There was provision in the charterparty that advance freight was not to be recovered in certain events, but the pursuers claimed that none of these events was applicable and that, in particular, the ship owners had been in breach of contract. The pursuers put forward an alternative argument that, esto the ship owners were not in breach of contract, the charterparty had been frustrated and that on that basis the advance freight was repayable under the condictio causa data causa non secuta. The pursuers also averred, and claimed, that certain sums held in account with the second defenders, the ship owners' bankers were the property of the pursuers and were held in constructive trust for them. The first defenders, the ship owners, argued that the prorogation clause did not cover claims based on the condictio and constructive trust. In so doing they appeared to have relied on certain dicta in the cases of Union of India v EB Aaby's Rederi A/S (1975) A.C. 797 and Fillite (Runcorn) Limited v Aqua-Lift (1989) 45 B.L.R. 27. As has been seen, the Lord Ordinary decided the questions of jurisdiction on other points, but at page 1063 I-J, he did say this:

"Had I been persuaded that cl 40 was an effective prorogation of the jurisdiction of the English Courts, I would have been inclined to hold that its language - 'All disputes arising out of this contract' - is not apt to cover more than the pursuers' contractual claims. In light in particular of what was said in Union of India and Fillite I would have held that it did not cover the unjust enrichment claim or the constructive trust claim. In the event, however, that issue does not arise."

[8] Counsel for the defenders, in the present case founded heavily on those dicta, albeit that he recognised that they were obiter, as being equally applicable in the present case, and if correct, he said, they had the effect that the pursuers' action, as framed, did not engage the prorogation clause in question. Counsel then referred the Court to further terms and conditions of the contract which the pursuers assert govern the transactions to which the present proceedings relate. They are 6/87 of process. At page 1 of Section 6 of the terms and conditions "the Order" is defined to mean "the order printed on an official numbered purchase order form of 'Mackays Stores Limited' or on a computer generated form on official Company letterhead". "The Contract" is defined as meaning "the Contract for the supply of goods and or services between the Company and the Supplier". After having referred to certain other provisions in the terms and conditions of supply, counsel for the defenders submitted that none of these applied to the claim being made by the pursuers in the present proceedings. He did recognise, however, that at page 3 of Section 6 and at Schedule 2 of the terms and conditions, the possibility of discounts on the price of goods supplied is expressly adverted to. Furthermore, he accepted that a layman would probably regard the present dispute as one regarding the payment of the contract price. Counsel, however, submitted that the question was whether the "legal basis" of the claim, as presently formulated, fell within the scope of the prorogation clause as arising out of the order, the contract or delivery of the goods. That question, he contended, fell to be answered in the negative. Counsel sought to obtain some support for this contention from certain provisions of the Civil Jurisdiction and Judgments Act 1982 and the interpretation placed on these in certain authorities. The relevant provisions of the 1982 Act are to be found in Schedule 4 thereof. Article 1 of Schedule 4 provides: "Subject to the rules of this Schedule, persons domiciled in a part of the United Kingdom shall be sued in the Courts of that part." Article 3(a), however, provides that a person domiciled in a part of the United Kingdom may, in another part of the United Kingdom, be sued -

"in matters relating to a contract, in the Courts for the place of performance of the obligation in question."

