High Court Judge rules Geminor witnesses deliberately tried to mislead court.
A High Court case over a contract for the treatment of refuse derived fuel (RDF) has resulted in a record payout recently of £801,041.20 plus substantial costs in favour of community waste management business Potters Waste Management.
In a damning indictment, the dispute which ruled against Geminor involved the issue of domestic waste transported to Immingham, Lincolnshire from the Isle of Anglesey via a processing and baling plant in Bootle operated by Potter’s nominated supplier Gaskells. This was then bound for onward shipment to a plant generating energy from waste (EfW) in Gothenburg, Sweden.
A spokesperson for Potters described the background to the “extremely stressful” case presided over by His Honour Judge HODGE KC.
“The Isle of Anglesey County Council issued an award of tender to us as lead contractor agreeing services with Geminor and Gaskells. Residual household waste was to be collected on Anglesey and delivered to a reception and transfer station at Gaerwen. The waste would be loaded into HGVs operated by Potters and transferred by road from Anglesey to the materials recovery facility operated by Gaskells in Bootle.
“Gaskells were to process and sort the loose waste as appropriate, recovering dry recyclables and wrapping the RDF bales produced. The bales were then to be collected by Geminor who would transfer the bales by road to the port of Immingham in Lincolnshire. From there the bales would be loaded onto transit cassettes by DFDS and shipped to Gothenburg in Sweden. Geminor would then be responsible for removing the bales and transferring them to a thermal treatment plant operated by Renova AB.
“Geminor underwrote their offer of collecting residual municipal waste for EfW treatment for a period of 18 months, commencing on 1st February 2017 with the option for 2 further extensions of 12 months each. However, both ourselves and contractors Gaskells detected an obvious bad smell early in our relationship with multi-national operator Geminor even before a large consignment of bales was rejected, with Geminor claiming, by DFDS. It is known in the industry that if DFDS decide to reject a load, it would make out a case report. That was not done in relation to nine rejected loads in question.” Potters asserted that by refusing to accept these or collect any further bales of RDF, Geminor was in repudiatory breach of contract. “
A Gaskells spokesperson added: “Geminor in turn was extremely dismissive towards us both prior to and during the gruelling and highly stressful court case, also alleging there was no contractual relationship between the parties in the first place. This was tantamount to bullying and defamation of two local, community-oriented, highly principled firms employing local people over many decades, by a global business. There were also many damaging and false claims by Geminor during the case about the quality of Gaskells’ work, plus Gaskells’ alleged ‘late’ involvement in the contract, both of which were latterly rejected by Judge Hodge as more false statements by Geminor.”
During the whole contract, Potters, supported by Gaskells, delivered the service to Anglesey Council without a hitch, even propelling the Council to the top of the national recycling league.
Despite the claims by Geminor, dozens of further lorry loads had been sent out from Gaskells’ waste processing centre through the same route with DFDS but using a different agent without being rejected. The court acknowledged that between 2014 and 2018, Gaskells had sent out 3,000 loads of baled waste, and there had only been two loads rejected, aside from the Anglesey waste rejections. Up until September/October 2017, some 281 loads had been delivered to DFDS, with no problems apart from the rejected Anglesey loads.
Judge Hodge ruled that the evidence established showed that it was not DFDS that had made the decision to reject the final nine lorry loads of Gaskells’ processed Anglesey waste. Instead, he found that this must therefore have been a decision made by Geminor. And despite Geminor claiming there was no contractual agreement in place between the parties, Judge Hodge, applying the ‘objective test’, said the issue turned upon the contemporaneous documents and the parties’ conduct. He was fully satisfied that there was a binding contractual agreement, with the intention of thereby creating legal relations, through a memorandum of understanding and a subsequent letter of support. The judge particularly singled out the final witness, Mr Oliver Caunce, the named person who dealt with the litigation on behalf of Geminor from the start, and who is now Geminor’s UK Country Manager. “I find Mr Caunce to be a most unsatisfactory witness. He was evasive, with a tendency to ramble, and prone to speculation and after-the-event reconstruction and rationalisation. He seemed to experience difficulty both in understanding, and also in answering, questions in cross examination. Mr Caunce refused to accept that someone else had written his witness statement for him. I cannot accept his evidence where it conflicts with the evidence of the witnesses called by Potters. Mr Caunce refused to accept that Geminor had underbid for the Anglesey contract and wanted to get out of it, although he did accept that it was ‘low margin’. Speculation, for Mr Caunce, was a selective exercise, permissible when it might benefit Geminor, but impermissible when it might benefit Potters.”
Judge Hodge continued, “By proffering these documents to Potters, in my judgment Geminor made an offer to contract on the terms of the offer letter, namely, to collect 12,000 tonnes per annum of RDF waste from Gaskells’ Bootle site, over a period running from 1 February 2017 to 21 July 2018.” The judge also rejected claims by Geminor of a breach of the memorandum of understanding and concluded that the combination of emails, photographs, and oral evidence on three cassettes, that DFDS was prepared to ship all nine loads. He reiterated that it was Geminor who instructed DFDS to reject the nine loads.
Further, and more damaging, he reiterated that Geminor’s witnesses had deliberately tried to mislead the court by stating expressly, and clearly, that it was DFDS alone that had made the decision to reject the nine lorry loads. Judge Hodge also found Geminor liable for the full amount of the loss of profit and consequential losses that Potters has incurred because of Geminor’s repudiatory breach of contract.
In summing up Judge Hodge said: “Potters is entitled to recover damages on its primary, and hybrid, basis in the total sum of £801,041.20. I find that there was a binding agreement between Potters and Geminor. There was also no repudiatory breach of contract on the part of Potters, and that, by refusing to collect further waste after 28 September 2017, Geminor was itself in repudiatory breach of that contract.”
Following the case and recent payout, both Gaskells and Potters continue to enjoy a very close working relationship, building on their long and successful relationship to date. A Potters spokesperson concluded: “This completely unnecessary case involved an international company with an invincibility complex attempting to trash our and Gaskells long established and highly regarded reputations. This judgement has merely served to strengthen our relationship with Gaskells and we are delighted with the outcome. A sense of justice, fairness and balance has been delivered, and it strikes right at the heart of community businesses refusing t o be bullied by global operators.”
Prepared by the Ubiquity Collective on behalf of Gaskells Waste Services. Further information is available via Joel Jelen e.joel@ubiquitycollective.co.uk
