Tullow Ghana Limited v Vallourec Oil and Gas France S.A.S

1. As explained further below, this action concerns a claim by the Claimant against the Defendant for alleged breach of a contract, made in 2008, to supply tubing for installation in six water injection wells in an oil field offshore of the Republic of Ghana. The Claimant alleges that tubing supplied under the contract was defective and that as a consequence it has suffered loss and damage such that it is entitled to damages presently calculated as being US$257,484,257.

2. On 26 April 2024, HHJ Pelling KC (sitting as a judge of the High Court) ordered the trial of seven preliminary issues, namely: i) When and how was the Contract (defined below) concluded? (“Issue 1”) ; ii) Were the Defendant’s General Conditions of Export Sale (“ the Defendant’s GCs ”) incorporated into the Contract, and - if so - to what extent? (“Issue 2”) ; iii) In view of the answer to Issue 2, was Clause 8 of the Defendant’s GCs incorporated into the Contract? (“Issue 3”) ; iv) In view of the answer to Issue 2, what is the correct and proper construction of Clauses 6 and 11 of the PO 167 Terms (defined below)? (“Issue 4”) ; v) Were the terms implied into contracts by sections 14(2) , 14(2A) and 14(2B) of the Sale of Goods Act 1979 (“SGA” ) implied into the Contract, such that it was a term of the Contract that the 7 Inch tubing would be: (i) of satisfactory quality; (ii) fit for the purpose of being utilised as tubing in an offshore water injection well; (iii) free from minor defects; and (iv) durable? (“Issue 5”) ; vi) Did delivery of the tubing to the Claimant for the purposes of the Contract occur when they were loaded onto ships for subsequent carriage to Takoradi, or (b) once they arrived at Takoradi? (“Issue 6”) ; and vii) In the context of limitation, does the onus lie on the Claimant to prove that its cause of action accrued within the limitation period prior to the issue of the Claim Form, or does the onus lie on the Defendant to prove the elements of its limitation defence? (“Issue 7 ”) . The Parties

3. The Claimant is and was at all material the operator of the Jubilee oil field, a unitised field which straddles part of two exploration areas, namely Deep Water Tano and West Cape Three Points, offshore the Republic of Ghana (“ the Jubilee Field ”). The claim is apparently brought on behalf of the Claimant and its joint venture partners with an interest in the Jubilee Field.

4. The Defendant is and was at all material times a leading supplier of tubular products to the oil and gas industry.

5. As set out in more detail below, the Claimant and the Defendant entered into a contract on 25 November 2008 for the supply of 7-inch VAM top tubing for delivery CFR Takoradi (“ the Contract ”). Evidence

6. The relevant facts for the purposes of determining the Preliminary Issues were largely common ground. To the extent there were disputed issues of fact, I was provided with bundles of contemporaneous documents and correspondence as well as a witness statement dated 24 January 2025 from Ms. Christelle Domur, currently a sales assistant manager with the Defendant. The Claimant did not require Ms. Domur to attend for cross-examination. The Facts The shape of the case in general

7. The brief account of the facts which follows is taken from the Case Memorandum agreed between the parties and is included only to explain the background to the Preliminary Issues.

8. The Claimant and the Defendant entered into two contracts for the sale and purchase of certain lengths of 7 inch VAM top tubing or casing and their connections manufactured by the Defendant for use in water injection wells in the Jubilee Field. i) The Contract was for the supply of 17,500 metres of 7 inch VAM TOP tubing for delivery CFR Takoradi ( “the Tubing”) . ii) A second contract was made in August 2009 for the supply of 3,640 metres of 7 Inch VAM TOP tubing (and other items) for delivery CFR Takoradi (“ the Second Contract ”).

9. As set out further in paragraph 11 below, this action only concerns the Contract.

10. There is a dispute between the parties as to when the Contract was concluded and the terms on which it was concluded. In particular: i) The Claimant contends that the Contract was concluded solely on the terms of Purchase Order TGL 00361, as signed by the Claimant on 17 November 2008 and by the Defendant on 21 November 2008 (“ PO 361 ”), which incorporated the terms of a previous contract evidenced in Purchase Order TGL 00167 (“ PO 167 ”) and sent by the Defendant to the Claimant on 25 November 2008. The terms and conditions of PO 167 comprised the Claimant’s standard terms and conditions as amended by the parties’ amendments contained in emails exchanged between the parties dated 21, 27 and 28 May 2008 (“ the PO 167 Terms ”). ii) The Defendant contends that the Contract was not solely on the terms of PO 361 but also incorporated the Defendant’s GCs.

11. The tubing under the Contract was delivered to the Claimant during the course of 2009. In this respect, there is a dispute between the parties as to what constituted “delivery” for the purposes of the Contract, the dispute being relevant to the question of whether any of the Claimant’s claims are time-barred under the Limitation Act 1980 . i) The Claimant contends that the individual pieces of tubing ( “the Pipes” ) comprising the Tubing were delivered when they arrived at Takoradi in circumstances where clause 5 of the PO 167 Terms provides that risk and title remain with the supplier (the Defendant in this case) until the goods are “fully delivered … at the point specified in the Purchase Order”. ii) The Defendant contends that the Pipes were delivered once they crossed the rails of the ships carrying the tubing to Takoradi. This is on the basis that the Contract was for delivery CFR Takoradi and pursuant to INCOTERMS 2000 by which delivery of goods takes place once the goods cross the ship’s rail.

12. The Tubing was installed in six water injection wells in the Jubilee Field, specifically the injection wells named J-10, J-11, J-12, J-13, J-14 and J-15 ( together “ the Injection Wells ”). The Tubing was installed into each well at different times between September 2010 and September 2011. The Claimant accepts that (i) none of the tubing supplied by the Defendant under the Second Contract was installed in the Injection Wells and that (ii) none of the defective tubing was from the Second Contract.

13. Each of the Injection Wells has two pressure containment barriers, each barrier designed to contain both the water being injected into the reservoir and any hydrocarbons that might enter the tubing from the reservoir. The Tubing formed the primary pressure containment barrier. The secondary pressure containment barrier was formed by 9 5/8 inch casing called “the annulus”.

14. The Claimant’s case is that shortly after the installation of tubing in each of the wells save for well J-11, it detected abnormally high pressure in the annulus, which was indicative of a leak of water from the tubing into the annulus. As a result of the abnormally high pressure, the Claimant carried out investigations into the wells and identified leaks in the tubing while in situ in wells J-12 and J-15. No leaks were identified in the tubing while in situ in wells J-10, J-13, or J-14. After the tubing was eventually retrieved from each of wells J-10, and J-12 to J-15, onshore hydrostatic testing was carried out on them as a result of which additional leaks were identified in wells J-12 and J-15, and new leaks were identified in wells J-10 and J-14.

15. In respect of well J-13, there is no dispute that one leak was eventually discovered during onshore hydrostatic testing. However, the Defendant highlights that the leak was identified only at a maximum differential pressure well above the differential pressure that was experienced by well J-13. The Defendant denies that there was a leak in the tubing from J-13 in situ.

16. No leaks have been identified in well J-11.

17. The effect of a leak in the Tubing is that the primary pressure containment barrier has failed leaving only the 9 5/8 inch production casing as the secondary pressure containment barrier.

18. The Claimant contends that the cause of the leaks was manufacturing defects as well as or alternatively mechanical damage to the mill end pins and mill end boxes of the Tubing which occurred during their manufacture by the Defendant. The Claimant further contends that by reason of that damage or defect, as well as the existence of the leaking connections, the Defendant was in breach of sections 14(2) , 14(2A) and 14(2B) of the SGA in that the tubing was (a) not of satisfactory quality, (b) not fit for the purpose of being utilised in an offshore injection well and (c) not durable.

19. The Defendant denies that it is in breach of the Contract. It contends that: i) The likely explanation of the leaks was not manufacturing defects or mechanical damage to the mill end pins and mill end boxes of the tubing, but excessive tensile or compressive stress forces experienced by the completions either during installation or operation of the wells; and ii) The effect of the Defendant’s GCs being incorporated into the Contract is that sections 14(2) , 14(2A) and 14(2B) of the SGA are excluded from the Contract with the Claimant’s only remedy being limited to the warranty contained in clause 8 of the Defendant’s GCs.

20. In view of the leaks, the Claimant carried out investigations into the cause of the leaks between January 2013 and February 2020. In this respect, it did not remove the tubing from the wells immediately but instead adopted an approach of risk management over a period of years in some cases. The Claimant carried out remedial works by removing the tubing and replacing it with new tubing in (a) well J-10 over October and November 2014; (b) well J-12 between May and July 2013 and (c) well J-14 in November to December 2014. In respect of wells J-13 and J-15, the Claimant retrieved the tubing and in circumstances where the Claimant’s case is that it was uneconomic to replace it, the Claimant set a cement plug in both wells to restore their respective cap rocks. The works on well J-13 took place between November and December 2018, while the works on J-15 commenced in 2013 but were not completed until January 2020.

21. The Claimant claims (a) the cost of investigating the leaks, (b) additional costs of monitoring the Injection Wells and (c) the costs of remedial works said to have been carried out on each of the wells. In total, the Claimant claims US$257,484,257.00. The Defendant puts the Claimant to proof of the costs claimed in addition to its other defences.

22. The Defendant accepts that good and prudent petroleum practice required investigations of the cause of the leaks, but it does not accept that all the investigations carried out by the Claimant were necessary. It also denies that the works carried out on wells J-13 and J-15 were remedial works and contends that it was work that would have had to be done in any event to suspend or abandon underperforming wells. The Defendant also says that: i) The effect of (a) clause 8 of the Defendant’s GCs together with or in the alternative (b) clauses 6 and 11 of PO 167 Terms is that the Claimant cannot recover any of the costs claimed. ii) In any event, any claim advanced in respect of any tubing the subject of Work Order 27057 (including that installed in well J-13) is statute barred because the tubing the subject of Work Order 27057 was delivered to the Claimant over 6 years before the Claimant commenced proceedings. iii) Good and prudent petroleum industry practice did not require the Claimant to retrieve and replace the tubing but allowed the Claimant to continue to operate the wells without relevant tubing on a “risk managed” basis. In any event, the Claimant should have waited for another reason to work over the wells before carrying the remedial works which it did carry out. The facts relevant to the Preliminary Issues PO 167

23. In May 2008, the parties were negotiating the terms of a contract for the sale of completion tubing. As part of these negotiations, Mr. Brian Weale of the Claimant sent a purchase order (PO 167) to the Defendant. The purchase order was signed by Mr. Sam Carroll on behalf of the Claimant on 16 May 2008.

24. By an e-mail dated 21 May 2008, Ms. Roubardeau of the Defendant thanked Mr. Weale for sending a copy of the purchase order and asked Mr. Weale if it was possible to amend clauses 6, 7, 9.1 and 11; setting out the respects in which she would like those clauses amended. Having set out the manner in which the Defendant wanted to amend clauses 6, 7, 9.1 and 11, Ms. Roubardeau continued: “could you check if these conditions are correct for you? Could you please amend them?” . Although Ms. Roubardeau’s language is not entirely clear, her request to Mr. Weale was for him to confirm whether the Claimant agreed with the Defendant’s proposed amendments and, if so, whether he could then amend the Claimant’s terms.

25. Ms. Roubardeau added “About the PO: - Could we add the payment terms as proposed above? (30 days, date of invoicing) – Could we amend the reference to Cy’s General Conditions of Purchase in order to quote our specific conditions?” The reference to the company (‘Cy’) in this passage is a reference to the Claimant and the specific conditions being referred to are the amended clauses Ms. Roubardeau proposes in the e-mail. Ms. Roubardeau concludes “Thanks a lot for that. I will wait your return before signing the PO.” It is therefore clear that Ms. Roubardeau expected the final terms of the contract to be recorded in a signed purchase order.

26. Mr. Weale replied on 23 May 2008 asking what terms and conditions had been agreed for the previous order PO0122. Ms. Roubardeau responded on 26 May 2008 saying that for the previous order, the parties had accepted the Defendant’s GCs. She attached a copy of PO0122 dated 11 January 2008 which provided “Company’s General Conditions of Expert Sale Rev 4 th of April 2007 shall apply to this PO” . PO0122 defined the Company as being the Defendant.