The case of Kleinwort Benson Ltd v Glasgow City Council (1999) 1 AC 153 was concerned with the construction and interplay of those provisions, as they then appeared in Schedule 4 as Articles 2 and Articles 5(3) respectively. In the Kleinwort Benson case the plaintiff bank entered into certain interest rate swap transactions with the defendant Scottish local authority. The transactions were subsequently held by the House of Lords to be ultra vires and void. The bank then brought an action in England claiming restitution of the claims paid to the local authority on the ground of unjust enrichment. The authority applied to have the action struck out on the ground that, under Article 2 of Schedule 4 to the 1982 Act, which provided for the allocation within the United Kingdom of jurisdiction, any claim against them had to be brought in the Scottish Courts. A majority of the House of Lords held that a claim for restitution of monies paid under a purported contract, subsequently accepted by both parties as being void ab initio, did not fall within Article 5(1) of Schedule 4 to the Act of 1982 (which is now Article 3(a) of Schedule 4) as being "a matter relating to a contract" and that since it was not a matter relating to tort or delict the defendants had to be sued in the country of their domicile. That decision, counsel for the defenders submitted, gave a clear indication as to how to approach the question raised in the present case. Reference was also made to the case of Eddie v Alpa S.R.L. 2000 S.L.T. 1062 in which the decision in Kleinwort Benson was followed. In that last mentioned case a Scottish company sought to sue, in Scotland, two Italian manufacturers, domiciled in Italy, for damages for breach of contract and reimbursement of monies overpaid. In doing so they sought to rely on Article 5 of Schedule 1 to the 1982 Act which provided that a person domiciled in a contracting state may, in another contracting state, be sued "(1) in matters relating to a contract, in the Courts for the place of performance of the obligation in question". The Lord Ordinary held, inter alia, that, where a pursuer was relying on the special and derogative provisions of Article 5, he had to be able to set out a sufficient exposition of the contractual terms to show that there was a stateable basis for maintaining that the place of performance was in the territorial jurisdiction of the court in question and that in that case the pursuer had failed to show that there was a prima facie case for the special jurisdiction. Moreover, the Lord Ordinary held that in relation to the conclusion for repayment of monies, this was a claim which "truly seeks restitution of money paid in error". The Lord Ordinary, in those circumstances, held that the decision in the case of Kleinwort Benson was in point and that since the claim was not a claim "based on contract" there was no jurisdiction in Scotland, under the 1982 Act, in respect of that claim directed against domiciled Italian bodies. Relying on the decisions in those cases, counsel for the defenders, under particular reference to the pursuers' averments in Article 2 of condescendence, submitted that the pursuers' claim was in respect of money paid in error and therefore was a claim for restitution. Such a claim, by analogy with the approach of the House of Lords in the Kleinwort Benson case and of the Lord Ordinary in the Eddie case, was not covered by the wording of the prorogation clause.

The Pursuers' Reply

[9] In reply, Mr Connal for the pursuers submitted that the answer to the question raised in the debate before me depended on what was intended to be covered by the parties in using the wording they employed in the clause in question. Mr Connal submitted that what was before the Court for determination fell squarely within the phrase "a dispute or difference of whatsoever nature arising out of the order, the contract or the delivery of the goods" because the dispute or difference was whether or not the pursuers were entitled to discounts under the contractual arrangements obtaining between the parties. That was the first issue focused in the action. The pursuers contended that they had been entitled to such discounts. The defenders contended that they were not entitled to such discounts in the circumstances. If the pursuers were correct then they, in error, had paid more for the goods in question than they should have, the question then would arise as to what their remedy should be. But the first "part of the case" was to resolve the dispute as to entitlement to the discounts. The proper approach to the construction of a prorogation jurisdiction clause, like the one before the Court, in the present case, was set out in the case of McGowan v Summit at Lloyds 2002 S.C. 638. In that case, an Extra Division had held that the same canons of construction fell to be applied to jurisdiction clauses as to any other mutual contract provision and the words in such a provision had to be construed "in accordance with their natural meaning and in the light of the surrounding circumstances in which the contract was made" - see the Opinion of the Court at page 659. The remarks of Lord Macfadyen in the Artibell case were clearly obiter and made in a context quite different from the present case. Moreover the decision of the House of Lords in the Kleinwort Benson case was dealing with a different question from that which arose on the present case. It was concerned with whether the claim which was being pursued in that action was one which was covered by the wording of the relevant provisions of the 1982 Act. It was not concerned with the construction of a mutually agreed prorogation clause. It was to be noted, in any event, that in the Kleinwort Benson case the majority did not even exclude the possibility that certain restitutionary claims connected with a contract might attract the relevant provisions. The de quo of the approach of the majority was that the contract in question had been void ab initio. That was not the position in the present case. The defenders' arguments relating to jurisdiction should be rejected and the case put out By Order for discussion as to further procedure, including the possibility of the pursuers amending their pleadings regarding the merits of the case.

