February 12, 2026

2024 judgment summaries for the Commercial Court

Commercial Court

2024

FWA Aviation v VietJet (Mr Justice Bright) 23 December 2024

Aircraft finance leasing – EJC – ASIs sought by assignees

VietJet was sub-lessor of aircraft under finance leasing arrangements, subject to EJCs. VietJet defaulted.  FWA commenced proceeding in England, as the current assignee under the Sub-leases. VietJet commenced proceedings in Vietnam against Banks that had formerly been the assignees under the Sub-Leases, before the assignment to FWA. The Banks sought ASIs.

Held: The Banks were entitled to rely on the EJCs, despite having assigned away their rights under the Sub-Leases. Accordingly they were entiled to ASIs.

The full judgment [2024] EWHC 3337 (Comm) can be found on the National Archives website (external link).

Commercial Bank of Dubai PSC v Al Sari and others (Foxton  J) 19 December 2024

Service out – serious issue to be tried – issue estoppel and abuse of process – judicial proceedings immunity – arguability of claims – applications for freezing order and Chabra order

Cs sought to serve a variety of tort claims on D10 out of the jurisdiction arising from allegations of the forgery of documents and their deployment in legal proceedings in various jurisdictions, and alternative claims if the documents were genuine. C also sought WWFO relief against D10 both in support of its claims against D10 (the Conduct WWFO) and in as a Chabra defendant in respect of Cs’ claims against D1. D7, 9 and 10 argued that the forgery claim was precluded by issue estoppel or abuse of process by reason of a Sharjah judgment and that various other claims did not disclose a serious issue to be tried for other reasons. It also denied that C was entitled to the Conduct WWF or Chabra relief (in the latter instance also because the clam could not be served out of the jurisdiction under the “necessary or proper party” gateway, judgment having already been entered against D1).

Held: (1) It was arguable that no issue estoppel or abuse of process arose. (2) If judicial proceedings immunity (“JPI”) applied, some of the claims were barred by JPI. (3) Following Erhard-Jensen Ontological v Rogerson [2024] EAT 135, while expressing doubts as to the position where there was no doctrine of JPI in the law of the relevant court, JPI applied to proceedings before foreign as well as domestic courts. (4) D10’s challenges to the arguability of the deceit, and one of the formulations of the claims under s.423 of the Insolvency Act 1986 succeeded, the malicious prosecution claim would have to be restored for further argument, otherwise the claims were arguable. (5) Cs were entitled to the Conduct WWFO, the requirements for such relief having been made out. (6) Given the inadequate time at the hearing for the argument as to quantum, the court would fix an interim Maximum Sum, which would be further considered at an additional hearing. (7) Cs were not entitled to the Chabra WWFO, gateway (3) not being available on the facts of this case, alternatively it not being appropriate to give permission to serve out as a matter of discretion.

The full judgment [2024] EWHC 3304 (Comm) may be found on the National Archives website (external link).

The Public Institution for Social Security v Al-Wazzan & Ors (Jacobs J)  16 December 2024

Service out of the jurisdiction on the basis of “necessary or proper party” – joinder of heirs of deceased Defendant with alleged Swiss domicile – whether permissible in the light of English law relating to succession

The Claimant had brought proceedings against Farhad Al-Rajaan, its former Director-General, in relation to alleged corrupt receipt of bribes. The trial was scheduled to last for approximately 1 year, beginning in March 2025. Mr Al-Rajaan had died and his widow had been appointed to represent his estate pursuant to CPR 19.12(1)(b). Subsequent orders appointed his widow as administrator by way of a “limited” grant: limited to Mr Al-Rajaan’s estate in England and its representation in the proceedings.

The Claimants sought to join the children of Mr Al-Rajaan to the proceedings. The Claimants contended that there was a valuable claim against the children, pursuant to Swiss law which was the alleged domicile of Mr Al-Rajaan: i.e. a claim that the children were liable to the Claimants as successors to Mr Al-Rajaan’s liability. The Claimants also contended, in the alternative, that joinder was appropriate in order to bind the heirs to the outcome of the decision at trial.

The heirs contended that it was wrong to attempt to add successors as defendants where Mr Al-Rajaan’s estate was properly constituted in England with Mr Al-Rajaan’s widow as the personal representative of her late husband. To do so would collapse the principled distinction, which exists under English law, between succession and administration: see Viegas v Cutrale [2024] EWCA Civ 1122.  It was legally impossible for the court to apply Swiss law of succession and give a judgment against the heirs at the forthcoming trial. The correct party, the administrator, had been sued, and there was no justification for joining anyone else.

Held: there was considerable force in the heirs’ argument that it would be inappropriate for the court to decide the question of whether or not, applying Swiss law, the heirs were jointly and severally liable. It was, however, unnecessary to express a final view on that argument since joinder was appropriate in order to ensure that the heirs were bound by the result of the forthcoming trial: a trial which would decide whether Mr Al-Rajaan, and now his estate, had a significant liability to the Claimants. Unless the heirs were joined as parties, a judgment of the English court in the trial may not be enforceable in Switzerland or in other civil law jurisdictions. The heirs had given no undertaking, or indication, that agreed to be bound by the judgment following the forthcoming trial.

The full Judgment [2024] EWHC 3321 (Comm) can be found on the National Archives website (external link).

Hapag-Lloyd AG v Skyros Maritime Corp (Mr Justice Bright) 13 December 2024

Arbitration Act s. 69 appeal – time charter – late redelivery – quantum – whether recoverable loss could be reduced by Owners’ onward contracts

Two vessels under time charters were redelivered a few days late. Unknown to Charterers, Owners had contracted to sell them under MOAs. Despite the late redelivery, Owners were still able to and did immediately deliver the Vessels to the purchasers under the MOAs. Owners claimed damages for the late redelivery, at the prevailing market rate of hire for the short overrun period. Charterers said that Owners had suffered no loss, because they would not and could not have let the Vessels out at the market rate, if there had been no breach – Owners would still have delivered the Vessels directly to the purchasers.

Arbitrators found that Owners were entitled to recover damages at the market rate, as quantum meruit and/or user damages and/or negotiating damages.

The court considered these remedies. It also considered The Achilleas [2008] UKHL 48, Rodocanachi v Milburn [1886] 18 QBD 67, Slater v Hoyle & Smith Ltd [1920] 2 KB 11 and the doctrine of res inter alios alia. The court also enjoyed an old joke.

Held:

• The test of assumption of responsibility, per Lord Hoffmann in The Achilleas at [23], limits the recoverability of loss actually suffered.  It does not make damages recoverable for loss not actually suffered
• The normal measure of damages for delayed delivery/redelivery is the difference between market price/rate when the goods should have been delivered and when they were actually delivered
• The normal measure is not applicable where the claimant could not have taken the opportunity to profit from the market at the contractual date of delivery/redelivery
• The doctrine of res inter alios acta was not applicable

The full judgment [2024] EWHC 3139 (Comm) can be found on the National Archives website (external link)

Walter Oil and Gas UK Ltd v Waldorf NS II Limited (Foxton  J) 12 December 2024

North Sea oil royalty deed – applications for summary judgment

C and D each sought summary judgment in respect of four disputes of the construction of a Deed under which D sold “Royalty Petroleum” as C’s agent (being 3% of all the production from the Relevant Field) but was entitled to deduct certain expense:

Held: (1) D succeeded on the first issue: on its true construction, D was entitled to deduct amounts paid to another party to the Deed for the processing and transportation of Royalty Petroleum which was not an affiliate of D; (2) C succeeded on issues two and three: amounts paid by D to third parties for (i) failing to ship the total amount of petrol which it had indicated to the pipeline operator it would ship and (ii) to instal certain equipment on a pipeline to settle a claim for tendering off-specification fuel for transportation was not an amount paid “for” transporting Royalty Petroleum; (iv) D succeeded on the last issue: while certain environmental costs incurred by a platform operator which were passed on to those shipping petrol through the platform by reference to their proportion of the total petroleum shipped did not meet the definition of “Taxes”, they were amounts paid for the transportation and processing of Royalty Petroleum to the extent of the proportion allocated to Royalty Petroleum.

The full judgment [2024] EWHC 3183 (Comm) may be found on the National Archives website (external link).

Serious Fraud Office v Dr Gerald Smith (Mr Justice Henshaw) 6 December 2024

Contempt of court; breaches of undertakings to deliver up real properties and of restraint order made under Criminal Justice Act 1988.  Sentencing

Following a hearing on 29 October 2024, the court concluded that Dr Smith was guilty of three contempts of court. Two of these related to failing to comply with (and attempting to obstruct) the delivery up of two London flats, vacant possession of which Dr Smith had formally undertaken to provide. The third contempt comprised spending more than the permitted living expenses amount under a Restraint Order under the Criminal Justice Act 1988. The Restraint Order had been made in 2005 on the SFO’s application in connection with charges of theft and false accounting, to which Dr Smith later pleaded guilty, relating to Izodia Plc (a company which had owned a portfolio of hotels and other assets).

The contempts were committed during the operational period of a suspended sentence which the court had imposed on Dr Smith in July 2022 for previous similar breaches of the Restraint Order. In addition, Dr Smith was already serving a prison sentence for an unrelated offence, under which he would (but for the court’s present custodial sentence) have become eligible for release on Home Detention Curfew on or about 8 January 2025.

The court imposed immediate (non-suspended) custodial terms totalling 11 months for the contempts, consecutively to a reactivation of two months of the suspended sentence previously imposed. The court directed that the resulting term of, in aggregate, 13 months’ custody should commence on 8 January 2025.

The full judgments [2024] EWHC 3154 (Comm) (liability) and [2024] EWHC 3161 (sentence) may be found on the National Archives website: case numbers 2024/3154 (external link) and 2024/3161 (external link).

Banco de Sabadell, S.A. v Cerberus Global NPL Associates, L.L.C. and others (Andrew Baker J) 4 December 2024

Contract – Construction – Joint Venture Investment Agreements governed by Spanish law – Principles of interpretation under that law – Whether deferred payment amounts due and payable.]

The Third Party Investor, some of whose obligations were guaranteed by the Defendants, contracted with the Claimant Bank to establish and conduct joint venture business under which Spanish real estate owned assets (‘REOs’) would be transferred to the joint venture vehicle. There were three Investment Agreements, governed by Spanish law, for an aggregate total price of c.€4 billion, payment of 21% of which was deferred. A dispute arose over how much of the deferred portion of the price had become due and payable. The Bank claimed under the Defendants’ guarantees, which required any litigation of disputes to be brought in the English court. Principles of Spanish law for interpreting commercial contracts were established at trial through expert evidence. They required effect to be given to the evident contractual intent of the parties established on all the available evidence, including extrinsic evidence. Applying those principles, the Bank’s claim was upheld and judgment was entered, including interest to the date of judgment, for c.€406m.

The full judgment [2024] EWHC 3022 (Comm) may be found on the National Archives website (external link).

Invest Bank plc -v- Ahmad El-Husseini (Calver J) 21 November 2024

1. This case concerns the application of section 423 of the Insolvency Act 1986 to various transactions carried out by the First Defendant  (“Ahmad”) by which he transferred between 2016 – 2018 a number of valuable assets and interests to his family members, companies under their control and a discretionary trust of which they were beneficiaries. The court was called upon to determine whether at least one of his purposes in doing so in respect of each of the relevant transactions was to put the asset in question beyond the reach of the Claimant (“the Bank”) as a potential creditor?

2. The court determined that the Bank had failed to prove its case in respect of each of the relevant transactions (# 155ff).

3. The case also concerns an analysis of:
(i) The relevant legal principles concerning what needs to be pleaded and proved in order to satisfy the statutory requirements of section 423 (# 18-21).
(ii) When the court may draw an inference that a defendant had the purpose of putting his assets beyond the reach of a creditor (# 22).
(iii) Is a section 423 claim an allegation of discreditable conduct which requires a clear pleading of the primary facts said to give rise to the inference and a case proved by cogent evidence (#23-39)?
(iv) The circumstances in which a court may draw adverse inferences and in particular whether the court should, on the facts of this case, draw adverse inferences against Ahmad and the other defendants by reason of Ahmad’s failure to engage with the proceedings, attend trial and disclose documents (# 115-151).
(v) Whether the Bank was entitled to run a case that Commodore UAE (whose debts to the Bank Ahmad had personally guaranteed) was in financial difficulties in late 2016/early 2017 in the light of its pleaded case (#40-81).
(vi) The consequence of the Claimant failing to apply to adduce expert accountancy evidence in a case where it is alleging that a company, whose debts Ahmad had personally guaranteed, was balance sheet insolvent or suffering from serious illiquidity (#82-102).
(vii) The relevance of contemporaneous documents in assessing where the truth lies in a dispute such as the present one (# 152-154).

