Athena Brands Ltd v Superdrug Stores Plc

For summary judgment, the court must assess whether the defendant has a real, rather than fanciful, prospect of success. Disputed factual evidence is generally taken at its highest, and the court must avoid conducting a mini-trial.

Commercial emails may create a binding minimum-purchase commitment where, objectively construed in context, negotiated prices are exchanged for stated volumes and the buyer accepts those terms. A buyer held out as authorised to negotiate trading terms may possess ostensible authority to agree such a commitment unless relevant restrictions are communicated. General purchasing procedures and industry practice will not displace the agreement without sufficiently clear and reliable evidence.

Athena sought summary judgment on its claim that emails exchanged with Superdrug in May 2017 created a contract requiring Superdrug to purchase specified minimum quantities of cosmetic products over 12 months.

Superdrug argued that the emails recorded only forecasts and that orders became binding only when issued by its supply-chain team. It also relied on lack of intention to create legal relations, lack of Mr Sisson’s authority, and alleged industry practice. The central issues were the objective construction of the emails, the effect of the parties’ commercial context, and whether the defences had a real prospect of success.

1. Summary judgment test. The claimant had to show credible grounds for concluding that the defences might fail. Superdrug then had to demonstrate a real, rather than fanciful, prospect of success. The court generally had to take disputed factual evidence at its highest and avoid a mini-trial, while considering the evidence available and evidence reasonably expected at trial.
2. Construction and intention. Objectively construed in context, Athena’s email sought confirmation that Superdrug was placing orders and committing to the stated yearly quantities, with stock to be called off during a 12-month period. Mr Sisson’s response was a clear acceptance. Monthly or ad hoc purchase orders were consistent with an overarching minimum-purchase obligation.
3. Authority. Superdrug held Mr Sisson out as a buyer with responsibility for negotiating and agreeing trading terms. The supplier pack identified no relevant restriction on his authority and did not make agreed terms subject to later ratification. The fact that the supply-chain team issued individual purchase orders did not prevent Mr Sisson from agreeing a prior minimum-purchase commitment.
4. Industry practice and evidence. The evidence did not establish a sufficiently clear and well-known industry practice that retailers could not agree minimum quantities for branded products. The evidence was internally inconsistent and unsupported by independent testimony. The comparison with Proton Energy Group SA v Public Company Orlen Lietuva was materially different because that case concerned a recognised commodity market.
5. Disposition. None of the defences had a real prospect of success. Summary judgment was therefore entered for Athena. The parties were invited to agree the resulting order.