Ksy Juice Blends UK Ltd v Citrosuco GmbH - Contract Price Determination

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  Ksy Juice Blends UK Ltd v Citrosuco GmbH [2026] EWHC 764 (Comm) (30 March 2026)

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[2026] EWHC 764 (Comm) | | |
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| | | Neutral Citation Number: [2026] EWHC 764 (Comm) |
| | | Claim No: LM-2021-000160 |
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
LONDON CIRCUIT COMMERCIAL COURT (KBD)

| | | Claim No: LM-2021-000160 |
| | | |
B e f o r e :

HIS HONOUR JUDGE PEARCE

| | KSY JUICE BLENDS UK LIMITED | Claimant |
| | -and- | |
| | CITROSUCO GMBH | Defendant |

Judgment Approved

HTML VERSION OF JUDGMENT APPROVED ____________________

Crown Copyright ©

1. This judgment was handed down remotely at 10am on 30 March 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives
3. His Honour Judge Pearce:
5. INTRODUCTION
6. By a contract dated 18 May 2018 (the "2018 Contract"), the Claimant agreed to supply a quantity of orange juice pulp wash, also referred to as water extracted soluble orange solids ("Wesos"), to the Defendant for a period of three years commencing on 1 January 2019. The parties agreed the price in respect of part of the quantity of Wesos and to that extent it was not in dispute that the 2018 Contract was enforceable. However, the Defendant contended that the price for the balance was left open and that the contract was therefore not more than an agreement to agree in respect of that balance.
8. My judgment ("the First Judgment") was handed down on 9 August 2024 and reported under Neutral Citation Number [2024] EWHC 2098 (Comm). In this, I found for the Defendant on the "agreement to agree" argument. The Claimant successfully appealed to the Court of Appeal which handed down judgment on 15 May 2025 under Neutral Citation Number [2025] EWCA Civ 760 ("the Court of Appeal Judgment"). The Court of Appeal remitted the case to me for determination on the remaining issues in light of the successful appeal.
10. In dealing with the remitted issue in this judgment, I refer to the material before me at trial, namely the written evidence [1] and documents, the oral evidence and the parties' submissions. I also refer to the First Judgment and the Court of Appeal Judgment. Paragraph numbers from any document referred to in this judgment are placed within square brackets. Since the case was remitted to the High Court, the parties have also filed written submissions on the issues that fall for determination in this judgment.
12. THE BACKGROUND
13. The relevant background is set out in the judgment of Zacaroli LJ in the Court of Appeal, with which the remainder of the Court of Appeal agreed, referring in part to [5] ? [9] of the First Judgment. In that passage, as well as explaining the nature of Frozen Concentrated Orange Juice ("FCOJ") and Wesos, I described the concept of Brix and the Free Trucks mechanism, which are central to the issue of contract price, as follows:
15. 4.1. " Brix is a measure of the amount of dissolved solids in a liquid via its specific gravity. The "Brix unit" is commonly used in the orange juice business as a means of pricing, the price being fixed on the basis of an assumption as to the Brix level with an adjustment to reflect the actual level."
16. 4.2. Free Trucks as described by the Claimant's expert, Professor Koutoupis, is " a promotional pricing strategy used in contractual agreements. The mechanism is used to adjust the contracted price in response to market price fluctuations. It involves providing free product on top of the contracted volume, thus aligning the price of the goods with the current market conditions."
17. Zacaroli LJ summarised the operation of the 2018 Contract as follows:
19. "9. The following are the salient terms of the 2018 Contract.
20. 10. By clause 1, the subject of the contract is described as the sale and deliveries of Wesos "bulk or in aseptic drums" (clause 7 contained further detail on packing requirements for drums).
21. 11. The term, by clause 2, commenced on the date of the signing of the contract (on 5 November 2018) and terminated on 31 December 2021.
22. 12. Clause 3, headed "Price", provided as follows:
23. "Invoicing price is 1,600euro/mt for 60brix
24. Price adjustable according to brix value +/-5 brix
25. Free trucks will be offered from the seller according to the agreed volume & price of each year.
26. Calculation basis for the 1.200mt fixed is 1.350euro/mt which corresponds to the 400mt/year 2019-2020-2021"
27. 13. Clause 4 provides four options for the place (and mode) of delivery:
28. "I. Ex works Bulk 5928 RH Venlo
29. II. Ex works in used new drums 5928 RH Venlo
30. III. DDP Alphonse Sifferdok 990, Geraard Van den Daelelaan 990 (GPS) B-9000 Gent with dry truck (Tel.+ 32/9.255.9.255 - contact person Mr. Peter Van Laere)
31. IV. DDP Alphonse Sifferdok 990, Geraard Van den Daelelaan 990 (GPS) B-9000 Gent with tank truck (Tel.+32/9.255.9.255 - contact person Mr. Peter Van Laere)"
32. 14. Clause 9, headed "Instructions for Dispatch, Advice of Dispatch", stated that the "Buyer should inform the Seller 15 days prior to every delivery". It follows that the place and mode of delivery was at the option of the buyer.
33. 15. Clause 5, headed "Delivery Period", provided as follows:
34. "1,200MT per each year
35. Deliveries to start January to December with the following split:
36. 400mt fixed at 1.350euro/mt ? invoicing price is 1600euro/mt
37. Difference of price in free trucks
38. 800mt at open price to be fixed latest by December of the previous year
39. Difference of price in free trucks"
40. 16. Various aspects of the quality of Wesos were identified in clause 6, including that Brix would be a minimum of 50. (It was common ground that the maximum price adjustment was +/-5 Brix, even if the deviation from 60 Brix was greater than that.)
41. 17. Clause 10, headed "quantity", stated "3600mt".
42. 18. By clause 11, payment was due in full 7 days after invoice, which by clause 12 was to be provided on delivery.
43. 19. Clause 16 contained an entire agreement clause, and by clause 17, "the parties hereto intend this Agreement to be valid and enforceable to the fullest extent possible." Accordingly, they agreed that if any term was found to be invalid or unenforceable it was to be severed from the remainder of the agreement.
44. 20. The contract was governed by "the law of the UK" (clause 18). There was no jurisdiction clause.
45. 21. The terms for price, delivery period and quantity are somewhat opaque, but it is common ground that they were intended to operate as follows:
46. (1) Assuming the contract to be fully enforceable, KSY would invoice (and Citrosuco would be required to pay) over the life of the contract ?1,600 per MT of Wesos based on a quantity of 3600MT, subject to an adjustment to price to cater for a variation in Brix of +/- 5 Brix. Assuming a constant Brix of 60, that would mean KSY would be paid a fixed amount (?5,760,000) over the life of the contract.
47. (2) Although the quantity of Wesos was also stated to be fixed at 3600MT (with 1200MT being delivered in each of the three years), in reality the amount to be delivered was different, pursuant to the provisions in clause 3 and 5 as to "free trucks". It would vary depending upon the 'real' price (as opposed to the invoiced price) which the parties agreed for each MT of Wesos.
48. (3) As to one-third of the amount to be delivered each year (400MT of the notional amount of 1,200MT), the parties agreed on a 'real' price per MT of ?1,350. That meant that the quantity of Wesos to be delivered would, in this respect, be 474MT, arrived at by the following calculation:
49. > 400 (MT) x ?1,600 = ?640,000
50. > ?640,000 ? ?1,350 = 474 (MT)
51. (4) As to the other two-thirds, the quantity to be delivered within each year would be arrived at by a similar calculation (based on 800MT of the notional amount of 1,200MT), but using a price that was "to be fixed latest by December of the previous year".
52. (5) Although the price to be fixed could in theory be greater than ?1,600 per MT, the Free Trucks mechanism operated only one way: to increase the quantity to be supplied to reflect a 'real' price that was lower than ?1,600 per MT.
53. (6) That meant that in each year the amount to be supplied would always be at least 1,274MT (i.e. 474MT for the 400 MT plus Free Trucks at a real price of ?1,350, plus the additional 800 MT at a price to be fixed). What remained uncertain was the quantity of Wesos to be supplied by KSY by way of Free Trucks above that amount.