Decision

[10] I agree with Mr Connal for the pursuers that the law which is directly in point in relation to the matters discussed before me is that which was applied in the case of McGowan v Summit at Lloyds, that is, the question raised is one of construction of the agreed prorogation clause and that the canons of construction to be applied are those which are applicable to any mutual contract provision. The cases based on the jurisdictional rules set out in the 1982 Act, where there is no prorogation clause, are not in point. In the present case, it is not suggested by the defenders that the legal relationship between the parties was not based on a course of contractual dealings between the parties. The action relates, in ordinary language, to a dispute between the parties as to whether certain discounts fell to be applied, as a matter of contract, to the prices to be paid by the pursuers in respect of certain goods supplied to them during that course of dealing. In other words there is a dispute as to the true contractual price which had to be paid for these goods. The defenders take their stance that no such discounts were due under the contract (see answers 3, 5 and 6). They do not take their stance, even on an alternative basis, that whereas the discounts might have been due, nevertheless any money paid over by the pursuers was paid to them as a result of a unilateral, uninduced error on the part of the pursuers. The de quo of the action is that there is a dispute between the parties as to whether or not discounts fell to be made under the contract in question in relation to the goods in question. The question of what remedy (if any) the pursuers are entitled to, if the answer to that first question is in the affirmative, is consequential or ancillary to that dispute being resolved in the first place. The pursuers seek to have that dispute resolved. If the approach to the question, as I have held it to be, is to look at the wording of the relevant clause and to give to that wording its ordinary meaning, I find it difficult to reach any other conclusion, but that parties intended, by using that wording, that the very sort of difference of dispute which has arisen between them, namely whether or not the pursuers were entitled to pay only discounted prices in relation to the relevant goods, was to be resolved by the Scottish Courts. Any suggestion that a more restricted, narrow or technical interpretation falls to be applied to the clause, is, in my view, negatived by the fact that the parties used the words "of whatsoever nature" and included references not only to the contract but to the order and delivery of the goods. Counsel for the defenders, as has been previously noted, accepted, in discussion, that a layman would probably reach the view that the words fell to be read as conferring jurisdiction on the Scottish Courts to deal with the issue raised in the present proceedings. I would go further and hold that commercial parties contracting, in circumstances like the parties to the present action, would have intended the wording of that clause to have the same effect. The defenders' argument, in my judgment, focused too exclusively, on the remedy being sought by the pursuers, rather than applying the usual canons of construction to the wording of the relevant clause itself. That approach was, in my judgement, also wrongly influenced by the decision in the case of Kleinwort Benson. The House of Lords in Kleinwort Benson were concerned with considering whether the language of the relevant provisions of the legislation was met so as to confer jurisdiction against the defendants in the English Courts as the plaintiffs contended. The present case is concerned with a different question viz, does the agreement of the parties mean that they have prorogated the jurisdiction of this Court to deal with and to determine the issue now raised by the pursuers. The decision in the Kleinwort Benson case, therefore, is of no direct assistance in relation to the question raised before this Court. That question, as I have already indicated, has to be determined applying the ordinary rules of contractual construction in relation to mutual contracts. In any event, I am not persuaded that, even if it were appropriate to have regard to the decision in Kleinwort Benson for present purposes, and to seek to apply its reasoning to the present case by analogy, it would provide the defenders with any great assistance. It is clear, beyond doubt, that the majority of the House of Lords reached the decision they did on the fundamental point that, in that case, both parties were in agreement, at least by the time the matter came before the House of Lords that, "contract" had been void ab initio. For example, Lord Clyde, at page 181, after an analysis of the relevant language in the Brussells Convention and, in particular, Article 5(1) focused on the words "relating to". His Lordship, in that context, said:

"the present participle indicates that there is a relationship still continuing between the current issue and a contract. The contract is not a matter of past history forming the background to the current controversy but is still of present relevance. Furthermore, the reference to 'a' contract appears to envisage an identifiable agreement."

