The High Court has rejected an application to have a dispute over the supply of an allegedly contaminated ingredient for horse feed referred to arbitration or dealt with by the courts of England.
Equine feed producer Glanbia Foods Ireland Ltd claims it has lost some €9 million as a result of having been supplied with molasses containing the performance-enhancing banned substance Zilpaterol.
Kilkenny-based Glanbia, trading as Glanbia Agribusiness, is suing ED&F Man Liquid Products Ireland Ltd over the supply of the molasses products which were used in the Glanbia product Gain Equine Feed and which was sold to customers in the EU and further afield.
Glanbia says ED&F Man Liquid Products Ireland, with registered officers in Spencer Dock, Dublin, sold it €516,000 worth of Molasses Cane 72 Bulk under an April 2020 contract for use in Glanbia’s products. It also sold Glanbia another €78,000 worth of an ingredient called Molglo Plus Bulk.
Glanbia claims the defendant was in breach of contract, misrepresentation and negligence, among other things, in supplying molasses products that were defective and contaminated with Zilpaterol.
The defendant is contesting the claim.
In a pretrial application, ED&F asked Mr Justice Mark Sanfey to find that the dispute with Glanbia is subject to Grain and Feed Trade Association (Gafta) contract which means it is governed by the laws of England. It also claimed the contract has a clause that says any disputes should first go to arbitration.
Terms and conditions
Glanbia disputed this and contends that the contract between Glanbia and ED&F is subject to Glanbia’s standard terms and conditions. These provide that any dispute arising out of or in connection with them “shall be governed by and construed in accordance with the laws of Ireland and shall be subject to the jurisdiction of the Irish courts…”
In a judgment, Mr Justice Sanfey said he was satisfied the terms of the relevant Gafta contract were not incorporated in the Glanbia/ED&F contract.
He considered that the incorporation by Glanbia of its own standard terms and conditions was effected by the acceptance by the defendant of the offers contained in Glanbia’s purchase contract confirmations.
In the circumstances, he said the defendant’s application for orders setting aside service of the High Court plenary summons and referring the parties to arbitration must be refused.