27. Mr. Weale wrote again to Ms. Roubardeau on 27 May 2008. In his e-mail, Mr. Weale commented in red on Ms. Roubardeau’s proposed amendments to clauses 6, 7, 9.1 and 11 agreeing the proposed amendments to clause 6, 9.1 and 11 but refusing to delete the requirement that tubing should be fit for purpose and also suggesting that if the Defendant’s invoices were to be issued when tubing left the Defendant’s plant, then the Defendant should courier the invoices to the address stated in the purchase order. Mr. Weale also stated: “Bearing in mind that the previous P/O, Ref TGL 0122, V & M’s T’s and C’s were accepted by Tullow I would say that Tullow are prepared to accept the qualifications as mentioned below. The only area which does cause a small problem is the payment terms. As much as I would like to say to you that payment could be made within 30 days from date of your invoice I can’t guarantee it. Let me know your thoughts? If you could print a copy of this e mail and attached it to the P/O which you are asked to sign and return, then this will suffice. I will make the necessary comments on our file. Please return the signed copy of the P/O direct to me.”

28. Three points arise from this e-mail: i) Mr. Weale was confirming on behalf of the Claimant that the Claimant was prepared to accept the amendments to clauses 6, 7, 9.1 and 11 of the Claimant’s terms set out in Ms. Roubardeau’s e-mail of 21 May 2008 in accordance with his comments in red. ii) Mr. Weale was stating that he expected to receive a purchase order signed by Ms. Roubardeau with a copy of his e-mail attached to confirm the conclusion of the Contract. iii) Mr. Weale also expected that the terms of the contract would be recorded in a signed purchase order.

29. Ms. Roubardeau responded on 28 May 2008 in the following terms: “… This is OK for me (since we found a solution for the payment terms). I will do as you say, print the e-mail and countersigne [sic] PO and e-mail. I will send you both versions for you to sign also the e-mail and send back a copy to me.”

30. From this e-mail, it is clear that Ms. Roubardeau was confirming on behalf of the Defendant that she was content with the terms of PO 167 as amended by Mr. Weale’s e-mail of 27 May 2008. Further she anticipated that the contract would be concluded when both of them had signed the purchase order and the e-mail. Both parties were to hold signed copies of the purchase order and e-mail.

31. Ms. Roubardeau signed PO 167 and the e-mail on 28 May 2008 qualifying her signature on both documents with the words “General Conditions of Purchase superseded by terms of e-mail attached.” The reference to General Conditions of Purchase is to the General Conditions of Purchase printed on the reverse of PO 167. Mr. Weale also counter-signed the e-mail; Mr. Carroll having signed the purchase order for the Claimant on 16 May 2008. It is of note that the procedure agreed between Mr. Weale and Ms. Roubardeau in their e-mails of 27 and 28 May 2008 for the signing and returning of the purchase order and e-mail was consistent with the notes set out on the front of PO 167 which provided: “Notes i) Company [the Claimant] issues 2 signed original contracts to Supplier [the Defendant]. ii) Supplier to sign & return one original to COMPANY at the address above, marked for the attention of Contracts and Procurement Dept to confirm acceptance of terms and conditions of this ORDER.”

32. The procedure followed by Mr. Weale and Ms. Roubardeau was also consistent with the Claimant’s General Conditions of Purchase ( “the Claimant’s Terms” ), which provided in the preamble and at clauses 2 and 19: “The General Conditions of Purchase shall apply unless otherwise agreed in writing on behalf of Tullow Ghana Limited. …

2. Form of Purchase Order and Amendments Tullow shall not be liable for any Orders or amendments other than those issued or confirmed on Tullow official printed Purchase Order or any amendment thereto … …

19. Entire Agreement The terms and conditions set out in the Purchase Order, together with any subsequent amendments made in accordance with Clause 2 represent the entire terms and conditions of the agreement between Tullow and the Supplier. …” PO 361 The Invitation to Tender and the Defendant’s Tender

33. The Claimant sent the Defendant its Invitation to Tender for the provision of 7 inch tubing under cover of an e-mail from Mr. Weale to Ms. Roubardeau dated 20 August 2008. The tender documents, “Ref TGL00361” for the “Provision of 7”Tubing GRE Lined required for Water Injection Wells during Tullow’s Drilling campaign in Ghana” ( “the ITT Documents ”) were supplied as a zip file and included a blank copy of the Claimant’s PO form marked “Purchase Order No. TGL 00361” with the Claimant’s Terms on the reverse. The tubing specification found in the price schedule at attachment 1 to the ITT Documents described the equipment requirement in summary as being 17,500 metres of 7” tubing L80 1%Cr 29lb/ft VAM TOP GRE lined.

34. Earlier in the month, the Defendant had sent the Claimant an offer for a different category of tubing, namely seamless carbon tuning as per API 5CT 3 ½ x 9,20 lb/ft L80 type 1 VAM TOP regular range 3 standard drift. That offer, offer no. 111223, was made on 07 August 2008 and was an offer made on terms which included the Defendant’s GCs (a copy of which was attached to the offer).

35. In response to the Invitation to Tender, the Defendant submitted its tender, offer no. 111269, to the Claimant on 03 September 2008 comprising (i) a covering letter from Ms. Roubardeau for the attention of Mr. Weale, (ii) a form of tender, (iii) the Defendant’s commercial offer for seamless carbon casing as per API 5CT used as tubing, 7 x 29,00 lb/ft VM 80 1Cr VAM TOP Regular Range 3 standard drift, (iv) the PO 167 terms, (v) Attachments 2 and 3 from the Claimant’s ITT Documents, (vi) the Defendant’s Technical Offer, (vii) a Connection Data Sheet, (viii) the Defendant’s mill certification documents, (ix) the Defendant’s Health and Safety Policy and (x) the Defendant’s Quality Management Manual. The covering letter listed the contents of the tender including “… the Conditions of Purchase agreed for your ITT 00167” .

36. The Defendant’s form of tender signed by Ms. Roubardeau, as sales manager, included at paragraph 6: “6.0 Agreement to Terms and Conditions We recognise that failure to agree to terms and conditions of Contract may be cause for Company to reject our Tender . We add our own Conditions of Sales to our proposal so that we can agree on common conditions asap.”

37. The form of tender also stated that any correspondence to the Defendant should be addressed to Ms. Roubardeau.

38. The commercial and technical offers included the following text on the first page of each offer: “Further to above mentioned request for quotation, we are pleased to submit herewith attached our best proposal as per our general conditions for the supply of tubulars and/or accessories to be delivered CFR TAKORADI”.

39. Prices for the tubing were in US dollars per metre on the basis CFR TAKORADI Incoterms 2000 and the tubing was described as: “Seamless Carbon Casing as per API 5CT used as Tubing 7 x 29,00lb/ft VM 80 1CR VAM TOP Regular Range 3 Standard Drift”

40. The Payment Conditions were stated to be “By Bank Transfer, at 30 days, date of invoice”. Under “Shipment”, the Defendant explained that: “Our prices are to be understood on a CFR TAKORADI basis, however please note that we can only commit on an ex-mill delivery date as we can not [sic] be held responsible for the availability of conventional vessel and eventual delay of transit time”

41. The Defendant makes no admissions as to whether the Defendant’s GCs were included with the tender documents and submits that in any event the references to “our own Conditions of Sale” in the form of tender and in each of the offers are to be understood as being references to the Defendant’s GCs.

42. On the question of whether the Defendant’s GCs were included with the tender documents, I find that they were not for the following reasons: i) There is no copy of the Defendant’s GCs with the tender documents included in the hearing bundles. ii) The covering letter with the tender documents lists the documents included within the tender offer and refers to the PO 167 terms as being included but does not refer to the Defendant’s GCs being included. iii) The Defendant submits that the tender documents in the hearing bundle were taken from its archive and the Defendant’s GCs sent with the documents may have been lost or the tender documents were otherwise incomplete. In support of this position, the Defendant points to the evidence from Ms. Domur that she did not generally print copies of the Defendant’s GCs for the archive but only put in the archive the documents which are particular to a customer. However, Ms. Domur confirms in her witness statement that she drafted the covering letter of 03 September 2008. She does not state that she included a copy of the Defendant’s GCs with the letter. Further, there is in the bundle a copy of the documents submitted with the other offer for carbon tubing (L80 type 1), sent under cover of an e-mail dated 07 August 2008. The covering e-mail refers to the Defendant’s GCs as being attached and a copy of the Defendant’s GCs is included within the offer documents in the hearing bundle. The contrast between the tender documents and the offer sent on 07 August 2008 supports the conclusion that no copy of the Defendant’s GCs was sent with the tender documents. iv) Overall, I find that there is no evidence to suggest that the Defendant’s GCs were included with the tender documents. On the contrary, the evidence suggests that Ms. Roubardeau intended to include the PO 167 terms in the tender documents in place of the Defendant’s GCs.

43. As to which set of conditions Ms. Roubardeau was referring when she referred to “our own Conditions of Sale” in the form of tender and to ‘our General Conditions’ in the commercial and technical offers, it might be thought that the wording more naturally refers to the Defendant’s GCs. However, I am satisfied that she was intending on behalf of the Defendant to refer to the PO 167 terms. i) The Defendant’s GCs were not included with the tender documents whereas the PO 167 terms were included and were specifically identified by Ms. Roubardeau in her covering letter. ii) The parties had previously negotiated amendments to the Claimant’s Terms which were mutually acceptable and were incorporated in the PO 167 terms. iii) The Claimant had made clear in the instructions to tenderers that (i) it intended the Claimant’s Terms to apply any contract awarded and (ii) the extent to which a tenderer qualified or clarified the invitation to tender would be taken into account during consideration of the tender and could have a negative effect on the tender. iv) When Ms. Roubardeau referred in the form of tender to adding “our own Conditions of Sales” to the Defendant’s proposal, she did so on the basis that the parties “coul d agree on common conditions asap” . In other words, she was not anticipating any significant delay in agreeing the general terms and conditions, which would apply to any contract. This, I consider, is because she was proposing to the Claimant that they would contract on the basis of the PO 167 terms, which had previously been agreed by the parties. v) The words “our own Conditions of Sale” are capable of being read and understood as being a reference to the conditions previously agreed between the Claimant and the Defendant, namely the PO 167 terms.

44. The Defendant drew my attention to Attachment 3 to the tender documents, which dealt with contractual exceptions and submitted that the reference in that document to General Conditions of Contract and “our conditions” was to be taken as a reference to the Defendant’s GCs. However, the specific clauses on which the Defendant is commenting in Attachment 3 are clauses in the PO 167 terms. It appears that what the Defendant was seeking to do was to propose exceptions or modifications to the PO 167 terms by reference to the Defendant’s GCs and its ordinary practice. In other words, the Defendant was making proposals for further amendments to the PO 167 terms and only in relation to clauses 5, 6, 7 and 9.

45. Following submission of the Defendant’s tender, the parties exchanged emails relating to various technical matters, including, on 22 September 2008, as to whether the Tubing could be provided as range 3 with a maximum length of 40ft (range 3 generally refers to pipes with a length between 38 – 42 feet).

46. On 24 September 2008, Mr. Tartar of the Defendant provided answers to Mr. Weale for his questions, including confirming that the Tubing could be provided in 40 foot lengths at no extra charge.

47. On about 03 October 2008, the Defendant’s legal department gave a presentation to the sales department about steps to improve control of the Defendant’s contractual risks. Mr. Bruneau, the head of department, circulated an email to the sales department, including Ms. Roubardeau and Ms. Domur, summarising the effect of the presentation and attaching a copy of the PowerPoint presentation. Mr. Bruneau’s summary included the following: “1. Basic position is to have our General sales conditions (CGV) approved by Customers. … More particularly, we need at all level [sic] to be very careful when we receive PO from Customers. The reference of contractual terms and specific agreements need to be check [sic] and validated before we send acknowledgement. As discussed the issue is not just on late delivery penalties: consequential damages and overall liabilities are key issues and can not be accepted without giving the matter proper consideration (cf. attached document). Besides the day to day actions, we need to review the conditions we are having in place with our regular Customers (Reliance, Sonatrach, KalaNaft, Sonaid, Perenco, Tullow …) in order to see the discrepancies with the corporate rules and define the strategy (renegociate [sic] for future job, quantify the accepted additional risk …). …”

48. There is, however, no evidence that Mr. Weale, or anybody else working for the Claimant, was aware of the presentation or the PowerPoint.