The full judgment [2024] EWHC 2976 (Comm) can be found on the National Archives website (external link).

Star Hydro Power Ltd v National Transmission & Despatch Company Ltd (Dias J) 29 November 2024

Anti-suit injunction to restrain proceedings in Pakistan for partial recognition/enforcement of an arbitration award under the New York Convention

Following an English-seated arbitration, C was awarded various monetary sums against D. D brought proceedings in Lahore seeking partial recognition of certain findings in the award and a declaration of non-enforceability of other parts of the award (on grounds, inter alia, of Pakistani public policy) as a necessary consequence of that recognition.

C applied for an injunction to restrain the Pakistan proceedings arguing that they were a disguised challenge to the award and, as such, in breach of an implicit ancillary agreement that such challenges should only be brought under English law as the curial law of the arbitration and in the English courts.

Held, refusing the application but granting permission to appeal:

(1) It must be assumed that a court asked to recognise or enforce an award under the NYC will do so only in compliance with the provisions of the Convention.

(2) The losing party is not bound to bring any jurisdictional or other challenge to the award in the courts of the seat, but is entitled to wait until the winning party seeks recognition/enforcement and then resist on any of the grounds set out in Art V of the NYC.

(3) The right to resist recognition/enforcement on Art V grounds is a substantive right which may be asserted pre-emptively even if the winning party has not itself sought recognition/enforcement.

(4) D was entitled to seek recognition of the finding in the award on which it relied.  Whether or not that had the consequence that the remainder of the award was unenforceable in Pakistan as a matter of Pakistani public policy or because the issues raised were non-arbitrable was a matter for the Pakistani court to determine.

(5) Comity dictated that the English court should not arrogate to itself the power to determine what issues should or should not be left to the Pakistani court whose jurisdiction had been properly invoked.

4 VVV Limited and others v Spence and others (Foxton J) 27 November 2024

Costs – indemnity principle – Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013/3134 – whether costs irrecoverable by reason of assumed breach; whether liability for costs several or joint and several

Ds resisted a costs order on the basis that the Claimants’ solicitors had not complied with the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013/3134 (“the 2013 Regulations”). The Claimants conceded that it was arguable that there had been non-compliance with the 2013 Regulations so far as natural person claimants are concerned (the 2013 Regulations not applying to companies). However, they denied that the assumed non-compliance rendered the agreement to pay costs invalid or unenforceable. Alternatively, they submitted that the corporate claimants could recover all of the costs because they were jointly and severally liable for them.

The court accepted the Claimants’ primary argument: the relevant breaches of the 2013 Regulations did not render the agreement to pay costs invalid or unenforceable. The alternative argument would have failed. Although the corporate claimants had joint and several liability to the solicitors, the effect of the court’s costs-sharing order was that they could not seek a costs order from the Defendants for all of the costs, only their individual proportion.

The full judgment [2024] EWHC 3035 (Comm) may be found on the National Archives website (external link).

Standard Chartered Bank v Guaranty Nominees Ltd (The Chancellor and Foxton J) 15 October 2024

This was a test case brought under the Financial List Test Case scheme to determine the effect on perpetual Preference Shares in which the amount of divided payable was linked to USD 3-month LIBOR from time to time of the cessation of the publication of that rate. The claimant (“SC”) alleged that the reference in the definition of Three Month LIBOR to “three month US dollar LIBOR in effect” on a particular date should be interpreted as a rate that effectively replicates or replaces three month USD LIBOR.  SC’s alternative case was that the Preference Shares’ terms contain an implied term that allows SC to use a reasonable alternative rate to three month USD LIBOR. In either case, SC submitted that the rate should be based on SOFR with a Spread Adjustment which had been recommended by the International Swap Dealers’ Association and endorsed by a number of regulators and market participants (together the “Proposed Rate”). The Funds disagreed with SC’s case and argued that the Preference Shares’ terms contain an implied term that required SC to redeem the Preference Shares in the event that LIBOR was discontinued.

Held: 

1. SC’s case on the interpretation of the express term failed. The words “in effect” in the definition of Three Month LIBOR were used to mean “in force” or “operative” rather than “in substance”.
2. It was an implied term of the arrangements governing the Preference Shares that if the definition of three-month USD LIBOR ceased to be operable, the dividends were to be calculated at the reasonable alternative rate to three-month USD LIBOR at the date of the relevant calculation.
3. The Funds’ proposed implied term was rejected. It was not necessary to give business efficacy to the contractual arrangements or so obvious to go without saying, it conflicted with the express terms and the term was unclear.
4. The Proposed Rate is the reasonable alternative to USD three-month LIBOR at the next calculation date.

The full judgment [2024] EWHC 2605 (Comm) may be found on the National Archives website (external link).

URE Energy Ltd v Notting Hill Genesis (Dias J) 14 October 2024

Waiver by election/conduct; breach – whether “material” and remediable; when, by whom and on what basis contract was terminated; correct calculation of contractual termination payment – whether “remaining value of this Contract to the Supplier” means future income or net profit

In 2017, U (a start-up company) and G concluded an energy supply contract. In April 2018, G merged with another housing association to create the defendant (NHG) which succeeded to G’s rights and obligations under the contract. The contract came to an end in November 2018, but precisely when, on what grounds and by which party it was terminated and the consequences which thereby ensued were hotly disputed.  U claimed to have terminated the contract pursuant to a contractual right arising from the amalgamation, alternatively a contractual right arising from NHG’s material breach of contract, alternative for repudiatory breach at common law. It claimed a contractual termination payment and/or damages. NHG claimed that U’s purported termination was itself a repudiatory breach (which it accepted) and counterclaimed for damages.

In prior summary judgment proceedings, Moulder J held that the amalgamation gave U a contractual right to terminate and that although did not seek to do so for a further six months, there was no estoppel because NHG failed to establish detrimental reliance. Nonetheless, NHG had an arguable case that U had affirmed the contract by its conduct and thereby elected to waive its right to terminate.

Held at trial that: 

1. U’s conduct following the amalgamation was affirmatory and capable of constituting an election.  Nonetheless it did not have the requisite knowledge of its right to terminate and so had not waived its right to terminate.
2. Although NHG was in breach of contract in the respects alleged by U, the breaches were not material and accordingly did not give rise to a right of termination.
3. U validly terminated the contract on grounds of the amalgamation and was not in repudiatory breach.
4. As a matter of construction, the “remaining value of this Contract to the Supplier” referred to anticipated future income over the remaining life of the contract and not to anticipated net profit. The contractual termination payment was to be calculated accordingly.

The full judgment [2024] EWHC 2537 (Comm) may be found on the National Archives website (external link).

BM Brazil I v Sibanye BM Brazil (Butcher J) 10 October 2024

Share Purchase Agreements, Material Adverse Effect clauses, geotechnical event, wrongful termination

The defendants had entered into a Share Purchase Agreement to buy two mining companies, Atlantic Nickel and Mineração Vale Verde (MVV), which were owned by the claimants.

Following a geotechnical event the defendants sought to terminate the SPAs on the basis that the geotechnical event constituted a Material Adverse Effect (MAE). The claimants contended that the defendants had wrongfully repudiated and/or renounced the SPAs and that the defendants were guilty of wilful misconduct in doing so.

The court, having reviewed both US and English authorities, concluded that an event must itself be material and adverse to constitute an MAE, rather than merely revelatory. The court also concluded that an MAE should be consequential for a company’s earnings power over a commercially reasonable period.

The court held that: i) the geotechnical event was not a MAE, ii) there was no other basis for the defendants to terminate the SPAs when they did, iii) the claimants’ case that the defendants were guilty of wilful misconduct was not made out.

The full judgment [2024] EWHC 2566 (Comm) may be found on the National Archives website (external link). 

Jaffe v Greybull Capital (Cockerill J) 7 October 2024

Contract – Fraudulent misrepresentation – “active presence to mind” – applicable law – witness recollection

C’s alleged Ds had made fraudulent misrepresentations about the source of funds being injected into Monarch Airlines and that had these representations not been made Cs would not have continued the commercial relationship and hence not been exposed to losses when the airline failed.

Aside from interesting issues as to the facts, and issues of German Law, the judgment considers the developing scholarship on witness recollection, as discussed in Popplewell LJ’s 2023 lecture and the cases on the meaning of the “country in which damage occurs” in  Article 4 of Rome II in the context of misrepresentations.

The full judgment [2024] EWHC 2534 (Comm) can be found on the National Archives website (external link)

Magomedov and others v. TPG Group Holdings (SBS), LP and others (Jacobs J) 4 October 2024

Norwich Pharmacal orders – need for originating process – proper purpose of Norwich Pharmacal application – whether in the interests of justice to make an order in the light of foreign law – whether a sufficient case that respondents were “mixed up” in wrongdoing – alternative service

The claimants in existing proceedings sought Norwich Pharmacal (“NP”) orders from three Respondents (R1, R2 and R3), all part of the “1291” group which provided financial services. The application was for the disclosure of information as to the identity of the persons who were behind an enquiry made by R1 concerning a proposed payment of monies. The claimants allege that the proposed payment was a bribe. Each respondent advanced arguments as to why service of the application should be set aside and/or relief should be refused.

Held: R1: (1) It had been appropriate for the court to make an order for alternative service on R1 via R3. There was no material non-disclosure which justified setting aside that part of the order.

(2) It was appropriate for the claimants to make their application by service of an application notice in the existing proceedings. It was not therefore necessary for the claimants to issue fresh originating process, either by joining R1 as a defendant to the existing action, or issuing a separate Claim Form against R1.

(3) It was permissible, in principle, for NP relief to be sought in order to obtain information, as to the identity of the persons behind the alleged bribe, that might assist the claimants in resisting forthcoming jurisdictional challenges by various defendants.

(4) However, NP relief would be refused because there was a strong case that the provision of the relevant information, as to the identity of the alleged wrongdoer, would involve a breach of the laws of Liechtenstein, where R1 was incorporated and carried on business. The proposed NP order would also not be readily enforceable in Liechtenstein. It was not therefore in the interests of justice to grant NP relief.

R2 and R3: both companies had only been incorporated after the critical communications relating to the proposed payment. Those communications had involved R1, not R2 or R3. Also, R3 (when ultimately incorporated) was a dormant company which had never carried out any business. There was no sufficient basis for alleging that either company had been “mixed up” in the wrongdoing. Service of proceedings against R2 was therefore set aside. The application against R3 (who had been served in the jurisdiction) was dismissed.

The full Judgment [2024] EWHC 2527 (Comm) can be found on the National Archives website (external link).

Investcom Global  v PLC Investments (Mr Justice Henshaw) (3 October 2024)

Arbitration; anti-suit injunction; jurisdiction; ICC arbitration

The defendants commenced proceedings in Liberia in breach of an arbitration clause in a Shareholders Agreement that covered the parties’ dispute. The defendants also brought further proceedings in Liberia which should have been referred to arbitration pursuant to a management agreement between the parties. The Commercial Court had granted interim anti-suit injunctions (ASIs) in relation to both sets of proceedings at a without notice hearing in July 2024.

On the return date, the ASI in respect of the first set of Liberian proceedings was discharged. The arbitration clause provided for ICC arbitration but did not specify the seat. At the interim stage, the parties to the ASI had agreed that the seat should be London, and it was therefore anticipated that the seat of the arbitration “is or will be” in England & Wales for the purposes of the jurisdictional gateways in CPR 62.5(1)(c) and/or CPR 62.5(2A). However, not every party to the arbitration had agreed on the seat, so the ICC Court was empowered to fix the seat under Article 18(1) of the ICC Rules. The ICC Court subsequently fixed the seat as Toronto. As a result, by the return date the English court had no jurisdiction, under those or any other gateways, to grant relief. Any court intervention would have to be a matter for the courts of Ontario.

