Charles Fussell & Co LLP wins in the London Mercantile Court

Charles Fussell & Co LLP was instructed by QuikClot International Limited ("QCI") in late 2009 to bring a claim against Darwish bin Ahmed ("DBA") for breach of contract.  In November 2011, the case was heard in the London Mercantile Court, at which QCI was awarded the full sum of the claim, together with part-indemnity costs. 

QCI was part of the Explora Group, a group of companies which specialise in producing and marketing non-lethal military defence products.  QCI was set up for the international provision of QuikClot, an adsorbent haemostatic blood-clotting agent which is used in emergency situations to staunch blood flow until medical assistance can be obtained. 

DBA expressed an interest in purchasing packets of QuikClot for onward provision to the UAE Military Forces in about 2003.  The parties entered into negotiations and in October 2003, a draft purchase order was sent by DBA to QCI's predecessor (who later assigned the claim to QCI).  The terms of the purchase order order requested 100,000 packets of QuikClot, 20,000 of which were to be delivered immediately and the remaining 80,000 of which were to be delivered over the forthcoming four years.  The purchase order was negotiated between the parties and finalized in February 2004, containing the same term. 

Whilst the initial 20,000 was ordered and dispatched successfully, DBA failed to draw down the order for the remaining 80,000 packets within the four year period in the sum of $US 360,000.  Accordingly, QCI brought proceedings for the loss of profit it would have made on the sale. 

DBA defended the claim on two heads:

  • as a matter of law, it claimed that the purchase order should be constructed to mean that it was only obliged to order 20,000 packets of QuikClot, with an option to purchase a further 80,000 packets at a set price over the following four years; and
  • as a matter of fact, it claimed that QCI would have been unable to fulfill the contract in any event. 

The matter was listed for a three-day hearing in the Mercantile Court in November 2011 and was heard before His Honor Judge Mackie QC, head of the Mercantile Court, with Dr Christopher Harris of 3 Verulam Buildings appearing for QCI and Mr Simon Hale of Hardwicke Chambers, instructed by Child & Child, appearing for DBA. 

After only one and a half days of evidence, the trial came to an end.  Giving an extempore judgment, Judge Mackie upheld the claim, ruling that:

  • as a matter of law, the purchase order could only be constructed to mean that DBA was under an obligation to purchase 100,000 packets of QuikClot over four years; and
  • as a matter of fact, QCI would have been able to fulfill the contract in any event. 

Judge Mackie also awarded QCI its costs, partly on the standard basis and partly on the indemnity basis.