49. On 06 and 08 October, Ms. Roubardeau chased Mr. Weale for news about the tender. On 09 October, Mr. Weale responded saying that he had spoken to his engineer who had said that the tender offer was ok and that he would raise the internal financial paperwork and hoped to get the order to the Defendant the following week.

50. Following some further internal discussions on pricing, Ms. Roubardeau messaged Mr. Weale on 14 October 2008 to confirm that the Defendant could supply range 3 pipes with a maximum length of 40 feet at no extra cost provided the Claimant was willing to accept a 5% tolerance for short pipes (36 to 40 feet). On the same day, she also messaged Mr. Weale to say that following receipt of his e-mail of 09 October, the Defendant had launched production but “I am still expecting your PO in order to back me up” . In other words, certainly at this stage, Ms. Roubardeau was expecting Mr. Weale to confirm the order with a Purchase Order from the Claimant, which would be on PO 167 terms. Mr. Weale responded on 17 October 2008 that the 5% tolerance was acceptable and Ms. Roubardeau replied thanking Mr. Weale for his confirmation. There was no mention at the time of these exchanges of the Defendant’s GCs.

51. On 31 October 2008, Ms. Roubardeau emailed Mr. Weale chasing three missing purchase orders, two of which are unrelated to this litigation and PO 361. In her message, Ms. Roubardeau explained that the reason for her request was that her management were becoming “really sensible and will not accept us to place any order at the mill without a signed and correct PO.” When Ms. Roubardeau used the word “sensible”, it is likely that she meant ‘sensitive’. In any event, it is clear that Ms. Roubardeau saw a signed PO on agreed terms as being key to production of the tubing commencing.

52. The same day, Mr. Weale provided copies of the two unrelated purchase orders and confirmed that he would be sending over a draft purchase order for the 7” Duoline on Monday.

53. Subsequently on 04 November 2008, he sent over a draft of PO 361 under cover of a message, which asked Ms. Roubardeau: “… Would you please review and advise if you are OK with it. I have made mention to the same T’s and C’s as per TGL 00167. Delivery of the full quantity is required in Ghana by September 2009, can you confirm this can be met or if not let me know as we do have a bit of leverage with this timing. If you’re OK with this I’ll get it signed off and issued asap.”

54. The draft PO 361 provided to Ms. Roubardeau included on the second page the words: “The Terms and Conditions applicable to this Purchase Order will be those as agreed within our previous P/O Ref TGL 00167.

55. Ms. Roubardeau responded on the same day that she had been through the draft Purchase Order and it seemed alright to her.

56. On 05 November 2008, Ms. Domur raised 3 questions with Ms. Roubardeau about the purchase order relating to (i) the need for the length of the tubes to be included, (ii) the scope of tubing inspections at the mill and (iii) what quality plan was envisaged. Ms. Roubardeau gave Ms. Domur permission to raise the second and third questions with Mr. Weale but said that the first had been addressed by e-mail. Ms. Domur e-mailed Mr. Weale the same day and he responded on 07 November. There was no discussion between Ms. Domur and Ms. Roubardeau about incorporating the Defendant’s GCs into the purchase order and neither Ms. Roubardeau nor Ms. Domur raised the issue with Mr. Weale at this time.

57. On 17 November 2008, the Claimant sent the Defendant by post two original purchase orders for signature. The purchase orders were signed by Mr. Carroll and expressly stated: “The Terms and Conditions applicable to this Purchase Order will be those as agreed within our previous P/O Ref TGL 00167.”

58. Mr. Weale e-mailed Ms. Roubardeau the following day attaching the purchase order and saying: “I have made reference within the Order to the T’s & C’s that apply will be those as per TGL 00167”. This was a reference to the statement on the second page of the purchase order that “The Terms and Conditions applicable to this Purchase Order will be those as agreed within our previous P/O Ref TGL 00167” .

59. Ms. Roubardeau signed the two purchase orders without amendment on 21 November 2008, initialling each page.

60. On 25 November 2008, Ms. Domur returned one of the purchase orders signed by Ms. Roubardeau to the Claimant together with Acknowledgements of Order. The covering letter is in the following terms: “… We thank you for your above-mentioned PO. Please find attached one exemplar of the signed PO by Veronique Roubardeau as requested, knowing that we keep the second exemplar as agreed. Thanks to confirm that you agree on the order being produced in grade VM80 1CR as per our offer 111269 dated 03/09/2008. Ordered items are 7” casing “used as tubing” as per the same offer, and the ordered range is 38FT to 40FT with a maximum of 5% of the range at 36FT as per e-mails exchanges and our here attached acknowledgement. You will find attached our acknowledgement of PO mentioning the grade VM80 1CR and “Casing item used as tubing”. I also enclosed our General Conditions of Export Sale. …”

61. The covering letter was signed by Ms. Domur as ‘Export Sales Assistant’. The Acknowledgements of Order set out details of the product being supplied and various other matters but do not refer to the Defendant’s GCs.

62. On 26 and 27 November 2008, Mr. Weale was exchanging correspondence with both Ms. Domur and Ms. Roubardeau regarding an offer for the supply of pup joints. The offer was forwarded by Ms. Domur on 27 November under cover of an e-mail which began “Please find enclosed our offer no. 111478 with our general conditions of export sales” . In fact, it appears that the pup joints were later supplied pursuant to Amendment No. 1 to PO 361, which was encapsulated in a purchase order dated 09 January 2009, which expressly provided: “… This Amendment No. 1 is issued to cover the supply of Pup Joints as detailed below and in accordance with V & M’s Quotation Ref 111478 dated 23 rd December 2008. … The Terms and Conditions applicable to this Purchase Order will be those as agreed within our previous P/O Ref TGL 00167”.

63. Also on 26 November 2008, Mr. Weale emailed Ms. Domur referring to her letter of 25 November and asking about the technical difference between material which is VM80 1%CR as opposed to L80 1%CR. Mr. Durrande, a sales manager for the Defendant, replied to Mr. Weale on 27 November 2008 in the following terms: “… As per API 5CT, L80 is strictly defined but does not guarantee a level of chromium. L80 1CR is not defined in API 5CT. For this reason, Vallourec has developped [sic] a proporietary [sic] grade, VM80 1CR which does guarantee a level of chromium between 0,8 and 1,2%. This grade does also guarantee you a higher level of “cleanness” than L80 as per API 5CT. …”

64. From his message, I understand Mr. Durrande to be confirming that the only essential difference between material which is L 80 1%CR and material which is VM80 1%CR is that the chromium level in material which is VM80 1%CR is guaranteed to be within the tolerances he mentions. Otherwise, L80 1%CR and VM80 1%CR are the same material.

65. Mr. Weale did not otherwise query the terms of the Acknowledgements of Order or raise any question about the inclusion of the Defendant’s GCs with the letter of 25 November 2008.

66. By a purchase order dated 10 August 2009, but signed by the Defendant on 19 August 2009, the parties agreed Amendment No. 2 to PO 361 to advise and confirm that all deliveries of the Tubing were to be pre-slung for shipment. The purchase order provided “All other details and Terms and Conditions remain as per the original P/O.”

67. The Defendant delivered the Tubing to the Claimant in three batches. The first was the subject of Work Order 27507 (comprising 420 pipes), which was shipped aboard the UAL Congo departing Antwerp on 31 May 2009.

68. Subsequently, in 2015 the parties concluded a series of standstill agreements, the last of which (dated 29 October 2015) preserved the limitation period on a rolling basis terminable upon 28 days’ notice. Issues 1 and 2: Conclusion of the Contract and Incorporation of Terms

69. The essential question at the heart of Issues 1 and 2 is whether the parties contracted on the PO 167 Terms or on the PO 167 Terms and the Defendant’s GCs. In this respect, Issues 1 and 2 can be taken together because the answer to the question of which terms were incorporated into the parties’ contract depends on when the contract was made.

70. The Claimant submits that contract was made when, on 25 November 2008, Ms. Domur sent back PO 361 signed by Ms. Roubardeau confirming that the parties were contracting on the PO 167 terms. The Claimant further submits that neither the Acknowledgements of Order nor the inclusion of the Defendant’s GCs with Ms. Domur’s letter of 25 November 2008 had any contractual effect but was purely an administrative act. In contrast, the Defendant submits that Ms. Domur’s letter of 25 November 2008, enclosing the Acknowledgements of Order and the Defendant’s GCs was the ‘last shot’ and was a counter-offer by the Defendant to contract on the PO 167 terms and the Defendant’s GCs. The Defendant further submits that the Claimant accepted this counter-offer by its conduct in proceeding with the order, including by inspecting and taking delivery of the tubing.

71. By the time of the hearing, it was common ground that the essential question as to when and on what terms the Contract was concluded turned on the effect of the 25 November letter and its enclosures. It is not therefore necessary for me to consider the two alternative cases advanced by the Claimant in its pleadings, namely (i) that the Contract was concluded by the Claimant’s acceptance of the Defendant’s tender on 17 November 2008 or (ii) by the Defendant’s acceptance on 21 November 2008 of the Claimant’s offer to contract on PO 361. The Applicable Legal Principles

72. The legal principles relevant to Issues 1 and 2 are as follows: i) An acceptance has no legal effect until is communicated to the offeror; see Chitty on Contracts , 35 th ed, para 4-056 and Air Transworld Ltd v. Bombardier Inc. [2012] 1 Lloyd’s Rep. 349 at [81]. ii) The acceptance of an offer involves a final and unqualified expression of assent to the offer. In contrast, where a communication varies a term of the offer, or introduces a new term or only partially accepts the offer, it is not an acceptance of the offer, but it may be a counteroffer; see Chitty on Contracts, 35 th ed at paragraphs 4-032 and 4-038. iii) Where parties wish to contract by reference to a standard form contractual document, any conflict between the forms being proposed will usually be resolved by reference to the so-called “last shot” doctrine, namely the principle that where conflicting communications are exchanged, each is a counter-offer, so that if a contract results, for example from acceptance by conduct, it is on the terms of the final document in the series leading to the conclusion of the contract; see B.R.S. v Arthur V. Crutchley Ltd [1968] 1 All E.R. 811 , 816G – 817B and TRW Ltd v Panasonic Industry Europe GmbH [2021] EWCA Civ 1558 , [2021] I. L. Pr. 42 at [29] – [35]. iv) However, the ‘last shot’ doctrine may be displaced where there is evidence of the parties’ objective intention that the last shot should not prevail; see Tekdata Interconnections Ltd v Amphenol Ltd [2009] EWCA Civ 1209 , [2010] 2 All ER (Comm) 302. In the Tekdata case, Longmore LJ at [1] stated: “… if, however, it is clear that neither party ever intended the seller’s terms to apply and always intended the purchaser’s terms to apply, it is conceptually possible to arrive at the conclusion that the purchaser’s terms are to apply”. He continued at [11]: ‘… the traditional offer and acceptance analysis must be adopted unless the documents passing between the parties and their conduct show that their common intention was that some other terms were intended to prevail.”

73. Tekdata was a case concerning the supply of connectors used in the manufacture of cable harnesses for internal wiring. Tekdata bought the connectors from the defendant, Amphenol, and a dispute arose as to whether certain connectors were fit for purpose or of merchantable quality. In the context of this dispute, Tekdata averred that the contracts of purchase were on the terms of their purchase orders while Amphenol averred that the contracts were concluded by their acknowledgments of the purchase order, which contained terms to exclude or limit their liability for any breaches of contract. At first instance, the judge held that, looking at the evidence as a whole, the parties must have intended to contract on Tekdata’s terms rather than those of Amphenol. However, the Court of Appeal, while recognising that there may be exceptions to the ‘last shot’ doctrine, held that the evidence available to the Judge did not justify his conclusion that the traditional offer and acceptance analysis should be displaced. They accordingly concluded that the contracts between the parties were on Amphenol’s terms and allowed the appeal.

