Trident Turboprop (Dublin) Ltd v First Flight Couriers Ltd

On a summary judgment application, the court may determine contractual construction where the necessary evidence is available and the parties have had a proper opportunity to argue the issue. A contractual estoppel may prevent reliance on non-fraudulent pre-contractual representations where the parties agreed that no such representations were made. Fraud remains exceptional and cannot generally be excluded without clear wording. Under section 26(4)(a) of the Unfair Contract Terms Act 1977, an international supply contract does not require a contractual undertaking to deliver goods across national borders: it is enough that, when the contract was made, the goods would be carried between different States. The lease agreements therefore excluded the relevant misrepresentation and implied-quality defences, leaving the lessee with no real prospect of success.

Trident, the owner and lessor of two aircraft, sought summary judgment under CPR Part 24 against FFCL for unpaid rent, contractual losses and conversion following termination of two aircraft operating leases.

FFCL accepted that it had stopped paying rent but relied on alleged non-fraudulent misrepresentations concerning payload and flight times, and on alleged defects in the aircraft. It argued that the leases had been rescinded and that the contractual exclusions were ineffective under the Unfair Contract Terms Act 1977.

The central questions were whether the lease terms excluded the defences and whether the agreements were international supply contracts within section 26(4)(a) of the Act.

1. Summary judgment test. The court had to decide whether FFCL had no real prospect of successfully defending the claim under CPR Part 24. Contractual construction could be determined summarily because the necessary evidence was before the court and the parties had addressed the issues in argument.
2. Misrepresentation. Clause 19.1 operated as a contractual estoppel. The parties agreed that no non-fraudulent pre-contractual representations had been made and that this agreed state of affairs formed the basis of their contractual relationship. Clause 19.2 separately waived all rights concerning warranties or representations other than those expressly preserved by the agreements. Its comprehensive language covered non-fraudulent representations for which Trident was legally responsible, including representations made by BAE as its agent.
3. Fraudulent misrepresentation was not excluded. The law does not permit a party to exclude liability for its own fraud, and liability for an agent’s fraud requires clear and unmistakable language. That qualification did not assist FFCL because its case was based on non-fraudulent representations.
4. UCTA. Clauses 19.1 and 19.2 purported to exclude or restrict liability for misrepresentation and therefore fell within section 3 of the Misrepresentation Act 1967. However, the leases were international supply contracts under section 26(4)(a) of the Unfair Contract Terms Act 1977. The aircraft would be carried from one State to another when the contracts were concluded; no contractual obligation on the lessor to deliver them across borders was required.
5. Aircraft condition. Because UCTA did not apply, the contractual provisions could exclude implied terms as to quality or fitness under sections 9 and 11 of the Supply of Goods and Services Act 1982. The specific landing-gear discrepancy had also been recorded and compromised in the Acceptance Reservations Agreement. FFCL therefore had no real prospect of establishing either defence or rescission.
6. FFCL was not entitled to rescind. Trident was entitled to serve the default and termination notices and was, in principle, entitled to judgment for the sums claimed. The parties were left to agree the form of order.