Kingspan Environmental Ltd & Ors v Borealis A/s & Anor

Kingspan Environmental Ltd & Ors v Borealis A/s & Anor

The court found that Borecene was not inherently defective or unfit for purpose; the increased failure rate of Kingspan's tanks was due to Kingspan's design, processing, and quality control failures, not to any defect or inadequate UV resistance in Borecene. No actionable misrepresentation was established under either English or Danish law. The contracts were governed by Danish law, which does not recognize a free-standing claim for misrepresentation, and contractual limitation clauses were enforceable. Kingspan failed to prove timely and adequate notice of non-conformity for certain deliveries, and in any event, the only available remedy would have been limited to the invoiced price of...

Parties
Claimant: Kingspan Environmental Limited; Claimant: Tyrell Tanks Limited; Claimant: Rom Plastics Limited; Claimant: Titan Environmental Limited; Defendant: Borealis A/S; Defendant: Borealis UK Limited
Jurisdiction
England and Wales
Judgment Date
01 May 2012
Procedural Posture
Commercial Contract Dispute / Final Judgment After Full Trial
Outcome
Claim dismissed
Legal Topics
Misrepresentation, Fitness for Purpose, Limitation of Liability, International Supply Contracts, Interpretation of Contractual Terms, Time Bar Under CISG, Choice of Law
Commercial Law Contract Law Product Liability International Sale of Goods Misrepresentation Fitness for Purpose Limitation of Liability International Supply Contracts +3 more

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Parties

Kingspan Environmental Limited

Claimant

Tyrell Tanks Limited

Claimant

Rom Plastics Limited

Claimant

Titan Environmental Limited

Claimant

Borealis A/S

Defendant

Borealis UK Limited

Defendant

Procedural Posture

Commercial Contract Dispute / Final Judgment After Full Trial

Legal Issues

  1. 1 Whether Borecene supplied by Borealis was defective and unfit for purpose in manufacturing oil tanks
  2. 2 Whether Borealis made actionable misrepresentations as to the UV stability and suitability of Borecene
  3. 3 Whether the contracts were governed by Danish or English law and the effect on available remedies

Ratio Decidendi

The court found that Borecene was not inherently defective or unfit for purpose; the increased failure rate of Kingspan's tanks was due to Kingspan's design, processing, and quality control failures, not to any defect or inadequate UV resistance in Borecene. No actionable misrepresentation was established under either English or Danish law. The contracts were governed by Danish law, which does not recognize a free-standing claim for misrepresentation, and contractual limitation clauses were enforceable. Kingspan failed to prove timely and adequate notice of non-conformity for certain deliveries, and in any event, the only available remedy would have been limited to the invoiced price of...

Court Disposition

Claim dismissed

Orders

  • All claims by Kingspan against Borealis are dismissed
  • No order for damages or further relief