Home > Reading Room > BSS Group plc -v- Makers (UK) Limited (t/a Allied Services) [2011] - Court of Appeal

BSS Group plc -v- Makers (UK) Limited (t/a Allied Services) [2011] - Court of Appeal

Written by Paul Bicknell on 06 September 2011

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BSS Group plc -v- Makers (UK) Limited (t/a Allied Services) [2011] - Court of Appeal

This case concerned two orders handed down by His Honour Judge O'Brien in the Cambridge County Court.

Parties

BSS Group was the appellant in the matter before the Court of Appeal but in "the litigation" BSS was a third party to a Part 20 additional claim brought against it by the defendant, Makers Limited. The claim was advanced by Stephen Daniel, Barry Daniel and B & S Mechanical Services Limited. The claim was settled by consent so the additional claim proceeded.

In the country court

The question was whether BSS was liable for supplying Makers certain adapters and valves for use in relation to a plumbing project. The question of liability centred on the term implied by section 14(3) of the Sale of Goods Act 1979 (as amended) ("the Act"). The Judge found that BSS was liable due to the connection of the two components becoming insecure due to pressure build up that caused the valve to disconnect resulting in flooding damage.

Law

Section 14(6) of the Act provides that section 14(3) is a condition.

Section 14(3) reads:

"(3) Where the seller sells goods in the course of a business and the buyer, expressly or by implication, makes known-

(a) to the seller, or

(b) where the purchase price or part of it is payable by instalments and the goods were previously sold by a credit-broker to the seller, to that credit-broker,

"Any particular purpose for which the goods are being bought, there is an implied term that the goods supplied under the contract are reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied, except where the circumstances show that the buyer does not rely, or that it is unreasonable for him to rely, on the skill or judgment of the seller or credit-broker:"

The Court of Appeal referred to and applied: Jewson Ltd v. Boyhan [2004] 1 Lloyd's Law Reports 505, which "...identified the questions arising under a section 14(3) claim as being: (i) whether the buyer, expressly or by implication, made known to the vendor the purpose for which the goods were being bought; (ii) if so, whether they were reasonably fit for that purpose; (iii) if they were not reasonably fit for that purpose, whether the vendor has shown (a) that the buyer did not rely upon its skill and judgment, or (b) if it did, that it was unreasonable for him to do so".

The Appeal

The appeal was:

The Judge misdirected regarding the test as to whether Makers Limited had made the purpose of use of the valves known.

The Judge reached the wrong conclusion that Makers Limited put forward a purpose to BSS. The Judge was wrong to find that section 14(3) had been breached. The Judge did not deal with the issue or the extent of Makers Limited's reliance on BSS's skill and judgment.

Decision

The Appeal was dismissed.

Makers Limited had made it know that the valves were to be used for a particular purpose. Though the Court of Appeal slightly detracted from the County Court's finding that the purpose was made known expressly but rather that this communication was implied. The Court of Appeal found that a fax enquiry made it obvious to BSS as to Makers Limited's intended use.

The valves were not reasonably fit for purpose because: "they were incompatible for use with the Uponor adaptors with which they were likely to be used. BSS's supply of its own valves appears to me to have been fairly remarkable bearing in mind that it had no basis for any assumption that Makers was going to be using any copper pipe in the project, but there is no need to say more than that."

The Court of Appeal concluded that the County Court reached the correct decision.

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