His Lordship later on in the same page said:

"... the later words of article 5(1) in the courts for the place of performance of 'the obligations in question' are of considerable importance. The use of the definite article shows that there is a particular obligation to be performed. Moreover the reference is to 'the obligation in question'. That is a reference not to the contract but to the obligation which is at the heart of the dispute. That obligation is the obligation on which the claim is based. There must be an obligation to be performed and the obligation must be in dispute. I can see no other obligation which could here be intended than an obligation based on contract. The 'question' concerns a contractual obligation. The existence of a contract then becomes an essential element. And while the question may appear in a variety of forms essentially at the heart of the dispute will be a consideration relating to its performance. It can then be seen that the later words demonstrate the narrow scope of the phrase 'relating to'. It is not every connection with a contract however remote or tenuous which is intended here. The relationship is one whereby the matter is based on a contractual obligation. In my view it is essential for jurisdiction to lie under article 5(1) that there should be at the heart of the proceedings a dispute about the performance of a contractual obligation. If there is no obligation because there has never been a contract then there is no jurisdiction under the article."

At page 182 his Lordship continued:

"Where on the other hand there has undoubtedly ... been a contract constituted and the court has the jurisdiction under article 5(1) the court should be able to deal not only with such issues as whether the obligation is still enforceable or indeed whether the contract is still extant but also with any claims which arise consequentially on the determination of any issue about performance, such as damages or an award quantum meruit". (Emphasis added).

That last quoted dictum would, it appears to me, to be rather against the approach put forward by the defenders in the present case if drawing on the Kleinwort Benson case is appropriate for the present discussion. In the speech of Lord Hutton in Kleinwort Benson the factor of the non-existence of any contract being crucial to the majority decision in that case was further emphasised. At page 191, his Lordship, in considering the European jurisprudence on the interpretation of the relevant Brussels Convention provisions said:

"A further consideration referred to by the European Court is that the reason why under Article 5(1) a court for the place of performance of the contractual obligation is given jurisdiction is that the bringing of an action in such a court will enable the action to be brought in an efficacious way and the place of performance of the contractual obligation will be a place where the case can conveniently be heard ... . However in the present case this consideration is not applicable and the 'particularly close connecting factor' between the dispute and the English court does not exist, because the action is brought, not to enforce a contract performed in England, but to recover moneys which are repayable to the plaintiff because the contract never existed and because the plaintiff cannot seek to enforce it. In this case where Kleinwort is suing Glasgow, domiciled in Scotland, for the repayment of moneys unjustly retained by Glasgow, there is no 'particularly close connecting factor' between the dispute and the court in England which justifies departure from the general principle that the defendant should be sued in the place of its domicile."

What those passages, just cited, and the speeches of the majority as a whole in the Kleinwort Benson case, once they are carefully considered, show is that the ratio decidendi of their Lordships' decision is of no direct assistance, even by analogy, in determining the question in the present case and, as I have noted, one passage from the speech of Lord Clyde, at least, appears to me to be inconsistent with the kind of argument advanced on behalf of the defenders.

