Reference no: EM132808790

Advocacy - Crystal Clear Advertising Limited -v- Nice Spice Limited

If you have been allocated the role of solicitor for the Claimant, you must apply for summary judgment. If you have been allocated the role of solicitor for the Defendant, you must oppose the application for summary judgment.

Statement of agreed facts for Applicant and Respondent

The Claimant is Crystal Clear Advertising Limited. The Defendant is Nice Spice Limited. The parties are in dispute regarding a supply by the Defendant to the Claimant of hot food that allegedly did not match its description and was not fit for the Claimant's stated purposes.

Proceedings were issued and served. The Defendant acknowledged service, indicating an intention to defend the entire claim, and subsequently filed a Defence. The Claimant has issued an application for summary judgment. The Defendant's solicitors have filed a witness statement opposing the application.

The hearing has an agreed time estimate of 30 minutes.

The parties have exchanged summary statements of costs and have agreed a sum of
£1,250 inclusive of VAT should any order for costs be made.

Assume for the purpose of the assessment that the hearing is taking place on 10 May 2021 at 10am*.

The Claimant is represented by Ashton Kaye LLP and the Defendant is represented by Richmond Bingham LLP.

1. At all material times the Claimant was a limited company operating in the advertising, marketing and public relations sector and the Defendant was a limited company operating in the commercial catering sector.

2. On 7 December 2020 in the course of their respective businesses the Claimant and the Defendant entered into a written contract ("the Contract") by which the Defendant agreed to supply to the Claimant's offices on 14 December 2020 a range of curry dishes and accompaniments ("the Food") for consumption by the Claimant and the Claimant's clients at a Christmas lunch. A copy of the Contract is attached to these Particulars of Claim [Note to candidates: not attached for the purpose of this assessment]. The price of the Contract was agreed to be £950 including VAT, payable by the Claimant to the Defendant in advance of delivery.

3. The Contract contained the following statutory implied terms:

That the Food would match its description as given by the Defendant to the Claimant. In particular, the Defendant agreed to supply to the Claimant a dish described on the Defendant's online menu as "Mango Curry".

That the Food would be fit for the particular purpose made known to the Defendant by the Claimant. More specifically, that the Food would be suitable for consumption at a lunch involving members of the London Vegetarian Council ("the LVC"), an organisation that was at that time a client of the Claimant.

4. On 8 December 2020 the Claimant paid £950 to the Defendant by Electronic transfer in full payment of the Contract price. On 14 December 2020 the Defendant delivered the Food, including several containers of "Mango Curry", to the Claimant's offices.

5. In breach of the implied terms of the Contract the Food did not match its description as given by the Defendant to the Claimant, and was not suitable for the particular purpose made known to the Defendant by the Claimant.

PARTICULARS OF BREACH

The "Mango Curry" supplied as part of the Food did not conform to its description as it contained no mangoes and was in fact a fish curry.

The "Mango Curry" supplied as part of the Food, being fish- based, was not suitable for the particular purpose of consumption at a lunch involving members of the LVC.

6. As a consequence of the Defendant's breaches of the Contract, several members of the LVC suffered distress after the Claimant's Christmas lunch on 14 December 2020, and the LVC subsequently cancelled an advertising services agreement with the Claimant that would otherwise have run until the end of August 2021. This caused a loss of profit to the Claimant.

7. As a result of the above breaches of the Contract the Claimant has suffered damage and loss.

PARTICULARS OF LOSS AND DAMAGE

Lost profit due to cancellation of agreement with LVC: £ 250,000

8. The Claimant seeks interest on damages under s.35A Senior Courts Act 1981 at such rates and for such periods as the court thinks fit.

AND THE CLAIMANT CLAIMS:

(1) Loss and damage pursuant to paragraph 7 above.
(2) Interest pursuant to paragraph 8 above.

DEFENCE
1. In this Defence, references to paragraph numbers and defined terms are to paragraphs and defined terms of the Particulars of Claim unless otherwise specified.

