The High Court allowed Torc Grain and Feed Limited to amend its defence in a dispute over ground nut supplied to William Connolly and Sons Limited, trading as Connolly’s Red Mills. The amendment raises a contract term excluding liability for indirect or consequential loss. The court also ordered the defendant to pay the plaintiff’s costs from a letter dated 16 November 2016 through to the start of the action, with the amount to be taxed if the parties cannot agree.
The action was listed for hearing on 23 November 2016. The plaintiff claims damages for breach of duty, misrepresentation, negligence, breach of statutory duty and breach of contract. Its pleaded account says it agreed to buy 400 tonnes of ground nut in 2002, and that testing showed the first delivered load contained aflatoxin near the EU limit. The plaintiff further alleges that supplied material contained morphine, which it says was linked to race horses testing positive in late November and early December 2002, disqualifications and losses to its business and customers. These are claims described in the judgment, not findings on liability or contamination.
In a letter sent one week before the hearing, the defendant relied on a term said to make special damages irrecoverable. It supplied a sales invoice and contract dated 22 October 2002. The printed condition stated that the seller accepted no liability for indirect or consequential loss, injury, damage or expenses arising from the sales contract. The plaintiff objected that the term had not been pleaded and argued that relying on it so late changed the damages case and wasted preparation.
The defendant maintained that it was not in breach and said the term affected quantum rather than liability. It argued that the amendment did not change the shape of the case. The court permitted the defence amendment under Order 28, rule 12. It said the plaintiff could have four weeks to amend its statement of claim and the defendant a further three weeks to reply. Those periods applied if the plaintiff wanted the time; otherwise, the court said the case would proceed on the amended defence. The judgment suggested that fundamental breach of contract might arise, but did not decide that issue.
On costs, the court considered the late timing of the amendment and the case’s readiness for trial. It awarded the plaintiff costs against the defendant from the 16 November letter to the start of the action, to be taxed if not agreed. This judgment addressed the amendment, response timetable and costs; it did not determine the underlying claims or the alleged contamination.