Glanbia Foods Ireland T/A Glanbia v E D & F Man Liquid Products Ireland Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Mark Sanfey
• Judgment Date: 30 November 2022
• Neutral Citation: [2022] IEHC 666
• Court: High Court
• Docket Number: [Record No. 2022/823P]

Between

Glanbia Foods Ireland Limited T/A Glanbia Agribusiness

Plaintiff

and

E D & F Man Liquid Products Ireland Limited

Defendant

[2022] IEHC 666

[Record No. 2022/823P]

THE HIGH COURT

COMMERCIAL

Breach of contract – Plenary summons – Jurisdiction – Defendant seeking to set aside service on it of the plenary summons – Whether the courts of Ireland had jurisdiction to hear and determine the dispute

Facts: The plaintiff, Glanbia Foods Ireland Ltd (Glanbia), issued proceedings on 2nd March, 2022. The plaintiff pleaded extensive particulars of alleged wrongdoing by the defendant, ED&F Man Liquid Products Ireland Ltd (ED&F), contending that the defendant, its servants or agents “were guilty of breach of contract, breach of warranty, misrepresentation, negligence, negligent misstatement, and breach of duty (including breach of statutory duty)”. The plaintiff claimed that the defendant was obliged to indemnify the plaintiff for all losses associated with the alleged defect in products supplied under purchase contracts, and that, in the alternative, the plaintiff was entitled pursuant to the provisions of part III of the Civil Liability 1961 and/or at common law to recover a contribution from the defendant in the amount of a complete indemnity in respect of the alleged losses. The defendant applied to the High Court to set aside service on it of the plenary summons on the basis that the courts of Ireland had no jurisdiction to hear or determine the dispute which was the subject of the proceedings. It also sought an order pursuant to Article 8 of the UNCITRAL Model Law on International Commercial Arbitration referring the parties to arbitration in respect of the dispute. The defendant applied on the basis that the contract between the plaintiff and the defendant which was the subject of the dispute “is as set forth in the Grain and Feed Trade Association [GAFTA] contract”. As there were a considerable number of GAFTA contracts, the defendant contended that the applicable contract was GAFTA contract number 109 (GAFTA 109), even though that particular contract was not specified between the parties. GAFTA 109 had a “domicile” clause which stated that the contract “shall be deemed to have been made in England and to be performed in England”, and that the contract “shall be construed and take effect in accordance with the laws of England”. The contract also had an arbitration clause in respect of “any and all disputes arising out of or under this contract”. The plaintiff contended that the contract between Glanbia and ED&F was subject to Glanbia’s standard terms and conditions which were available on Glanbia’s website. Those terms and conditions provide that any dispute arising out of or in connection with them “shall be governed by and construed in accordance with the laws of Ireland and shall be subject to the jurisdiction of the Irish courts”.

Held by Sanfey J that even if he was mistaken in his view that the sales confirmations issued by the defendant constituted acceptances of the plaintiff’s offers as contained in the purchase contract confirmations, he was satisfied that the terms of GAFTA 109 were not incorporated in the contract. He considered that the incorporation by Glanbia of its own standard terms and conditions was effected by the acceptance by the defendant of the offers contained in the purchase contract confirmations of the plaintiff.

Sanfey J held that the defendant’s application for orders setting aside service of the plenary summons and referring the parties to arbitration must be refused. The plaintiff having been entirely successful in resisting the application, it seemed to Sanfey J that the costs of the application must follow the event.

Application refused.

JUDGMENT of Mr Justice Mark Sanfey delivered on the 30 ^th day of November 2022 .

Contents

Introduction	2
The parties and the proceedings	3
The factual background to the dispute	5
The affidavits	9
Mr McGann's grounding affidavit	9
Mr Miller's replying affidavit	10
Mr McGann's second affidavit	12
The framework agreement	12
Irish law or English law?	14
The oral evidence of the deponents	14
Mr Miller	15
Mr McGann	16
The issues	19
Legal principles	20
The last shot doctrine	21
Application of the principles to the facts: the defendant's perspective	22
Application of the principles to the facts: the plaintiff's perspective	24
The process of analysis	25
When was the contract concluded? Case law	27
Application of principles to the facts	35
Incorporation of GAFTA 109	41
Legal principles regarding incorporation	41
The incorporation clause	44
Interpretation of the incorporation clause itself	46
The incorporation clause - reasonable notice?	48
Conclusions on the incorporation clause	52
Conclusions and orders	53

Introduction

1 . This judgment relates to an application by the defendant (‘ED&F’) to set aside service on it of the plenary summons on the basis that the courts of Ireland have no jurisdiction to hear or determine the dispute which is the subject of the proceedings. It also seeks an order pursuant to Article 8 of the UNCITRAL Model Law on International Commercial Arbitration referring the parties to arbitration in respect of the dispute.