74. TRW concerned contracts between TRW and Panasonic for the supply of resistors over a number of years. TRW signed a ‘customer file’ document incorporating Panasonic’s terms and conditions, which included a choice of German law and the exclusive jurisdiction of the courts in Hamburg, Germany. The document also stated that the general conditions applied exclusively to the entire business relationship between the parties unless different conditions had been expressly confirmed by them in writing and that any conditions of the buyer that diverged from the general conditions would be invalid even if Panasonic effected delivery of goods without reservation. TRW purchased the alleged defective resistors in 2015 and 2016 under purchase orders purporting to be governed by English law. TRW commenced proceedings against Panasonic in England and Panasonic challenged jurisdiction on the grounds that the Hamburg courts had exclusive jurisdiction. At first instance, the judge found that the Panasonic customer file took priority and the parties had contracted on Panasonic’s general conditions rather than the terms of the purchase orders. He, therefore, determined that the Hamburg court had exclusive jurisdiction. The Court of Appeal upheld the judge’s conclusions and dismissed the appeal.

75. Apart from the general principles discussed in paragraph 72 above, the following matters stand out from the Court of Appeal’s contractual analysis: i) The Court rejected TRW’s submission that the effect of TRW signing Panasonic’s general conditions was simply to note that those terms and conditions existed. Rather, the signature was evidence that TRW was accepting Panasonic’s general conditions as governing future purchases (see [47]). ii) The Court treated as unsurprising the judge’s conclusion that the signing of the customer file was significant because it was the only time on which one party expressly signed something referring to the other side’s terms and conditions (see [36] and [37]).

76. In the course of its judgment in the TRW case, the Court of Appeal referred to another ‘battle of the forms’ case, Butler Machine Tool Co. Ltd v. Ex-Cell-O Corporation (England) Ltd [1979] 1 WLR 401 . The plaintiff sellers offered to sell the defendant buyers a machine tool on terms that orders were accepted only on the terms set out in the seller’s quotation, which would prevail over any terms in the buyers’ order. The sellers’ terms included a price variation clause. The buyers responded with an order on their own terms and conditions, which did not include a price variation clause. The order had a tear-off acknowledgement for signature and return, which accepted the order “on the terms and conditions thereon”. The sellers returned the signed acknowledgement form with a covering letter stating that delivery was to be in accordance with their quotation. The buyers were late accepting delivery of the machine tool and the sellers sought to invoke the price variation clause. The buyers disputed that the clause formed part of their contract with the sellers. At first instance, the judge gave judgment in the sellers’ favour but on appeal, the Court of Appeal overturned the judgment holding that the buyers’ order was a counteroffer, which the sellers’ accepted when they returned the signed acknowledgement form. The reference to the sellers’ quotation in their covering letter served only to identify the machine and its price. In the course of his judgment, Lord Denning M.R. put the position in the following terms (at 405D - F): “In the present case the judge thought that the sellers in their original quotation got their blow in first: especially by the provision that “these terms and conditions shall prevail over any terms and conditions in the buyer’s order.” It was so emphatic that the price variation clause continued through all the subsequent dealings and that the buyers must be taken to have agreed to it. I can understand that point of view. But I think that the documents have to be considered as a whole. And, as a matter of construction, I think the acknowledgment of June 5, 1969 is the decisive document. It makes it clear that the contract was on the buyers’ terms and not on the sellers’ terms: and the buyers’ terms did not include a price variation clause. …”

77. Lawton and Bridge LJJ agreed with the judgment of Lord Denning M.R. In relation to the covering letter sent by the sellers, Bridge L.J. said this (at 408 D- E): “The second letter says that the order has been entered in accordance with the quotation of May 23. I agree with Lord Denning M.R. and Lawton L.J. that that language has no other effect than to identify the machinery and to refer to the prices quoted on May 23. But on any view, at its highest, the language is equivocal and wholly ineffective to override the plain and unequivocal terms of the printed acknowledgement of order which was enclosed with the letter of June 5. …”.

78. What stands out from each of these authorities is the importance of considering the documentation as a whole not just for the purposes of determining whether the parties intended to depart from the ‘last shot’ doctrine but also for the purposes of determining whether the documents said to constitute the last shot, in the sense of being the final counter-offer, are in fact a last shot. In this regard, the comments of Moulder J. in BP Oil International Ltd v Glencore Energy UK Ltd [2022] EWHC 499 (Comm) , 2 Lloyd’s Rep. 221 at [115] to [119] are apposite. “115. This was not in my view a battle of the forms. The parties were not in dispute as to whether or not the BP GT & Cs or the Glencore terms should apply; both parties had accepted that the GT & Cs applied and the parties were in negotiation as to whether the contract already agreed should be varied to reflect the terms of the Glencore Sales Contract. It cannot be the case that any negotiation of any contract which gives rise to a dispute can be said to amount to a “battle of the forms” merely because one party sends a draft contract to the other and there is then a back and forth in writing in the course of the negotiations”.

116. This is not a case where the rationale for the “last shot” principle identified by Lord Dyson (ie that it promotes a degree of certainty to promote effective commercial relationships) can be said to exist.

117. Even if this case were to be treated as a “battle of the forms”, the question is what the parties must objectively be taken to have intended.

118. I accept that BPOI did not pursue the outstanding issues in correspondence (or by telephone) following the e-mail of 08 April.

119. In assessing what the parties must objectively be taken to have intended, I have regard to the contemporaneous evidence and in particular the statement by BPOI in its 4 April e-mail that: “only terms which have been expressly agreed by both parties, at the time of trade or subsequently, shall be binding for the agreement. We hereby reject any proposed amendments unless expressly agreed by us in writing. Neither failure or delay in responding, nor performance of the agreement shall constitute acceptance to any terms which have not been expressly agreed between the parties . (emphasis added)”.

79. Drawing all the authorities discussed above together, I conclude that: i) I have to have regard to the contemporaneous evidence as a whole to determine when the Contract was concluded. ii) Just because parties are negotiating by reference to their respective standard terms does not necessarily give rise to a ‘battle of the forms’ situation. iii) Even where there is a ‘battle of the forms’ situation to which the ‘last shot’ doctrine applies, it is still necessary to look at the documents said to constitute the ‘last shot’ (or final counter-offer) as a whole to determine whether the party in question intended to make a final counter-offer or whether they were in fact accepting the last offer made by the other party. Issue 1: When was the Contract concluded?

80. Taking the above principles into account, this is not a typical ‘battle of the forms’ case in at least two respects. i) This is not a case concerning a sale and purchase contract where the contract negotiations consist only of one party offering to supply on its standard terms and the other party purporting to purchase but on its standard terms. On the contrary, the Contract was made against the background of the parties’ previous negotiations for PO 167 and the negotiations which took place following the Claimant’s issue of the ITT Documents. ii) This is not a case where the dispute is whose terms were incorporated on the basis that they were the last in time. It is a case where the Defendant says that the effect of their ‘last shot’ was to overlay the Defendant’s GCs onto the PO 167 terms so that both sets of terms are incorporated into the Contract and one has to construe the two sets of terms together so far as possible.

81. In other words, this is, therefore, a case where it is essential to look at all the contemporaneous evidence not merely to determine when the parties concluded their agreement and on what terms but also to consider whether, if the letter of 25 November 2008 and its enclosures was a counter-offer, it was sufficiently clear that the Defendant was intending that the parties should contract on both the PO 167 terms (which already included some amendments previously proposed by the Defendant) and the Defendant’s GCs?

82. I am satisfied that the letter of 25 November 2008 (and enclosures) was not a last counter-offer by the Defendant. On the contrary, it was an unqualified acceptance by the Defendant that the Contract would be on PO 167 terms. I accept that Ms. Domur included Acknowledgements of Order mentioning the grade VM80 1CR and “Casing item used as Tubing” and also included the Defendant’s GCs. I also accept that the Acknowledgements of Order and the letter of 25 November 2008 confirmed (i) that the goods supplied would be 7” casing used as tubing, (ii) that the grade would be VM80 1CR and (iii) that the ordered range was 38ft to 40ft with maximum of 5% of the range at 36ft.

83. However, similar to the situation in Butler Machine Tool Co. Ltd v. Ex-Cell-O Corporation (England) Ltd , I find that the description of the goods found in the letter of 25 November 2008 and the Acknowledgement of Order was not an offer to supply tubing of a different type to that previously agreed but was simply intended to confirm the description of the goods to be supplied.

84. In this regard: i) There was no evidence before me to suggest that there was any material distinction between 7” casing “used as tubing” and 7” tubing. In any event, the Defendant offered 7” casing “used as tubing” in their original tender of 03 September 2008 and it was on this basis that the Claimant proceeded with the negotiations which led to the Claimant signing and issuing PO 361 for 7” R3 Casing. PO 361 accepted that the product grade and details would be as per the tender documents. ii) As the e-mail from Mr. Durrande on 27 November 2008 confirmed, L80 and VM80 1CR are the same product save that for VM80 1CR, the Defendant guarantees the level of chromium. Again, the tender documents also provided that the grade of the product to be supplied was VM80 1CR. iii) PO 361 specified the correct range for the product, namely R3 (38 - 42 ft). The Claimant and the Defendant further agreed in their e-mail exchanges of 14 and 17 October 2008 that the ordered range of the casing would be 38ft to 40ft with a maximum of 5% of the range below 38 foot but no shorter than 36ft.

85. Likewise, the inclusion of the Defendant’s GCs with the purchase order signed by Ms. Roubardeau had no contractual effect. Ms. Domur’s evidence at paragraphs 28 and 29 of her witness statement is (i) that she knew she would have included the acknowledgement and the Defendant’s GCs with the signed purchase order because it was her habit to do so and because those were the instructions of her manager, Ms. Lassalas and (ii) that it was usual in her work to include the Defendant’s GCs and an acknowledgement of order with this type of letter. However, Ms. Domur included the Defendant’s GCs on this occasion without instructions from Ms. Roubardeau to do so.

86. There is no indication in the covering letter of 25 November 2008 that the purpose of including the Defendant’s GCs within the letter was to make a counter-offer to contract on PO 167 terms as amended by the incorporation of the Defendant’s GCs in the Contract. If that had been the Defendant’s intention, then not only should it have been clearly spelt out in the covering letter, but I am also satisfied, having regard to their previous correspondence, that Ms. Roubardeau would have raised the intention expressly with Mr. Weale.

87. In other words, I am satisfied that Ms. Domur included the Defendant’s GCs with the letter of 25 November 2008 as an administrative exercise. This would be consistent with Ms. Domur’s evidence at paragraph 8 of her witness statement that she was part of the back-office, taking care of the administration, including administration of the order but was not responsible for contract management, while Ms. Roubardeau was responsible for negotiations and contract conditions.

88. Further, when one looks at PO 361 together with the parties’ conduct both before and after the letter of 25 November 2008, it reinforces the conclusion that PO 361 signed by Ms. Roubardeau and returned on her behalf to the Claimant was intended by the Defendant to be an acceptance of PO 361 on the terms of PO 167 without the inclusion of additional terms.

89. First, PO 361 expressly states on its face that the Terms and Conditions applicable to the Purchase Order will be those as agreed within the previous P/O Ref TGL 00167. PO 361 is signed by Ms. Roubardeau without qualification. This contrasts with PO 167 where Ms. Roubardeau qualified her signature to refer to the e-mail of 27 May 2008 which both Ms. Roubardeau and Mr. Weale signed. If the Defendant had not intended Ms. Roubardeau’s signature to be an unqualified acceptance of the terms found in PO 361 as signed by the Claimant, then Ms. Roubardeau would have qualified her signature to refer to the Defendant’s GCs.

90. Second, the PO 167 terms were bespoke terms which were specifically negotiated and agreed between Ms. Roubardeau and Mr. Weale. They incorporated the points which Ms. Roubardeau had previously identified as being important for the Defendant to incorporate from the Defendant’s GCs.