The ASI in respect of the second set of Liberian proceedings was continued. The arbitration clause in the management agreement likewise provided for ICC arbitration but specified the seat as London. The court therefore had jurisdiction to grant relief. Further, the continuation of the ASI would serve a useful purpose: the relevant Liberian proceedings had been discontinued, but expressly on a “without prejudice” basis “with reservation of the right to re-file”; and on the facts there was reason to believe that discharge of the ASI would lead to the proceedings being refiled.

The full judgment [2024] EWHC 2505 (Comm) may be found on the National Archives website (external link).

4VVV Ltd and ors v Kewley, Spence and others  (Foxton J) 27 September 2024

The Cs were 435 investors in a number of holiday property and student accommodation schemes promoted by the Alpha Defendants, in which they acquired units in particular projects in return for the promise of a guaranteed income for defined periods. They brought claims in deceit, unlawful conspiracy and for relief under the Financial Services and Markets Act 2000. The Court tried the claims of a number of Lead Claimants.

1. The Lead Claimants’ claims in deceit were established, as was the claim by certain Lead Claimants to rescission.
2. The investment schemes promoted by the Alpha Defendants were unauthorised collective investment schemes for the purpose of s.235 of FSMA 2000 with the result that the contracts with the relevant Alpha entities are unenforceable and the Lead Claimants were entitled to relief under s.26 of FSMA 2000.
3. The Lead Claimants’ claims for unlawful means conspiracy succeeded, both by reference to deceit and by reference to the contravention of FSMA 2000.

The full judgment, reported at [2024] EWHC 2434 (Comm), can be found on the National Archives website (external link).

Czech Republic v Diag Human SE (Foxton J) 9 August 2024

CR brought challenges under s.67 AA 1996 to the award of an investment treaty tribunal in favour of Ds.

1. The challenge that Ds had made no qualifying investment failed. Even assuming in CR’s favour that there was some minimal level of substance and commitment before an investment was made for the purposes of the investment treaty, that test was satisfied on the facts.
2. The challenge that the dispute arose before the treaty came into force and therefore fell outside the temporal scope of the investment treaty failed. The Bojar letter created a new dispute which came into existence after the investment treaty had come into force.
3. The issue of whether Diag Human SE had Swiss nationality by virtue of being under the control of a Swiss national raised a difficult issue. The court concluded that the test of control for this purpose embraced de facto control as well as control arising from legal rights such as share ownership. On the court’s findings as to Liechtenstein law and the facts, that test was satisfied, Diag Huma SE remaining under Mr Stava’s control after it was settled by him into a Liechtenstein trust, such that it retained Swiss nationality for the purposes of the investment treaty.
4. Accordingly the s.67 challenge failed.

The full judgment, reported at [2024] EWHC 210, can be found on the National Archives website (external link).

Republic of Korea v Eliott Associates LP (Foxton J) 1 August 2024

Investor state dispute settlement – Korea-USA Free Trade Agreement – whether Article 1.1(1) created jurisdictional bar for the purpose of s.67 of the Arbitration Act 1996

Article 11.1(1) of the Korea-USA FTA contains a “scope and coverage” clause providing “this Chapter applies to measures adopted or maintained by a Party relating to: (a) investors of the other Party; (b) covered investments; and  (c) with respect to Articles 11.8 and 11.10, all investments in the territory of the Party.”  Article 11.15 and Article 11.16 contained the Contracting Party State’s offers to arbitrate investment disputes. The arbitral tribunal found the requirements of Article 11.1(1) were satisfied and award Elliott LP damages for breaches of Article 11.4.

There was a dispute between the parties as to whether Article 11.1(1) created a threshold to the substantive protections provided by Chapter 11 of the BIT, or whether it created pre-conditions to Korea’s offer to arbitrate investment disputes, such that the tribunal’s finding that Article 11.1(1) was satisfied was in the nature of a jurisdictional finding which was subject to de novo review before the Court under s.67 of the 1996 Act.

Held:

(1) Article 11.1(1) was not a condition of Korea’s offer to arbitrate investment disputes, but a condition of relief on the merits which was a matter for the tribunal. Accordingly the tribunal’s determination that Article 11.1(1) was satisfied was not a jurisdictional finding for the purposes of s.30 of the 1996 Act and could not be challenged under s.67.

(2) Having found that the issues raised by Korea’s challenge based on Article 11.1(1) was not jurisdictional for the purposes of the 1996 Act, it would not be appropriate for the court to make contingent findings on that challenge.

The full judgment, reported at [2024] EWHC 2037 (Comm), may be found on the National Archives website (external link).

LAX v JBC (Foxton J) 1 August 2024

LAX obtained a without notice worldwide freezing order against JBC. It had no assets in the jurisdiction and adduced evidence that it could not fortify an undertaking in damages due to a financial restructuring forced on it by JBC’s breach. JBC applied for fortification.

Held:    

(1) JBC had not established a good arguable case of loss on the material before the court or adduced an intelligible estimate of loss. Accordingly the application for asset disclosure was refused, albeit a further application would be permitted if JBC’s circumstances changed.

(2) The court was concerned at the apparent asymmetry in the fact that LAX had obtained an injunction, and come under a contingent liability under the undertaking in damages, without adducing any evidence as to its assets, while obtaining a coercive order for disclosure of JBC’s assets, and a freezing order, in support of its own claim.

(3) After further argument, the court required LAX to provide a form of disclosure of its own assets as a condition of maintaining the injunction.

The full judgment [2024] EWHC 2042 (Comm) may be found on the National Archives website (external link).

Aiteo Eastern E & P Company Limited v Shell Western Supply and Trading and Others (Jacobs J) 1 August 2024

ICC arbitration – arbitrator removed by the ICC Court after challenge on the basis of doubts as to her independence or impartiality – subsequent application by Claimant under the Arbitration Act 1996 s. 68 to set aside 4 partial awards – whether a sufficient case of apparent bias – whether there was “substantial injustice” – whether to grant an extension of time to make the s. 68 application

The arbitrator (Dame Elizabeth Gloster – “DEG”) was a former judge of the Commercial Court and English Court of Appeal. She was appointed as arbitrator in a dispute between the Claimant (“Aiteo”) and the Defendants (“the Lenders”) on a claim relating to Aiteo’s failure to repay loan facilities. The dispute was subject to arbitration pursuant to the rules of the International Chamber of Commerce (“ICC”). At the time of her appointment, DEG disclosed two previous appointments as arbitrator by Freshfields, the solicitors to the Lenders. DEG failed, through inadvertence, to disclose to Aiteo or to the ICC, a prior professional engagement by Freshfields to provide legal advice to a client unrelated to the Lenders. Thereafter, she failed to disclose a further instruction by Freshfields to provide an expert report in the context of foreign litigation. She also failed to make timely disclosure of a third professional engagement by Freshfields, although she did disclose it subsequent to completion of the engagement. After DEG had made that disclosure, and answered questions from Aiteo’s lawyers, Aiteo applied to the ICC Court to remove DEG as arbitrator on the basis of Article 11 of the ICC Rules, concerning independence and impartiality. The ICC Court removed DEG as arbitrator. Aiteo subsequently sought to set aside 4 awards to which, with co-arbitrators, the arbitrator had been party. Aiteo alleged apparent (not actual) unconscious bias. Aiteo also sought an extension of time to make the application, since more than 28 days had passed since the dates when the awards were rendered.

Held:

1. The question was whether the fair-minded and informed observer, having considered the facts, would consider that there was a real possibility that DEG was biased: Halliburton Co v Chubb Bermuda Insurance Ltd [2020] UKSC 48.
2. The decision of the ICC Court to remove DEG as arbitrator did not create a res judicata or issue estoppel. The ICC Court was not determining a legal right: Unite the Union v McFadden [2021] EWCA Civ 199 applied. Also, its decisions were of a procedural character: The Sennar [1985] 1 WLR 490. Accordingly, the Lenders were not precluded by res judicata or issue estoppel from disputing Aiteo’s case, namely that the fair-minded observer would conclude that there was a real possibility of bias.
3. In answering the relevant question, the observer would pay regard to the decision of the ICC Court to remove DEG, including the fact that this was a rare example of a challenge succeeding before the ICC Court. However, the observer would recognise that he or she should make up his or her own mind on the basis of the underlying facts, and that it would be wrong to reach a conclusion simply by reference to what the ICC Court had decided.
4. On the facts, the observer would conclude that, in view of the number of professional contacts between DEG and Freshfields, and DEG’s failure to make timely disclosure of three of those professional contacts, there was a real possibility of unconscious bias, notwithstanding that there were some factors which would favour a different conclusion. Any possible doubt, on the part of the observer in answering the relevant question, would be resolved by consideration of the ICC Court’s decision, which would strike the observer as rational and well-founded.
5. Where there is bias which affects an arbitrator, an applicant under s. 68 still needs to establish “substantial injustice” in order to obtain relief. In a case of apparent bias, substantial injustice will normally be inferred or anticipated, but there is no absolute rule that it will always be held to exist: Africa Sourcing Cameroun Ltd v LMBS [2003] EWHC 150 (Comm) (Sir Ross Cranston) followed. An inference of substantial injustice can be rebutted, even in a case of bias.
6. In the present case, any inference of substantial injustice was rebutted in relation to 3 of the 4 awards.
   a. The arbitral tribunal’s first award was concerned only with jurisdictional issues. Aiteo had lost its jurisdictional challenge before the arbitrators, and there had then been a challenge under the 1996 Act s. 67 before the Commercial Court: Aiteo Eastern E&P Company Ltd v Shell Western Supply and Trading Ltd [2022] EWHC 2912 (Comm) (Foxton J). The s. 67 challenge involved a re-hearing, and Aiteo’s jurisdictional arguments were rejected. The jurisdictional issue had therefore been fully considered afresh by a court which was unaffected by apparent bias on the part of the DEG. The re-hearing had a “curative” effect, and substantial injustice was not shown: Royal & Sun Alliance Ltd v Tughans [2022] EWHC 2589 (Comm) (Foxton J) applied.
   b. The same applied to the tribunal’s second award dealing with costs, which was consequential on the first award.
   c. The tribunal’s third award involved, unusually and because of the nature of the parties’ contentions, separate consideration by each arbitrator individually of the relevant arguments concerning whether two arbitration references should be consolidated. The other two members of the tribunal were unaffected by apparent bias, and came to their decision independently of the views of DEG. Substantial injustice was not shown.
7. In relation to the 4th award, the inference of substantial injustice was not rebutted. The appropriate order was to remit that award for reconsideration by the tribunal which had now been reconstituted.
8. It was appropriate to grant Aiteo an extension of time in order to make its s. 68 challenge. Aiteo’s case had merit, and other factors also favoured the grant of an extension.

The full judgment [2024] EWHC 1993 (Comm) can be found on the National Archives website (external link).

MOK Petro Energy FZC v Argo (No. 604) Ltd and others(Dias J) 26 July 2024

All-risks marine open cover – claim under policy for loss caused by water contamination to a cargo of M15 gasoline during carriage from Oman to Yemen – certificates of quality at loadport purported to show that cargo was on-spec – defence that (i) C suffered no loss because the cargo would always have been off-specification (ii) claim barred by breach of a survey warranty.

The cargo was a blend of gasoline and methanol.  It was common ground that the contamination was probably due to tank washing residues in the vessel’s cargo tanks and lines and had the effect of increasing the phase separation temperature (PST) of the cargo to 29°C making it unmarketable.   Pre-and post-loading certificates of quality indicated that the cargo had a PST of less than 1°C.  D’s case based on subsequent joint testing was that the cargo as blended probably always had a PST of around 17°C.  C challenged the reliability of the joint analysis.

Alternatively, C argued that even if D’s case on PST was accepted, the choice of blending proportions by the supplier to produce an off-specification cargo was nonetheless fortuitous and resulted in damage to the resulting blend.

D further argued that C had failed to comply with a survey warranty requiring the the shorelines to be inspected and certified as to cleanliness.

Held:

• On C’s primary case, the legal burden was on C to show that the cargo was damaged by a fortuity and that loss was caused as a result.  C prima facie discharged that burden by relying on the loadport certificates.  D accordingly had an evidential burden of raising matters sufficient to cast doubt on the certificates.  If that evidential burden was discharged, the legal burden nonetheless remained with C to establish on a balance of probabilities that the cargo was in the condition as certified.
• On the evidence, D’s case was to be preferred.  On a balance of probabilities the cargo as blended would always have had an excessive PST.  The subsequent joint analyses gave a reasonable indication of the cargo quality on loading notwithstanding C’s criticisms.  In any event, the post-load certificate could not have been correct given the accepted mechanism of contamination.