54. 22. By late 2018, Citrosuco's need for Wesos had reduced, and it became apparent that the 2018 Contract had become a bad bargain for it (see judgment at ?33-?37). No agreement was in fact reached between the parties for the price of 800MT of Wesos for any of the years of the contract. Citrosuco took delivery of, and paid for, 400MT of Wesos in 2019, but declined to take delivery of any more. In 2020, KSY delivered 126MT of Wesos, but Citrosuco paid for only 84MT [2] . In September 2020 KSY terminated the contract alleging that Citrosuco was in repudiatory breach."
55. In the First Judgment, I found that the contract involved an intention by the parties to deal in 1,200MT of Wesos per year for 3 years (see [80]). At [118], I found the contractual price to be as follows:
57. "(a) For the first 400 MT per year, a price of ?1,350/MT, invoiced at ?1,600/MT but with Free Trucks being provided to reduce the effective price to ?1,350/MT
58. (b) For the balance of 800 MT per year, a price to be agreed by the parties by December of the year preceding the delivery year, invoiced at ?1,600/MT, with the provision of Free Trucks to achieve the effective price as agreed by the parties."
59. At [128], I rejected the contention that the parties had sufficiently clearly identified a contractual price so as to avoid the conclusion that this was "an agreement to agree" and therefore enforceable as regards the balancing quantity of 800MT per year.
61. I went on to deal (obiter) with several issues in the event that I were wrong on the question of the enforceability of the contract:
63. 8.1. At [139] in respect of the claim that the Claimant was entitled to damages for the Defendant's breach of contract in failing to give instructions for delivery of the Wesos pursuant to Section 50 of the Sale of Goods Act 1979: " I do not consider that the Claimant has a claim in damages for breach of contract because the Defendant was not obliged to take delivery of the goods. That said, had it been so, I would have found that there was no available market. Accordingly, the Claimant (which, on the evidence, had produced the product during 2019 and therefore had incurred the costs in doing so) is entitled to recover the contract price less any sums earned in mitigation."
64. 8.2. At [140]: " The Claimant attempted to resell the Wesos but was unable to do so. Given the Defendant's own evidence as to the difficulty of selling Wesos especially on the spot market, I find no possible ground for a finding that the Claimant had failed reasonably to mitigate its loss and accordingly the Claimant would have recovered the contract price (whatever that may have been) without deduction for failure to mitigate, but with deduction for avoidable delivery costs."
65. 8.3. At [141] " if I were wrong on the contract price, I see no easy response to the Claimant's case that, in light of the Defendant's indication in the letter of 30 July 2020, it was in repudiatory breach of its obligation to accept the Wesos and the Claimant was entitled to accept that breach which it did by the letter dated 25 September 2020."
66. 8.4. As to the Claimant's claim for damages following termination of the contract:
67. > " 142. If the Claimant was not entitled to terminate the contract, clearly it cannot sue for damages for breach. If I am wrong on that, the Claimant contends that it is entitled to damages at least insofar as Wesos that had been produced pre-termination would have been delivered post-termination. In this respect, the Claimant points to the event that it had produced the relevant Wesos as set out at paragraph 45 of Mr Papadimitrakopoulos' statement.
68. > 143. However the difficulty with this argument is that, if the contract terminated in October 2020, the Claimant cannot have produced Wesos in reliance on a continuing contract in the high season for 2021, namely December 2021 to March 2022. The Claimant would then be limited to a loss of profits claim. Whilst the evidence points in the direction that Wesos is cheap to produce, there is a lack of cogent evidence to allow me to reach any conclusion on what that loss of profits would have been.
69. > 144. On the rather limited evidence available, I would have found that the Claimant had produced Wesos for the year to December 2020 and I would have allowed the price of that less a figure for delivery costs but again undiscounted by any factor for failure to mitigate given the lack of cogent evidence that the Claimant could and should have resold the Wesos. However I would not have allowed any claim for damages for Wesos for delivery in 2021. "
70. In his judgment at [55], Zacaroli LJ stated that he preferred the following formulation of the contractual quantity to my formulation at [118] of the First Judgment:
72. " The parties intended that KSY would supply (and Citrosuco would pay for) Wesos for each of the three years of the contract with a value of ?1.92 million (i.e. 1,200 x ?1,600). As to one-third of that sum, the amount to be supplied was fixed at 474MT. As to the other two-thirds, the amount to be supplied each year would be at least 800MT, plus such further amount as was required to ensure that Citrosuco received ?1.28 million worth of Wesos (i.e. 800 x ?1,600) priced at the amount per MT fixed each December for the following year."
73. To make the same point another way, it was not the contract price that was (arguably) uncertain, but rather the contractual volume. However, the contractual volume could be determined by applying the contractual mechanism for pricing Wesos.
74. As to price, he concluded:
76. 10.1. This was a contract which the court should strive to uphold (see [54] ? [57]);
77. 10.2. There is an established transparent market in relation to FCOJ to establish a reasonable or market price for that commodity (see [62]);
78. 10.3. There was evidence before the court (that I had accepted in the First Judgment at [125]) that the price of Wesos of the Brix specified in the 2018 Contract was around 70% of the price of FCOJ (see [62] ? 63]);
79. 10.4. None of the other objections to the implication of a term that the price of Wesos (and therefore the quantity to be delivered) be determined by the reasonable or market price for Wesos calculated on the basis of the evidence referred to in the previous sub-paragraph were sufficient to displace a finding that, in the absence of reaching agreement, the price was to be a reasonable or market price (see [64] ? [74]);
80. 10.5. Accordingly, " this is a case where a term is to be implied to the effect that the price of Wesos, for the purposes of establishing the quantity of Wesos to be supplied each year in excess of 1274MT, was to be fixed, in the absence of agreement, as a reasonable or market price " (see [75]).
81. THE SUPPLEMENTAL SUBMISSIONS
82. I made directions for the filing of further submissions in [1] ? [3] of an order dated 24 September 2025. The parties have filed the following further documents:
84. 11.1. The Claimant's (undated) submissions filed pursuant to 1;
85. 11.2. The Defendant's submissions dated 7 November 2025 filed pursuant to 2;
86. 11.3. The Claimant's responsive submissions dated 17 November 2025 filed pursuant to 3.
87. THE CLAIMANT'S CASE
88. The Claimant contends that, in light of the judgment of the Court of Appeal, four issues remain for determination, relating to the amounts due from the Defendant to the Claimant by way of:
90. 12.1. Damages for the 800MT (plus free trucks) for delivery in 2019;
91. 12.2. Damages for the 800MT (plus free trucks) for delivery in 2020;
92. 12.3. Damages for the balance of the 400MT "fixed price" amount for 2020; and
93. 12.4. Interest on the above sums.
94. As to the first two of these, the Claimant contends that the relevant figure is determined by the conclusion of Zacaroli LJ at [55] of his judgment, where he found the contractual price for the balance of 800MT to be ?1.28 million, subject only to:
96. 13.1. The obligation to deliver any further amount necessary to ensure that the value of the Wesos delivered, as priced in accordance with the contract was less than ?1.28 million ? in other words, an obligation to deliver further Wesos if the agreed price or the reasonable or market price fixed each December for the following year was less than ?1,600/MT;