91. Third, Ms. Roubardeau and Mr. Weale acted on the basis that the purchase order would only be finally binding when a representative of each party had signed the purchase order. Further, when the parties agreed amendments to the Claimant’s Terms for incorporation into PO 167, the fact of their agreement was recorded in the e-mail of 27 May 2008, which was then signed by both parties and appended to the purchase order.

92. Fourth, the PO 167 Terms were appended to the Defendant’s tender while, as I have found, the Defendant’s GCs were not. Ms. Roubardeau also specifically referred to the PO 167 Terms in the covering letter sent with the tender.

93. Fifth, when Ms. Roubardeau chased Mr. Weale for three missing purchase orders on 31 October 2008, she did so because her management would not let her place an order for production without a signed and correct purchase order. Ms. Roubardeau’s message of 31 October was another communication indicating to the Claimant that the Defendant regarded the signed purchase order as being the proof of a contract and its terms.

94. Sixth, the Defendant had an opportunity to tell the Claimant that they wished to incorporate the Defendant’s GCs into the Contract when Mr. Weale sent Ms. Roubardeau his email of 04 November 2008 attaching the draft PO 361 and asked for her comments. Ms. Roubardeau did not mention the Defendant’s GCs in her reply. Instead, she told Mr. Weale that she had been through the draft purchase order and it seemed alright to her.

95. Seventh, the PO 167 Terms were again brought to Ms. Roubardeau’s attention when Mr. Weale e-mailed her a copy of the signed PO 361 on 18 November 2008. Mr. Weale’s covering message again made reference to the fact that signed PO 361 referred to the terms and conditions which would apply being the PO 167 terms.

96. Eighth, in contrast to when Ms. Roubardeau signed the PO 167 Terms, she signed the PO 361 Terms without any qualification referring to the incorporation of the Defendant’s GCs. Nor was there any reference in the letter of 25 November 2008 to the Defendant’s intention that the Defendant’s GCs should apply to the Contract. These facts are particularly significant in circumstances where the PO 167 terms required any amendments to the terms to be agreed in writing (see further paragraph 98 below).

97. Ninth, when the parties subsequently amended PO 361 on 09 January 2009 to add the supply of pup joints to the order, the parties again expressly referred to the order being subject to the PO 167 terms. There is no mention of the Defendant’s GCs having been incorporated into PO 361. If the Defendant had considered at the time that the Defendant’s GCs had also been incorporated into PO 361, then it seems very unlikely that they would not have also referred to the Defendant’s GCs being incorporated in Amendment No. 1.

98. Finally, I accept that the PO 167 terms protected the Claimant against the last shot doctrine. The introduction to the PO 167 Terms taken together with clauses 2 and 19 of the terms required that any amendment to the terms had to be made on a Tullow official printed purchase order or be otherwise agreed in writing. At the least, therefore, if the Defendant intended that the Defendant’s GCs should be incorporated into the Contract so as to amend the PO 167 terms that intention had to be expressly communicated to the Claimant in writing for agreement by the Claimant. As set out in more detail in paragraph 86 above, the Defendant did not communicate its intention in this way.

99. For all the above reasons, I find that the answer for Issue 1 is that the Contract was concluded on 25 November 2008 when the Defendant sent the Claimant its letter of that date enclosing Purchase Order 361 signed by Ms. Roubardeau and incorporating the PO 167 Terms. Issue 2: Were the Defendant’s General Conditions of Export Sale (“the Defendant’s GCs”) incorporated into the Contract and – if so – to what extent (“Issue 2)?

100. In light of my answer to Issue 1 and for the same reasons, I find that the Defendant’s GCs were not incorporated into the Contract. The Contract was subject to the PO 167 terms and did not incorporate the Defendant’s GCs. Issue 3: In view of the answer to Issue 2, was Clause 8 of the Defendant’s GCs incorporated into the Contract?

101. In light of my answers to Issues 1 and 2 above, the short answer to Issue 3 is ‘no’, clause 8 of the Defendant’s GCs was not incorporated into the Contract.

102. However, both parties also made their submissions on the position in relation to clause 8 if my answer to Issue 2 had been that the Defendant’s GCs were incorporated into the Contract.

103. Accordingly, I now consider the position for Issue 3 if, contrary to my findings for Issue 2, the Defendant’s GCs had been incorporated into the Contract.

104. I accept that it is trite law that it is necessary to try and interpret all of the provisions of a contract together if possible; see, for example, The Leonidas [2001] CLC 1800, 1803 G-H and The Interpretation of Contracts, 8 th ed at §7.41. To be inconsistent, a term must contradict another term or be in conflict with it, such that effect cannot fairly be given to both clauses; Chitty on Contracts , 35 th ed. at §16-082. It is only if terms are manifestly inconsistent that a clause should be rejected. It is possible to read two clauses as supplementing or qualifying one another without there to be a conflict. The Court is entitled to reject terms if they are repugnant to the object of the agreement or if they are standard printed terms which cut across the parties’ objective intent as disclosed by bespoke or special terms; see M/S Amlin Marine NV v King Trader Ltd [2024] EWHC 1813 (Comm) at [35] – [50] (affirmed on appeal at [2025] EWCA Civ 1387 ).

105. Clause 11 of the PO 167 terms (including the amendments found in the e-mail exchange of 27 May 2008) reads: “Warranty Without prejudice to any other rights whether implied, statutory or otherwise which Tullow may have the Supplier shall, if requested by Tullow during the period of [twelve months] after the date of delivery or in case of plant, twelve months after the date of commissioning with all possible speed and without cost to Tullow replace or repair [or reimburse, according to its possibilities] the Goods or any part thereof found to be defective due to faulty materials workmanship or design or to any act or admission {sic: omission} of the Supplier. In particular the Supplier shall reimburse any transportation and other charges incurred by Tullow in effecting such removal and or if appropriate replacement or repair at the point of use. The warranty period for such repaired or replaced part shall be effective for a further (12) months.” (square brackets indicate the amendments agreed in the May 2008 e-mails) .”

106. Clause 8 of the Defendant’s GCs provides: “8. Warranty - Claims Our Company warrants that, for a period of 12 months from the delivery of the Goods, they will be free from defects resulting from faults in material or fabrication which render the Goods non-conforming with respect to the specifications contractually agreed by our Company. Our obligation shall apply only when the Goods are used in accordance with the Company’s specifications or if no such specification exists, used in accordance with their ordinary purpose. The foregoing warranty shall not apply to normal wear and tear nor to damage proven to be caused by third party nor to proven misuse by the Buyer. Liability of our Company under this warranty is limited, at its choice, even in the case of hidden defects, to replacement, repair of the defective Goods or refund of the purchase price and thereby the Contract is terminated. Our Company will in no case have any liability for direct, indirect, consequential loss or other damages in respect of the Goods or defects therein, and gives no guarantee or warranty in respect of any recommendations it may give as to use of the goods or in respect of the absence of infringement of patents held by third parties. Our Company's warranty applicable to the original Goods shall also apply to the repair or replacement. Any claims for defects shall be made within twelve months after completion of repair or replacement. Our Company gives no other warranty or guarantee express or implied, including (without limitation) any warranties or [sic: of] merchantability or fitness for a particular purpose. All claims for damages to or loss of the Goods must be received by our Company within 7 days of the delivery of the Goods. All claims for defects in the Goods must be received within 7 days from the occurrence of such defect. Each claim shall be made in writing and set forth the grounds therefore in detail. The Goods shall then be inspected jointly and the representatives of our Company shall be permitted to take such samples and make such inspections as we deem necessary. If the Buyer resells the Goods, Buyer will cause the terms of this Article 8 to apply to the resale, without reservation.”

107. The Defendant submitted in its skeleton argument that it was common ground that if the Defendant succeeded on Issue 2, it also succeeded on Issue 3. This was on the basis that, although the Claimant had denied the relevance of clause 8 of the Defendant’s GCs at paragraph 17(c) of its Amended Reply, it had not pleaded that clause 8 was a term contradicted by the PO 167 Terms. However, as was apparent from the Claimant’s Skeleton Argument, the Claimant does argue that clause 8 of the Defendant’s GCs is contradicted by the PO 167 Terms.

108. The Defendant submitted that in any event clause 11 did not contradict clause 8 because clause 8 merely further limited any rights the Claimant would otherwise have had under clause 11. Alternatively if there was contradiction between clause 11 and clause 8, that contradiction was only to part of clause 8 and did not on any view contradict that part of clause 8 which states: “Liability of our Company under this warranty is limited, at its choice, even in the case of hidden defects, to replacement, repair of the defective Goods or refund of the purchase price and thereby the Contract is terminated. Our Company will in no case have any liability for direct, indirect, consequential loss or other damages in respect of the Goods or defects therein, …”

109. I am, however, unable to accept that clause 11 of the PO 167 Terms does not contradict clause 8 in whole or in part.

110. Both clause 8 of the Defendant’s GCs and clause 11 of the PO 167 Terms deal with the warranty regime to be offered by the Defendant and the effect of that regime on, inter alia, any statutory regime governing the merchantability or fitness for purpose of the tubing to be supplied. The PO 167 terms reflect an agreed compromise between the Claimant and the Defendant as to the warranty regime to be applied to goods in circumstances where otherwise each party would rely on the warranty provisions found in their own terms. It does seem to me, therefore, that there is an inherent contradiction between clause 11 and clause 8 because the consequence of giving effect to clause 8 as well as clause 11 would be to provide the Defendant with the protection of the regime in clause 8 in circumstances where the parties had agreed by clause 11 that this regime would be replaced with the regime found in clause 11. In other words, given the parties’ agreement to an amended form of clause 11, it is clear that the parties did not objectively intend to incorporate clause 8 of the Defendant,s GCs into the Contract, whether in whole or in part.

111. Further, I agree with the Claimant that the scope of the warranty in clause 11 is materially different to that found in clause 8 because clause 8 only covers defects resulting from faults in material or fabrication whereas clause 11 provides a wider warranty, namely in respect of defects due to faulty materials, workmanship, design or to any act or admission of the supplier. In this respect, clause 11 does contradict or conflict with clause 8 if the effect of clause 8 is to restrict the Defendant’s obligations to the Claimant under the Contract further than the restrictions otherwise found in clause 11. As set out in the previous paragraph, clause 11 represents the warranty regime agreed between the parties.

112. Similarly, I consider that clause 11 does contradict clause 8 or is otherwise inconsistent with clause 8 for the following reasons: i) Clause 11 provides for the Defendant to repair or replace defective tubing or reimburse the Claimant for its cost. In contrast clause 8 limits the Defendant’s liability to the replacement or repair of any defective tubing or, at its option, to refund the purchase price paid under the Contract and treat the Contract as terminated. No such limit or right of termination is found in clause 11. ii) The limit in clause 8 and the additional exclusion of liability for direct, indirect, consequential loss or other damages does contradict or is inconsistent with: a) Clause 11 which specifically preserves the Claimant’s other rights, whether implied, statutory or otherwise. b) Clause 6 of the PO 167 Terms pursuant to which (i) the Claimant had the right to reject goods which were not of the required quality and (ii) the Defendant accepted liability for expenses directly linked to any defective materials delivered. c) Clause 22.2(ii) of the PO 167 Terms pursuant to which the Defendant accepted liability for the full amount of any loss, damage, injury or expense caused to them by any tort or breach by the Defendant. d) The parties’ express agreement in the May 2008 e-mails that the Claimant would specify the description and materials of the tubing ordered but, if the goods have been manufactured with a fault or were defective, then the Claimant would be entitled to reject the tubing as unfit for purpose.

113. For all the above reasons, I find that even I am wrong on Issue 2, clause 8 of the Defendant’s GCs was not incorporated into the Contract. Issue 4: In view of the answer to Issue 2, what is the correct and proper construction of Clauses 6 and 11 of the PO 167 Terms?