• As to C’s alternative case on fortuity, even if the choice of blending proportions by the supplier was fortuitous, it did not cause any relevant damage to the cargo since (a) phase separation is reversible and cannot be regarded as damage; (b) even if actual phase separation could be regarded as damage there was no evidence that the cargo as a whole had ever separated; (c) propensity to separate is not “damage” as the cargo did not exist for the purposes of the policy until it had been blended and a propensity to separate is simply a characteristic or attribute inherent in any methanol/gasoline blend. The case was entirely analogous in this respect to Bacardi-Martini v Thomas Hardy.
• As to D’s breach of warranty defence, an inspection as to cleanliness required only that the inspector take steps to be satisfied that any residues are compatible with the cargo to be loaded.  On the evidence the requisite inspection had been carried out.  However, certification of cleanliness was an independent and discrete part of the warranty which, in the absence of contrary provision, had to be provided within a time reasonable in the industry.  The certificate in this case was not provided until 6 years after the event and after the commencement of proceedings.  In no sense could this be said to be a reasonable time.  D was not estopped from relying on the breach of warranty and it was not precluded by s.11 of the Insurance Act 2015.

The full judgment [2024] EWHC 1935 (Comm) may be found on the National Archives website (external link).

MS Amlin Marine MV v King Trader Ltd (Foxton J) 16 July 2024

Charterers’ liability policy – “pay first” clause – whether clause incorporated into policy of marine insurance – whether “pay first” clause to be read down so as not to apply to claim brought by third party and/or where insured insolvent

C provided charterers’ liability insurance to D2. D2 became liable to D1 and D3 after a vessel under charter grounded near the Soloman Islands. D1 and D3 established D2’s liability to them in respect of the grounding in LMAA Arbitrations. After D2 became insolvent, D1 and D3 sought to bring claims against C under the charterers’ liability policy relying on the Third Parties (Rights against Insurers) Act 2010. C relied on the “pay first” clause. D1 and D3 challenged the incorporation of the “pay first” clause into the policy and/or its application in the circumstances.

The court held (i) The “pay first” clause appeared in the policy booklet and was incorporated into the policy. It could not be said to be repugnant to the main provisions or purpose of the policy. (ii) There was no legitimate process of construction by which the “pay first” clause could be read down so as not to apply to third parties bringing claims under the 2010 Act or where the insured was unable to discharge the liability. Nor could a term to that effect be implied into the policy.

The full judgment [2024] EWHC 1813 (Comm) may be found on the National Archives website (external link).

Ukrainian Aircraft Operator Policy Claims: Jurisdiction (Henshaw J) 6 June 2024

Exclusive Ukrainian jurisdiction clauses – whether binding on Claimants under Ukrainian law – whether strong reasons to refuse a stay – aviation insurance

Six claims were brought under insurance and reinsurance contracts in relation to aircraft that have remained in Ukraine following the Russian Federation’s invasion of Ukraine in February 2022.  The claims were made under insurances and reinsurances procured by the Ukrainian airlines who had leased the aircraft.  The Claimants claimed to be entitled to sue as additional insureds under or assignees of the insurance policies, and/or under ‘cut-through clauses in the reinsurance contracts, and/or pursuant to collateral contracts.  It was accepted for the purposes of the applications that the insurance and reinsurance contracts themselves contained exclusive Ukrainian jurisdiction clauses.  The Defendants challenged the English court’s jurisdiction.  The Claimants contended that (i) under the Ukrainian governing law, they were not bound by the Ukrainian jurisdiction clauses and were entitled to pursue their claims in England, and (ii) there were in any event strong reasons not to give effect to the jurisdiction clauses, by reason of the effects of the war on litigation in Ukraine. 

The court held that (i) the Defendants had the better of the argument that under Ukrainian law the Claimants were not entitled to pursue their claims under the insurance and reinsurances contracts (or under contracts allegedly collateral thereto) without abiding by the exclusive Ukrainian jurisdiction provisions, and (ii) the evidence about the effect of the war on litigating in Ukraine was insufficient to demonstrate strong reasons for the court to decline to give effect to the jurisdiction clauses.

The full judgment [2024] EWHC 1365 (Comm) may be found on the National Archives website (external link).

Gordiy v Dorofejeva (Foxton J) 24 May 2024

Permission to amend – permission to serve out of the jurisdiction – deceit – pro bono representation

C applied for permission to amend to advance claims in deceit, unlawful interference and causing loss by unlawful means, and for permission to serve the claim on D2 out of the jurisdiction. C was a litigant in person, and was provided with pro bono legal representation under the COMBAR Pro Bono Scheme by Mr Andrew Fulton KC, and also by Howard Kennedy LLP. 

Held: with the benefit of the extensive contemporaneous documents before the court, C’s claims were not arguable. The Court concluded: 

“Although I suspect this will provide very limited consolation to Ms Gordiy, she can rest assured that all that could possibly be said in support of her claims has been said, and that the issues and evidence raised in answer to her complaints by the Defendants have now been fully tested. The court is extremely grateful for the time given by Mr Fulton KC and Howard Kennedy LLP which has made this possible.” 

A full copy of the judgment – reported at [2024] EWHC 1273 (Comm) – can be found on the National Archives website (external link).

Barclays Bank Plc v Sovcombank (Foxton J) 24 May 2024

Anti-suit injunction; anti-enforcement injunction – claim for negative declaratory relief 

B was party to a facility agreement with S which contained an English law and exclusive jurisdiction clause. UK sanctions made it a criminal offence for B to pay S. S commenced proceedings in Russia for damages. Interim anti-suit injunctions were granted. At the trial B applied for final ASI and AEI injunctions and for a declaration that the UK sanctions excused it from payment: 

Held (granting the relief sought): 

1. The court was satisfied that the Russian proceedings were being pursued in breach of contract and that there was no good reason not to grant final relief. 
2. Applying SAS Institute Inc v World Programming Ltd [2020] EWCA Civ 599, and Deutsche Bank v RusChemAlliance LLC [2023] EWCA Civ 114 it was appropriate to grant a final AEI. The effect of the expert evidence was that the Russian court might enter judgment even if S sought to comply with the ASI. Further, in this case that AEI was sought prior to the entry of judgment in Russia when the Russian proceedings were in their early stages, the Russian court had yet to pronounce on the issue and S had yet to acquire a judgment debt. 
3. It was appropriate for the English court, as the parties’ chosen court and the court best placed to determine the effect of UK sanctions on an English law contract, to grant the negative declaratory relief sought. 

A full copy of the judgment ([2024] EWHC 1283 (Comm) can be found on the National Archives website (external link).

Ziyavudin Magomedov v TPG Group Holdings (SBS) LP (Bright J) 21 May 2024

Anti-anti-suit injunction – whether  criteria for anti-suit injunctions apply fully to an anti-anti-suit injunction 

Cs commenced proceedings in England.  D20 acknowledged service and challenged English jurisdiction.  D20 also commenced proceedings in Russia for a Russian anti-suit injunction (“ASI”). Cs applied without notice for, and obtained, an anti-anti-suit injunction (“AASI”).  Prior to the return date, the Russian court granted the Russian ASI, on terms that breach by Cs would entitle D20 to payment of (in total) US$7.5 billion. 

AASIs have historically been granted applying the same criteria as those applicable to ASIs – per Lord Goff in Airbus Industrie GIE v Patel and Toulson LJ in Deutsche Bank AG v Highland Crusader Offshore Partners LP.  These normally require the English court to decide that England is the natural forum. The Russian ASI sought to prevent Cs from resisting D20’s challenge to English jurisdiction, and thus to prevent the English court from deciding its own jurisdiction, including the question of natural forum. 

Held: Interim AASI granted, until determination of D20’s jurisdictional challenge. The English court must have the power to give itself the chance to decide the natural forum.  

The full judgment [2024] EWHC 1176 (Comm) may be found on the National Archives website (external link). 

OCM Maritime Nile LLC v Abdul Jalil Mallah (Cockerill J) 21 May 2024

Contempt of Court

The defendant had been joined to proceedings post judgment and a third party costs order made against him. A worldwide freezing order against him had been obtained. The Claimants contended that the disclosure part of that order had not been complied with in that full disclosure had not been given. Further it was contended that lies had been told to excuse non-compliance including his assertions that he had been unaware of the order and that he had never instructed his previous solicitors of record. The majority of contempts were found to have been established and the Defendant was sentenced (in absentia) to 18 months imprisonment.

The full judgment [2024] EWHC 1226 (Comm) may be found on the National Archives website (external link).

Sy Roro 1 Pte Ltd v Onorato Armatori SR (Foxton J) 17 May 2024

Anti-suit injunction – whether jurisdiction clause exclusive – anti-enforcement injunction

C sought an ASI against Ds under a bareboat charter (which contained a London arbitration clause) and a Multi-Party clause (containing an English jurisdiction clause). It also sought an anti-enforcement injunction the effect of which would be to nullify the outcome of relief D4 was seeking in an application to set aside arrest proceedings commenced by C in France. Held: 

1. The application for ASI relief was granted. C would be permitted to amend the claim form to include relief in respect of the bareboat charter. Properly construed, the jurisdiction clause in the Multi-Party Agreement was exclusive so far as Ds were concerned. 
2. The application for an anti-enforcement injunction was refused. The court was not persuaded that it was appropriate to injunct Ds from responding to the arrest proceedings C had commenced or which would prevent D4 from obtaining any practical benefit if its challenge to the French arrest proceedings succeeded. 

A full copy of the judgment – reported at [2024] EWHC 1283 (Comm) – can be found on the National Archives website (external link).

ING Bank v Technimont SA (Cockerill J) 8 May 2024

[Contract- Indemnity – Jurisdiction – Part 20 – Intervener.]   

Tecnimont was required under a Facility Agreement to indemnify ING on demand in respect of any sums ING was required to pay out under bonds issued at Tecnimont’s request.  The Facility Agreement was governed by Italian law and contained a clause stating that the Courts of Milan “shall have exclusive competence for any dispute” but also permitting the Bank to bring proceedings “before any other competent court”. ING were sued on the bonds. Tecnimont applied to join the proceedings as an interested party. It then resisted being joined as a Part 20 Defendant with an indemnity claim being made against it.

The challenge failed. Tecnimont had submitted to the jurisdiction. In any event the clause was an asymmetric jurisdiction clause and  conferred jurisdiction not only on the Italian courts but on any court that was jurisdictionally apt, whether domestic or foreign. Consequently, ING would not be in breach of the jurisdiction clause by making a claim in the English Court and England was the forum conveniens.

The full judgment [2024] EWHC 1084 (Comm) may be found on the National Archives website (external link).

Maersk Guinea- Bissau, SARL (also known as “Maersk Guinea- Bissau SARL” or “Maersk Guinee- Bissau SARL” and another v. Almar-Hum Bubacar Baldé S.A.R.L. (Jacobs J) 29 April 2024

Incorporation of contractual terms – bills of lading – enforceability of exclusive jurisdiction clause by a third party covered by a “Himalaya” clause – whether judgment of court in Guinea-Bissau gave rise to res judicata estoppel – claim by Claimants for declaration of non-liability in respect of delays in performance of contracts of carriage.

The 2^nd Claimant (“Maersk”) was the carrier under various bills of lading. The 1^st Claimant (“Maersk GB”) operated, on behalf of the carrier, locally in Guinea-Bissau, West Africa. The Defendant (“the shipper”) was the shipper of a cargo of timber from Guinea-Bissau to China. A dispute arose between the parties in relation to delays in delivering the timber in China. The shipper contended that the delays had been caused by the Claimants having wrongfully given the bills of lading to the Guinea-Bissau Judiciary Police, who had demanded the bills in relation to debts owed by the shipper to the Guinea-Bissau state. The shipper began proceedings in Guinea-Bissau against Maersk GB, and obtained judgment. The Claimants contended that the proceedings were in breach of an exclusive jurisdiction clause in favour of the English courts and a Himalaya clause, and that both Claimants could enforce those clauses and claim damages for the breach. The Claimants also claimed declarations of non-liability, contending that there were various reasons why there was no liability to the shipper. The shipper contended that the Guinea-Bissau judgment gave rise to a res judicata which precluded the Claimants from advancing their claims.

