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Court declines to rule on reasonableness of BIFA time bar on summary basis

Tornado Wire -v- John Good Logistics Ltd [2024] EWHC 212 (KB)

Court declines to rule on reasonableness of BIFA time bar on summary basis

The Court has recently considered an application for summary judgment based on the interpretation of Clause 27(B) of the British International Freight Association (BIFA) Standard Trading.

The case relates to a dispute regarding John Good Logistics’ (JGL) provision of services as a customs agent to handle Tornado Wire Ltd’s (TWL) importation of steel wire products from the EU. TWL alleged that JGL had mishandled its use of HMRC’s CHIEF system, resulting in TWL facing a large tax bill.

Clause 27(B) of the BIFA Standard Trading Conditions provides that the company shall be discharged of all liability unless suit and written notice is given within nine months of the event alleged to have given rise to the cause of action. It was accepted by both parties that the BIFA Standard Trading Conditions were incorporated.

JGL argued that as the final import entry was entered on CHIEF in June 2021, any claim brought after March 2022 was time barred in line with Clause 27(B). TWL contended that it was not aware of the tax liability until August 2022 when it was notified of this by HMRC, and that it filed its claim within nine months of that notification.

JGL sought summary judgment against TWL on the basis of precedent in which the reasonableness of the time bar under BIFA Standard Trading Conditions had been upheld. TWL opposed this application on the basis that the nine-month time bar was unreasonable under the Unfair Contract Terms Act 1977 (UCTA), and thus unenforceable.

The Court, presided by HHJ Worster, refused JGL’s application for summary judgment by ruling that there was a real prospect of establishing that the nine-month time bar was unreasonable based on these specific facts. 

The Court’s judgment in this case drew upon the Court of Appeal’s decision in Last Bus -v- Dawsongroup Bus and Coach Limited [2023] EWCA Civ 1297 to emphasise the need for each case to be determined on its own facts with regard to the reasonableness of standard terms. As such, summary judgment was ruled to be inappropriate in circumstances in which the Court wished to hear evidence as to the reasonableness of the nine-month time bar.

The matter is now awaiting a directions hearing, with a trial expected to be listed in 2025.

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