RE: MENELAUS DRINKS LIMITED

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INSTRUCTIONS TO COUNSEL
TO ADVISE ON PROSPECTS OF SUCCESS
AND PRE-ISSUE STRATEGY
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Instructing Solicitors act on behalf of Menelaus Drinks Limited (hereafter, “Menelaus”).

Attachments

1. Account Opening Form;

2. Menelaus’ standard terms and conditions;

3. Order Documentation (Order Forms and Confirmation of Order); and

4. Print out of the trading history.

Introduction

Menelaus is a company which supplies bottled alcoholic and soft drinks, together with
refrigeration units, to pubs and bars across the country. While Menelaus is based in Birmingham
(its registered office is: Unit 7, New Water Street, Birmingham, B12 7MN), it is able to operate a
national service by having warehouses which are located around the country.

Menelaus has contacted Instructing Solicitors in relation to a dispute which has arisen. In
essence, Menelaus contends that it is owed money for drinks which have been supplied to an
existing customer. Instructing Solicitors think it useful to set out the history of this dispute in
some detail for Counsel.

History of the dispute

Background

In very early June 2009, Menelaus was contacted by Mr Keith Marriner and Mrs Racquel
Marriner. The Marriners are publicans. They lease two pubs in the West Country. They trade as
The Queen’s Head (the name of one of their pubs) and the trading address is 36 John Severn
Street, Bristol, BS1 1HT. Their second pub, called The Wheatsheaf, is located at 45 Old Street,
Bath, BA1, 9JH.

After that initial contact, the Marriners opened a trading account with Menelaus. They did this by
sending an account opening form, dated 7 June 2009, to Menelaus. Once that account was
opened:
 the Marriners identified products they wanted from an online catalogue which included
prices and placed an order by using an online form;

 the products ordered were then delivered to the relevant pub premises. On delivery, a
delivery note was presented to the Marriners or more often their employees, which
itemised the order; and

 the Marriners noted any omissions / rejections on the delivery note and signed it, keeping

Menelaus had the right to require payment for an order before making a delivery. This
happened for the first 6 months. Any rejections / omissions on a delivery note would therefore
lead to a credit note and a refund to the Marriners. 

After 6 months, on 16 December 2009, the Marriners opened a "credit account" with Menelaus

While Menelaus has referred to certain “difficulties” between the parties in 2011 and 2012,
Instructing Solicitors have no further information about these at the moment. All in all, however,
it appears that the trading relationship between the parties was good up until February 2019.

In February 2019, a dispute arose in relation to an invoice for The Queen’s Head. In simple
terms, it appears that an order with a value of £16,457 was placed on 13 February 2019. It is
not in dispute that the order was delivered on 15 February 2019. In the ordinary way, Menelaus
then dispatched an invoice (this was dated 17 February 2019). However, on 20 February
2019, Mr Marriner telephoned a Mr John Constantine, who was Menelaus’ local representation,
to allege that several of the bottled beers in the delivery tasted like they were “off” and (in his
view) clearly were too old or more likely (given several beers were affected) had been stored in
conditions which were excessively hot. Mr Marriner therefore informed Menelaus (via Mr
Constantine) that the Marriners did not want to use any of the drink which formed part of this
particular delivery. Menelaus responded at the time by indicating that all of the drinks which
formed part of the delivery had been stored properly prior to sale to the Marriners. Menelaus still
take this view.
 
The dispute over the quality of the drink delivered on 15 February 2019 has still not been
settled. The parties did enter into some correspondence about it but, as we say, no resolution
was reached. Menelaus has simply maintained its position that the £16,457 for this particular
order is still owing. That position is recorded in its accounts.

The Marriners have, since February 2019, continued to make payments to Menelaus in relation
to other invoices.
2020

By 14 April 2020, Menelaus had come to the conclusion that £53,021 was outstanding. It

 the Marriners had failed to pay an invoice for The Queen’s Head dated 17 February 2019
in the sum of £16,457 as detailed above;
 the Marriners had failed to pay an invoice for The Queen’s Head dated 18 March 2020 in
the sum of £12,456 (this order was placed on 14 March and delivered on 17 March
2020); 
 the Marriners had failed to pay an invoice for The Wheatsheaf, dated 4 April 2020, in the
sum of £10,643 (this order was placed on 1 April and delivered on 3 April 2020); and
 the Marriners had failed to pay an invoice for The Queen's Head, dated 5 April 2020, in
the sum of £13,465 (this order was placed on 2 April and delivered on 4 April 2020). 
 
As a result of its calculations, on 14 April 2020, Menelaus emailed the Marriners indicating that it
would not supply anything further to them unless payment of £25,000 (roughly half the balance)
was made immediately. The Marriners made no such payment.
 
Instructing Solicitors understand that Menelaus’ actions likely left both The Queen’s Head and
The Wheatsheaf without any supply of soft drinks or alcohol. From what Instructing Solicitors
can gather, it appears that the Marriners arranged supply elsewhere. However, up until the point
at which that other supplier delivered to The Queen’s Head and The Wheatsheaf, it is likely that
the loss of supply caused significant disruption to the Marriners’ business. 
 
The present position 

Against the background set out above, Menelaus is now minded to issue proceedings against
the Marriners to recover the debt which Menelaus says is owed to it.

Instructing Solicitors have discussed with Menelaus what form such a claim might take.
Menelaus takes the view, based on its standard terms and conditions, that each order from
the Marriners constituted an offer; Menelaus then accepted this offer by emailing the Marriners
an Order Confirmation and payment ought to have been made within 7 days of the date of the
invoice. In consequence, therefore, Menelaus rejects entirely the idea that there is an
overarching contract between the parties.
 
From the pre-action correspondence which has passed between the parties, it appears that
the Marriners take a different view, namely:  

 There were no overdue invoices at the time Menelaus stopped supplying drinks because: 

o according to the terms of an oral agreement which the Marriners had reached with
John Constantine, the Marriners could pay the invoices within two calendar months
of the date of the invoice. As such, payments for the March 2020 and April 2020
invoices had not yet fallen due; and

o the February 2019 invoice was not due because the goods were 'off', as detailed
above.
 there was an overarching supply agreement based on promises to that effect made
by Menelaus' local representative, John Constantine. The key term of this overarching
supply agreement was that Menelaus would maintain supply if the Marriners continued to
send their regular orders to Menelaus and pay for deliveries; and

 in failing to continue to supply the Marriners with drinks, Menelaus was in breach of
contract which has led the Marriners to suffer loss.

Counsel’s instructions

Counsel is instructed to advise in conference as the strategy which Menelaus should adopt prior
to the issue of proceedings and the prospects of successfully bringing an action against the
Marriners for the outstanding debt which the Marriners allegedly owe.

24 August 2021