2. Paragraphs 1 to 4 are admitted.

3. Paragraph 5 is denied. More specifically:

The "Mango Curry" supplied by the Defendant to the Claimant was a curry containing chunks of a fish known as the Mango Fish. It was not described as a curry containing mangoes. The "Mango Curry" supplied by the Defendant therefore conformed to the description given by the Defendant to the Claimant.

As to paragraph 5.2, it is denied that the "Mango Curry" supplied by the Defendant to the Claimant was unsuitable for the purpose of consumption at a lunch involving members of the LVC. The Claimant did not specify that the "Mango Curry" would be eaten exclusively by members of the LVC, or that any members of the LVC were vegetarians, or even with what type of "vegetarian" the LVC concerned itself.

4. As to paragraph 6, it is denied for the reasons set out above that the Defendant was in breach of its obligations under the Contract. It is therefore also denied that any matters described in paragraph 6 or otherwise arose as a consequence of such breach. As to the remainder of paragraph 6 the following matters are not admitted as the Defendant has no knowledge of them:

That the LVC cancelled any agreement with the Claimant.

The reasons for the cancellation of any agreement between the LVC and the Claimant.

That the Claimant has suffered loss of profit.

5. As to paragraph 7, it is not admitted that the Claimant has suffered loss in the amount described, or at all. For the reasons set out above it is denied that any loss suffered by the Claimant resulted from breach of the Contract by the Defendant.

6. As to paragraph 8, for the reasons set out above it is denied that the Claimant is entitled to this or any other relief.

WITNESS STATEMENT OF LOGAN TREMBLAY

I, Logan Tremblay of 17 Viceroy Place, London SE1 6RQ, will say as follows:

1. I am a Director of the Claimant and I am duly authorised by the Claimant to make this statement in support of its application for summary judgment. This statement has been prepared following face- to-face discussions with my solicitor. Save as otherwise indicated, the contents of this witness statement are made from my own knowledge and belief.

2. The Claimant is a medium-sized advertising agency based in Southwark, South London, and operates in a very competitive environment. We have to fight hard to win, and then keep, our clients, and part of the way we do this is with client events. We knew that several board members of one of our larger clients, the London Vegetarian Council, love curry-related cuisine, so we came up with the idea of inviting the whole board of that client to a non-traditional Christmas lunch catering to this preference.

3. On the recommendation of some of my personal acquaintances I contacted the Defendant in late November 2020. From the beginning I dealt exclusively with Sophia Vickers, a Director of the Defendant, and our discussions were all very efficient and professional. I quickly picked out a selection of what I took to be vegetarian dishes from the Defendant's online menu, and we agreed that a bulk order of each, with accompanying rice and side dishes, would be delivered to the Claimant's offices in time for lunch on 14 December 2020.

4. On 14 December 2020 the food arrived in good time and, when set out ready to eat, looked fantastic. The "Mango Curry" in particular smelled delicious, and I could see juicy orange chunks of what I assumed was mango visible in amongst its sauce and vegetables. When the lunch began it was also a hit with the client, and of all the dishes that were provided by the Defendant the "Mango Curry" was the only one that was completely eaten.

5. Overall the lunch was a great success, and we were very pleased with the impression that we had managed to make on the client. Then, at 8 am on 18 December 2020 I received a telephone call from Carl Mull, Managing Director of the London Vegetarian Council and one of the attendees at the lunch on 14 December 2020. He was almost incoherent with anger. He said that one of his fellow directors had liked the "Mango Curry" so much she had called the Defendant to find out if it could be supplied to the London Vegetarian Council's own functions. At some point during that conversation it became apparent that "Mango Curry" was not a curry made with mangoes, but was in fact a fish curry made with something called a "Mango Fish".

6. Carl told me that all of the members of the client who had attended the lunch on 14 December 2020 had eaten some of the "Mango Curry". Unsurprisingly, 90% of that group were vegetarians and everyone at the client was extremely upset at having been fed non-vegetarian food without their knowledge or consent. I tried to calm him down but with only limited success. Carl ended the call, and I have not been able to speak to him directly since.