97. 13.2. Any relevant adjustment for Brix value under Clause 3 of the 2018 Contract.
98. 13.3. The calculation of avoidable delivery costs.
99. The first of these is an issue as to the cost to the Claimant of complying with its side of the contract in exchange for the claim for the price. As to this, the Claimant contends that my findings at [139] and [143] of the First Judgment lead to the conclusion that the Claimant had produced the relevant Wesos both for 2019 and 2020 and that accordingly no cost fell to be discounted.
101. As to the second, the Claimant points to invoices showing a Brix level of 57. The figure of 57 Brix can be seen in invoices of 23 December [3] at page 1215 and of 27 December [4] at TB1210A and TB1210B and the figure of 57.5 [5] appears in a certificate of analysis dated 19 December 2019 which appears at TB1213 in the trial bundle. Accordingly, the court should reduce the contract price by 3/60 (5%) to reflect the lower Brix level. This gives a loss of ?1,216,000.
103. As to delivery costs, the court should assess those by allowing a 10% reduction on the price for the following reasons:
105. 16.1. The Court must do its best to assess damages based on the information available to it ? see for example Chitty on Contracts (35th Ed n) at [30-19]: " [w]here it is clear that the claimant has suffered substantial loss, but the evidence does not enable it to be precisely quantified, the court will assess damages as best it can on the available evidence."
106. 16.2. The uncontested evidence before the court from Mr Apa (the Defendant's expert) was that it costs approximately US$150/MT to ship goods from Santos (in Brazil) to Ghent or Rotterdam (see [18(c)] on TB515). At the exchange rates used by Mr Apa [6] that works out at approximately ?133/MT and ?136/MT (in December 2018 and 2019 respectively). These figures lie at around 10% of the reasonable or market price for Wesos, which can be seen from the Claimant's case as to market or reasonable price referred to below.
107. 16.3. Transport from Greece and/or Egypt to Venlo (in the Netherlands) would cost significantly less than shipping goods from Santos (in Brazil) to Rotterdam (in the Netherlands) which is the basis of Mr Apa's figure. Accordingly, 10% can be taken to be a conservative figure for likely transport costs in that it is likely to under compensate the Claimant by overstating those costs.
108. 16.4. In the alternative, the shipping costs would have been ?133/MT in 2019 and ?136/MT in 2020.
109. The Claimant contends that, in light of the judgment of Zacaroli LJ at [55], the assessment of the reasonable or market price for Wesos is relevant only to the quantity of Wesos to be delivered (and therefore the delivery costs), not the actual price which the Defendant was liable to pay.
111. The Claimant draws its case on the reasonable or market price from the evidence of Mr Apa, the Defendant's expert. He states the average market price for December 2018 and December 2019 (the figure which is taken for the purpose of calculating the deliverable quantity), based on calculating Wesos at 70% of the market price for FCOJ in a table at [45] in his first report on TB470 with Euro equivalents in the table in his second report at [20(b)] on TB516 as follows:
114. | | Price / MT | Price / MT | Price / MT | Price / MT | | | Market data (60? Brix) | Market data (60? Brix) | Market data (60? Brix) | Market data (60? Brix) | | Month | Juice Market (FCA Europe) | Food News (CRF Rotterdam) | Food News (CRF Rotterdam) | Food News (CRF Rotterdam) | | | US$ | ? equivalent | US$ | ? equivalent | | December 2018 | US$ 1,341 | ?1,180 | US$ 1,551 | ?1,365 | | December 2019 | US$ 1,066 | ?971 | US$ 1,163 | ?1,059 |
117. In his first report, Mr Apa also gave FCOJ and corresponding Wesos prices based on FOB Santos. However, those figures were not available for dates of December 2018 and December 2019 and are therefore not set out above. These three bases for pricing FCOJ ? FOB Santos given by Citrus BR, FCA Europe given by Juice Market and CFR Rotterdam, given by Food News ? reflect differing terms for delivery, as explained by Mr Apa in his second report at [16] on TB514. He asserts at [17] on TB516 that the 2018 Contract which governed the delivery with which this Judgment is concerned, was " ex-Venlo, which is a similar base to FCA. Both of these provide that the cost of freight to the specified port of import and further transportation inland to a specified location are covered by the seller. Because of this, I believe that FCA is most comparable to the price set out in the Contract."
119. [The Claimant adopts this basis of pricing Wesos by reference to the FCA market, giving a reasonable or market price of ?1,180 for December 2018 and ?971 for December 2019. It will be noted that these figures are the bottom end of the ranges for Wesos prices given by Mr Apa in his table at 20] on TB516 and therefore are the figures most favourable to the Defendant (since of course lower prices equate to a greater delivery volume and therefore leads to the deduction of higher delivery costs).]()
121. These reasonable or market prices would have equated to the delivery of the following products, applying the formula at [21(3)] of the judgment of Zacaroli LJ referred to above:
123. 21.1. In 2019:
124. > 800MT x ?1,600 [7] = ?1,280,000
125. > ?1,280,000 ? ?1,180 = 1,085MT (of which 285MT would be Free Trucks)
126. 21.2. In 2020:
127. > 800MT x ?1,600 [8] = ?1,280,000
128. > ?1,280,000 ? ?971 = 1,318MT (of which 518MT would be Free Trucks)
129. I note in passing the evidence of Mr Papadimitrakopolos, the CEO of the Claimant company, upon which I commented in the First Judgment at [142]. In his witness statement of 20 January 2023, he stated at [45]:
131. " As a result of the contract associated factories and entities of KSY produced the following volumes of products [9] from its factories and associated entities:
132. a. In 2019 1200MT were produced by Vitafresh in Greece;
133. b. In 2020 1200MT were produced by Vitafresh in Greece and an extra 200MT were produced by Orange Wave in Egypt;
134. c. In 2021 600MT were produced by Vitafresh in Greece and 200MT were produced by Orange Wave in Egypt."
135. If this evidence is accepted (and it was not challenged), the Claimant argues that it is able to demonstrate that it could have supplied the Wesos for delivery to the Defendant [10] .
136. The calculation of the loss is then as follows:
138. | | | Invoice Price | Price adjusted for Brix | Less delivery costs | Net loss | | 2019 | Assuming delivery costs at 10% of contract price | ?1,280,000 | ?1,216,000 | ?121,600 | ?1,094,400 | | | Assuming delivery costs at US$150/MT | ?1,280,000 | ?1,216,000 | 1,085MT x ?133/MT = ?144,305 | ?1,071,695 | | 2020 | Assuming delivery costs at 10% of contract price | ?1,280,000 | ?1,216,000 | ?121,600 | ?1,094,400 | | | Assuming delivery costs at US$150/MT | ?1,280,000 | ?1,216,000 | 1,318MT x ?136/MT = ?179,248 | ?1,036,752 |
141. The remaining aspect of the Claimant's case is the claim for the balance of the "fixed price" element of the Wesos deliverable pursuant to the contract in 2020. The Claimant delivered 126MT of Wesos. It accepts that it was paid for this but claims for the price of the balance of the fixed price element, 274MT.
143. The contract price of that element is ?1,600/MT pursuant to Clause 5 of the 2018 Contract, a total sum of ?438,400. This price would need to be adjusted for a brix value of 57, reducing the sum due by 10% to ?416,480.
145. As with the "variable" element, a discount would need to be made for delivery costs. The Claimant proposes either:
147. 26.1. A reduction of 10%, giving a claim for ?374,832; or
148. 26.2. A reduction based on the calculation based on a cost of US$150/MT (that is to say ?136/MT for the relevant year). The quantity to be delivered would be the fixed element of 474MT referred to by Zacaroli LJ in his judgment at [21(3)] less 126MT actually paid for, a balance of 338MT, for which the avoided delivery cost of ?136/MT was ?45,968, giving a net loss of ?370,512.
149. Accordingly, the recoverable damages for non-acceptance by the Defendant in 2019 and 2020 is:
151. 27.1. Assuming delivery costs at 10% of contract price - ?2,563,632; or
152. 27.2. Assuming delivery costs at the Euro equivalent of US$150/MT - ?2,478,959.
153. The Claimant claims interest at 4% above Bank of England base rate from 7 January 2020 (for product deliverable in 2019) and 7 January 2021 (for product deliverable in 2020) on the basis that:
155. 28.1. The last possible date for raising invoices for product delivered in a year would be 31 December of that year;
156. 28.2. This is the rate previously agreed by the parties in respect of other parts of the claim which have already been subject to court orders, namely the sums due to the Defendant as a result of the admitted parts of the Claim and Counterclaim and interest on sums repaid to the Claimant by way of costs order consequential upon the judgment of the Court of Appeal.
157. The Claimant calculates such interest to be:
159. 29.1. ?915,667.45 assuming delivery costs of 10% of contract price;
160. 29.2. ?885.993.05, assuming delivery costs at the Euro equivalent of US$150/MT.
161. The Claimant summarises its claim as being for ?3,479,299.45 or alternatively ?3,364,953.05 (see Claimant's submissions at [9]). This reference to amounts in pounds sterling seems to be erroneous because the totals given are the total of figures in Euros as recorded at [27] and [29] above. This error was noted in the Defendant's submissions. It is not corrected in the Claimant's response submissions albeit that in that document that Claimant concedes that any judgment should be in Euros not pounds sterling unless an exchange rate is factored in (see [9]).
163. THE DEFENDANT'S CASE
164. The Defendant complains that the Claimant's figures for damages and interest are confusing as to currency in which they are expressed and therefore the sterling equivalent of what is being sought. The point is made that the figure referred to in the Claimant's submissions at [9] is " ?3,479,299.45 (or alternatively ?3,364,953.05) " with figures expressed as pounds sterling whereas those sums appear to be calculated using sums in Euros, without there ever being any exchange rate applied. This, in the Defendant's submission, " lacks credibility and undermines the sums [the Claimant] claims as a whole."
166. Turning to the basis of calculation of losses, the Defendant points out that the burden lies upon the Claimant to proves its losses and the Defendant expressly put the Claimant to proof of loss of profit in the Defence but, it is said, the Claimant has failed to discharge the burden. The Defendant relies on the statement of Devlin J in Biggin v Permanite LD [1951] 2 KB 422 at 438 that, "? where precise evidence is obtainable, the court naturally expects to have it. Where it is not, the court must do the best it can. " Here, the Defendant says, precise evidence was obtainable but was not adduced.
168. The Defendant contends that the Claimant here has failed to provide the necessary evidence to quantity a claim for loss of profits because:
170. 33.1. It has not produced evidence to prove that it has incurred or is liable to pay the production costs for the Wesos that it contends were available for delivery to the Defendant; and/or
171. 33.2. It has not produced evidence of the costs that would have been incurred had the Defendant taken delivery of the Wesos.
172. As to the first point, the Defendant notes the Claimant's evidence that a cooperative called Laconic Gardens was the owner of the fruit that was used to produce Wesos and, as noted above from the evidence of Mr Papadimitrakopolos, the Wesos was produced by Vitafresh and Orange Wave. The contracts between the Claimant and these companies (if any) were not produced to the court and no evidence was provided as to the liability for purchase of the fruit and/or the manufacture of the Wesos. Mr Papadimitrakopoulos was not able to plug the gap in evidence during cross examination [11] . Without such evidence the Claimant cannot prove its margin and therefore cannot prove the loss of profit.
174. Second, the Claimant has not produced evidence of the actual costs of transportation or associated costs such as packaging the Wesos.
176. The failure of the Claimant to adduce such evidence is, the Defendant contends, fatal to the claim for loss of profits. It has no good reason for its failure ? the relevant material lay in its control but it has not adduced that evidence. Accordingly, the claim for loss of profits must fail in anything other than a nominal sum. In the alternative, the Defendant contends that the court should draw the inference from the absence of evidence on these issues that it is unhelpful to the Claimant and that the Claimant's case absent that evidence probably overstates its loss.
178. In any event, the Defendant contends that the Claimant's approach to the losses is flawed in that it has undercalculated the volume of Free Trucks that it would have had to provide, thereby understating the costs that would have been involved both in producing the Free Trucks element and in storing, packaging and transporting that volume.
180. The Defendant accepts the conclusion of the Court of Appeal that the calculation of the volume of Free Trucks turns on the "reasonable or market price" for Wesos at the relevant time. This is a matter for determination by me, as the trial judge, on the basis of the evidence that was before the court. However, I found at [124] and [125] of the First Judgment that there was no established market or reasonable price for Wesos.
182. Further, though the Court of Appeal noted my finding that the price of Wesos was around 70% of FCOJ, that Court did not in fact make a finding that this was the reasonable or market price. Since the price would vary according to demand, and given my finding that the Claimant was unable to resell the Wesos (this being consistent with the evidence of Mr Apa, to the effect that there might be over supply of Wesos causing a seller to accept a lower price than 70% of FCOJ, possibly as low as 50% - see his first report at [53]), the Defendant argues that the court should accept a reasonable or market price of 50% of FCOJ at the relevant time. Accepting the appropriate price for FCOJ to be the FCA Europe prices for December 2018 of US$1,886/MT and December 2019 of US$1,500/MT (which at the prevailing exchange rates would have converted to ?1,660/MT and ?1,366/MT respectively [12] ), the Defendant argues for a reasonable price of Wesos with 60 Brix at ?830/MT in December 2018 and ?683/MT in December 2019.
184. The price would then have to be adjusted to reflect the actual Brix level. The Defendant notes the evidence from an email from Mr Marc Clinckspoor, a quality Manager employed by the Defendant group of companies that Greek Wesos was in the range 55-58 Brix in December 2018. Given the Claimant's failure to produce evidence to substantiate the Brix level of all of the Wesos produced, the Defendant argues that the lower end of this range of Brix level should be taken, namely 55. Applying that Brix level to the contract price would give a figure of ?1,467/MT. Applying that Brix level to the prices in the previous paragraph would give a reasonable or market price of ?761/MT in December 2018 and ?626/MT in December 2019.
186. This would have led to the need for the Claimant to deliver Free Trucks as follows:
188. 41.1. In 2019:
189. > 800MT x ?1,467 = ?1,173,600
190. > ?1,173,600 ? ?761 = 1,542MT (of which 742MT would be Free Trucks)
191. 41.2. In 2020:
192. > 800MT x ?1,467 = ?1,173,600
193. > ?1,173,600 ? ?626 = 1,875MT (of which 1,075MT would be Free Trucks)
194. However, as noted above, Mr Papadimitrakopoulos said that only 1,200MT of Wesos had been produced for 2019 and 1,400MT had been produced for 2020. There was no evidence that the Claimant had produced any more volumes of Wesos for either year. Accordingly, to have provided the Free Trucks the Claimant would have had to produce the following further quantities of Wesos:
196. 42.1. For 2019, 474MT for the fixed price element plus 800MT and Free Trucks of 742MT for the variable price element, a total of 2,016MT less the 1,200MT that Mr Papadimitrakopoulos said had been produced, a net additional quantity of 816MT; and
197. 42.2. For 2020, 474MT for the fixed price element plus 800MT and Free Trucks of 1,075MT for the variable price element, a total of 2,349MT less the 1,400MT that Mr Papadimitrakopoulos said had been produced, a net additional quantity of 949MT;
198. As to the cost of producing Wesos, Mr Papadimitrakopoulos spoke of a cost of " between 1,200 and 1,500 " as the Defendant identifies in its submissions at [35]. The Defendant argues that this was a reference to the US dollar costs and that the cost of producing the necessary Wesos should be calculated using the higher end of the range. It must however be noted that he neither stated the currency of such figures [13] nor what quantity of Wesos it related to; further he clearly did not have detailed knowledge of the relevant costings as to which he identified various factors.
