The High Court has refused an application by ED&F Man Liquid Products Ireland Limited to set aside service of Glanbia Foods Ireland Limited’s proceedings and refer the dispute to arbitration. Mr Justice Mark Sanfey ruled that Glanbia’s purchase terms governed the contracts and that ED&F had not incorporated the terms of GAFTA contract 109.
The underlying proceedings concern Glanbia’s allegations that molasses products supplied in 2020 contained the prohibited substance Zilpaterol. Glanbia claims losses of €9,015,479 and alleges breach of contract, warranty, misrepresentation and negligence, among other claims. Those allegations have not been determined in this jurisdiction application. ED&F has not delivered a defence to the statement of claim.
The court’s decision followed a five-day hearing focused on which company’s standard terms applied. Glanbia’s purchase contract confirmations, sent on 24 April 2020, stated that its standard terms applied and excluded supplier terms. ED&F sent sales confirmations four days later, describing the business as agreed while saying official contracts would follow. Its subsequent sales contracts referred to a Grain and Feed Trade Association contract but did not identify a specific one.
The judge found that ED&F’s sales confirmations accepted Glanbia’s offers. In his view, the references to later official contracts did not make the acceptance conditional, and the documents did not clearly reject Glanbia’s terms. The court therefore concluded that Glanbia’s terms were incorporated and ED&F’s terms were not.
The judge also considered whether GAFTA 109 would have been incorporated if ED&F’s terms had otherwise governed. He concluded it would not. The sales contracts did not name GAFTA 109, and the clause referring to the supplier’s contract was ambiguous. The judgment also noted that the agreement was between two Irish companies, that GAFTA 109 was not specifically a molasses contract, and that many of its provisions did not fit the transactions. Its English-law, English-jurisdiction and arbitration clauses were unusual and onerous in the circumstances and had not been brought specifically to Glanbia’s attention.
The court dismissed ED&F’s application for an order setting aside service and referring the parties to arbitration. It said the costs of the application should follow the event, with costs to Glanbia to be adjudicated if not agreed. Either party may file written submissions within ten days if seeking a different costs order. The judgment does not decide the merits of Glanbia’s claims about the products or its alleged losses.