7. In the immediate aftermath of Carl Mull's call to me I sent a number of apologetic emails to, and left equally apologetic voicemails for, all the board members of the client. I heard nothing back until 21 December 2020, when I received a short email sent on behalf of Carl Mull, invoking a "gross misconduct" clause in the London Vegetarian Council's agreement with us and terminating it with immediate effect. This was a huge blow, as the London Vegetarian Council agreement was meant to run on until August 2021, and would have generated
£250,000 more profit over that period.

8. The more I think about the situation the angrier I become. There was no proper indication on the Defendant's online menu that "Mango Curry" was a fish curry. I refer to an extract from the "curries" section of the online menu, marked LT1. On 22 December I called Sophia Vickers and we argued about the meaning of the description given on the menu. She insisted that everyone knew that "Fruits of the Sea" meant "seafood". I disagreed, because to a casual reader it could just indicate exotic fruits, particularly given the titles and contents of some of the dishes under the heading.

9. For example, the very next dish on the menu after "Mango Curry" was "Pineapple Curry". I asked Sophia sarcastically whether that involved "Pineapple Fish". Sophia proceeded to tell me, very patronisingly, that

actually there was such a thing as a Pineapple Fish, but I forced her to admit that the "Pineapple Curry" did not contain any and was made with actual pineapples.

10. I also raised the point with Sophia that she, and therefore the Defendant, had known that we were catering for members of the London Vegetarian Council. She confirmed this. I went on to point out that even if I did not know that "Mango Curry" was a fish curry, she did, and she should have understood that it would not be suitable for a group explicitly described as vegetarians. Sophia asked me whether I had eaten any "Mango Curry" at the lunch, and whether I was a vegetarian. I said I had eaten some, and that I was not a vegetarian, but I didn't see how any of that was relevant. She then asked whether the clients were vegetarians. I said that most of them were, to which she said "so what's your point?", as if she had somehow proved something. As far as she knew at the time of the contract, they could all have been vegetarians.

11. Sophia then told me that, in common with many of her "vegetarian" friends, she considered herself a vegetarian even though she also ate fish. I took issue with this, as I knew from working with the London Vegetarian Council that they consider the term "vegetarian" to have a very specific meaning. There are specific names for vegetarians who eat dairy and egg products, but fish-eaters are just not vegetarians. I refer to an excerpt from a leaflet published by the London Vegetarian Council marked LT2, which explains this.

12. After a while on the telephone with Sophia I realised that we were getting nowhere, and I ended the call. We have tried further to reason with them since, but they refuse to accept that any of our problems are due to their incompetence.

13. It is quite clear that in all the circumstances the Defendant has no real prospect of successfully defending the Claimant's claim, and that there is no other compelling reason for a trial. I therefore ask that the court grant the Claimant summary judgment in this matter.

WITNESS STATEMENT OF SOPHIA VICKERS

I, Sophia Vickers of 192 Enderby Road, London SW8 9PD, will say as follows:

1. I am a Director of the Defendant and I am duly authorised by the Defendant to make this statement opposing the Claimant's application for summary judgment. This witness statement has been prepared following discussions with my solicitor over the telephone. Save as otherwise indicated, the contents of this witness statement are made from my own knowledge and belief.

2. The Defendant is a mid-sized commercial catering company, specialising in pan-Asian food. We have a solid reputation in and around the City of London, and we maintain very high standards in respect of our ingredients, our preparation and our fulfilment of orders.

3. In late November 2020 I received a call from Logan Tremblay. The Claimant wanted to have a Christmas client lunch "with a twist", as Logan described it, at which all the food on offer would be curry or curry accompaniments. It is actually not as novel an idea as he seemed to think, and we have catered for events of a similar description for years. I am proud to say we have never had any complaints whatsoever about any of our food, including as to the way it is described on the menu.