200. As to the other costs associated with delivering the Wesos that were avoided:
202. 44.1. The Defendant contends that the Claimant's reliance on transport costs of US$150/MT is an unreliable figure based on the cost of transport from Santos in Brazil to Venlo or Gent by sea rather than from Greece or Egypt to Venlo by land. The Defendant contends that either the claim should fail altogether (for want of evidence of the true cost of transport) or that a higher cost of US$200/MT should be assumed. It argues that it is obviously wrong to assume that the economies of scale of shipping by sea can be compared with the cost of transportation by road in trucks carrying only 22MT of the product.
203. 44.2. The Defendant had the right under the contract for delivery of the Wesos in drums [14] . There was no evidence that the Wesos as produced had been packaged in drums. However, there was expert evidence that the cost of packaging would be US$120/MT [15] .
204. 44.3. The Claimant has made no allowance for the storage costs of the Wesos. As the Defendant implicitly acknowledges in its written submissions, there is no evidence as to the amount of such costs.
205. 44.4. It was common ground that the Defendant had the right to request delivery of Wesos on "DDP" terms, that is with delivery duty paid and that the duty payable would have been 12.2% of the import price of Wesos.
206. In relation to the remaining fixed price volume for 2020 that was not accepted, the Defendant contends that the Claimant was entitled to ?401,867 as the Brix adjusted invoice price for the remaining 274MT, which sum would have been outweighed by the avoided costs on the open price element. In any event, credit needs to be given for transport and packaging charges.
208. The Defendant contends that this was a claim for a specified amount where interest should have been expressly pleaded under CPR16.4(2) but was not. Accordingly, the court should not award interest. Alternatively, interest should be awarded at 1% above base rate, referring to the cases cited in the White Book at 16AI.7 and especially Kitcatt v MMS UK Holdings Ltd [2017] EWHC 786, where a rate of 1% above base rate was considered to be, at the very least, a starting point.
210. DISCUSSION
211. The issues that arise can be summarised as follows:
213. > (a) Does the Claimant show that it has suffered any loss through the failure of the Defendant to accept the Wesos?
214. If so:
215. > (b) What quantity of Wesos would the Claimant have had to deliver?
216. > (c) What (if any) cost would the Claimant have incurred in procuring Wesos to meet its delivery obligation?
217. > (d) What (if any) packaging costs would the Claimant have incurred to deliver the Wesos?
218. > (e) What (if any) storage costs would the Claimant have incurred prior to delivering the Wesos?
219. > (f) What transport costs would the Claimant have incurred in delivering the Wesos?
220. > (g) What cost would the Claimant have incurred for duty in supplying the Wesos?
221. > (h) What is the net loss to the Claimant through the Defendant's non-acceptance?
222. > (i) What interest is the Claimant entitled to on any proven losses?
223. (a) Has the Claimant shown any losses?
224. I accept the Defendant's general point, made in McGregor on Damages, 22 nd Ed n at [53-001] that the Claimant must prove its losses. Further, where the material necessary to assess those losses lies in the control of the Claimant, the failure to adduce that evidence may be fatal to the claim or at the very least may cause the Court to take a cautious approach to the assessment.
226. But caution is necessary here. The Claimant proves its case for damages for breach of contract through the Defendant failing to give instructions for the delivery of the Wesos and, given my finding at [140] in the First Judgment, that there is " no possible ground for a finding that the Claimant had failed reasonably to mitigate its loss", the measure of loss is the amount that was due to the Claimant pursuant to the contract for the product less the avoided costs of obtaining and delivering the product. The former is a fixed sum that needs no proof. The latter costs include, on the facts of this case, costs that are related to the reasonable or market price of the Wesos (since that determines the quantity of Wesos to be delivered and is potentially relevant to the cost of obtaining the product, which costs had not already been incurred when the Defendant was in breach of contract). But the cost of Wesos is not a matter the knowledge of which lies peculiarly in the knowledge of the Claimant. Its price is, for reasons I shall deal with later, known as much as to the Defendant as to the Claimant.
228. In those circumstances, it is possible for the Claimant to invoke an alternative principle, that sometimes known as the fair wind principle. As Leggatt J put it in Yam Seng Pte Ltd v International Trade Corporation [2013] EWHC 111 at [188]:
230. " On the one hand, the general rule that the burden lies on the Claimant to prove its case applies to proof of loss just as it does to the other elements of the Claimant's cause of action. But on the other hand, the attempt to estimate what benefit the Claimant has lost as a result of the Defendant's breach of contract or other wrong can sometimes involve considerable uncertainty; and courts will do the best they can not to allow difficulty of estimation to deprive the Claimant of a remedy, particularly where that difficulty is itself the result of the Defendant's wrongdoing. As Vaughan Williams LJ said in?Chaplin v Hicks? [1911] 2 KB 786 at 792: "the fact that damages cannot be assessed with certainty does not relieve the wrong-doer of the necessity of paying damages for his breach of contract". Accordingly, the court will attempt so far as it reasonably can to assess the Claimant's loss even where precise calculation is impossible. The court is aided in this task by what may be called the principle of reasonable assumptions ? namely, that it is fair to resolve uncertainties about what would have happened but for the Defendant's wrongdoing by making reasonable assumptions which err if anything on the side of generosity to the Claimant where it is the Defendant's wrongdoing which has created those uncertainties."
231. As the concluding words make clear, the principle only applies where the uncertainty is caused by the Defendant's wrongdoing. Here, it can be said that the uncertainty as to the reasonable or market price of Wesos falls within that category, but that cannot absolve the Claimant of the obligation to do its best to substantiate these elements of the calculation of loss that fall within its own particular knowledge. Nevertheless, the application of both principles in their appropriate contexts leads to a position where in my judgment it would simply not be fair to the Claimant to say that, because of the absence of evidence on some issues, the court should entirely abandon the attempt to assess the loss by concluding that no loss is proven.
233. As an alternative, the Defendant invites the court to conclude that the Claimant's case is so confused through the mistaking of currencies as to mean that the court should decline to assess damages on the grounds of lack of credibility of the Claimant's case. It is true that errors as to the currency being spoken of create certain difficulties in assessing loss as claimed by the Claimant. However, I am satisfied that the court can do justice to the parties by correcting those errors and/or if necessary by receiving further submissions from the parties.
235. (b) What quantity of Wesos would the Claimant have been bound to deliver?
236. Given the conclusion of Zacaroli LJ at [75] in his judgment that " the price of Wesos, for the purposes of establishing the quantity of Wesos to be supplied each year in excess of 1274MT, was to be fixed, in the absence of agreement, as a reasonable or market price", this court may first establish the reasonable or market price for Wesos at the relevant time. The Defendant is correct to note that I had found in the First Judgment that there was no established market or reasonable price for Wesos, but the judgment of the Court of Appeal clearly reverses that conclusion, though I accept it does not itself determine what the reasonable or market price was to be. For the reasons identified by Zacaroli LJ in his judgment at [64] ? [74]. In particular, Zacaroli LJ rejected the argument that " the difficulties (sc. of identifying a reasonable or market price for Wesos ) are not such as to preclude the parties having intended to conclude a binding contract on the basis that the price would be fixed by reference to an objectively reasonable price, if necessary by a court, in the absence of agreement."
