Goods not certified as compliant with EC Directive 2004/108/EC—whether buyer can raise illegality defence not pleaded at trial—Sale of Goods Act 1979 (“SGA”), s.14(2), (2B)—whether goods fit for purpose where there is no evidence that Directive given effect in countries where buyer is to trade—mitigation

This was an appeal by the buyer against an order of the Southampton County Court giving judgment for the seller, granting the claim for the unpaid price for the goods supplied by the seller to the buyer between September and November 2009 under five separate invoices. The goods comprised postal machinery, equipment and spare parts. The buyer’s principal defence was that the machinery and equipment had been supplied for resale, including within the EU, and that they had therefore to have been tested and certified as compliant with the regulations contained in EC Directive 2004/108/EC (the “Directive”), falling which their resale within the EU would be unlawful. The buyer’s case was that most of the items, with the exception of one item, either had no certificates of conformity or were covered by certificates which had lapsed prior to the date of the sale. The buyer contended that the seller breached the implied term that the goods were fit for purpose under SGA, s.14(2), (2B), because without the necessary certification they were unsaleable.