4. After a few short telephone discussions between us Logan picked out a range of dishes that the Defendant would supply in bulk to the Claimant's client function on 14 December 2020. I don't think Logan was paying much attention to which dishes he was picking or how they were described as he did so at great speed, but all of our dishes work

well together so this was not in itself a problem. Logan and I finalised the agreement between the Claimant and Defendant in writing, over email.

5. The Claimant paid for the food in full, in advance, as is the Defendant's policy, and on 14 December 2020 we delivered the order on time, in full, piping hot and ready to be eaten. I was sure that the Claimant and its clients would love our food, particularly a dish that we had developed and added to the menu only a few weeks earlier, our "Mango Curry".

6. I assumed all had gone well as I heard nothing further from the Claimant that week, and on 16 December I took a telephone call from Jenny Kepler of the London Vegetarian Council. She said she had been present at the Claimant's client lunch and had particularly loved the "Mango Curry". I made a comment to the effect that it was always good to get more fish into one's diet, but Jenny seemed rather confused by this. Eventually we established that she had not known that the "Mango Curry" was made with Mango Fish. I expressed some surprise at this, and then our conversation came to an abrupt end.

7. On 22 December 2020 I heard again from Logan Tremblay. He was very upset. He said that the London Vegetarian Council had fired the Claimant because there was fish in the "Mango Curry", and many of the Claimant's clients were distressed at having eaten it. Logan insisted that the "Mango Curry" did not match its description on the Defendant's online menu and asked me: "who puts fish in a Mango Curry, then calls it vegetarian?" I referred Logan to the online menu and pointed out that the "Mango Curry" was clearly listed as being seafood, and was not described as vegetarian. This can be seen clearly from Logan Tremblay's own exhibit, LT1.

8. Logan kept going on about the "Pineapple Curry", shown on the menu immediately beneath the "Mango Curry". I accepted that this was actually made with pineapples, but it was also clearly marked with a "[v]", which elsewhere on the menu was explained to mean "vegetarian". The "Pineapple Curry" was arguably in the wrong part of the menu, but crucially the "Mango Curry" was not, and was clearly described. Even the price of the "Mango Curry" suggested it was not merely a vegetable dish.

9. Besides, Logan should have been aware that a "Mango Curry" could involve fish. I attach a one-page article from the September 2017 edition of trade magazine "Commercial Catering Monthly", marked SV1. Mango Fish has been a rising star of the catering industry for several years, and is increasing in public recognition and popularity.

10. I freely admit that I knew the Claimant's client lunch was for the "London Vegetarian Council", but it does not follow that everyone at the lunch would be a vegetarian. Logan never said that members of the "London Vegetarian Council" were exclusively vegetarians, and there's no logical reason why they should be.

11. In any event, during our telephone conversation of 22 December 2020 Logan confirmed that the food supplied by the Defendant was not exclusively for, and was not eaten exclusively by, members of the London Vegetarian Council. Logan himself has admitted to eating some of the "Mango Curry", and he is neither a member of the London Vegetarian Council nor a vegetarian. It makes no sense that I should simply have assumed that the Claimant required completely vegetarian food.

12. I would also argue that the "Mango Curry" is, in fact, vegetarian, even though it is a fish curry. I consider myself a vegetarian as I don't eat red meat, and I would happily eat our "Mango Curry". I note Logan's exhibit LT2, but that's just the London Vegetarian Council's view of things. Why is their view better than mine? Even their own leaflet acknowledges that "there are many different types of vegetarian".

13. I also note that, despite the London Vegetarian Council supposedly having been horrified by eating a fish curry, Logan himself identifies that it was the only curry provided by the Defendant that was completely eaten. It is inconceivable that an entire batch of fish curry could have been eaten in this way without someone realising what the main ingredient was, so the London Vegetarian Council were clearly quite happy to do so.

14. It is clear on the facts that the Defendant's defence has a real prospect of success in this matter, and that there are in any event compelling reasons for a trial. I therefore ask that the court dismiss the Claimant's application.

Attachment:- Advocacy.rar