The principal issues were: whether Maersk’s standard terms were incorporated into the contracts of carriage between Maersk and the shipper; whether both claimants were entitled to judgment on liability (with damages to be assessed later) for breach of the jurisdiction clause and the Himalaya clause; whether the Guinea-Bissau judgment gave rise to res judicata estoppel; and whether the Claimants were entitled to a declaration of non-liability.

Held: The Claimants succeeded on all issues.

(1) The Claimants had drawn sufficient attention to Maersk’s standard bill of lading terms. Customers (including the shipper in this case) had to make bookings using Maersk’s online system, and for that purpose must tick a box accepting Maersk’s hyperlinked terms. The shipper had ticked the box, thereby assenting to the terms: Ebury Partners Belgium SA/NV v Technical Touch BV [2022] EWHC 2027 (Comm) applied. The shipper was also otherwise aware of Maersk’s terms when making its booking on the Maersk website. The terms were therefore incorporated. None of them were unusual or onerous.

(2) Both Claimants could enforce the jurisdiction clause and could claim damages consequent upon its breach. Maersk GB’s entitlement to enforce was a consequence of the Himalaya clause. An appropriately drafted Himalaya clause will enable a third party to rely upon an exclusive jurisdiction clause at common law: The Mahkutai [1996] AC 650 distinguished; Carver on Bills of Lading 5^th edition section 7-079 applied. There is no reason why, at common law, a third party’s entitlement to enforce the terms of a bill of lading should be confined to reliance by way of defence.

(3) The Guinea-Bissau judgment did not give rise to any res judicata estoppel for a number of reasons: (a) It was obtained in breach of an exclusive jurisdiction clause; (b) the judgment was not final because there is an outstanding appeal which has not been resolved; (c) the proceedings which resulted in the judgment now relied upon were contrary to natural justice.

(4) The Claimants were entitled to a declaration of non-liability on various grounds: (a) no claim could be made against Maersk GB, which was not the carrier; (b) any claim for breach of the contract of carriage was time-barred, since proceedings had not been commenced in the agreed jurisdiction in the 1-year permitted by the Hague Rules: The Havhelt [1993] 1 Lloyd’s Rep 523 applied; (c) the bill of lading terms protected the Claimants from claims in respect of delay; (d) the delays were attributable to breaches of contract by the shipper; (e) neither Claimant was in breach of contract; (f) the delays alleged to be attributable to the Claimants would have occurred in any event, because the shipper was not in a position to present all the documents required to take delivery of the cargo.

The full judgment [2024] EWHC 993 (Comm) can be found on the National Archives website (external link).

Royal & Sun Alliance Insurance v Kroll (Foxton J) 26 April 2024

CPR 31.17 – application in advance of service of Defence – whether court should hold underlying claim too weak to justify relief 

C sought CPR 31.17 relief against R1 and R2, directors of D who had been the subject of a criminal investigation which was abandoned. R1 and R2 had commenced proceedings against the prosecuting authorities which were later settled. C and D had settled a claim under a D&O policy on the basis that if R1 and R2  were “awarded any sum by way of damages, compensation or costs in respect of the Losses which are subject of payment under the terms of the Agreement (or any part thereof)” D would reimburse C to that extent (clause 6.2). C sought CPR 31.17 disclosure of documents relating to the claim commenced by R1 and R2 against the prosecuting authorities and the settlement of that claim. 

Held (granting the disclosure sought): 

1. While there might be cases in which a CPR 31.17 application prior to the service of a Defence and/or disclosure between the litigating parties was premature (Abbas v Yousef [2014] EWHC 662 (QB)) this was not one of them. The issues relating to the settlement of the litigation commenced by R1 and R2 were a key issue in the claim, and D had made it clear it had no information about the settlement or documents it could produce. 
2. R1’s argument that, given its reference to a sum “awarded”, clause 6.2 could not extend to amounts paid in settlement could not be said to be so strong that disclosure should be refused on that basis. The contrary construction was eminently arguable and “the argument that, by having a settlement of a pending claim or against the background of imminent judgment, it would be possible to avoid the application of cl.6.22 was not an altogether happy one. 

A full copy of the judgment ([2024] EWHC 1255 (Comm) can be found on the National Archives website (external link).

Upham v HSBC UK Bank plc (Bright J) 26 April 2024

Tort – Deceit/unlawful means conspiracy – quantum – limitation

The Claimants were individuals who invested in ‘Eclipse’, a film-related tax-deferral scheme devised by HSBC’s employee, Mr Bowman. The scheme was successfully challenged by HMRC. The Claimants said they had invested in reliance on representations that the Eclipse structure had been approved by a tax QC, and that these representations were false and were made dishonestly by and/or with the knowledge and intention of Mr Bowman.  

The claims failed because:

1. The Claimants had failed to analyse properly the legal significance of the statements made to them before they invested in Eclipse.
2. Properly analysed, the statements that related to the advice of the tax QC did not constitute misrepresentations. The Eclipse promoter (Future Films) and Mr Bowman had reasonable grounds for believing that the scheme as implemented was consistent with the basis on which the tax had advised.
3. Neither Future Films nor Mr Bowman was dishonest.
4. The Claimants’ Sample Witnesses failed to prove the quantum of their loss (with the one exception).
5. The claims were time-barred.

The Court made observations as to how claims in misrepresentation/deceit should be analysed and pleaded: [310]-[312]; cf. [322], [336], [494]-[498]. The full judgment, [2024] EWHC 849 (Comm), may be found on the National Archives website (external link).

The London Steam-Ship Owners’ Mutual Insurance Association Ltd v Trico Maritime (Pvt) Ltd and others (Bright J) 23 April 2024

Contract of insurance – London arbitration clause, pay-to-be-paid clause – claims by third parties against insurer in Sri Lanka – final anti-suit injunction

The Claimant (“Club”) insured the vessel ‘X-Press Pearl’, under terms including a London arbitration clause and a pay-to-be-paid clause. The vessel sank off Sri Lanka with the loss of all cargo. Various parties asserting interests in the cargo (“the Cargo Claimants”) commenced proceedings in Sri Lanka. The Cargo Claimants’ claims against the Club were brought solely on the basis that it was the insurer of the vessel.

Held: The claims against the Club in Sri Lanka were derived from and sought to enforce the contract of insurance.  They did not advance an independent right of recovery. The Cargo Claimants were treated as bound by the contract of insurance including the arbitration clause and the pay-to-be-paid clause. The Club was entitled to a final anti-suit injunction and a declaration re the effect of the pay-to-be-paid clause.

The full judgment, [2024] EWHC 884 (Comm), may be found on the National Archive website (external link).

Nederlandse Financierings-Maatschappij voor Ontwikkelingslanden v Société Bengaz (Henshaw J) 22 April 2024

Summary judgment – loan agreement – security – diversion of funds – proprietary claims

The Claimant (FMO) is a Dutch state-owned company which lends funds to promote economic growth in emerging markets.  It lent money to Bengaz, a special purpose vehicle holding investments in the Second Defendant, West African Gas Pipeline Company Limited (WAGPCO).  As a shareholder in WAGPCO, Bengaz received substantial sums from time to time from WAGPCO.  It granted security in favour of FMO over its entitlements to such sums, as security for the loans. 

The court granted summary judgment for approximately US$56 million due to FMO under the loan agreement, declarations as to its proprietary interests and other entitlements in relation to certain funds, and mandatory injunctive relief against Bengaz and WAGPCO to enforce FMO’s entitlements under the security arrangements.

The full judgment [2024] EWHC 901 (Comm) may be found on the National Archives website (external link).

Moonbug Entertainment Ltd v CCM Touring LLC et al (Andrew Baker J) 15 April 2024

Challenge to jurisdiction – law and jurisdiction clause for “the law and jurisdiction of the party bringing the claim” – lis pendens – submission to the jurisdiction at common law

Disputes having arisen under a licence agreement relating to the claimant’s intellectual property in “CoComelon” (the YouTube channel for children):

– the first defendant sued in New York claiming breach of contract in relation to activity in the US and Canada by a third party licensed by the claimant, the main issue there being whether that licence clashed with the first defendant’s licence such that the first defendant’s exclusivity rights had been infringed;

– the claimant later sued in England for a declaration that in respect of every country other than the US, Argentina and Canada, rights licensed to the first defendant reverted to the claimant in November 2023.

The possibility of claims relating to different aspects of the parties’ contract being governed by different laws and determined in different jurisdictions was part of the parties’ bargain, and in any event the defendants had submitted to the jurisdiction at common law by steps taken prior to bringing the application to challenge jurisdiction. The application was dismissed with directions for a speedy trial under the Shorter Trials Scheme.

The full judgment, [2024] EWHC 793 (Comm), may be found on the National Archive website (external link).

Onecom Group v Palmer (Henshaw J) 17 April 2024

Strike-out/summary judgment – breach of warranty claim – contractual limitation period – interpretation

The Defendant applied to strike out a claim for alleged breaches of warranties concerning aspects of the operating costs of a company whose shares he had sold to the Claimant.  He alleged that the claims were brought outside a contractually agreed deadline for warranty claims.  The Claimant contended that the period was extended, under the relevant provisions, because the claim was based on liabilities that were contingent and not capable of being quantified. 

The court held that the Claimant was correct.  The warranty claims could not be quantified until the outcome of a contractual process by which an independent accountant determined an ‘Earn-Out Consideration’ forming part of the consideration payable by the Claimant for the shares in the company.  That exercise involved a price adjustment potentially affected by (among other things) the same categories of operating costs as were the subject of the warranty claims.  To avoid a risk of double counting, the warranty claim could not be quantified until after the independent accountant had reported.  The claims were not time-barred and the strike-out application was dismissed.

The full judgment [2024] EWHC 867 (Comm) may be found on the National Archives website (external link).

Russian Aircraft Operator Policy Claims: Jurisdiction (Henshaw J) 28 March 2024

Exclusive Russian jurisdiction clauses – whether strong reasons to refuse a stay – prospect of fair trial in Russia – aviation insurance

Seventy-eight claims were brought for losses of around US$9.7bn following the alleged detention or other loss in the Russian Federation of 208 aircraft and 31 engines after Russia’s invasion of Ukraine in February 2022.  The claims were made under reinsurances procured by the Russian airlines who had leased the aircraft/engines (and under which the Claimants claimed to be entitled to sue under ‘cut-through clauses).  It was accepted for the purposes of the applications that the reinsurances contained exclusive Russian jurisdiction clauses.  The Defendants challenged the English court’s jurisdiction.  The Claimants contended that, despite the jurisdiction clauses, there were strong reasons not to grant a stay.

The Commercial Court held that (i) on the evidence, and in view of the likely substantive issues, it was unlikely that the Claimants would receive a fair trial in Russia; (ii) that factor was not undermined to any significant degree by the Defendants’ arguments that a risk of unfairness was foreseeable when the jurisdiction clauses were entered into; (iii) even after taking account of the importance of comity between courts of different nations and the importance attached by the English courts to jurisdiction clauses, the unlikelihood of a fair trial was a strong reason for declining to stay the proceedings in this case; and (iv) considerations relating to multiplicity of proceedings, risks of inconsistent judgments and, in some cases, personal safety were further factors supporting the view that strong reasons existed to refuse a stay.

The full judgment [2024] EWHC 734 (Comm) may be found on the National Archives website (external link).

ABFA Commodities Trading Ltd v Petraco Oil Company SA  (Foxton J) 27 March 2024

Part 36 offer – costs and interest rate – declarations as to beneficial ownership of amount held to the order of the court

Petraco (P) sought its costs on the basis that it had recovered more than a Part 36 offer. ABFA (A) said that it would be unjust to apply CPR Part 36(17)(4) because the court had found P had adduced dishonest evidence as to its knowledge and the Part 36 offer was not a genuine attempt to settle. P also sought a declaration A was not the beneficial owner of the sums held to the order of the court which were accordingly not subject to sanctions control.

