A UK importer has won its claim for compensation in a dispute with a Belgian company over the supply of Covid face masks.

The case involved Local Boy’z Ltd, which agreed numerous contracts with Malu NV for two types of face mask, the KN95 masks and the Type IIR masks.

Both products were manufactured in China and were imported by Malu into the EU.

Local Boy’z brought proceedings against Malu seeking restitution of the sums paid for both types of mask on the basis of alleged breaches of conditions implied in the contracts of sale.

Malu had said that the masks would correspond with the description given of them, would be of satisfactory quality and would be reasonably fit for the purpose in the UK.

In the case of the KN95 masks, Local alleged that it was a condition of the contracts that they would comply with UK and EU regulations.

In relation to the Type IIR masks, Local contended that the masks failed to conform with the regulations and alleged that, before the contracts of sale had been agreed, the Type IIR masks had been described by reference to a report containing a photograph, but the masks in fact supplied were obviously different and inferior.

Malu contested the claim on various bases including that, as an importer situated in Belgium, it had to comply with the law applicable to the EU as interpreted by Belgian national authorities, but it was not responsible for regulatory compliance with the law applicable in the UK. 

It said that as a distributor of the products within the UK, it was Local’s responsibility to comply with the law applicable in the UK (including EU law) for the period during which the products would be in use, and it had assumed responsibility for all dealings with its customers, including any liability.

The High Court held that Malu had no realistic prospect of defending the claim concerning the Type IIR masks because they were patently not the same as the masks shown in the photograph provided when the contract was concluded.

There was no evidence to suggest that the differences could sensibly be regarded either as negligible, microscopic deviations, or differences that businessmen would regard as irrelevant. It followed that Local had established a breach of condition. It was therefore entitled to summary judgment in its favour.

In relation to the KN95 masks, the issues were different, and the court could not conclude that the Malu had no realistic prospect of succeeding in its defence based on regulatory compliance.

Summary judgment was accordingly refused in relation to the KN95 masks, and the issue would have to go to full trial.

Please contact us if you would like more information about the issues raised in this article or any aspect of contract law.

Local Boy’z Ltd v Malu NV
Queen’s Bench Division (Commercial Court)
3 September 2021
[2021] EWHC 2439 (Comm)

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