Stuart Benzie acted for the Respondent in Last Bus Ltd (t/a Dublin Coach) v Dawsongroup Bus and Coach Ltd  EWCA Civ. 1297, in an appeal against the order of Andrew Baker J in the Commercial Court giving summary judgment in favour of the Defendant. The case involved a transaction where the Claimant had purchased Mercedes Benz coaches that were financed by Dawsongroup in a series of hire purchase agreements that included an exclusion clause that excluded the statutory term as to fitness implied by Section 10(2) Supply of Goods (Implied Terms) Act 1973. The case concerned the extent to which the exclusion clause satisfied the requirement of reasonableness under section 6(1A)(b) and section 11 of the Unfair Contract Terms Act 1977 (” UCTA “)
At first instance and during the appeal, the Respondent relied on a series of Court of Appeal decisions relating to the application of UCTA in commercial agreements (Watford Electronics Limited v Sanderson CFL Limited  EWCA Civ 317; Granville Oil & Chemicals Ltd v Davis Turner & Co Ltd  EWCA Civ 570; and Goodlife Foods Limited v Hall Fire Protection Limited  EWCA Civ 1371). The Respondent argued that those cases were authority for the proposition that the courts should generally seek to uphold the provisions contained in agreements between parties of broadly equal bargaining power. This contrasted with the position in contracts with consumers who required the full protection offered by UCTA.
The court held that UCTA did not make any distinction between commercial and consumer agreements and the duty of the court is to apply the will of Parliament as enacted through the relevant legislation, and “little if any weight should be given to expressions of lack of personal enthusiasm for that legislation or its effect” (Judgment paragraph 26). The Court of Appeal held that UCTA is not limited in application to consumer contracts, and applies with full force (subject to the exceptions in Schedule 1) to commercial contracts where one party is dealing on the other’s standard terms (Section 3) or where the contract is one of hire purchase (Section 6(1A)(b)). The Court held that the clause was prima facie unenforceable, and the first instance judge was wrong to conclude that it was enforceable at a summary judgment hearing.
Stuart was instructed by Simon Hobbs and Tom Holden from Freeths.
Read the full judgment here.