Held:

1. The Part 36 Offer offered a discount of between 16-18% against the recoverable amount and was a genuine offer to settle.
2. The court had expressed its disapproval of P’s conduct by refusing to enforce the undertaking in damages to the extent of $1.6m but had not taken account of the consequences of P’s dishonest case on the costs of the action.
3. The appropriate order was to arrive at a costs order which reflected the consequences of ‘s dishonest case but otherwise to apply the CR 36.17(4) consequences of beating the payment in.
4. The court considered A’s argument that any costs incurred in advancing P’s dishonest case as to knowledge were necessarily unreasonably incurred and not recoverable on assessment.
5. The rejection of A’s claims and the order for payment of the sum held to the Court’s order to P necessarily extinguished any equity of redemption A otherwise had in those sums, and P was entitled to the declarations sought.

The full judgment [2024] EWHC 706 (Comm) may be found at the National Archives website (external link).

Civiello and Survey Spec Ltd v Brodahl (Foxton J) 27 March 2024

Freezing injunction – assets of companies owned by D – whether fell within terms of England and Wales freezing order

C, who had registered a Norwegian judgment in England and Wales, sought declarations that an England and Wales Freezing Order (“EWFO”) applied to dividends and consultancy fees payable to a Norwegian company and/or a Liechtenstein company on the basis that (i) those companies received the amounts beneficially for D and/or (ii) the assets were in D’s control for the purposes of the EWFO.

Held:

1. The court was not in a position to reach a final decision and would be wary of doing so.
2. On the material before the court, C had not shown good reason to suppose the companies received the assets beneficially for D or that the assets of the companies were in D’s control for the purposes of the EWFO.
3. The court considered the circumstances in which the court might grant a freezing order in relation to assets which were not currently amenable to execution and how the court might approach cases in which the question of whether a current order extended to particular assets was in dispute.

The full judgment [2024] EWHC 707 (Comm) may be found at the National Archives website (external link).

Czech Republic v Diag Human SE and Stava (Foxton J) 27 March 2024

Investment treaty arbitration – permission to amend – whether challenge under s.67 of the Arbitration Act 1996 barred by s.73 – whether extension of time required

The Czech Republic sought permission to amend to bring a s.67 challenge based on the allegation C’s dominant and effective nationality was TCI not Swiss. Held:

1. It was arguable as a  matter of international law that where C held the nationality of the host state and other nationalities, he could only claim if his dominant and effective nationality was that of the other Contracting Party.
2. The court was able finally to decide the issue under s.73(1) and the Czech Republic had not persuaded the court that, if reasonable diligence had been exercised, the ground of challenge would not have become known before the award. Accordingly permission to amend would be refused.
3. The court rejected an argument that an application to amend to advance a new ground of objection did not have to comply with the time limit in s.70(2) of the 1996 Act. However, had the issue been live, the court would have granted an extension of time.

The full judgment [2024] EWHC 708 (Comm) may be found at the National Archives website (external link).

Delos Shipholding SA and others v Allianz Global Corporate and Specialty SE and others  (Dias J) 25 March 2024

War risks insurance – Detention of vessel – CTL – Fortuity – Arrest under customs or quarantine regulations “or similar arrest, restraint or detainment” – Breach of duty to sue and labour – Non-disclosure – claim under s.13A

Held:

1. The loss was fortuitous.  While neither the Master nor the claimants actually knew the vessel was illegally anchored until after her arrest, the Master and the Operations Department of the managers should have realised this.  However, none of the claimants appreciated or should have appreciated that she might be arrested and detained as a result.  The obiter dictum of Hobhouse J in The Wondrous stood only for the proposition that loss was not fortuitous if it was bound to result from conduct voluntarily entered into by choice of the assured.  The assured could not be said to be exercising a choice unless it was subjectively aware that some significance attached to its decision.  In any event, on the facts, as at February 2019 arrest and detention were not bound to result and were not ordinary incidents of anchoring in Indonesian waters without permission.
2. The arrest was not “similar” to an arrest under customs or quarantine regulations.
3. The assured’s conduct in entering into discussions with the authorities was not unreasonable and there was no breach of the duty to sue and labour. 
4. The criminal charges were material and should have been disclosed but they were only known to the nominee director himself and he was not part of the senior management of either the vessel-owning company or any of the other claimants.  Accordingly, none of the claimants had actual knowledge of the charges and on the facts none of them should have known.  In any event, had they been disclosed, other exculpatory material would also have been presented which can be taken into account in relation to both materiality and inducement when postulating the counterfactual scenario.  On the facts, Insurers probably would have been prepared to write the risk on the same terms but subject to replacement of the director in question.
5. The claimants had failed to prove the loss they alleged they had suffered by reason of Insurers’ non-payment.

The claim under the policy accordingly succeeded but the claim under s.13A failed.

The full judgment [2024] EWHC 719 (Comm) may be found on the National Archives website (external link).

Al Aggad v Al Aggad (Cockerill J) 22 March 2024

[Jurisdiction – Forum Conveniens – Saudi Arabia – Jordan – breach of contract – Unlawful mans conspiracy.] 

D3 had been served in person within the jurisdiction, with Ds 1 and 2 joined as necessary and proper parties to claims in contract and conspiracy arising out of a family dispute in KSA. It was accepted that the dispute was most closely connected to KSA. It was accepted (for the purposes of jurisdiction only) that the claimant could not go to KSA. Although KSA was prima facie the convenient forum, that was displaced because on the detailed evidence there was a real risk that the claimant could not commence, pursue or participate in proceedings in KSA because she lacked the requisite documentation to produce a power of attorney which could be authenticated/legalised and because she could neither participate in remote hearings or give evidence in support of her claim. Jordan was not a forum conveniens because of the risk of multiplicity of proceedings; Vedanta v Lungowe did not preclude reliance on that argument because the choice to sue here was the claimant’s.

The full judgment [2024] EWHC 673 (Comm) may be found on the National Archives website (external link).

Czech Republic v Diag Human SE and Stava (Foxton J) 8 March 2024

Investment treaty arbitration – whether challenges under s.67 and s.68 of the Arbitration Act 1996 barred by s.73; whether challenges jurisdictional; whether s.68 challenges succeeded

The Czech Republic brought a series of challenges under s.67 and s.68 of the 1996 Act to the damages award of a tribunal under the Switzerland-Czechoslovakia Bilateral Investment Treaty. The tribunal had found two breaches of the treaty and awarded damages. This hearing considered (i) the extent to which the s.67 challenges were barred by s.73(1); (ii) whether all of the challenges fell within s.67 and (iii) the s.68 challenges.

After reviewing the relevant principles, the court held that a number of the s.67 challenges were barred by s.73, and one of the challenges which was not so barred was not properly jurisdictional. One of the challenges under s.68(2)(d) succeeded. The other s.68 challenges failed.

The full judgment [2024] EWHC 503 (Comm) may be found at the National Archives website (external link).

GI Globinvestment Limited v Faleschini, Leader Logic and others  (Cockerill J) 5 March 2024

[Strike Out – Unlawful means conspiracy – Deceit]

Applications to strike out claims brought against an individual and two companies in deceit and unlawful means conspiracy were dismissed in a case where there it was accepted that there was an arguable case against the other defendants. While the companies were incorporated after the original pleaded misrepresentation and reliance it was arguable that they joined the conspiracy late, that passive participation was enough to attract liability in conspiracy and that the claimants could have acted to prevent or mitigate their losses even after the companies were incorporated and took up their role. As regards the individual it was not fanciful to suggest that the pleaded representations could be ones of fact as to present intention and that his role was such that he had relevant knowledge and intent at the outset to be liable in deceit or conspiracy.

The full judgment [2024] EWHC 481 (Comm) may be found on the National Archives website (external link).

The Public Institution for Social Security v Muna Al-Rajaan Al-Wazzan & Ors (Disclosure Issues) (Jacobs J) 5 March 2024

Applications for further disclosure pursuant to paragraph 17 of CPR PD 51AD – whether applicants had shown that there had been or may have been a failure adequately to comply with an order for Extended Disclosure – applicable test under paragraph 17 – whether documents of Kuwaiti government entities other than the Public Institution for Social Security (“PIFSS”) were under the practical control of PIFSS – whether parties should be ordered to request third party documents which were not under their legal or practical control

PIFSS operated the State of Kuwait’s social security and pension scheme. The proceedings were in respect of alleged unlawful payments by various financial institutions and intermediaries of unauthorised secret commissions procured by Mr Al Rajaan, its former Director General from 1984 to 2014. The principal applications were by various defendants for further disclosure by PIFSS pursuant to paragraph 17 of CPR PD 51AD, which enables the court to order further disclosure where there had or may have been a failure adequately to comply with an order for Extended Disclosure,

Held:

(1) although paragraph 6.4 of the Practice Direction required the court to take into account “the likelihood of documents existing that will have probative value in supporting or undermining a party’s claim or defence“, an applicant for disclosure did not have to demonstrate the existence of such documents on the balance of probabilities. Disclosure orders could be made where there was a real possibility that such documents existed: Re H Minors [1996] AC 563 at 584F-G; Wallis v Bristol Water [2009] EWHC 3432 (Admin) at [18] applied.

(2) dismissing the principal applications, the applicants had failed to show that PIFSS had or may have failed to comply with orders for Extended Disclosure in respect of documents in the possession of (i) other Kuwaiti government entities, in particular the Kuwaiti Attorney General (which acted as public prosecutor) and the Department of Legal Advice and Legislation (which gave legal advice to various Kuwaiti government departments) and (ii) non-governmental entities such as the accounting/ consultancy firms KPMG and Ernst and Young. In deciding whether there was such practical control, it was relevant to consider whether it was inherently probable or conventional for such practical control to exist: Loreley Financing (Jersey) No. 30 Ltd v Credit Suisse Securities (Europe) Ltd and others [2023] EWHC 548 (Comm) followed. A failure by a party to request the production of documents in the possession of a third party could not, on its own, justify an inference that there was practical control over those documents. If, however, there other factors present, and these were are sufficiently strong, the absence of a sensible request might assist in the drawing of an inference of control.

(3) Where documents were not under the legal or practical control of a third party,  the court had no jurisdiction to make an order requiring a party to exercise best endeavours to obtain or request the third party to produce documents for disclosure: Various Airfinance Leasing Companies and anor v Saudi Arabian Airlines Corpn [2021] EWHC 2904 (Comm) followed.

(4) The decision of Beatson J in West London Pipeline West London Pipeline & Storage Ltd v Total UK Ltd [2008] EWHC 1729 (Comm) provides valuable guidance as to the circumstances in which the court will be willing to “go behind” evidence submitted by a party. That approach applies both to arguments concerning privilege and other aspects of disclosure. It is not routine for the court to make further orders in relation to claims for privilege, or in relation to other aspects of disclosure, simply because a party would wish to have more information. There are circumstances in which the court will do so, when the court is concerned that something had gone wrong or may have gone wrong. It is, however, becoming increasingly common for parties, at CMCs, to apply for orders for further information as to aspects of the disclosure work carried out by an opposing party, essentially in order to check that it had done that work properly. The court should generally not be burdened with such requests. It is different if a party can show that something has gone wrong, or may have gone wrong, in the disclosure process and to make an application on that basis.

The full Judgment [2024] EWHC 480 (Comm) can be found on the National Archives website (external link).

Mahtani and Others v Atlas Mara Ltd and Others (Butcher J) 5 March 2024

Share Purchase Agreement  – Alleged breaches – Causation – Loss

The Defendants had purchased the entire issued share capital in Finance Bank Zambia (‘FBZ’) from the Claimants under a Share Purchase Agreement.  The Claimants contended that the Defendants were in breach of that agreement in 3 respects: (1) in failing to act reasonably in and about the appointment of a Fund Raising Agent; (2) in failing to agree to the sale back to the First Claimant of a subsidiary of FBZ, FBS; and (3) in failing to release certain Escrow Shares to the Claimants.

The court concluded that there had been no breach of contract as to (1), and that, in any event, no loss had been caused by the alleged breach; that there had been no breach as to (2); and that the Claimants’ pleaded case on breach in relation to (3) failed.

The full judgment [2024] EWHC 218 (Comm) may be found at the National Archives website (external link).

Contax Partners Inc BVI v Kuwait Finance House and Others (Butcher J) 29 February 2024

Arbitration – Enforcement of arbitration award – Award found to be fabricated

The court had previously made an ex parte order for the enforcement of an arbitration award purportedly made under the auspices of the Kuwait Chamber of Commerce and Industry Commercial Arbitration Centre.  It was then alleged by the apparent respondents in the arbitration that the award was a fabrication, and there had never been an arbitration agreement, or an arbitration or an award.  The court found that the award was a fabrication and set aside the order for its enforcement.