238. I am bound by that passage of the judgment to reach a conclusion as to the relevant reasonable price. The evidence before me was clear that the reasonable price of Wesos was calculated on the basis of the price of FCOJ, a conclusion which the Defendant accepts in its argument that I should, if anything, take the reasonable price of Wesos at the relevant time to be 50% of the FCOJ reasonable or market price.
240. The Claimant's argument that I should accept the evidence of Mr Apa as to FCOJ prices is not disputed by the Defendant. The only issue is as to whether I should take the price to be 70% of the FCOJ price, as contended for by the Claimant or 50% as the Defendant argues for. The Claimant points to Mr Apa's assumption in his first report that the reasonable price is 70% of the FCOJ price. Against this, the Defendant relies on my finding that there was no readily available spot market for the Defendant to resell the Wesos (see the First Judgment at [140]), coupled with Mr Apa's oral evidence that the price of Wesos might be as low as 50% of the price of FCOJ.
242. There are several difficulties with the Defendant's argument:
244. 56.1. The finding that I made in respect of Wesos at the time that the Claimant was due to deliver was not that it was worthless but that there was no ready spot market for the product. Coupled with the fact that the burden in respect of the failure to mitigate lay on the Defendant, this meant that it could not succeed in an argument of failure to mitigate based on not reselling the Wesos elsewhere. On the other hand, the issue as to the reasonable price of Wesos is to be judged not by the spot market price but rather by the price payable by someone buying and selling Wesos in the position of the parties.
245. 56.2. Further, as I have already identified in considering the passage from Leggatt J in Yam Seng, this is a situation where, if anything any doubt falls to be resolved in favour of the Claimant who has been deprived of the chance to achieve a profit on the sale by the Defendant's breach of contract in circumstances where the assessment of the reasonable price is no more within the ambit of the Claimant's knowledge than it is within the ambit of the Defendant's knowledge.
246. 56.3. In any event, as the Claimant points out in its responsive submissions, Mr Apa did not state the reasonable price at the relevant time to be 70%. Rather, he said that it might fall below this, possibly as low as 50%.
247. In my judgment, the evidence of Mr Apa on this issue is the best evidence available to the court. On its face, it supports a finding of a reasonable price of 70% of FCOJ, I have considered whether there should be any further reduction to that figure to reflect the uncertainty as to the price at the relevant time. However, for reasons identified in the previous paragraph I do not accept that the evidence supports any lower figure than this [16] .
249. The parties agree that the Juice market prices given in Mr Apa's table in his second report at [20(b)] are the best guide to the price of FCOJ at the relevant time and therefore the proper basis for the calculation of the reasonable price of Wesos. However, it is clear from the contractual terms that the contractual price of the Wesos is to be varied in accordance with the Brix level [17] and accordingly the price for the relevant Brix level should be factored in at this stage (as the Defendant's calculations) rather than at a later stage (as the Claimant's calculations).
251. The Claimant contends that the overwhelming evidence is that the Brix level of the product manufactured and delivered was 57, as noted in the evidence summarised at [15] above. Against this, the Defendant points to the evidence of Mr Clinckspoor that Greek Wesos lay in the range 55-58 Brix in December 2018. The difficulty with this evidence is that the Claimant's own figure lies in this range, but appears to be specific to relevant samples of the product. In my judgment, the 57 Brix level is to be preferred on the basis that the evidence of that level is specific to samples of the product with which we are concerned rather than a general comment on Greek Wesos.
253. These elements lead to a calculation of the reasonable price of Wesos at the relevant time for delivery as follows:
255. | | Price / MT | Price / MT | Price / MT | Price / MT | | | 60? Brix | 57? Brix | 57? Brix | 57? Brix | | Month | Invoicing price | Juice Market (FCA Europe) | Invoicing price | Juice Market (FCA Europe) | | December 2018 | ?1,600 | ?1,180 | ?1,520 | ?1,121 | | December 2019 | ?1,600 | ?971 | ?1,520 | ?922 |
258. These reasonable prices would have equated to the delivery of the following quantity of the product:
260. 61.1. In 2019:
261. > 800MT x ?1,520 = ?1,216,000
262. > ?1,216,000 ? ?1,121 = 1,085MT (of which 285MT would be Free Trucks)
263. 61.2. In 2020, for the fixed price element:
264. > 400MT x ?1,520 = ?608,000
265. > ?608,000 ? ?1,283 = 474MT (of which 74MT would be Free Trucks)
266. 61.3. In 2020 for the reasonable price element:
267. > 800MT x ?1,520 = ?1,216,000
268. > ?1,216,000 ? ?922 = 1,319MT (of which 519MT would be Free Trucks)
269. (c) What costs would the Claimant have incurred in procuring the Wesos?
270. I have noted above the evidence of Mr Papadimitrakopoulos as to the production of Wesos by the Claimant. I have reviewed that evidence and noted that it was not challenged. I see no reason to reject it. I accept that this leads to the analysis undertaken by the Defendant as to the need for the Claimant to obtain greater quantities of Wesos than the Claimant has acknowledged:
272. 62.1. For 2019, 400MT plus Free Trucks of 74MT for the fixed price element plus 800MT and Free Trucks of 285MT for the variable price element, a total of 1,559MT less the 1,200MT that Mr Papadimitrakopoulos said had been produced, a net additional quantity of 359MT;
273. 62.2. For 2020, 400MT plus Free Trucks of 74MT for the fixed price element plus 800MT and Free Trucks of 519MT for the variable price element, a total of 1,793MT less the 1,400MT that Mr Papadimitrakopoulos said had been produced, a net additional quantity of 393MT.
274. However, the Defendant makes the point that the Claimant had not adduced evidence as to how the balance of the Wesos that would have been delivered to the Defendant would have been sourced and at what costs. It invites the court to follow the evidence of Mr Papadimitrakopoulos as to a cost in the range of "1,200" and "1,500", in a currency assumed to be dollars.
276. I have reviewed this aspect of Mr Papadimitrakopoulos' evidence from the transcript and my own notes. I had some difficulty following what he was saying at this point and the transcript does not greatly help. In the first place, the currency of which he is speaking is unclear. Second, he accepts that the calculation of the cost is complex and may involve considering matters such as the cost of fruit and depreciation, which suggests that the approach being taken is one of looking at the accountancy costing rather than the true marginal cost of producing the Wesos. But the third and most striking point is that if, as the Defendant contends to be the case on the Claimant's own evidence, the Claimant had not manufactured enough Wesos to supply the Defendant under the contract, why would it go to the expense of manufacturing more Wesos to perform the contract when it could have purchased on the open market at a price which the Defendant contends would have been very low or which on the Claimant's case would not presumably have exceeded the reasonable price of the product.
278. Given the lack of clarity in Mr Papadimitrakopoulos' evidence and the logic that the Claimant would not have expended marginal costs of more than the reasonable price of the product to meet its contractual commitments, I am satisfied that the figures referred to at [60] above can be taken as the cost that the Claimant would have incurred to acquire the necessary Wesos to make full delivery to the Defendant:
280. 65.1. In 2019, 359MT x ?1,121 = ?402,439
281. 65.2. In 2020, 393MT x ?922 = ?362,346
282. (d) What packaging costs would the Claimant have incurred?
283. The Claimant has made no allowance for packaging costs. The Defendant's case, as I have noted, is that the Defendant had the right to call for delivery of the Wesos in drums and that the figure given by the Claimant's expert of US$150/MT for packaging costs should be adopted, albeit that its own expert gave a lower figure in the range US$50 to US$70/MT.
285. The first issue to consider is whether, on the balance of probabilities the Claimant would have incurred any packaging costs for the Wesos it was obliged to deliver. Inevitably, the Wesos already produced on behalf of the Claimant (1,200MT for 2019 and 1,400MT for 2020) was packaged somehow. That said, the evidence of Professor Koutoupis as to packaging costs related to putting the product into drums, a contractual option for the Defendant. In dealing with the cost of putting the product into drums after the cost of transporting the goods, the implication is that this packaging cost was incurred after transportation, presumably at delivery to the relevant location and that it is not an expense that is factored in to the reasonable purchase price of Wesos based on the price of FCOJ. It would appear to follow that this is not a cost of packaging the product for the purpose of transportation. Given that this is an area where the Claimant had peculiar or special knowledge both of the packaging of the goods and of the likely costs, the Defendant can rely on the assumption that, absent evidence to explain the position further, such packaging costs would have been incurred in order to achieve performance of the contract on the Claimant's side.
287. As far as the amount of those costs, I have noted above the difference between the evidence of the experts. Mr Apa's position is clear and the Defendant has not advanced any argument to disagree with the evidence of its own expert as to the packaging costs. In my judgment, it would be appropriate to take this as the packaging cost, for which purpose I adopt a midpoint of US$60/MT, the Euro equivalent being ?52.8 in 2019 and ?54.6 in 2020 [18] .
289. It follows that the entirety of the Wesos that would have been delivered to the Defendant had the Defendant performed its side of the contractual bargain would have required packaging costs as follows:
291. 69.1. For 2019 ?1,559MT [19] x ?52.8 = ?82,315
292. 69.2. For 2020 ?1,793MT [20] x ?54.6 = ?97,898
293. (e) What storage costs would the Claimant have incurred?
294. I turn to the issue of storage costs. The available evidence, whether expert or otherwise, gives no indication of what (if any) storage costs would have been incurred for the Claimant to meet its contractual obligation to deliver the Wesos to the Defendant. The Defendant says that this is an example of an issue where the lack of evidence should cause the Court to make assumptions adverse to the Claimant.
296. However, the very need for evidence on this issue is (of course) a consequence of the Defendant's breach of duty, yet it is evidence that is likely to be difficult to obtain after the event and on a hypothetical basis. The court would have to make some kind of assumption as to when Wesos was produced by the Claimant or when it took delivery of the Wesos. In so far as it was actually produced (see the conclusions above about this issue) the product presumably needed storing anyway so no greater cost would have been incurred. In so far as the product was not produced, I have assumed that the Claimant would have incurred the cost of purchasing it on the open market. But that presumably would have been a cost incurred as close as possible to when the Defendant was entitled to delivery of the product.
298. In these circumstances, I can see no proper basis for assuming that the Claimant would have incurred any, or at least any significant storage costs. Given that the necessity of assessing such losses is a consequence of the Defendant's breach of duty and the calculation of the figures is not any more obviously in the knowledge of the Claimant than it is of the Defendant, I conclude that there is no scope to discount the Claimant's losses for such hypothetical costs.
300. (f) What transport costs would the Claimant have incurred?
301. Unlike the storage costs, there is common ground between the parties that some cost of transportation would have been incurred. The Claimant has, as noted above, contended for an estimate of transport costs at either 10% of the contractual price or US$150/MT. The latter figure equates, on the exchange rates at footnote 6 above, to ?136 for the product to be delivered in 2019 and ?132 for the product to be delivered in 2020. This would lead to the following delivery costs:
303. 73.1. For 2019 ?1,559MT [21] x ?136 = ?212,024
304. 73.2. For 2020 ?1,793MT [22] x ?132 = ?236,676
305. As can be seen from the summary of the claim for the contract price below, this represents rather more than 10% of the contract price (closer to 15%).
307. I accept the Defendant's argument that this is an issue on which the Claimant does have (or at least can reasonably be expected to have) knowledge of the true costs involved and therefore the court should be astute not to overcompensate the Claimant by underestimating these costs. However, although the Claimant's basis of assessment at US$150/MT is broad brush, it is not obvious to me that the cost of shipping products over the much greater distance from Brazil to Venlo would be appreciably less than the cost of transporting them overground from Greece to Venlo.
309. For these reasons, I accept the Claimant's figure of US$150/MT and apply the costs referred to above.
311. (g) What costs would the Claimant have incurred for duty?
312. The final discount to the contract price to be applied on the Defendant's case is that of the duty payable on import of the goods, which is said to be 12.2% of the import price. I see no obvious answer to a liability on the Claimant's part to meet these costs so as to achieve the profit on the contract. This would have incurred costs as follows (based on the contract price of the undelivered goods as referred to below at [80.1]):
314. 77.1. For 2019 ? ?1,216,000 x 12.2% = ?148,352
315. 77.2. For 2020 ? ?1,824,000 [23] x 12.2% = ?222,528
316. (h) What (if any) interest is the Claimant entitled to?
317. In the context of a claim for a specified amount, interest should be fully pleaded pursuant to CPR16.4. However, I do not consider that it would be just here to deprive the Claimant of interest because of the failure to do so. I agree that the appropriate rate is 1% above base rate. Whilst a higher rate might have been justified on appropriate evidence, the failure even to plead a basis of a higher rate means that the court has no rational basis to depart from the starting point. Such interest should be calculated from the date that the relevant invoices fell due.
319. CONCLUSION
320. The Claimant's damages set out above can be summarised as follows:
322. 79.1. Price of goods to which the Claimant was entitled as a measure of its loss through the Defendant having not taken delivery of the Wesos:
323. | 2019 (variable price element) | 800MT x ?1,520 = ?1,216,000 | | 2020 (variable price element | 800MT x ?1,520 = ?1,216,000 | | 2020 (balance of fixed price element) | 274MT x ?1,520 = ?416,480 | | TOTAL | ?2,848,480 |
326. 79.2. Less costs of procuring, packaging, storing, transporting Wesos and relevant duty as follows:
327. | | 2019 | 2020 | | Cost of procuring Wesos | ?402,439 | ?362,436 | | Cost of packaging Wesos | ?82,315 | ?97,898 | | Costs of storing Wesos | 0 | 0 | | Cost of transporting Wesos | ?212,024 | ?236,676 | | Duty | ?148,352 | ?222,528 | | TOTAL | ?845,130 | ?919,448 |
329. The Claimant is entitled to damages calculated on the basis of the amount to which it would have been entitled by way of price for the goods had the Defendant performed its side of the contractual bargain less the costs set out above that would have been incurred in procuring and delivering the goods. In addition, the Claimant is entitled to interest at 1% above base rate from the date that the Defendant was liable to pay for the Wesos that it should have accepted.
331. I leave it to the parties to calculate the interest due pursuant to this judgment.