114. The Defendant submits that the proper interpretation of clauses 6 and 11 of the PO 167 Terms is relevant to the wider dispute in relation to three topics: i) Did the Contract contain terms implied by the SGA? The Claimant says ‘yes’ and the Defendant says ‘no’ for reasons outlined further in answer to Issue 5 below. ii) Do the PO 167 Terms preclude recovery for the types of loss claimed by the Claimant? This time, the Claimant says ‘no’ and the Defendant says ‘yes’. iii) Does Clause 6 give the Claimant rights upon which it can found a claim in these proceedings in any event? The Defendant says ‘no’ on the basis that the Claimant did not reject the Pipes.

115. Ultimately I did not understand the Claimant to dispute that its rights under clause 6 only arose in circumstances where it had rejected pipes and that therefore clause 6 does not provide a basis for claim in this action. Certainly, the Claimant does not plead a claim under clause 6 as a basis for recovery in its Amended Particulars of Claim. The particulars of breach at paragraph 31 of the Amended Particulars of Claim allege only a breach of the alleged implied terms in the Contract.

116. Clause 6 of the PO 167 Terms is in the following terms: “6. Acceptance In the case of Goods delivered by the Supplier not conforming to the Purchase Order whether by reason of not being: (i) of the quality, [ (ii) in the quantity or measurement stipulated] or (iii) being unfit for the purpose [due to a fault or defect] for which they are required where such purpose has been made known to the Supplier or where the necessary certification has not been enclosed, Tullow shall have the right to reject such Goods within a reasonable time of their delivery and inspection and to purchase elsewhere and to claim from the Supplier for any additional expense [directly linked to defective material delivered by the Supplier] incurred without prejudice to any other right which Tullow may have against the Supplier. The making of any prior payments by Tullow shall not prejudice Tullow right of rejection.” (square brackets indicate the amendments agreed in the May 2008 e-mails)

117. Clause 11 of the PO 167 Terms is set out at paragraph 105 above but I repeat it here for convenience: “11. Warranty Without prejudice to any other rights whether implied, statutory or otherwise which Tullow may have the Supplier shall, if requested by Tullow during the period of [twelve months] after the date of delivery or in case of plant, twelve months after the date of commissioning with all possible speed and without cost to Tullow replace or repair [or reimburse, according to its possibilities] the Goods or any part thereof found to be defective due to faulty materials workmanship or design or to any act or admission {sic: omission} of the Supplier. In particular, the Supplier shall reimburse any transportation and other charges incurred by Tullow in effecting such removal and or if appropriate replacement or repair at the point of use. The warranty period for such repaired or replaced part shall be effective for a further (12) months.” (square brackets indicate the amendments agreed in the May 2008 e-mails) .

118. When construing clause 6 and 11 of the PO 167 Terms, particularly in light of the Defendant’s case as to the limitations those clauses place on the Claimant’s rights of recovery, it is helpful to keep in mind the general principles of contractual construction as summarised by Popplewell J. (as he then was) in Lukoil Asia Pacific Pte Ltd v Ocean Tankers (Pte) Ltd (“The Ocean Neptune”) [2018] EWHC 163 (Comm) , [2018] 1 Lloyd’s Rep. 654 at [8]: “The court’s task is to ascertain the objective meaning of the language which the parties have chosen in which to express their agreement. The court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were in at the time of the contract, would have understood the parties to have meant. The court must consider the contract as a whole and, depending on the nature, formality and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to the objective meaning of the language used. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other. Interpretation is a unitary exercise; in striking a balance between the indications given by the language and the implications of the competing constructions, the court must consider the quality of drafting of the clause and it must also be alive to the possibility that one side may have agreed to something which with hindsight did not serve his interest; similarly, the court must not lose sight of the possibility that a provision may be a negotiated compromise or that the negotiators were not able to agree more precise terms. This unitary exercise involves an iterative process by which each suggested interpretation is checked against the provisions of the contract and its commercial consequences are investigated. It does not matter whether the more detailed analysis commences with the factual background and the implications of rival constructions or a close examination of the relevant language in the contract, so long as the court balances the indications given by each.”

119. In addition, in circumstances where the Defendant submits that the effect of clauses 6 and 11 is to restrict the remedies available to the Claimant for breach of contract it is appropriate to keep in mind the so-called Gilbert-Ash principle. Clear words are necessary before the Court will hold that a contract has taken away valuable rights or remedies which one of the parties to it; see Triple Point Technology Inc. v. PTT Public Co. Ltd [2021] UKSC 29 , [2021] 3 WLR 521 at [108].

120. Applying the above principles to clause 6, I find that: i) Clause 6 is dealing with the acceptance and rejection of the Tubing. So far as it is addressing the right of rejection, it is in effect establishing a ‘rejection code’. ii) There is nothing in the language of clause 6 which justifies the conclusion that its provisions were intended to limit or exclude the Claimant’s remedies for breach of contract other than in relation to the right of rejection. iii) As amended by the email exchanges of May 2008, the right of rejection under clause 6 arises in respect of a non-conformity relating to quality or where tubing is not fit for purpose due to a fault or defect. iv) The right under clause 6 to claim additional expenses is a right which arises in circumstances where tubing has been rejected. Following the amendments made by the e-mail exchanges of May 2008, the only additional expenses which can be claimed under clause 6 are those which are directly linked to tubing which is defective and has been rejected.

121. In relation to clause 11, and again applying the principles set out in paragraphs 118 and 119 above, I conclude that clause 11 as amended by the e-mail exchanges of May 2008 does not have the effect of excluding the Claimant’s right to claim damages for breach of contract, whether under any implied or statutory terms or otherwise.

122. The Defendant submits that the amended clause 11 does have such an exclusionary effect because, it says, when one looks at the e-mail exchanges of May 2008, Ms Roubardeau was clearly objecting to clause 11 and only intending to give a much narrower warranty consistent with clause 8 of the Defendant’s GCs, which does exclude any liability for breach of implied or statutory terms. The Defendant further says that it was this much narrower warranty to which Mr. Weale then agreed. The consequence of this agreement, according to the Defendant, is that the Defendant’s liability for the supply of defective goods is limited to the cost of replacing, repairing or reimbursing the cost of goods found to be defective.

123. When one considers the e-mail exchanges of May 2008, I do not accept that was the parties’ intention when Ms. Roubardeau and Mr. Weale agreed to amend clause 11. The relevant passage in Ms. Roubardeau’s e-mail of 27 May 2008 is: “Our warranty applies 12 months after delivery of the goods to the client. V & M can propose, within these 12 months to “replace or repair, or reimburse, according to its possibilities, the Goods […] found to be defective”. Of course, in case of repair or replacement, the warranty shall apply for a further 12 months. …”

124. Mr. Weale responded “Bearing in mind that previous P/O, Ref. TGL 0122, V & M’s T’s & C’s were accepted by TGL I would say that TGL are prepared to accept the qualifications as mentioned below.”

125. Mr. Weale then inserted against the statement by Ms. Roubardeau quoted above, the words “OK, AGREED” .

126. So far as this exchange is concerned: i) I consider it is clear that Ms. Roubardeau is referring to “Our warranty” to make the point that the ordinary warranty period given by the Defendant is 12 months and this is the period which the Defendant was prepared to agree rather than the 18 months provided for in the original version of clause 11. ii) It is also clear that the amended text which Ms. Roubardeau is proposing is an amendment to the original version of clause 11 found in the Claimant’s Terms. iii) There is nothing in the exchange which can properly be construed as an intention to delete the opening words of clause 11, which preserve the Claimant’s other rights. In this regard, I accept the Claimant’s submission that this conclusion is consistent with the fact that the parties did not agree to delete similar wording from clause 6, which provides that the Claimant’s rights in relation to rejection under clause 6 are “without prejudice to any other right which Tullow may have against the Supplier ”.

127. I will deal further with the question of whether clauses 6 and 11 have the effect of excluding the terms implied by the SGA in answer to Issue 5 below. Otherwise, I find: i) That on the proper construction of clause 6 (as amended): a) The clause provides for the Claimant’s express rights of rejection for tubing which has a manufacturing fault, is defective or which has a non-conformity relating to quality. b) The clause does not affect the Defendant’s liability for breach of contract save in relation to the right to reject in accordance with clause 6. c) The right to claim expenses under clause 6 arises only in respect of tubing which has been rejected and only for expenses which are directly linked to defective material. d) The clause does not preclude the Claimant from recovering the types of loss for which the Claimant claims in this action. ii) That on the proper construction of clause 11 (as amended), it expressly preserved the Claimant’s right to damages as a result of the Defendant’s breach of the statutory or implied terms. Issue 5: Did the Contract contain terms implied by ss. 14(2) , 14(2A) and 14(2B) of the SGA?

128. The short answer to this question is ‘yes’, albeit the route to this answer is somewhat longer.

129. The Defendant submits that: i) The effect of clause 8 of the Defendant’s GCs as incorporated into the Contract is to exclude the statutory implied terms. ii) In any event, clause 19 of the PO 167 terms is an entire agreement clause, the language of which operates to exclude the statutory implied terms. iii) Further the parties have agreed to a bargain, the express terms of which are inconsistent with the SGA terms.

130. So far as the Defendant’s reliance on clause 8 is concerned, I have already held in answer to Issues 2 and 3, that it was not incorporated into the Contract.

131. However, even if I were wrong about this, clause 8 does not have the effect for which the Defendant’s contend.

132. It is possible for parties to contract out of the SGA implied terms either (i) by excluding those terms by express provision or (ii) by agreeing a bargain, the express terms of which are inconsistent with those terms; see s.55 SGA and Dalmare SpA v Union Maritime Ltd [2012] EWHC 3537 (Comm) [15], [24] per Flaux J.

133. Where the question is whether the express terms of the contract exclude the SGA implied terms, previous authorities establish that it is necessary, as a matter of general principle, for the terms in question to expressly exclude other ‘conditions’ (rather than merely excluding other ‘warranties’ or ‘representations’); see Bominflot v Petroplus Marketing (“The Mercini Lady”) [2010] EWCA Civ 1145 , [2011] 1 Lloyd’s Rep. 442 at [59] – [64] per Rix LJ. There is, however, an exception to this general rule if the terms under consideration evince an intention to contract out of the terms set out in the SGA; Air Transworld Ltd v Bombadier Inc [2012] EWHC 243 (Comm) , [2012] 1 Lloyd’s Rep. 349 at [27], [29] and [30].

134. Recognising the impact of the authorities cited in the previous paragraph, the Ms. Buehrlen KC submitted on behalf of the Defendant that the law on the interpretation of contracts has considerably evolved since The Mercini Lady . In particular, she refers to the recent and helpful summary of the relevant principles found in the judgment of Joanna Smith J. in EE Ltd v Virgin Mobile Telecoms Ltd [2023] EWHC 1989 (TCC) at [25] to [27] (affirmed on appeal at [2025] 4 WLR 22 ).

135. As the summary of principles set out by Joanna Smith J. sets out, the exercise of construing an exclusion clause falls to be undertaken in accordance with the ordinary principles of contractual interpretation. Commercial parties are free to make their own bargains and to allocate risk as they think fit; exclusion and limitation clauses are an integral part of pricing and risk allocation. The principle of freedom of contract requires the Court to respect and give effect to the parties’ agreement. Further, in commercial contracts negotiated between business people capable of looking after their own interests and deciding, how risks inherent in the performance of various kinds of judgment can be most economically borne, it is wrong to place a strained construction upon words in an exclusion clause which are clearly and fairly susceptible of one meaning only; see Fujiitsu Services Ltd v IBM United Kingdom Ltd [2014] EWHC 752 TCC at [49], per Carr J (as she then was).

136. In analysing whether the parties’ contract excludes the SGA terms by express provision, it is relevant to examine whether it was reasonable for the parties to do so. The more reasonable it was for the parties to do so, the more likely it is that this was what was objectively intended; see Photo Productions Ltd v Securicor Transport Ltd [1980] AC 827 (HL) at 850G – 851A per Lord Diplock and Air Transworld Ltd at [133].

