On 2 October 2025, the Court of Appeal (Males, Stephen Phillips and Snowden LJJ) handed down judgment in Advanced Multi-Technology for Medical Industry (trading as Hitex), Caramel Sales Ltd, David Popeck v Uniserve Limited [2025] EWCA Civ 1212.
The appeal followed a two-week trial of a $40 million claim in the Chancery Division, concerning a contract for the manufacture and supply by Hitex of 80 million PPE masks during the Covid-19 pandemic for onward supply by Uniserve to the Department of Health and Social Care.
Hitex claimed damages from Uniserve for non-acceptance of the masks; Caramel and Mr Popeck claimed against Uniserve for unpaid commission.
The first instance judge rejected the claim pleaded and advanced by Hitex at trial, but nevertheless awarded Hitex damages of US$16m on an alternative basis. The commission claim was rejected by the trial judge.
The Court of Appeal allowed Uniserve’s appeal and ruled that Hitex’s claim against Uniserve was to be dismissed. Caramel and Mr Popeck’s appeal on the commission claim was also dismissed.
The judgment covers various important issues of trial procedure and the law concerning the delivery of goods ex works:
- At [48]-[52]: the requirement that a trial judge must stick to the parties’ formulation of the issues as set out in their pleadings, as explained in earlier Court of Appeal authorities including Al-Medenni v Mars UK Ltd [2005] EWCA Civ 1041 and Satyam Enterprises Ltd v Burton [2021] EWCA Civ 287; [2021] BCC 640. It had been a ‘mistake’ for the trial judge to reach his own, independent conclusion which neither party had advanced in their pleadings.
- At [64]-[66]: where an innocent party affirms a contract in the face of a repudiation, the innocent party ‘remains subject to all his own obligations and liabilities under it’. Hitex’s argument that it was discharged from its obligation in respect of any delivery was rejected as being contrary to the House of Lord’s decision in The Simona [1989] 1 AC 788: [90]. And Hitex’s argument that stopping manufacture following an alleged repudiation by Uniserve was a form of mitigation did ‘not work’: [92].
- At [71]-[72]: the Court held that the question whether a seller must give notice to a buyer that goods are ready for collection from a factory ex works ‘must depend on the terms of the contract and all the circumstances of the case’, suggesting that the statement in Benjamin’s Sale of Goods, 12th 2024, para 21.003, did not give rise to an inflexible rule. The Court held on the facts (albeit obiter) that Hitex had not at any stage tendered performance of three shipments and which entitled Uniserve to terminate the Supply Contract: [73].
The judgment is available here.
David Walsh KC and Edward Mordaunt acted for Uniserve during the trial and appeal (for the latter they appeared with Luke Parsons KC of Quadrant Chambers), instructed by Andrew Williams, Gordon Rieck and Nicole Yeung of HFW LLP.