[11] The defenders, of course, relied on the obiter dicta of Lord Macfadyen in the Artibell case. His Lordship referred, in the passage in question, to two cases, namely Union of India v E.B. Aaby's Rederi A/S (1975) A.C. 797 and Fillite (Runcorn) Limited v Aqua-Lift (1989) 45 B.L.R. 27. Neither of those cases, however, was analysed in any detail in the Opinion of the Lord Ordinary. There was no need for him to do so as he had decided the case on other grounds. An analysis of those decisions, however, in my judgment, establishes that they do not, in fact, support the defenders' position adopted before this Court. In the first place, I remind myself that the wording of the relevant clause in the present case contains the expression "Any dispute or difference of whatsoever nature" and the phrase "arising out of the order, contract or delivery". The English authorities, as well as will be seen, have drawn a distinction between the phrase "disputes arising out of a contract" and "disputes arising under a contract" where they appear in arbitration clauses or otherwise fall to be considered in relation to certain jurisdictional questions. In the Fillite case, the arbitration clause in the relevant contract provided "any dispute or difference or question arising under these Heads of Agreement shall be referred to a single arbiter... ." One of the parties to the action sought to invoke that clause in relation to claims based on express and implied terms of the contract, negligent mis-statements and misrepresentations, and claims based on "an express oral guarantee or warranty" and lastly, claims based on "a collateral contract". The Court of Appeal held that the claims based on negligent mis-statements and misrepresentations being claims based in tort were not covered by the particular arbitration clause as not "arising under the Heads of Agreement". They also reached the same view regarding the claims based on oral guarantees or warranties and collateral contracts. It seems to me reasonably clear, however, that the approach of Slade L.J., who gave the leading judgment, would have been different had the wording in the clause been "any dispute or difference or question arising out of these Heads of Agreement". The judge, at first instance, in that case, had held that the words "arising under" fell to be given a wide meaning namely "arising out of" or "connected with", (see page 41 of the judgment of Slade L.J). Slade L.J., however, in relation to the approach of the judge of first instance said this:

"I respectfully disagree with his view that the phrase 'arising under' can properly be read as meaning 'arising under, out of or connected with'. As Lord Brandon of Oakbrook recognised in the Antonis P Lemos, (1985) 1 A.C. 711 at p. 727, on the ordinary and natural meaning of words the expression 'connected with' is wider than 'arising under'."

The full dictum to which Slade L.J. was referring to in the speech of Lord Brandon was as follows:

"I would readily accept that in certain contexts the expression 'arising out of' may, on the ordinary and natural meaning of the words used, be the equivalent of the expression 'arising under', and not that of the wider expression 'connected with'. In my view, however, the expression 'arising out of' is, on the ordinary and natural meaning of the words used, capable, in other contexts of being the equivalent of the wider expression 'connected with'. Whether the expression 'arising out of' has the narrower or the wider meaning in any particular case must depend on the context in which it is used."

The Antonis P Lemos case involved the House of Lords considering one of its previous decisions, namely the Union of India case, referred to above, which is one of the two cases referred to by Lord Macfadyen in his obiter dicta. In the Union of India case, two of their Lordships in the House of Lords, Viscount Dilhorne and Lord Salmon, at pages 814 and 817, respectively, referred to the dictum of Lord Porter in the earlier decision of the House of Lords in Heyman v Darwins Ltd (1942) A.C. 356 at 358 to the effect that the words "arising out of a contract" had a wider meaning than the words "under a contract". Both of their Lordships had difficulty in discerning a difference in the meaning of these two phrases. These observations, however, appear to have been obiter dicta and, in any event, Lord Brandon in the Antonis P Lemos case, in giving the judgement he did, which was agreed with in its entirety by all of the other judges of the House of Lords, decided that there could be a difference in the meaning of these phrases, depending on the context. It follows that close consideration of the two cases referred to in Lord Macfadyen's obiter dicta do not, in my view, give the defenders the support for the position they argued for in the present case.

[12] In the result, I am satisfied that by applying the ordinary rules of construction to the words used in the prorogation clause in the present case, one arrives at the result that the parties intended by those words that a dispute of the kind that has arisen between them and which requires judicial determination should be made subject to the jurisdiction of the Scottish Courts. The "dispute" once properly identified as such, on the ordinary meaning of words, is one arising out of the contract.

[13] For the foregoing reasons I reject the defenders' arguments. In the circumstances I shall have the case put By Order for discussion of further procedure in the case.

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