137. I accept that the law on the construction of exclusion and limitation clauses has moved on since the decision in The Mercini Lady . The decision remains, however, authority binding on me. This is all the more so because the arguments advanced by the Defendant in this case are very similar to the arguments rejected by the Court of Appeal in The Mercini Lady ; see at [47], [54] and [55]. It is also a decision, which was accepted by Cooke J. in Air Transworld Limited as being binding on him (albeit he distinguished the decision on the facts of his case) and by Dias J. as being binding on her in Wilmington Trust SP Services (Dublin) Limited v Spicejet Limited [2021] EWHC 1117 (Comm) . In this latter decision, Dias J. held at [39] to [44] that the very widely drafted terms of the contract before her had not necessarily excluded the statutory implied condition of satisfactory quality under the Supply of Goods & Services Act 1982 . At [42], the Judge said: “Like Mr. Justice Cooke [in Bombardier] , I am bound by the decision in The Mercini Lady. Unlike him, however, I cannot read the clause before me as necessarily excluding the statutory implied conditions. The critical distinction between this and the Bombardier case, as it seems to me, is the absence of any such general words as ‘obligation’ or ‘liability’. The clause refers specifically only to representations and warranties. A condition of satisfactory quality is not a representation and, as recognised by The Mercini Lady, wording excluding warranties is not effective to exclude conditions. I further note that the equivalent clause in the Lease Agreement for MSN 41397 did expressly exclude implied conditions.”

138. Accordingly, even if clause 8 were incorporated into the Contract, (which it was not), it is not in my view effective to exclude the implied terms under the SGA. The relevant wording in clause 8 provides that the Defendant “gives no other warranty or guarantee express or implied, including (without limitation) any warranties [of] merchantability or fitness for a particular purpose”. This wording is not sufficiently clear or precise to exclude the statutory implied terms. I accept that it refers both to merchantability and fitness for any particular purpose and that this could be read as a reference to the implied terms relating to merchantability and fitness for purpose. But, the clause only refers to ‘warranties’ or ‘guarantees’ and not ‘conditions’. There is no wider wording excluding ‘obligations’ or ‘guarantees’ generally. Nor is there the sort of very wide wording such as ‘exclusive’ or ‘in lieu of’ that was decisive in Transworld. In other words, it is not clearly and necessarily referring to the SGA implied conditions in the manner required by the decision in The Mercini Lady if they are to be excluded.

139. Even if I were not bound by the decision in The Mercini Lady , I would reach the same conclusion on the current state of the authorities because I do not consider that when clause 8 is placed in the context of the Contract as a whole, it can necessarily be said to exclude the conditions implied by the SGA. i) Even if The Mercini Lady (and authorities referred to therein) were not strictly binding on me, one of the considerations which guided Rix LJ’s reasoning in that case (at [61]) is still very relevant; namely that the jurisprudence relating to the construction of clauses such as clause 8 extends beyond individual decisions and has become expressive of a principle of English law. That principle is one by which parties to an English law contract intend to contract when they choose English law as the law of their contract as is the principle that clear words are required before a court will find that parties intended to derogate from the normal rights and obligations established by the common law or as codified in statute; Triple Point Technology Inc v PTT Public Co. Ltd [2021] AC 1187 at [108]. ii) In the absence of clear exclusionary language, express conditions or warranties will normally be construed as additional to the statutory implied terms; Dalmare SpA v Union Maritime Ltd at [70]. iii) Clause 8 on its own does not clearly and ambiguously exclude the conditions implied under the SGA. As noted above, it does not expressly refer to ‘conditions’ in circumstances where the implied terms under the SGA are expressly stated to be ‘conditions’. In this respect it cannot be said that anyone reading clause 8 could be in any doubt that every promise implied by law is excluded in favour of the contractual promises set out in the Contract. iv) When read in the context of the PO 167 Terms as a whole, it cannot be said that clause 8 necessarily demonstrates the parties’ intention to exclude the statutory implied terms. Clause 6, for example, operates without prejudice to any other right that the Claimant may have against the Defendant.

140. The Defendant further submitted that leaving aside the Defendant’s GCs, the PO 167 Terms are, in any event, effective to exclude the implied terms under the SGA. I am, however, unable to accept this submission.

141. The Defendant relied on clause 19 of the PO 167 Terms, which states that “the terms and conditions set out in the Purchase Order … represent the entire terms and conditions of the agreement” (emphasis added). However, clause 19 is not apt to exclude the statutory implied terms. The general position in relation to ‘entire agreement’ clauses is that they do not affect or prevent the implication of terms which are implied by statute; Chitty on Contract , 35 th ed at §17-020 and Lewison, The Interpretation of Contracts , 8 th ed at §3.140. If an ‘entire agreement’ clause is to exclude the statutory implied terms, clear words are again required; Nigeria v JP Morgan Chase Bank [2019] EWHC 347 (Comm) at [43] and [44] (upheld on appeal at [2019] EWCA Civ 1641 ). As Teare J. held in Great Elephant v Trafigura Beheer [2012] EWHC 1745 (Comm) at [90] (reversed on appeal on a different point, [2013] EWCA Civ 905 ), implied terms spell out the terms which the parties have agreed. In other words, those implied terms are ‘set out’ in the purchase order within the meaning of clause 19. There is no clear language in clause 19, which excludes the statutory implied terms.

142. The Defendant relied on the distinction drawn in AXA Sun Life Services v Campbell Martin & Ors [2011] EWCA Civ 133 at [41] and [42] between implied terms which are ‘intrinsic’ to an agreement (which are not excluded by an entire agreement clause) and implied terms which are implied by matters which are extrinsic to the agreement (which may be excluded by an entire agreement clause). It is not easy to know where the distinction is to be drawn between matters which are extrinsic to an agreement and matters which are intrinsic although it appears that the distinction is concerned with the extent to which materials extrinsic to an agreement can be relied on for the purposes of implying a term into an agreement; see Lewison on the Interpretation of Contracts , 8 th ed., §3.140 at fn. 493 and Attorney General v. Belize Telecom Limited [2009] UKPC 10 at [36] and [37]. In any event, the terms implied into an agreement pursuant to the SGA are statutory terms which are to be treated as having been set out within the agreement. They are terms which I consider are properly to be considered as being intrinsic to an agreement and are not therefore excluded by an entire agreement clause unless clear words to that effect are used; see the authorities discussed in the previous paragraph.

143. If the language of the Contract had been apt to exclude the statutory implied terms, then I accept that this would have been something which it was reasonable for the parties to have done. As the Defendant points out the Contract price was US$4,789,575 and the claim is for sums in excess of US$257 million. Further, whether the warranty provisions in the Contract were those found in clause 8 of the Defendant’s GCs or those found in clause 11 of the PO 167 Terms, it was not suggested that either form of warranty failed to provide the Claimant with valuable rights. However, even so and as set out above, the language of the Contract does not go far enough to exclude the statutory implied terms.

144. The Defendant also submitted that the proposition that the parties intended to exclude the SGA by express provision found further support in the wider terms of the Contract. I do not accept this proposition for the reasons already explained above: i) Clause 6 did entitle the Claimant to reject the Pipes provided it did so within a reasonable time but that right of rejection was without prejudice to the Claimant’s other rights. ii) Clause 11 did contain an express warranty but again it was without prejudice to the Claimant’s other rights. iii) In other words, the PO 167 Terms did envisage a regime in which the Claimant had the right to reject the Pipes upon receipt and a right to the repair and replacement of any defective Pipes within 12 months of commissioning under the express warranty found in clause 11 but these rights were supplemental to the terms implied under the SGA. iv) Clause 19 was not in terms which excluded the implied terms under the SGA.

145. It also follows for the reasons set out above that I do not consider that the parties’ bargain was inconsistent with the implied terms under the SGA. Nor do I consider that clause 8 of the Defendant’s GCs, if it had been incorporated in the Contract, was effective to limit the scope of the Claimant’s right to damages for breach of the terms implied under the SGA.

146. For all the reasons set out in paragraphs 128 to 145 above, the answer to Issue 5 is: Yes, the terms implied into the Contract by ss. 14(2) , 14(2A) and 14(2B) of the SGA are implied to the Contract such that it is a term of the Contract that the tubing would be (i) of satisfactory quality, (ii) fit for the purpose of being utilised as tubing in an offshore injection well, (iii) free from minor defects and (iv) durable. Issue 6: Did delivery of the tubing to the Claimant for the purposes of the Contract occur when (a) it was loaded onto ships for subsequent carriage to Takoradi or (b) once it arrived at Takoradi?

147. It is common ground that: i) The Tubing was sent to the Claimant in several batches in mid-2009: Work Order 27057 ( “WO 27057” ) comprised 420 Pipes, Work Order 27058 comprised 416 Pipes and Work Order 27059 comprised three batches of 200, 361 and 76 Pipes respectively. ii) The parties first entered into a standstill agreement on 19 June 2015, which was then extended repeatedly until the Claimant issued the present proceedings on 22 May 2023.

148. It is also common ground that: i) The applicable limitation period under s.5 of the Limitation Act 1980 is six years. ii) Time began to run when the Tubing was ‘delivered’; see also Chitty on Contracts , 35 th ed. at §32-052 and the authorities cited therein. iii) The question of when the Tubing were delivered depends on the terms of the Contract. iv) The Contract was for the supply of Tubing cost and freight ( “CFR” ) Takoradi. v) The Contract incorporated INCOTERMS 2000.

149. The Defendant’s limitation defence is that: i) Any Pipes forming the subject of WO 27057 were delivered by 31 May 2009 (the Claimant admits that this is the date stated on the applicable bill of lading); and ii) The Claimant failed to enter into a standstill agreement or issue proceedings in respect of any Pipes carried under WO 27057 within 6 years of delivery and accordingly any claim in respect of Pipes carried under WO 27057 is time-barred. iii) The leaking joint identified in well J-13 came from WO 27057 and accordingly any claim for breach of contract in respect of that leaking joint is time-barred.

150. The issue for me is accordingly what was the moment of ‘delivery’ under the Contract which started time running. The Defendant says that the delivery occurred for each batch of Tubing when it crossed the rail of the ship carrying the Tubing to Takoradi. The Claimant says that delivery only occurred for any batch of Tubing when that batch arrived in Takoradi.

151. The Defendant points to the fact that under PO 361 the delivery term is CFR and the delivery address is CFR Takoradi, Ghana. The Defendant also points to the fact that under INCOTERMS 2000: i) CFR is defined as follows: “CFR Cost and Freight (… named destination port) “Cost and Freight” means that the seller delivers when the goods pass the ship’s rail in the port of shipment. The seller must pay the costs and freight necessary to bring the goods to the named port of destination BUT the risk of loss of or damage to the goods, as well as any additional costs due to events occurring after the time of delivery, are transferred from the seller to the buyer. … If the parties do not intend to deliver the goods across the ship’s rail, the CPT term should be used.” ii) The seller and the buyer’s respective obligations in relation to delivery and transfer of risk are then set out at paragraphs A4 and A5 and B4 and B5 respectively. A4 Delivery The seller must deliver the goods on board the vessel at the port of shipment on the date or within the agreed period B4 Taking delivery The buyer must accept delivery of the goods when they have been delivered in accordance with A4 and receive them from the carrier at the named port of destination. A5 Transfer of risks The seller must subject to the provisions of B5, bear all risk of loss of or damage to the goods until such time as they have passed the ship’s rail at the port of shipment. B5 Transfer of risks The buyer must bear all risks of loss or damage to the goods from the time when they have passed the ship’s rail at the port of shipment. The buyer must, should he fail to give notice in accordance with B7, bear all risks of loss of or damage to the goods from the agreed date or the expiry date of the period fixed for shipment provided, however, that the goods have been duly appropriated to the contract, that is to say clearly set aside or otherwise identified as the contract goods.

152. As the Defendant submits, the ordinary position when goods are sent CFR is that delivery occurs at the point when goods cross the ship’s rail. This is stated clearly in the extracts from INCOTERMS 2000 quoted above as well as being confirmed in the authorities, for example, Scottish & Newcastle International Ltd v. Othon Ghalanos Ltd [2006] EWCA Civ 1750 .

153. The Claimant submits, however, that clause 5 of the PO 167 Terms alters the ordinary position under the INCOTERMS 2000 and has the effect that time only began to run when each batch of Tubing was actually delivered at Takoradi.

