KSY Juice Blends UK Limited v Citrosuco GmbH (No 2)

Damages for non-acceptance of goods are assessed by awarding the contractual price less costs that would have been avoided by performance. The claimant must prove its loss, but evidential uncertainty caused by the breach does not justify refusing a remedy where the court can make reasonable assumptions. The court may assess hypothetical procurement, packaging, transport and duty costs on the available evidence. A reasonable or market price used to calculate contractual quantity must be assessed by reference to the parties’ commercial position, rather than necessarily by a resale spot-market price. Interest on a specified claim should ordinarily be pleaded under the Civil Procedure Rules 1998, but failure to plead it does not automatically bar an award where justice permits. In the absence of evidence supporting a higher rate, 1% above base rate was appropriate.

The claimant supplied orange juice pulp wash, or Wesos, under a three-year contract. The first-instance judgment, [2024] EWHC 2098 (Comm), held that part of the contractual arrangement was an unenforceable agreement to agree. The Court of Appeal, in [2025] EWCA Civ 760, held that the contract was enforceable and remitted the case for determination of the claimant’s damages following the defendant’s failure to accept deliveries.

The issues concerned the quantity deliverable under the contractual Free Trucks mechanism, the claimant’s avoided costs, the net damages for 2019 and 2020, and interest.

1. Loss and assessment. The claimant had proved a contractual claim for damages. The measure was the contractual price for the goods less the avoided costs of procuring and delivering them. The fixed contractual price required no further proof, while costs within the claimant’s particular knowledge still had to be substantiated. The court could nevertheless assess loss where exact calculation was impossible, applying the fair wind and reasonable-assumptions principles discussed in Yam Seng Pte Ltd v International Trade Corporation [2013] EWHC 111 and Chaplin v Hicks [1911] 2 KB 786.
2. Quantity and reasonable price. The court was bound by the Court of Appeal’s conclusion that, absent agreement, a reasonable or market price determined the quantity exceeding 1,274MT. The best evidence supported a Wesos price equal to 70% of the relevant FCOJ price. The appropriate Brix level was 57. The resulting quantities were 1,085MT for 2019, 474MT for the fixed-price element in 2020, and 1,319MT for the variable-price element in 2020.
3. Avoided costs. The court allowed procurement costs of €402,439 for 2019 and €362,436 for 2020; packaging costs of €82,315 and €97,898; no deduction for storage; transport costs of €212,024 and €236,676; and duty of €148,352 and €222,528. The transport estimate of US$150 per MT was accepted.
4. Interest and order. Interest was not refused merely because it had not been fully pleaded under CPR 16.4. The appropriate rate was 1% above base rate, calculated from the dates on which the relevant invoices fell due. The claimant was awarded damages of €1,? The judgment’s summary figures produce €1,? Actually total price €2,848,480 less total costs €1,764,578 = €1,083,902, plus interest to be calculated by the parties.

• Court of Appeal The Court of Appeal allowed the claimant’s appeal from [2024] EWHC 2098 (Comm) and remitted the remaining issues under [2025] EWCA Civ 760.
• High Court (Circuit Commercial Court) The remitted damages and interest issues were determined in the present judgment.