Today’s article takes a look at a commercial law case focusing on a contract dispute between a red meat producer, Scotbeef Ltd, and D&S Storage Ltd, a storage company responsible for storing the claimant’s meat produce.

 

The High Court ruled on two preliminary issues in this contract dispute, which were:

 

  • Whether, as alleged by the defendant, the Food Storage & Distribution Federation (FSDF) terms and conditions were incorporated into a contract between the parties
  • And if so, the effect of this upon the defendant’s liability

 

This case serves as an important example of making sure that a contract is clearly drafted. It highlights the fact that if you do seek to incorporate terms into a contract, all reasonable steps are taken to ensure that those terms are agreed and fully incorporated into the contract.

 

Background

 

The claimant, Scotbeef Ltd, claimed £395,588 from the Defendant, D&S Storage Ltd, due to an alleged breach of contract by the Defendant relating to the storage of 102,355 kg of the claimant’s meat. The claimant’s meat was found to be covered in mould and due to being unfit for human or animal consumption, had to be destroyed.

 

While the defendant admitted that mould was found on the meat products, they denied that the mould had arisen due to a failure of the refrigeration system at the storage facility. They also denied that it was through any breach of contractual duty by the defendant.

 

Furthermore, the defendant alleged that the contract incorporated the Food Storage & Distribution Federations terms and conditions. These terms and conditions included time bar conditions, meaning that the claimant was time-barred from bringing any legal proceedings against the defendant by 3rd July 2020 at the latest. The defendant also argued that even if the claim was not time-barred, the FSDF terms meant that damage which had been found to have been caused by any breach was limited to £250 per metric ton in any event.

 

This is where the major contractual dispute of this case comes to the forefront. The defendant’s case was that the sole contract agreed by the two parties in February 2017 was subsequently amended to incorporate the FSDF terms and conditions. The High Court had to decide whether this was in fact the case.

 

Decision

 

The court made the decision that the FSDF terms and conditions were not incorporated into a contract between the parties, as had been alleged by the defendant. They found insufficient evidence that the FSDF terms were incorporated into the contract through any of the following means:

 

  • Insufficient evidence of any telephone calls being made notifying the claimant about the FSDF terms
  • Despite invoices being signed by the claimant, the terms were not incorporated as the signature was part of an internal process to approve payment
  • The fact that the invoices contained the wording “FSDF Terms & Conditions Apply” was also insufficient. The claimant was given no indication as to what the FSDF was or where the terms and conditions could be found

 

They also decided that contrary to the argument made by the defendant, the Claimant’s claim was not time barred, nor was it limited by the FSDF conditions. This means that they found there was no time limit on the period during which the claimant could pursue the case against the defendant.

 

Our thoughts

 

This case demonstrates how important it is to have a clearly drafted contract. If parties want a particular document to be incorporated into a contract, it is much better to have clear provision to such effect. The fact that a party is a member of a trade association (or both parties are) does not necessarily mean that the association’s terms and conditions are automatically incorporated into the particular contract. The court pointed out that the terms of a contract can be incorporated by a written document which is signed, by sufficient notice of the terms being given and by course of dealing. This is made clear in Chitty on Contracts (34th edition).

 

While it is often best to have both parties signing a variation of the agreement when seeking to incorporate terms into a contact, in this case it would have been acceptable for the two parties to have formed a clear agreement regarding this arrangement by email. The defendant failed to notify the claimant of the Food Storage and Distribution Federation terms and conditions, meaning that they weren’t incorporated into the contract.

 

The descendant of the author of Doctor Zhivago has lost a copyright case against the author of a spy thriller novel about the publication of the iconic Russian tale.

 

One of the iconic novels which came out of the Soviet Union, Doctor Zhivago by Boris Pasternak was first published in Italy as it was refused publication in the USSR.  This latest legal case was not held over claims that the author, Lara Prescott, had copied Doctor Zhivago, but rather it was claimed she had copied the work of Pasternak’s great niece, Anna Pasternak.

 

This case is one of several high-profile copyright cases across film, novels, and particularly music in recent years. For example, the British singer Ed Sheeran has faced numerous copyright claims over the years, and he is now set to stand trial in the US over allegations that he copied Marvin Gaye’s “Let’s Get It On” with his 2014 hit, “Thinking Out Loud”.

 

Let’s take a deeper look at this case to find out a bit more about the background of the case and why the descendant of Boris Pasternak lost the case which may end up costing her £2m.

 

Background

 

Anna Pasternak originally brought a claim to the High Court on 29th May 2020 against Lara Prescott for copyright infringement. Pasternak claimed that Prescott’s 2019 novel, The Secrets We Kept, infringed seven chapters of Pasternak’s own book, Lara. There was also a claim brought forward by Pasternak for alleged infringement of a translation included in Lara.

 

While Prescott’s book is a work of historical fiction, Pasternak’s book, Lara, is a non-fictional historical book which tells the love story of her great uncle and author of Doctor Zhivago, Boris Pasternak, and his mistress and lover, Olga Ivinskaya.  Lara was published on 25th August 2016.

 

On the other hand, Prescott’s novel focuses on a fictional Cold War story of a CIA operation during the late 1950s to infiltrate copies of Doctor Zhivago into the Soviet Union as a propaganda tool. Divided into two narrative arcs of East and West, the East narrative arc is told from the perspective of Olga Ivinskaya, one of the subject’s of Pasternak’s non-fiction work.

 

Despite not having the read the book in question, Pasternak claimed that Prescott’s novel had copied substantial sections of the structure, selection, and arrangements of facts and incidents from Pasternak’s book, Lara.

 

Judgment

 

The judge dismissed the case made by Ms Pasternak. He held that the two works were fundamentally different, and that Ms Prescott had clearly not copied the selection of relevant chapters in The Secrets We Kept. The reason give for this was that the two works were clearly written in very different styles, with varying content and arrangement. Furthermore, Lara is a non-fiction work, while The Secrets We Kept is a work of fiction.

 

The Judge also held that, as Prescott’s novel wove historical events into her historical fiction, it was not surprising that the two works followed the same chronology. While the Judge pointed out that Prescott used Lara as a secondary source, there was a difference in ordering and selection between the two works.

 

Nevertheless, when it came to the translated extract which had been included in The Secrets We Kept, Pasternak’s claim succeeded. The judge held that although Prescott’s use of the translation was done in good faith, the translation had not been appropriately acknowledged. However, this was only a minor part of the action.

 

Our thoughts

 

While it failed to succeed, this is a noteworthy copyright infringement case to pay attention to. In particular, the claimant’s failure to study or even read the work Pasternak claimed had been copied meant that her motivation for bringing the action was based on perception and what she had been told about the work. It is therefore important to ensure that the claimant is familiar with the work before launching action for copyright infringement as it may end up being a costly mistake.

 

Furthermore, it also makes clear that copyright does extend to the right of a translator. Authors should therefore be careful when it comes to copying a translation from what they think is an official quote from a third-party source. Indeed, they should also ensure that the correct third-party source is referenced.

 

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