2 . The defendant applies on the basis that the contract between the plaintiff and the defendant which is the subject of the dispute “is as set forth in the Grain and Feed Trade Association (referred to herein as ‘GAFTA’) contract”. As there is a considerable number of GAFTA contracts, the defendant contends that the applicable contract is GAFTA contract number 109 (‘GAFTA 109’), even though that particular contract was not specified between the parties. GAFTA 109 has a “domicile” clause which states that the contract “shall be deemed to have been made in England and to be performed in England”, and that the contract “shall be construed and take effect in accordance with the laws of England”. The contract also has an arbitration clause in respect of “any and all disputes arising out of or under this contract”.

3 . The plaintiff (‘Glanbia’) on the other hand contends that the contract between Glanbia and ED&F is subject to Glanbia's standard terms and conditions which are available on Glanbia's website. These terms and conditions provide that any dispute arising out of or in connection with them “shall be governed by and construed in accordance with the laws of Ireland and shall be subject to the jurisdiction of the Irish courts…”.

4 . The application therefore requires the court to decide whether the plaintiff's or the defendant's terms and conditions – or possibly neither – govern the contract between them. This in turn requires an analysis of the facts surrounding the formation of the contract, and a decision as to the point at which it could be said that a binding contract between the parties was concluded. Accordingly, the parties agreed that there should be cross-examination on the affidavits of each side's main deponent so that there would be further evidence as to the factual circumstances surrounding the dealings between the parties.

5 . The application was complex and closely fought over five days. In addition to cross-examining each other's deponent, the parties proffered lengthy written submissions and several volumes of case law, much of it dealing with what has come to be known as “the battle of the forms”.

The parties and the proceedings

6 . The plaintiff is a private company limited by shares registered in this jurisdiction. It has a registered office in Kilkenny, and carries on the business of, inter alia, production and/or manufacture and/or supply of equine feed. The defendant is also a private company limited by shares and registered in this jurisdiction with a registered office in Dublin. The defendant is an Irish company which offers cane molasses, beet molasses and a range of molasses-based liquid products and specialises in the sourcing, shipping, storage and distribution of molasses, molasses blends and liquid products.

7 . The defendant supplies molasses for use in animal feedstuffs, including the following products which are relevant to the present proceedings:-

• (i) Sumol 71, a standardised sugar cane molasses product with 71% dry matter (‘Sumol 71’);

• (ii) Sumol 72, a standardised sugar cane molasses product with 72% dry matter (‘Sumol 72’); and

• (iii) GAIN Hi Oil Molglo (‘Molglo’), a value-added product which was specifically formulated for the plaintiff and contains molasses, soybean oil, additives, preservatives and caramel flavour.

8 . The plaintiff issued the present proceedings on 2 ^nd March, 2022, and delivered a statement of claim. On 15 ^th March, 2022, solicitors acting for the defendant entered a conditional appearance “solely for the purpose of contesting the jurisdiction of this Honourable Court to hear and determine the proceedings and without prejudice to any of the rights of the defendant, all of which are fully reserved”. As is usual in such situations, the defendant has not delivered a defence to the statement of claim, but issued a notice of motion on 6 ^th April, 2022, seeking the relief to which I have referred in the first paragraph of this judgment above.

9 . On 24 ^th April, 2020, Glanbia issued three “purchase contract confirmations”, numbered 9205, 9206 and 9207, to ED&F. These documents related to the purchase of 2000 metric tonnes of Sumol 72, 200 metric tonnes of Sumol 71, and 200 metric tonnes of Molglo respectively. The statement of claim pleads that these purchase contract confirmations were subject to the plaintiff's standard terms and conditions and sets out a number of clauses of those conditions which the plaintiff contends comprise express contractual terms, duties and...