Port of Tilbury (London) Ltd v Stora Enso Transport & Distribution Ltd & Anor [2009] EWCA Civ 16 (23 January 2009)

Port of Tilbury (London) Ltd v Stora Enso Transport & Distribution Ltd & Anor [2009] EWCA Civ 16 (23 January 2009)

The contract's no set-off clause (clause 15), together with the payment regime in clause 8, excluded set-off of cross-claims except as expressly permitted. Clause 8.11 did not permit set-off of cross-claims but only withholding of genuinely disputed sums as to quantum. No implied term was necessary or appropriate to...

Source-derived case information.

Citation
[2009] EWCA Civ 16
Parties
Appellant / Claimant: Port of Tilbury (London) Ltd; Respondent / Defendant: Stora Enso Transport & Distribution Ltd; Respondent / Defendant: Stora Enso Transport Distribution AB (now renamed Stora Enso Logistics AB)
Jurisdiction
England and Wales
Judgment Date
23 January 2009
Procedural Posture
Appeal From Summary Judgment (technology & Construction Court) / Court of Appeal Judgment
Outcome
Appeal allowed; summary judgment granted to the Port of Tilbury (London) Ltd for the minimum tonnage payment.
Legal Topics
No Set Off Clauses, Implied Terms, Summary Judgment, Construction of Contract, Set Off and Counterclaim, Take or Pay Provisions
Contract Law Commercial Law No Set Off Clauses Implied Terms Summary Judgment Construction of Contract Set Off and Counterclaim Take or Pay Provisions

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Parties

Port of Tilbury (London) Ltd

Appellant / Claimant

Stora Enso Transport & Distribution Ltd

Respondent / Defendant

Stora Enso Transport Distribution AB (now renamed Stora Enso Logistics AB)

Respondent / Defendant

Procedural Posture

Appeal From Summary Judgment (technology & Construction Court) / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the contract permitted set-off of a cross-claim against a minimum tonnage payment invoice
  2. 2 Whether an implied term should be read into the contract to relieve Stora from the minimum tonnage payment if the Port was not ready, willing, or able to perform its services

Ratio Decidendi

The contract's no set-off clause (clause 15), together with the payment regime in clause 8, excluded set-off of cross-claims except as expressly permitted. Clause 8.11 did not permit set-off of cross-claims but only withholding of genuinely disputed sums as to quantum. No implied term was necessary or appropriate to relieve Stora from the minimum tonnage payment obligation. Therefore, Stora was required to pay the minimum tonnage payment and could only pursue its cross-claim separately.

Court Disposition

Appeal allowed; summary judgment granted to the Port of Tilbury (London) Ltd for the minimum tonnage payment.

Orders

  • Stora Enso Transport & Distribution Ltd and Stora Enso Logistics AB to pay the minimum tonnage payment of £1,829,574.60 to Port of Tilbury (London) Ltd.
  • Stora may pursue its cross-claim for damages separately.