The full judgment [2024] EWHC 436 (Comm) may be found at the National Archives website (external link).

Oaxaca Ltd & Flat Iron Ltd v QIC Europe (Cockerill J) 19 February 2024

Contract – Insurance – Summary Judgment

The Claimants applied for summary judgment on liability in respect of their insurance claims arising out of Covid-19 business interruption. Judgment was granted on the issue of construction which was essentially identical to that raised in earlier cases (in particular Corbin & King Ltd & Ors v AXA Insurance UK Plc [2022] EWHC 409 (Comm), London International Exhibition Centre PLC v Royal & Sun Alliance Insurance PLC and others [2023] EWHC 1481, Gatwick Investment Ltd & Ors v Liberty Mutual Insurance Europe SE  [2024] EWHC 124 (Comm)) but summary judgment on liability and an interim payment were both refused because the issues which remained as to quantum and aggregation made it not fanciful that the claimants’ recovery would be zero

The full judgment [2024] EWHC 394 (Comm) may be found on the National Archives website (external link) 

Markel v General Reinsurance; UnipolRe v Covéa (Foxton J) 9 February 2024

Covid 19 – business interruption losses – reinsurance cover

The court hard two appeals on points of law under s.69 of the Arbitration Act 1996 from two market arbitrations considering claims to recover losses paid out under business interruption insurance policies under catastrophe excess of loss reinsurance cover.

In the Markel award, the tribunal held that the claims could be aggregated because they have been directly caused by one catastrophe, but that only business interruption loss referable to the closure of the insured premises during the period of the “hours clause” could be recovered.

In the Covéa award, the tribunal held that the claims could be aggregated because they had been directly caused by one catastrophe (albeit the relevant catastrophe was identified in different terms from in the Markel award), and that all losses from the continuous closure of the premises following on from the 18 March 2020 closure order could be recovered, it being sufficient that the closure order took effect on the insured premises within the period of the hours clause.

Markel, General Re and UnipolRe appealed on the issues on which they had been unsuccessful.

Held:

1. The Markel and Covéa tribunals did not err in law in concluding that the losses claims were directly caused by “one catastrophe”.
2. The Covéa tribunal has been right to conclude that the application of the “hours” clause was dependent on whether the closure of the relevant premises occurred within the period of the “hours” clause, even if the losses flowing directly from that closure continued after the period of the “hours” clause.
3. The contrary conclusion of the Markel tribunal involved an error of law, and Markel’s appeal against that determination was allowed.

The full judgment [2024] EWHC 253 (Comm) may be found at the National Archives website (external link).

Southeaster Maritime Ltd v Trafigura Maritime Logistice Pte Ltd mv “Aquafreedom” (Jacobs J) 8 February 2024

Charterparty recap subject to management approval and review – whether binding contract concluded between the claimant (Owners) and Trafigura (prospective charterers) – effect of provisions requiring “management approval” and detailed terms which were “sub review both sides”; whether the two “subjects” meant that there was no binding contract between the parties

The Owners and Trafigura negotiated, via brokers, the terms of a long-term charterparty. A fixture recap was sent by the brokers containing the terms which had been agreed. Two of those agreed terms were: “Terms: As per previously agreed terms, sub review both sides” and “Subs: Charterers management approval latest two working days after all terms agreed”. Negotiations took place between the parties and their brokers with a view to agreeing the detailed terms. Prior to agreement on all terms, the Owners withdrew from the discussions because they no longer wished to contract with Trafigura.  Trafigura then “lifted” its management approval subject. Trafigura contended that neither of the relevant terms operated as a condition precedent to the conclusion of a binding agreement, and that it was therefore for the arbitrators to decide whether or not the Owners had withdrawn from the discussions prior to Trafigura lifting the management approval subject, and also to decide whether or not all terms had been agreed.

Held: there was no concluded contract between the parties. The “Charterers management approval” term was a condition precedent to the formation of a binding charterparty: Nautica Marine Ltd v Trafigura Trading LLC: The Leonidas [2020] EWHC 1986 and DHL Project and Chartering Ltd v Gemini Ocean Shipping Co Ltd: The Newcastle Express [2022] EWCA Civ 1555 applied. This “subject” was not lifted prior to the Owners’ withdrawal from negotiations of the detailed terms of the charter. Agreement on the detailed terms was also, in context, a condition precedent to the conclusion of a binding charterparty, and the parties were not agreed on all terms.

The full judgment [2024] EWHC 255 (Comm) can be found on the National Archives website (external link).

Madison Pacific Trust Limited v Sergiy Mykolayovch Groza and Volodomyr Serhiyovch Naumenko (Jacobs J) 8 February 2024

Worldwide freezing injunction (“WFO”) – whether Claimant lenders had established a real risk of dissipation by the Defendants – whether just and convenient to grant a WFO in circumstances where the Claimant had additional security beyond the guarantees provided by the Defendants

The Defendants had provided guarantees to support lending which had been provided by lenders to a corporate group. Following default by the borrowers, the Claimant had sought to enforce its security, including by way of an arbitration claim against the two Defendants for payment under the guarantees. The Claimant obtained a WFO against the Defendants, and the Defendants contended that it should be discharged because there was no real risk of dissipation, it was not just and convenient to grant or continue the injunction, and there had been material non-disclosure by the Claimant on the without notice application for the WFO.

Held: the injunction would not be discharged.

• There was, on the facts, a very strong case of risk of dissipation.
• Although the Claimant had alternative security which it was seeking to enforce, it was nevertheless just and convenient to continue the injunction. The Claimant had independent rights against the two Defendants under their guarantees. If the Claimant was successful in the arbitration,  it would obtain a New York Convention award which had international currency. In view of the real risk of dissipation, it was appropriate to restrain the Defendants from dissipating their assets pending determination of the Claimant’s claims in arbitration and their enforcement. The existence of other possible enforcement remedies did not affect this conclusion, particularly bearing in mind that there was substantial opposition to the Claimant’s attempts to obtain those remedies.
• There was no material non-disclosure. Furthermore, the Defendants had failed to give adequate notice that they intended to rely upon non-disclosure and had failed to provide sufficient particulars to enable the Claimant to understand the case that was to be advanced. An allegation that a Claimant or his lawyers have failed in that duty is a serious allegation involving misconduct or default on the part of the Claimant or his lawyers. If it is to be made, adequate and clear notice of it must be given and full details provided of the non-disclosure or misrepresentation alleged: The Public Institution for Social Security v Amouzegar [2020] EWHC 122 (Comm) followed.

The full judgment [2024] EWHC 267 (Comm) can be found on the National Archives website (external link).

Sodzawiczny v Smith and Cochrane (Foxton J) 7 February 2024

Anti-arbitration injunction – s.9 stay

The claimant (FS) sought an anti-arbitration injunction (“AAI”) in respect of LCIA arbitration proceedings commenced by GMS and GC. GMS sought to stay court enforcement proceedings and the AAI application under s.9 of the Arbitration Act 1996. The court reviewed the circumstances in which AAI applications are made.

Held:

1. The court enforcement proceedings and the AAI application were not matters the parties had agreed to arbitrate and the s.9 stay application was refused.

• GMS and GC were seeking to challenge awards with a legal seat in England and Wales otherwise than in accordance with the 1996 Act. This infringed FS’s legal right that only challenges under ss.67 to 70 of the 1996 Act would be made.

• Further, in numerous respects the claims in the proposed LCIA Arbitration fell outside the jurisdiction of any arbitral tribunal appointed in the arbitration, and, in the circumstances of this case, it was appropriate for the court to grant ASI relief rather than leave the matters to the arbitrators under s.30 of the 1996 Act.

The full judgment [2024] EWHC 231 (Comm) may be found at the National Archives website (external link).

Skatteforvaltningen v MCML Ltd (formerly ED&F Man Capital Markets Ltd) (Mr Justice Bright) 2 February 2024

Issue estoppel – Henderson v Henderson abuse of process

SKAT commenced proceedings against EDFM in 2018, for negligent misrepresentation. They were struck out on a preliminary point of law, which SKAT did not appeal as against EDFM, but did appeal against other Ds. The appeal succeeded against the other Ds.
SKAT then commenced fresh proceedings in December 2022, this time alleging fraud/deceit. EDFM applied for the 2022 proceedings to be struck out.
The court reviewed the law on issue estoppel and on Henderson v Henderson, and refused the application:

• Issue estoppel: the issues were not identical.
• Henderson v Henderson: SKAT could and should have raised the new allegations much earlier in 2022, in particular by a CMC at which the designated judge gave directions in multiple related proceedings, all intended to be case-managed together. However, there was no harassment or oppression or unfairness to EDFM. The Henderson principle normally requires this, to justify striking out.
• However, SKAT’s failure to bring the new claim to the court’s attention when it should, in breach of the CA guidance in Aldi Stores v WSP [2007] EWCA Civ 1260, would have a significant impact on costs.

The full judgment [2024] EWHC 148 (Comm) can be found on the National Archives here.

ABFA Commodities Trading Limited v Petraco Oil Company SA (Foxton J) 30 January 2024

Undertaking in damages – alleged Russian law torts – “unclean hands”

Petraco (P) brought these proceedings to enforce an undertaking in damages given when ABFA (A) obtained an injunction which had the effect of preventing it from taking delivery of the cargo. A relied upon various Russian law claims to allege that P would not have acquired title to the cargo and/or was liable to A under Russian law for P’s conduct in relation to this and two other cargoes. A also alleged that P’s behaviour at the time and the manner in which P had pursued the litigation amounted to “unclean hands” and the court should refuse to enforce the undertaking,

Held:

• A’s factual case was largely made out but did not have the effect contended for under Russian law: P would have acquired the cargo but for the injunction had no liability to A in damages.
• In circumstances in which P’s conduct at the time did not give A claim, it did not provide a sufficient basis for refusing to enforce the undertaking.
• P had acted with unclean hands in the litigation by presenting a misleading case. This was not a sufficient reason to deprive P of its right to claim under the undertaking in respect of the value of the cargo and profit on resale, which would come close to forfeiting P’s rights and give A a windfall.
• The court could enforce the undertaking in part, and P’s conduct in the litigation made it appropriate not to enforce the undertaking so far as it sought recompense for certain out of pocket costs.

The full judgment [2024] EWHC 147 (Comm) may be found at the National Archives.

AerCap Ireland Ltd v AIG Europe SA and Others (Butcher J) 29 January 2024

Russian Aircraft Litigation – Application for third party disclosure – Sanctions

The Claimant (‘AerCap’) applied under CPR PD57AD para. 31.17 against the brokers of insurances and reinsurances taken out by Russian aircraft operators for disclosure of those policies.  The issue was whether the making of such disclosure might contravene the Russia (Sanctions)(EU Exit) Regulations 2019, and in particular Regulations 28, 29 or 29A.

The court held that, in circumstances where the court made an order for third party disclosure, no question of breach of the Regulations arose.  In any event, even in the absence of an order, there would be no breach of the Regulations if an insurance or reinsurance broker supplied documents of the sort here requested, for the purposes of the fair disposal of an action such as that brought by AerCap here.

The full judgment [2024] EWHC 144 (Comm) may be found at the National Archives.

WWRT Limited v Kostiantyn Valentynovych Zhevago (Jacobs J) 26 January 2024

Jurisdictional challenge – effect of war in Ukraine on availability of Ukraine as a forum – allegations of a real risk of injustice in Ukraine by reason of alleged corruption of the Ukrainian judiciary

The claim concerned alleged fraud and conspiracy by the defendant in connection with the operation of a Ukrainian bank. The claimant claimed as assignee of the bank pursuant to assignments governed by Ukrainian law. The defendant challenged the court’s jurisdiction.

Held: The jurisdictional challenge succeeded on each of the grounds relied upon by the defendant. (1) The claimant did not have a real prospect of showing that it had acquired, pursuant to the assignment, the relevant rights to claim against the defendant. (2) There was no good arguable case that the defendant had committed, in England, substantial and efficacious acts in furtherance of the fraud. The case did not therefore come within the relevant gateway in CPR PD 6B paragraph 3.1(9)(b). (3) England was not the appropriate forum. Ukraine had not ceased to be an available appropriate forum by reason of the war. Permission to rely on allegations concerning corruption of the part of Ukrainian judiciary was refused, since such had been raised too late. In any event, such allegations lacked the necessary cogency required to establish a real risk that justice would not be done in Ukraine.

