Defendant's Argument Against Summary Judgment

  • 5 Pages
  • Published On: 6-12-2023
INTRODUCTION

Defendant respectfully moves this Court for dismissing the Claimant’s application for entry of an Order granting summary judgment, and would show the Court as follows:

GROUNDS FOR THE APPLICATION

1. The Defendant has summarised undisputed material facts in its own motion and incorporates that discussion by reference. See ‘PARTICULARS OF CLAIM’ paragraph 5, paragraph 6, and paragraph 7 where several points are not supported by evidence; disputed, irrelevant; or some combination of the foregoing.

2. The Defendant has raised legal and factual positions that not only rebut the Claimant’s Motion for Summary Judgment, but also proof that there is no genuine issue of fact.

3. The crux of Claimant’s motion for summary judgment is provided under paragraphs 5.1 and 5.2 of the Claimants’ Particulars of Claim that:

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a. the “Mango Curry” supplied by the Defendant did not conform to its description as it was a fish curry and it did not contain mangoes; and

b. it was not suitable for the particular purpose of consumption as the lunch was organised for members including members of the LVC.

4. As a matter of law, the Defendant maintains that Claimant’s claim is without any conceivable merit. The Claimant has made erroneous or disputed assertions regarding the “Mango Curry”.

5. The Defendant’s menu specifically lists Mango Curry under the ‘FRUITS OF THE SEA’ section of the menu. FRUITS OF THE SEA is a popular term used for seafood.

6. The Defendant’s menu does not describe Mango Curry as a curry containing mangoes.

7. Mango Curry has been popular and has public recognition in the catering industry for several years. The Claimant should have known about this when the order was placed with the Defendant.

8. The Claimant, while placing the order, did not specify that they were looking for vegetarian food; that Mango Curry was meant exclusively for the members of the LVC; that any members of the LVC were vegetarians; or the type of ‘vegetarian’ the LVC concerned itself.

9. As a matter of law, the Claimant does not have any real prospect or compelling reason of successfully pursuing their claim. Hence, the Defendant moves this court to dismiss the Claimant’s application for the summary judgment.

LEGAL AND FACTUAL ISSUES

10. Logan Tremblay from the Claimant contacted Sophia Vickers, a Director of the Defendant in November 2020 to place the Claimant’s order for a range to dishes, including the Mango Curry, which was delivered to the Claimant’s office on 14 December 2020.

11. By the contract between the parties entered on 7 December 2020, the Defendant agreed to deliver the dishes, including Mango Curry on the conditions that they would match their description. The ground of the Claimant’s interim application is based on their argument that the Mango curry did not contain mangoes, but chunks of fish. In response, the Defendant submits the following:

a. Mango Curry is a curry containing chunks of a fish known as the Mango Fish.

b. Mango Curry is a publicly recognised popular dish.

c. The Defendant’s menu does not describe Mango curry as a curry containing mangoes.

d. The Claimant ordered the dish after reviewing the Defendant’s menu, which lists Mango Curry under the ‘FRUITS OF THE SEA’ section of the menu.

e.FRUITS OF THE SEA is a popular term used for seafood popular.

Hence, the Defendant did not breach the term of the contract to supply the dishes as per the description.

12. Section 14(3) of Sale of Goods Act 1979 states that if the buyer makes the seller known, expressly or impliedly, the particular purpose for which the buyer is buying the goods, there is an implied that the goods are reasonably fit for that purpose. are is confined to situations where the seller sells in the course of his business and the buyer must have relied upon the advice in making the sale.

13. The concerned contract stated that the dishes would be fit for the particular purpose. The ground of the Claimant’s interim application is that Mango Curry being fish-based did not suit the particular purpose of consumption at a lunch involving members of the LVC. In response when read with Section 14(3) of the Act of 1979, the Defendant submits that the Claimant did not specify to the Defendant:

a. that Mango Curry would be eaten exclusively by members of the LVC.

b. that any members of the LVC were vegetarians.

c. the type of “vegetarian” the LVC concerned itself.

Hence, the Defendant did not breach the implied term of the contract to supply the dishes to fit the particular purpose.

