Stevens & Bolton has secured a significant victory for client GDS in claims for damages against NCR for deceit, breach of contract, unlawful means conspiracy and exemplary damages in a judgment handed down in the commercial court on 29 April 2021. NCR’s arguments that all of the claims were precluded under the terms of a letter of agreement failed and its claims for rectification of the letter of agreement to reflect that also failed. Exemplary damages in the sum of £125,000 were awarded against NCR.
The claims arise from the termination of a long-standing relationship in January 2013. NCR had regularly supplied 12–month rolling forecasts of projected demand from GDS for the supply of products to NCR’s plants around the world. The last, with a value of over US$50m was issued on 14 January 2013. Two days later, without warning, NCR informed GDS that it had taken the manufacture of displays in-house and that they were cancelling US$5.1m of existing purchase orders and reducing all forecasts to zero.
Discussions then took place as to whether NCR would take a “last time” supply of products and if so at what price which led to the parties signing a “Letter of Agreement, Release and Waiver” (the Letter Agreement).
Mr Justice Jacobs concluded that during the entire period from July 2011 until 16 January 2013 forecasts were given by NCR which did not represent its genuine and honest belief as to its estimated future requirements.
“NCR’s deceitful conduct … was directed towards advancing its own economic interests by giving GDS to understand that business was proceeding as usual, whilst at the same time taking steps “under the radar” to put itself in a position to maintain continuity of supply … when the time came to tell GDS the truth. By this route, NCR would neutralise and destroy any economic bargaining power that GDS would have enjoyed if it had been told the truth”.
“NCR’s deceitful conduct, followed by its announcement on 16 January 2013, did put GDS into a dire position from which its only practical and realistic alternative was to accept the best terms that NCR would offer to take goods within the pipeline off its hands.”
NCR argued that the Letter Agreement on its wording precluded the claims now made, and if not, sought rectification of the Letter Agreement. The judge looked at advice given by Stevens & Bolton to GDS shortly before the Letter Agreement was signed saying: “It is clear from the attendance note that Mr Frisby was thinking clearly and carefully about the issues which might be of concern to his clients… Mr Frisby identified the central issue of construction which has been raised before me”. The judge said the advice “rightly in my view, made it clear that the Letter Agreement was not a full and final settlement of all claims which GDS may have, but was drafted in a more restrictive way and arguably left open the possibility of forecasting claims.”
The case will now proceed to a second trial to determine recoverable damages.
The judgment can be accessed here.
- The claimants are Global Display Solutions Limited, GDS Technology Limited, Global Solutions SPA and Global Display Solutions (Suzhou) Co Limited. They are all part of the “GDS” group and are an Italian owned global business which manufactures screen displays and components, including for use in bank automatic teller machines (“ATMs”) and retail point of sale systems (“POS systems”)
- The Defendants are NCR Financial Solutions Group Limited, NCR Global Solutions Limited and NCR Corporation. They are part of the NCR group which manufactures ATMs used by banks and POS systems. NCR is based in Atlanta, USA.
- The Stevens & Bolton LLP team was led by Partner Michael Frisby. Stevens & Bolton instructed Stuart Ritchie QC of Fountain Court and David Lascelles of Littleton Chambers.
- NCR’s solicitors are Ashurst, led by Partner David Wilkinson. Ashurst instructed Orlando Gledhill QC of One Essex Court.
- GDS also made a claim for damages for intimidation but that head of claim was dismissed.
- The case will proceed to a second trial on the issues of (i) Reliance – did GDS rely upon any of the alleged representations and, if so, were NCR aware and did they intend that GDS would do so?; (ii) Loss- as a result of the alleged unlawful conduct, has GDS suffered and are they entitled to claim the loss and damages claimed?; and (iii) Interest: is GDS entitled to interest?