Active Media Services Inc v Burmester, Duncker & Joly GmbH & Co Kg & Ors [2021] EWHC 232 (Comm) (09 February 2021)

Active Media Services Inc v Burmester, Duncker & Joly GmbH & Co Kg & Ors [2021] EWHC 232 (Comm) (09 February 2021)

The court held that the Completion Guarantee required the film to be completed and delivered by 28 August 2017 at the latest, with strict compliance with the delivery procedure. The film was not completed or delivered as required, and the contractual mechanisms for extension or acceptance were not properly followed. However, Active's principal deliberately destroyed relevant evidence shortly before trial, and Active failed to call key witnesses. The court found that Active, through its agents, had knowledge of the true state of completion and delivery, and by its conduct was estopped from claiming under the Completion Guarantee. The claim was therefore dismissed.

Citation
[2021] EWHC 232 (Comm)
Parties
Claimant: Active Media Services Inc; First Defendant: Burmester, Duncker & Joly GmbH & Co KG; Second Defendant: AXA Versicherung AG; Third Defendant: European Film Bonds A/S; Fourth Defendant: Double Dutch International Inc
Jurisdiction
England and Wales
Judgment Date
09 February 2021
Procedural Posture
Commercial Court Claim / Judgment After Trial
Outcome
Claim dismissed
Legal Topics
Completion Guarantee, Estoppel, Waiver, Breach of Contract, Disclosure Obligations
Contract Law Commercial Law Film Finance Completion Guarantee Estoppel Waiver Breach of Contract Disclosure Obligations

Case Brief

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Parties

Active Media Services Inc

Claimant

Burmester, Duncker & Joly GmbH & Co KG

First Defendant

AXA Versicherung AG

Second Defendant

European Film Bonds A/S

Third Defendant

Double Dutch International Inc

Fourth Defendant

Procedural Posture

Commercial Court Claim / Judgment After Trial

Legal Issues

  1. 1 Whether the Completion Guarantee was breached by failure to complete and deliver the film by the contractual deadline
  2. 2 Whether Active is estopped or has waived its right to claim under the Completion Guarantee
  3. 3 Proper construction of the Completion Guarantee and related agreements

Ratio Decidendi

The court held that the Completion Guarantee required the film to be completed and delivered by 28 August 2017 at the latest, with strict compliance with the delivery procedure. The film was not completed or delivered as required, and the contractual mechanisms for extension or acceptance were not properly followed. However, Active's principal deliberately destroyed relevant evidence shortly before trial, and Active failed to call key witnesses. The court found that Active, through its agents, had knowledge of the true state of completion and delivery, and by its conduct was estopped from claiming under the Completion Guarantee. The claim was therefore dismissed.

Court Disposition

Claim dismissed

Orders

  • Claim by Active Media Services Inc is dismissed
  • No order for reimbursement under the Completion Guarantee