SIGNIFICANT FACTS AND EVIDENCE
The Claimant has made erroneous or disputed assertions

14. By the 7 December 2020 Contract, the Defendant agreed to supply the range of dishes, including Mango Curry as per the order of the Claimant.

15. This contract was entered into after Logan Tremblay from the Claimant saw the Defendant’s menu and selected Mango curry.

16. The Defendant’s menu, marked LT1 in the Witness Statement of Logan Temblay, lists Mango Curry under the ‘FRUITS OF THE SEA’ section. FRUITS OF THE SEA is a popular term used for seafood popular.

17. Mango Curry is a publicly recognised popular dish, as could be understood from the September 2017 edition of trade magazine “Commercial Catering Monthly”, marked SV1.

18. The Claimant should have had known that Mango Curry is not a vegetarian food. Further, from the telephone conversation of 22 December 2020 between the Claimant and the Defendant, Logan Tremblay acknowledges that he is not a vegetarian and he had eaten Mango Curry.

19. It is not conceivable that Logan Tremblay did not know that Mango Curry is not a vegetarian dish as he is not a vegetarian and he had consumed Mango Curry.

20. It is also not conceivable that the entire batch of Mango Curry was the only curry that was completely consumed at the lunch without anyone realising what the main ingredient. This is also supported by the fact that the London Vegetarian Council was quite happy with the dish.

21. Hence, the Claimant had made erroneous or disputed assertions. This is also supported by the fact that Logan Tremblay selected the dish quickly and acknowledging that all of the Defendant’s dishes work well together and there was not a problem. This also indicates that the Claimant did not reply on the advice or skills to the Respondent in selecting the dishes.

The Claimant has made irrelevant points

22.The Claimant raised the issues about why Mango Curry is called a vegetarian. Their argument is based on their argument that Mango Curry and ‘Pineapple Curry’ are listed the ‘FRUITS OF THE SEA’ in the menu (marked LT1).

23. The Defendant accepts that Pineapple Curry is a vegetarian food. However, the menu has marked ‘[v]’ against the food items, including Pineapple Curry, which are vegetarian. The symbol ‘[v]’ is explained in the menu elsewhere that it means vegetarian food.

24. The Defendant admits the Pineapple Curry was arguably in the wrong part of the menu. However, the Mango Curry was not. Further, the symbol ‘[v]’ is not place against the Mango Curry, which means that Mango Curry is a not a vegetarian food item.

25. The difference in the price of the non-vegetarian food items shown in the menu (marked LT1), including Mango Curry and that of the vegetarian food items, including Pineapple Curry suggested that Mango Curry was not merely a vegetable dish.

26. The claim of the Claimant in paragraph 10 of the Witness Statement of Logan Temblay that the Defendant should have had known that Mango Curry would not be suitable for the group from LVG, who were explicitly described as vegetarians does not have any conceivable merit as a matter of law.

a. The Claimant at the time of the contract, which was verified through emails and telephone, did not specify that Mango Curry would be eaten exclusively by members of the LVC; that any members of the LVC were vegetarians; or the type of “vegetarian” the LVC concerned itself.

b. Hence, the Claimant’s sharing the excerpt of the London Vegetarian Council leaflet marked LT2 that ascribes specific meaning to the term ‘vegetarian’ is without any conceivable merit.

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27. The claim of loss of profits by the Claimants is irrelevant to the issues in hand as the Defendant did not breach its Contract with the Claimant.

CONCLUSION

28. THE DEFENDANT, THEREFORE, prays that the Court should deny the motion of the Claimant for summary judgment.

29. According to Civil Procedural Rule, Rule 24.2(a), an order for summary judgment is possible only when the Claimant has a real prospect of succeeding on its claim or the Defendant does not have any real prospect of successfully defending the claim.

30. Based on Rule 24.2(b), the Defendant has a compelling reason that the case should not be disposed of at a trial.

31. The Defendant prays for dismissing the summary judgment on all of the following uses: i) that the Defendant did not breach the contract; ii) that Mango Curry matched the description and was suitable for the particular purpose of the Claimant; and iii) the Defendant is not liable to pay the damages and the loss that the Claimant suffered, plus the costs and legal fees.

Respectfully submitted,

Richmond Bingham LLP

17 Bloomfield Road EC2M 2KA


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