J Wanstall & Sons v Fridays Ltd

• Jurisdiction: England & Wales
• Judge: Mr Martin Bowdery
• Judgment Date: 02 November 2022
• Neutral Citation: [2022] EWHC 2759 (TCC)
• Docket Number: Case No: HT-2022-000089
• Court: Queen's Bench Division (Technology and Construction Court)

Between:

J Wanstall & Sons

Claimant

and

Fridays Limited

Defendant

[2022] EWHC 2759 (TCC)

Before:

Mr Martin Bowdery KC

(sitting as a Deputy High Court Judge)

Case No: HT-2022-000089

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

TECHNOLOGY AND CONSTRUCTION COURT

Royal Courts of Justice, Rolls Building

Fetter Lane, London, EC4A 1NL

Mr John Stevenson (instructed by Knights Solicitors) for the Claimant

Mr Stuart Benzie (instructed by Freeths LLP) for the Defendant

Hearing date: 17 th October 2022

Approved Judgment

This judgment was handed down remotely at 10.30am on 2 nd November 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).

Mr Martin Bowdery QC

This judgment is in six parts.

.1 APPLICATION AND SUPPORTING EVIDENCE

.2 THE PARTIES

.3 A SHORT CHRONOLOGY

.4 THE FACTS

.5 THE LAW

.6 CONCLUSIONS

Mr Martin Bowdery KC:

1 THE APPLICATION AND THE SUPORTING EVIDENCE

1 The application made by the Defendant is an application:

— to strike out the Claimant's claim pursuant to CPR Rule 3.4(2)(a) on the grounds that the statement of case discloses no reasonable ground for bringing the claim and/or the claim is an abuse of process; and/or

— for summary judgment pursuant to CPR rule 24.2(a) on the grounds that the Claimant has ‘no real prospect’ of succeeding on the claim.

2 The application is supported by a Witness Statement of David Friday who amongst other matters states that a meeting took place at The George in Cranbook on the 30 ^th May 2019. He goes on to state:

“22. At the meeting, we discussed the Salmonella outbreaks, the possible routes of contamination and infection, and the costs each party had suffered as a result.

23. Doug accepted that Harefield Farm was the first infected flock and the likely source of further contamination and infections. I accepted that it was possible that contamination had moved within our supply chain (it being impossible to rule this out entirely). Doug outlined the costs linked to the outbreak, especially the rendering of the Deer Park flock and the disruption to his business. I outlined the costs to our business, such as the disruption caused, the reduced availability because of Harefield, the disruption because of Deer Park supply and the issue of eggs being poor quality.

24. We also discussed the biosecurity barrier in hen houses that was Doug's responsibility and should exist and be implemented between outside the bird area and inside and that that was a critical barrier that must have been breached for infections to have occurred.

25. We agreed that the best way to proceed was to focus on our trade moving forward. Doug believed that he could run a successful business in supplying eggs to us and I believed purchasing eggs from Doug helped me to operate a free-range packing business. Doug stated that he needed financial support in the form of a £100,000 loan to be re-paid over one year and suggested this could be deducted from egg payments.

26. In return, Doug would commit to not pursuing Fridays for losses associated with the outbreaks, including through legal channels, and he would not engage in any negative PR activity against Fridays. I also accepted that Fridays would not pursue Doug for the costs it had borne. I said that I would come back to him on how much support we could offer.”

3 The Claimant relies upon a Witness Statement from Doug Wanstall in opposing this application and amongst other matters he states:

“3) Paragraphs 22–30:

The record of our lunchtime discussion at paragraphs 22–25 is broadly accurate but both of us explained the deficiencies we perceived in the other's bio security and what could be done to reduce the risk of another salmonella outbreak. I concluded that each of us understood and would address the other's position and that there was therefore a way forward. We did not discuss anything whatsoever touching upon financial claims against each other still less the abandoning of them. The whole focus of our discussion was how to ensure that we could continue to trade together. If, as Mr Friday claims at paragraph 27, “ the only purpose of this discussion was to bring Doug's claims to an end” it was not something which Mr Friday voiced or even hinted at.

I note that when Mr Friday briefed his father about the meeting- paragraph 28 — he did not mention anything about the compromise agreement which he now alleges had been reached — even though he now says it was the central topic of the meeting.”