Note 1    In so far as references are to documents in the trial bundle, page numbers are cited in this judgment with the prefix ?TB.? [Back]

Note 2    In fact, in its submissions consequent upon the case being remitted to the High Court, the Claimant has accepted that it was paid for the 126MT in full and I calculate its losses on that assumption. [Back]

Note 3    No year is given, but from the context, this appears to be a reference to December 2019 since it refers to a due date of 22 January 2020. [Back]

Note 4    Again, no year is given but again from the context this appears to be a reference to December 2019 since due dates of 1 January 2020 and 11 March 2020 are mentioned. [Back]

Note 5    This Brix level would slightly increase the amount due to the Claimant, so the Claimant?s case of adjusting for a Brix level of 57 is more favourable to the Defendant than the evidence relied on. [Back]

Note 6    These figures are based on the exchange rates set out in Mr Apa?s report at TB515, namely: December 2018 - US$1 = ?0.88; December 2019 - US$1 = ?0.91. They are used at several points in this judgment. [Back]

Note 7    The methodology of the Defendant, summarised at [51] below, in like form to that used by the Claimant here, assumes that the contract price needs to be reduced for the Brix level. The result of applying that same approach here would be to reduce the deliverable volume and therefore the Free Trucks element as follows:
800MT x ?1,520 = ?1,216,000
?1,216,000 ? ?1,180 = 1,031MT (of which 231MT would be Free Trucks) [Back]

Note 8    Following the approach in footnote 7, the revised figure for the deliverable volume and therefore the Free Trucks element would be follows:
800MT x ?1,520 = ?1,216,000
?1,216,000 ? ?971= 1,252MT (of which 452MT would be Free Trucks) [Back]

Note 9    Clearly meaning Wesos. [Back]

Note 10    However, as the Defendant points out in its submissions, the Claimant was also obliged to deliver 474MT for the first 400MT plus Free Trucks which were sold at the real price of ?1,350/MT as referred to by Zacaroli LJ in his judgment at [21(6)]. The Defendant?s analysis below, takes account of the need for the Claimant in the counterfactual scenario to have supplied the entirety of the Wesos including the first 474MT. [Back]

Note 11    See the evidence referred to in the Defendant?s submissions at [11]. [Back]

Note 12   See footnote 6 above. [Back]

Note 13    The Defendant asserts that it was a reference to US dollars. That is certainly consistent with the reference to dollars in the question though it is far from clear that this was the currency that he was referring to in the answer. [Back]

Note 14    See Clause 4 of the Contract. [Back]

Note 15    See para d.3.g of Professor Kostopis? first report at TB247. At TB515, Mr Apa states that Professor Koutoupis had estimated the cost at US$150/MT (which is in fact the wrong figure) and that he considered the figure to be too high, with the right range being US$50 to US$70/MT. [Back]

Note 16    It should be noted that the result of a lower figure would have been to increase the amount of Wesos to be delivered with associated delivery charges but would have reduced the cost of purchasing Wesos pursuant to my conclusion on issue (c) below. Those figures would not have balanced but the difference between a higher and a lower reasonable price for Wesos has a less marked effect on the calculation of damages than one would otherwise expect because of this. [Back]

Note 17   See the terms of clause 3 of the Contract referred to in Zacaroli LJ?s judgement at [12]. [Back]

Note 18    These figures are based on the exchange rates referred to at footnote 6 above. [Back]

Note 19    See [62.1] above. [Back]

Note 20    See [62.2] above. [Back]

Note 21    See [62.1] above. [Back]

Note 22    See [62.2] above. [Back]

Note 23    That is ?1,216,000 + ?608,000 [Back]

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