Global Display Solutions Ltd & Ors v NCR Financial Solutions Group Ltd & Anor

Contractual forecasts which are expressly non-binding purchase commitments may nevertheless be required to reflect the supplier’s genuine and honest estimate of future requirements. Knowingly issuing forecasts which depart from that estimate may constitute deceit, breach of contract and unlawful means conspiracy. Commercial self-interest, including a desire to avoid bargaining pressure during a transition, does not justify fraudulent conduct.

A settlement or release is construed according to the language actually used. There is no presumption that it settles every dispute between the parties. A release referring to orders does not, without more, release claims arising from forecasts. The court will not rewrite the agreement through construction or rectification merely because a wider release would have been commercially advantageous.

Global Display Solutions group companies supplied display products to NCR group companies under a long-standing purchase agreement. NCR supplied rolling forecasts, cancelled purchase orders and reduced forecasts to zero after deciding to manufacture displays in-house.

GDS alleged that NCR had knowingly issued false forecasts from July 2011 until January 2013, causing it to build stock and incur commitments. After the January 2013 announcement, the parties entered into a Letter Agreement involving discounted purchases and a release of claims relating to orders.

The trial concerned liability for deceit, breach of contract and unlawful means conspiracy; the construction and possible rectification of the Letter Agreement; intimidation; and exemplary damages. Questions of reliance, causation and compensatory loss were reserved.

1. Liability for false forecasts. NCR was contractually obliged to provide forecasts reflecting its genuine and honest belief as to estimated future requirements. The forecasts issued from July 2011 to 14 January 2013 did not do so. The relevant elements of deceit and breach of contract were therefore established.
2. Unlawful means conspiracy. The requirements identified in Racing Partnership Ltd v Sports Information Services Ltd [2020] EWCA Civ 1300 were satisfied, subject to causation and loss. There was a combination, an intention to advance NCR’s economic interests at GDS’s expense, and unlawful acts consisting of deceit and breach of contract. The alleged commercial justification failed. A party cannot justify fraud by relying on the possibility that truthful conduct might have caused commercial inconvenience or bargaining pressure.
3. Construction of the Letter Agreement. Applying ordinary principles of contractual interpretation, the release concerned “Orders”, meaning orders actually placed under the Purchase Agreement before 16 January 2013, and their termination. Forecasts were conceptually and contractually distinct from orders. The agreement therefore did not exclude all claims based on false forecasts. There was no presumption that the settlement wiped the slate clean, and the court could not add words to produce a wider release.
4. Rectification. NCR failed to prove a common intention, outwardly expressed or tacitly shared, that forecasting claims should be released. It also failed to prove the necessary mistaken intention for unilateral rectification or GDS’s knowledge of such a mistake. The claims for mutual and unilateral rectification were dismissed.
5. Intimidation and continuing influence. A threat, express or implied, is an essential ingredient of intimidation. NCR made no relevant demand accompanied by a threat. GDS’s lack of bargaining power and the pressure created by NCR’s prior conduct did not itself establish the tort. The Letter Agreement was not avoided by the prior deceit or conspiracy; it remained binding according to its terms.
6. Exemplary damages. NCR’s conduct was calculated to secure an economic advantage which might exceed any compensation payable. Exemplary damages of £125,000 were awarded, in addition to any compensatory damages determined later.