4 David Friday's response to Doug Wanstall's Witness Statement states in relation to paragraph 3(3) quoted above that:

“12. As to paragraph 3 (3), I reiterate my account of the meeting between Mr Wanstall and me where commitment not to pursue for losses was discussed, which is consistent with correspondence beforehand and thereafter. The statement that this “brings the zoonosis issue to a close” (page 24/DF1), was a statement that the claim that Mr Wanstall was clearly threatening in relation to the alleged losses mentioned in his 14 September 2019 email was now settled.

13. This discussion at the meeting about the losses incurred by Mr Wanstall occurred following, and as a result of, written threats of redress and reference to legal advice being taken. Obviously, the agreement of a financial settlement / payment was finalised explicitly for the purpose of dealing with the claim that was quite clearly being advanced by Mr Wanstall.

14. Given that Mr Wanstall now says that the agreement related to bio security, I do not understand why he says that Fridays was willing to advance the money to Mr Wanstall. The only reason that Fridays agreed to such a payment was to settle Mr Wanstall's claim in relation to the losses he alleged during the meeting.

15. Further, the summary of the update to our Managing Director certainly concerned the Settlement Agreement. The absence of reference to the term “ compromise agreement” in no way defines what was or wasn't discussed. As my first statement sets out at paragraph 28, I recounted how Mr Wanstall and I discussed “… the costs to both sides …”. Where the essence of Mr Wanstall's claim is that he incurred losses owing to the salmonella outbreak, it follows that the payment was agreed to settle these.”

.2 THE PARTIES

5 The Claimant is a partnership (that is challenged by the Defendant who alleges that any agreement was with Doug Wanstall personally) that carries on trade as farmers and food producers from Bank Farm, Ashford, Kent and various other sites in England in particular egg farms at Harefield Farm and at Deer Farm. The Claimant produces some 200,000 eggs a day and was an important supplier to the Defendant.

6 The Defendant is a leading producer of eggs and egg products to retailers, food service providers, wholesale, manufacturing customers and other egg packers in the United Kingdom and abroad. The Defendant owns and operates rearing farms (where day old chicks are reared to nearly egg laying maturity); laying farms (where eggs are produced by laying hens); packing centres (where eggs are packed and graded to a saleable quality) and two chilled food factories including an egg boiling plant.

7 The Defendant produces approximately 80% of its ungraded eggs for packing from its own laying farms, it also has agreements in place with external providers (known as ‘contracted producers’) who primarily supply free range ungraded eggs to them. The Claimant was a contracted producer until on or about 5 ^th September 2019.

.3 A SHORT CHRONOLOGY.

THE FACTS

Date	Event
17July2017	Sample taken from C's Harefield Farm tested positive for Salmonella. Test was undertaken at Weald Laboratory, a private laboratory owned by D
21 July 2017	British Egg Industry Council (“BEIC”) notified of the result.
31July2017	Email from Doug Wanstall to David Friday stating, (inter alia): “I am obviously very anxious at this end as we are about to see our income from Harefield farm (sic) implode which is going to have a dramatic effect on our overall business”.
1 August 2017	Email from Doug Wanstall to David Friday stating (inter alia): “This has all come as rather a shock, am not insured and this will have a serious and prolonged financial impact on my business.”
11 April 2018	D notified by BEIC that C's Deer Park Farm had failed a certification audit.
19 March 2019	D notified by BEIC that Salmonella at Deer Park Farm.
27 March 2019	Email from Doug Wanstall to David Friday requesting £150,000 advance payment for eggs. Fridays agreed and paid £20,000.
20 May2019	Doug Wanstall long email to BEIC, David Friday and James Friday stating (inter alia), “I will be seeking redress for the costs and losses, for the fact that our treatment has been unfair and for the flagrant double standards, the question is how best to go about it.” James Friday responded to this email on the same day at 13.06
28 May 2019	David Friday sent a text message to Doug Wanstall to arrange a meeting to discuss his 20 May 2019 email.
30 May 2019	Meeting at the George in Cranbrook between David Friday and Doug Wanstall. See David Friday: Doug Wanstall requested financial support of £100,000 (§25 [91]) and in return he would commit to not pursuing Fridays for losses associated with the outbreaks. See Doug Wanstall: concedes that the record of the meeting is “broadly accurate” (Paragraph 3(3) [191]). However he further stated that “We did not discuss anything whatsoever touching upon financial claims against each other still less the abandoning of them”
3 June 2019 (17.31)	Email from David Friday to Doug Wanstall (headed “Faster Payment Agreement”) confirming proposed payment. Mr Friday states: “I'm...