154. Clause 5 provides: “5. Risk and Property The risk and title in the Goods shall remain with the Supplier until fully delivered (including but not limited to the provision of any certification which may have been specified) at the point specified in the Purchase Order.”

155. The Claimant also submits that: i) The Purchase Order draws a distinction between shipment and delivery naming two employees of the Claimant as the Claimant’s designated representatives for logistics purposes when material was ready for shipping and delivery. ii) The parties were contracting against a background where Mr. Weale had advised Ms. Roubardeau in his e-mail of 04 November 2008 that delivery of the full quantity of Tubing was required in Ghana by September 2009. The purchase order stipulated a delivery date of by September 2009. iii) The reference to ‘fully’ in clause 5 is not a reference to the quantity of tubing to be supplied but is intended to require that delivery be fully completed, in other words that each batch of Tubing had arrived in Takoradi.

156. In support of the third of the points made in the previous paragraph, the Claimant referred to the discussion in Benjamin’s Sale of Goods , 12 th edition at §§19-109 to 19-112 of the three stages of delivery in a CIF or CFR contract with “complete delivery” occurring when goods are handed over at destination.

157. Determining the parties’ intentions as to when delivery should occur for the purposes of starting time running is not straight-forward. There is considerable force in the Claimant’s submissions that title and risk was only intended to pass to the Claimant upon the arrival of the Pipes in Takoradi. This would be consistent with the reference to a delivery date of September 2009, which was understood by the parties to refer to delivery in Ghana. It would also sit more easily with the provision in clause 6 that the Claimant would have a right of rejection within a reasonable time of the delivery and acceptance of the Pipes. It is further possible to read the words “fully delivered” in clause 5 as referring to completion of the process of delivery as well as to read the words “delivered in full” in clause 7 as also referring to completion of the process of delivery.

158. However, on balance, I consider that the Defendant is correct that title and risk in each batch of Tubing transferred to the Claimant upon the placing of that batch on board the ship carrying it to Takoradi, Ghana. I reach this conclusion for the following reasons: i) The parties contracted for delivery on CFR terms and incorporated INCOTERMS 2000 into the Contract. ii) The provisions of INCOTERMS 2000, as quoted above, are clear as to the usual point at which title and risk under a CFR contract passes. iii) The parties agreed a delivery address of CFR Takoradi, Ghana as well as agreeing delivery terms CFR. Prima facie, this requires the Defendant to deliver each batch of the Tubing on board the ship which is to carry them to Takoradi. The Defendant has no further responsibility for each batch once it has been delivered onboard. iv) If the Claimant intended that title and risk was not to pass until arrival at Takoradi, Ghana then the delivery address should not have included (and did not need to include) the reference to “CFR”. v) The conclusions in sub-paragraphs (iii) and (iv) above are consistent with the decision of the Court of Appeal, and then the House of Lords, in Scottish & Newcastle International Ltd v. Othon Ghalanos Ltd , that the term “Delivery CFR Limassol” meant that delivery occurred on shipment, together with the transfer of title and risk, rather than on arrival at Limassol. Further, as was the situation for the shipment in the Scottish & Newcastle International Ltd case, the bill of lading for the Pipes shipped under WO 27057 was non-negotiable with a named consignee rather than being a ‘to order’ bill. It was not suggested that the bills of lading for other shipments were on different terms. This is consistent with a contract where the responsibility of the Defendant for the risk of loss of or damage to Tubing ended once the Tubing in question was shipped on board a vessel for carriage to the Claimant at Takoradi. vi) There is no conflict between a delivery date of September 2009 in Ghana and a finding that the delivery point in the Contract is crossing the ship’s rail for carriage to Takoradi. The obligation on the Defendant was to ensure that the Tubing was with the Claimant in Takoradi by September 2009. In other words, the Defendant was required to ensure that the Tubing was shipped on board vessels which would arrive in Takoradi, Ghana for September 2009; cf. the discussion in Benjamin’s Sale of Goods , 12 th ed. at §19-111. Both the Defendant’s Commercial Offer and the Acknowledgments of Order envisaged that delivery of the Tubing would take place in three batches with the batches being shipped on board in weeks 19, 24 and 27 of 2009. Those shipment dates are consistent with delivery to the Claimant in Takoradi by September 2009 given an approximate voyage time of one month. vii) The reference in clause 5 of the PO 167 Terms to the Goods being “fully delivered” can be read consistently with the requirement for CFR Takoradi rather than being intended to override it. In other words, each shipment of Tubing was fully delivered under clause 5 once it had been shipped on board the carrying ship and, if required, any specified certification provided to the Claimant. viii) Likewise, the reference in clause 7 of the Claimant’s Terms (i.e. unamended by the e-mail exchange of May 2008) to goods having been delivered in full is also, a reference to completion of delivery in accordance with the agreed delivery terms. In the context of the Contract and the PO 167 Terms, each shipment of Tubing was to be treated as delivered once it had crossed the rail of the carrying ship. I pause to note that Mr. Weale appears to have recognised that the effect of agreeing to CFR terms was that delivery would take place upon shipment rather than upon delivery in Takoradi, when he agreed to the amended form of clause 7 in his e-mail of 27 May 2008. ix) I accept the Defendant’s submission that the Claimant’s construction of clause 5 is inconsistent with an agreement for delivery CFR Takoradi. This is not least because it would mean that the Defendant remained responsible for the loss of or risk of damage to the Pipes following shipment.

159. I recognise that one consequence of preferring the Defendant’s position as to the delivery obligation on the Defendant is to potentially shorten the effective period of the warranty under clause 11 of the PO 167 Terms by the time required for the carriage of Tubing by Takoradi. However, that is a consequence of the parties’ agreement to delivery CFR Takoradi rather than a reason to give that delivery obligation a different meaning to that which it would ordinarily bear. Likewise, it may be that the Claimant’s right of rejection under clause 6 continues after the time of contractual delivery until the Defendant has had a reasonable opportunity to actually inspect each shipment of Tubing but that is again a consequence of the parties’ agreement to delivery CFR Takoradi and is not necessarily unusual in the context of CFR contracts; see Scottish & Newcastle International Ltd (Court of Appeal) at [25].

160. Accordingly, I find that delivery of each shipment of Tubing to the Claimant for the purposes of the Contract occurred once that shipment had passed the rail of the ship carrying it to Takoradi. Issue 7: In the context of limitation, does the onus lie on the Claimant to prove that its cause of action accrued within the limitation period prior to the issue of the Claim Form or does the onus lie on the Defendant to prove the elements of its limitation defence?

161. In the course of her oral submissions, Ms. Buehrlen KC urged me to give the following answer on this issue: “In order to discharge the burden of proof on the Claimant, the Claimant must put forward evidence which establishes on the balance of probabilities that the loss of which it complains was caused by defective pipes from the second and third work orders and not defective pipes from the first work order”.

162. In contrast, Mr. Rainey KC urged that I should only answer Issue 7 at a high level and should be cautious not to go too far and thereby interfere with the role of the trial judge (not ‘hamstring the trial judge’ as Mr. Rainey KC put it).

163. I am concerned that were I to give the answer which the Defendant says I should, I not only go beyond an answer to the actual question asked in Issue 7 but I could also inadvertently interfere with findings which are properly for the trial judge in circumstances where I have only a very limited knowledge of the underlying facts relating to any alleged defects with the Tubing and the consequences of those alleged defects. Issue 7 is drafted in general terms and the appropriate answer is one which summarises the relevant legal principles.

164. In Cartledge v E Jopling & Sons Ltd [1962] 1 QB 189 the Court of Appeal held that where a defendant raises a defence under the Statute of Limitations the burden of proof is on the claimant to show that the cause of action accrued within the statutory period (at ps.202, 208). Subsequently in the House of Lords ( [1963] AC 758 at 784), Lord Pearce (with whom the other members agreed) refined this proposition such that the initial onus is on a claimant to show that the cause of action accrued within the statutory period but once the claimant had satisfied this onus, the burden passed to the defendant to show that the apparent accrual of a cause of action was misleading and in reality the cause of action accrued at an earlier date.

165. Subsequently in London Congregational Union Inc v. Harris & Harris [1988] 1 All ER 15 (at p.30), it was held that notwithstanding this gloss, the claimant has to show that on the balance of probabilities the cause of action came into existence within the limitation period and only then would the evidential burden pass to the defendant to show that the apparent accrual of the cause of action was misleading and that the cause of action in fact accrued at an earlier date.

166. In the context of a claim in contract, a claimant must show prima facie evidence of a breach of contract, causally connected with the damage sought to be recovered, accruing within the six years immediately preceding the commencement of proceedings (or a standstill agreement). It would then be for the defendant to show, if it could, that albeit prima facie flowing from the breach complained of, the damage in reality flowed from some earlier breach outside the limitation period; The Pendrecht [1980] 2 Lloyd’s Rep. 56 at 60rhc.

167. Although the cases cited above were all cases under the Limitation Act 1939 , the same principles apply under the Limitation Act 1980 ; see, for example, Lloyds Bank Plc v Crosse & Crosse [2001] EWCA Civ 366 at [41].

168. The answer to Issue 7 is accordingly: i) The initial onus is on the Claimant to show that on the balance of probabilities, its cause of action came into existence within the limitation period prior to the standstill agreement dated 19 June 2015. ii) In order to satisfy this onus the Claimant needs to adduce prima facie evidence of a breach of the Contract, causally connected with the damage sought to be recovered, accruing within the six years immediately preceding the standstill agreement. iii) If the Claimant can satisfy this onus, the burden passes to the Defendant to show that in reality the cause of action accrued at an earlier date. Conclusion

169. For all the reasons set out above: the answers to the preliminary issues are as follows: i) The Contract was concluded on 25 November 2008 when the Defendant returned the counter-signed PO 361 to the Claimant. ii) The Defendant’s GCs were not incorporated into the Contract. The Contract incorporated the PO 167 Terms. iii) Clause 8 of the Defendant’s GCs was not incorporated into the Contract. iv) As to the correct and proper construction of clauses 6 and 11 of the PO 167 Terms: a) On the proper construction of clause 6 (as amended): i) The clause provides for the Claimant’s express rights of rejection for tubing which has a manufacturing fault, is defective or which has a non-conformity relating to quality. ii) The clause does not affect the Defendant’s liability for breach of contract save in relation to the right to reject in accordance with clause 6. iii) The right to claim expenses under clause 6 arises only in respect of tubing which has been rejected and only for expenses which are directly linked to defective material. iv) The clause does not preclude the Claimant from recovering the types of loss for which the Claimant claims in this action. b) That on the proper construction of clause 11 (as amended), it expressly preserved the Claimant’s right to damages as a result of the Defendant’s breach of the statutory or implied terms. v) The terms implied into contracts by ss.14(2) , 14(2A) and 14(2B) of the SGA were implied into the contract such that it was a term of the Contract that the Tubing would be (i) of satisfactory quality, (ii) fit for the purpose of being utilised as tubing in an offshore injection well, (iii) free from minor defects and (iv) durable. vi) Delivery of each shipment of the Tubing to the Claimant for the purposes of the Contract occurred once that shipment had passed the rail of the ship carrying it to Takoradi. vii) As to the burden of proof in relation to the limitation defence: a) The initial onus is on the Claimant to show that on the balance of probabilities, its cause of action came into existence within the limitation period prior to the standstill agreement dated 19 June 2025. b) In order to satisfy this onus the Claimant needs to adduce prima facie evidence of a breach of the Contract, causally connected with the damage sought to be recovered, accruing within the six years immediately preceding the standstill agreement. c) If the Claimant can satisfy this onus, the burden passes to the Defendant to show that in reality the cause of action accrued at an earlier date.

170. I would be grateful if the parties could cooperate to agree the terms of an order reflecting the terms of this judgment and otherwise make arrangements with the Commercial Court listing office for the resolution of any consequential matters which cannot be agreed. I would like to express my thanks to counsel, their instructing solicitors and the parties for the skill and care with which the case was prepared for hearing and for the submissions made.