The full judgment can be found on the National Archives website.

GLAS SAS v European Topsoho (Mr Justice Bright) 26 January 2024

Extension of time to challenge jurisdiction – relief from sanctions – summary judgment – conditions under CPR 24.6(c

Proceedings commenced November 2021 against 3 defendants. Only D1 participated. C applied for summary judgment against all Ds. D1 did not support its pleaded defence and did not resist summary judgment. D2 and D3 sought extensions of time to challenge jurisdiction, and relied on the points previously raised by D1 in its defence. 

The applications of D2 and D3 for extensions to challenge jurisdiction were refused.  D2 and D3 were not entitled to relief from sanctions. The 2-year delay in challenging jurisdiction was a significant breach; there had been no relevant change of circumstances: cf Apollo Ventures Co. Limited v Surinder Singh Manchanda [2021] EWHC 3210 (Comm), per Teare J at [14].

Summary judgment was not granted (save on one uncontentious element) but the court imposed conditions requiring each of D2 and D3 to pay €9m into court. Not only were the prospective defences were weak, but also they had chosen not to participate for a significant period; they must show they are now in earnest by putting their money where their mouth is.

The full judgment [2024] EWHC 83 (Comm) can be found on the National Archives website.

Macquarie Bank Limited v Banque Cantonale Vaudoise (Foxton J) 26 January 2024

Claim under letter of credit; forum non conveniens; lis alibi pendens

C was the beneficiary of a standby letter of credit (SBLC) governed by English law issued by D. In 2020, while the Lugano Convention 2007 was still in force, C brought proceedings in Switzerland against D, a Swiss bank, to enforce the SBLC. Those proceedings were stayed by the Swiss court pending a Swiss criminal investigation in relation to possible fraud in the underlying transaction (albeit D accepted it was not in a position to make a fraud allegation against C). The proceedings remained stayed. C then brought proceedings in England which D asked the court to stay on forum conveniens grounds.

The court rejected the challenge, on the basis that the procedural course of the Swiss claim was inconsistent with C’s substantive rights under the English law SBLC, by which D had to show an obvious case of fraud to resist payment and under which any stay would be inconsistent with the status of an SBLC as “akin to cash”. C undertook to discontinue the Swiss proceedings.

The full judgment [2024] EWHC 114 (Comm) may be found at the National Archives.

Gatwick Investment Limited & Others v Liberty Mutual Insurance SE and others (Jacobs J) 26 January 2024

Covid-19 business interruption insurance claims – clauses providing coverage for interruption following denial or prevention of access to premises – which bodies constitute a “Statutory Authority” or “Police Authority” for the purposes of triggering coverage – whether policyholders should give credit  for recoveries of furlough payments – issues as to policy limits.

The court addressed a number of preliminary issues in the policies of various claimants in different industries: hotels (the Gatwick and Starboard groups of claimants); pubs (Fullers); bowling alleys and other leisure facilities (Hollywood Bowl); retailers (the Liberty Retail group of claimants); racecourses (Bath Racecourse); theatres (International Entertainment Holdings or “IEH”). Most of the policies were written on the standard wording of Liberty Mutual Insurance SE. The Bath Racecourse policy was on the Bluefin/ Liberty 2016 combined wording. The IEH policy was an Allianz policy. Claims were made pursuant to policy provisions providing coverage for denial of access to premises arising from events which did not cause property damage.

Held:

Trigger

1. The interferences with the Claimants’ businesses resulting from the actions of the UK central government in 2020 were in consequence of “action by the Police or other Statutory Authority” under the Liberty Mutual standard wording.
2. The UK central government was not “any policing authority” under the Allianz wording.
3. A case of Covid-19 does not, in and of itself, amount to an “incident” likely to endanger life under the Allianz wording. Although a case is “likely to endanger life”, it does not in and of itself amount to an “incident”.
4. As far as concerns Hollywood Bowl: the regulations made on 4 July 2020 did not introduce new restrictions: their practical effect was that Hollywood Bowl’s premises remained closed.

Furlough

• The claimants were required to give credit for receipts of furlough payments under the Coronavirus Job Retention Scheme:  Stonegate Pub Company Ltd v MS Amlin Corporate Member Ltd and others [2022] EWHC 2548 (Comm) (Butcher J) followed. There was a sufficient causative link between the closure of the claimants’ premises and the receipt of payments under the scheme.

Limits and composite policies

• Liberty Mutual had issued a “composite” policy, which covered the interests of a number of different insured persons in one document, and which took effect legally by way of separate contracts of insurance. Each separate insured was entitled to a separate policy limit in relation to the denial of access coverage. New Hampshire Insurance Co Ltd v MGN Ltd [1996] CLC 1692 (CA) and Corbin & King v Axa Insurance UK Plc [2022] EWHC 409 (Comm)(Cockerill J) followed.

Other policy limits issues

• The “limit” in Liberty Mutual’s standard policy wording, in relation to the denial of access cover, was a limit for any loss or series of losses arising out of one occurrence. It was not, also, an aggregate limit. The question of how many occurrences there were is reserved for later determination.
• The “departmental” clause in the Liberty Mutual policies did not affect the policy limits available to the claimants.
• The Bath Racecourse claimants were entitled to claim a limit of £ 2.5 million for any one loss.

(The judgment covers a number of other policy limits issues which are not summarised above).

The full judgment can be found on the National Archives website.

Motorola Solutions Inc and another v. Hytera Communications Corporation Ltd and others (Jacobs J) 19 January 2024

English judgment giving effect to US judgment – US judgment subject to appeal and appeal decision awaited – whether stay of enforcement of English judgment should be ordered

The claimant, Motorola, had obtained a substantial judgment in the United States against the defendant, Hytera. That judgment was under appeal: the appeal had been argued before the Seventh Circuit Court of Appeals in December 2023, and the appeal judgment was awaited. Prior to the hearing of the appeal, Motorola began proceedings in England on the US judgment, and this resulted in a judgment of Cockerill J for approximately US$ 151 million. Hytera sought a stay of enforcement of the English judgment pending the outcome of the appeal in the United States. The issue was whether, under CPR 83.7, there were special circumstances which rendered it inexpedient to enforce the English judgment

Held: a stay of enforcement would be granted on condition that Hytera paid US$ 25 million into court within 2 months. The fact that the US judgment was under appeal was not in itself a special circumstance which meant that a stay should be granted. Where a party sought a stay of an English judgment which gave effect to a foreign judgment which was under appeal, the court should apply by analogy a similar approach to that applied when a stay was sought of an English judgment which was under appeal: Moss v Martin [2022] EWHC 3259 (Comm) followed.

Payment of the entire judgment sum of US$ 151 would in practical terms require Hytera to dismantle its business, and it was inappropriate to require this in circumstances where the appeal decision was reasonably imminent. However, it was likely that Hytera could make a payment, albeit not the full judgment sum, without the need to dismantle its business. It was therefore appropriate to grant a stay of enforcement on terms that such payment (in the sum of US$ 25 million) was paid into court.

The full judgment can be found on the National Archives website.

Border Timbers Ltd v Republic of Zimbabwe (Dias J) 19 January 2024

Sovereign Immunity – Enforcement of ICSID awards – Full and frank disclosure

On 28 July 2015, the Claimants were awarded some US$125m against Zimbabwe under an ICSID award.  Zimbabwe’s attempt to have the award annulled under the ICSID Convention on grounds that the ICSID tribunal did not have jurisdiction over the dispute was dismissed on 21 November 2018.  The Claimants applied without notice to the English court for registration of the award and on 8 October 2021, Cockerill J ordered that the award be recognised and entered as a judgment in the same manner and with the same force and effect as a judgment of the High Court. Zimbabwe applied to have the order set aside on grounds of sovereign immunity and/or for failure by the Claimants to disclose potential issues as to sovereign immunity on the without notice.  The Claimants argued that Zimbabwe fell within either or both of the exceptions to immunity set out in sections 2 and 9 of the State Immunity Act 1978 and that because this was clearly and obviously the case, there had been nothing to disclose to the court.

Held, dismissing the application:

1. While Article 54(1) of the ICSID Convention amounted to a waiver of state immunity in respect of recognition and enforcement of ICSID awards (but not in respect of execution), it did not amount to a submission to the jurisdiction of the English court for the purposes of enforcement within the meaning of section 2 of the State Immunity Act 1978.

2. For the purposes of section 9 of the 1978 Act, the English court was not bound by the ICSID tribunal’s decision as to its own jurisdiction but was required by the statue to be independently satisfied that the parties had agreed to submit the relevant dispute to arbitration.  Accordingly, it was in principle open to Zimbabwe to raise its jurisdiction arguments again notwithstanding that they had been rejected by both the ICSID tribunal and the annulment committee (and, indeed, any new ones).

3. Accordingly, Zimbabwe was not deprived of state immunity by the operation of either section 2 or section 9 of the 1978 Act.

4. However, the doctrine of sovereign immunity was only engaged when a foreign state was impleaded before the English court.  The bespoke procedure established under the CPR for the registration of ICSID awards pursuant to the Arbitration (International Investment Disputes) Act 1966 did not provide for service of any originating process on the foreign state.  Accordingly, the state was not impleaded until it was served with the English court’s order enforcing the award.

5. Furthermore, the 1966 Act provided that a judgment creditor under an ICSID award was entitled to have the award registered as of right (subject only to compliance with certain procedural requirements) and the English court therefore exercised no adjudicative jurisdiction over the foreign state at the registration stage. 

6. It followed that the doctrine of state immunity had no application at the time when a creditor sought registration of the award, although it could clearly be invoked thereafter in relation to any further steps taken towards execution.

7. In this respect there was a material distinction to be drawn between ICSID awards and awards under the New York Convention, where a different procedure applied which required an exercise of the court’s adjudicative jurisdiction in determining whether any of the Convention defences to recognition and enforcement was applicable.

8. The Claimants were in breach of their duty of full and frank disclosure in having failed to draw the court’s attention to potential arguments relating to state immunity.  However, in all the circumstances it was not appropriate to set aside the order for registration and it would be sufficient to penalise the Claimants in costs.

The full judgment [2024] EWHC 58 (Comm) may be found at the National Archives.

SKAT (Sitting in Dubai) (Andrew Baker J) 12 January 2024

SKAT litigation – application by DWF Defendants for the trial judge to appoint himself a special examiner under CPR 34.13(4) to take their evidence in the DIFC – application refused

The Main Trial in the SKAT litigation, Skatteforvaltningen (the Danish Customs and Tax Administration) v Solo Capital Partners LLP (in special administration) and others, is listed to commence on 9 April 2024.  Three of the principal defendants, represented by DWF Law LLP and referred to in the proceedings as the ‘DWF Defendants’, applied at a pre-trial review hearing in December 2023 for Andrew Baker J, as designated judge for the litigation and the trial judge for the Main Trial, to appoint himself a special examiner under CPR 34.13(4) and take their oral evidence, for use at trial, in the DIFC (sitting in the DIFC Court for that purpose, but as a special examiner, not as a judge).

The judge refused the application at the hearing, and subsequently handed down a judgment giving full reasons.  The judgment discusses the availability in principle of the solution proposed by the DWF Defendants, commenting on such precedents as were cited to the court (Peer International [2005] EWHC 1048 (Ch), A G of Zambia [2005] EWHC 2102 (Ch), [2006] EWCA Civ 390, [2007] EWHC 952 (Ch), and Kimathi [2015] EWHC 4116 (QB), [2015] EWHC 3684 (QB)).

The judge had “real doubt over the propriety of a trial judge appointing themselves as special examiner under CPR 34.13(4) and interrupting a trial so as to take a deposition abroad, [those] precedents … notwithstanding”, but refused the application on the basis that “without having to take a final view on that, on the facts … the disadvantages of adopting that approach for taking evidence from the DWF Defendants outweighed the supposed advantages by a clear margin, such that it would not in the interests of justice to adopt that approach” (judgment at [42]).

The full judgment, [2024] EWHC 19 (Comm), may be found on the National Archives.

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