This blog is by Max Archer of 12 King’s Bench Walk.
The claimant in this case was French company engaged in importing tobacco products to Guadeloupe and Martinique. The defendant was Panamanian company within the wider BAT corporate group.
The claimant had a five-year distribution agreement with the defendant. The agreement provided for English law and exclusive jurisdiction. This agreement came to an end without any further agreement to renew it.
The claimant commenced English proceedings in pursuit of what it claimed was a ‘margin pay-out’ of €6.5 million. It was claimed that it was entitled to this pay-out pursuant to the agreement as a result of the failure to renew. The defendant denied any entitlement to a pay-out and counterclaimed for numerous unpaid invoices and for €8.5 million of VAT recovered from the French VAT authorities. The Defendant argued that it was to be paid these VAT monies pursuant to an oral agreement.
The claimant denied these allegations and alleged that there was no enforceable agreement. The claimant argued that the agreement in respect of the VAT monies did not lie with itself but with the other group companies (the proposed third and fourth defendants). These companies had been subcontracted to carry out distribution in the relevant territories and had recovered the VAT monies themselves. Continue reading PHP v Tobacco Carib Sarl v BAT Caribbean SA  EWHC 3377 (Comm): Brussels Recast & third party claims