Contents
NML Capital v Argentina
A Supreme Court ruling on sovereign immunity and service out of the jurisdiction.
Maritsave Ltd v National Farmers Union Mutual Society Ltd
A Clyde & Co case on breach of warranty and an insured's claim for damages for breach of the policy.
Bristol Alliance v Williams & Anor
A case on whether motor insurers were obliged by English/EU law to satisfy a judgment against a non-negligent insured.
Howell & Ors v Lees-Millais & Ors
A Court of Appeal decision on whether an offer was a Part 36 offer.
Thompson & Anor v Bruce
A decision regarding a Part 36 offer which was both made and accepted before proceedings were commenced.
Owners of Samco Europe v Owners of MSC Prestige
A case on the effect of a withdrawal of a Part 36 offer.
Sovarex v Alvarez
A decision on the enforcement of an arbitration award under section 66 of the Arbitration Act 1996.
Fenice Investments v Erram Falkus
A case on challenging the reasonableness of an arbitrator's fees.
Relational LLC v Hodges
Court considers the effect of a set-off argument on an application for security for costs.
Shah & Anor v HSBC Private Bank
A case on reporting money laundering suspicions and public interest immunity, plus the court's approach to redactions.
Love v Fawcett & Anor
Arguments concerning legal advice privilege and waiver.
Garnat Trading & Anor v Baominh Insurance
Court of Appeal considers issues of seaworthiness.
Cook v Cook & Anor
A case on postponing the quantification of long term loss.
Russian Commercial Bank v Khoroshilov
A case on non-disclosure when applying for an injunction and an application to extend time to challenge an arbitration award.
Other News
FSA publishes modification for (co-insurer) employers' liability insurers. Government explains its view on the ECJ ruling on the use of gender by insurers.
This Week's Caselaw
NML Capital v Argentina
Supreme Court ruling on sovereign immunity/service out of the jurisdiction
http://www.bailii.org/uk/cases/UKSC/2011/31.html
The Court of Appeal decision in this case was reported in Weekly Update 05/10. NML seeks to enforce a judgment obtained from a New York court against the Republic of Argentina in England. At first instance, Blair J allowed NML to bring a common law action on the judgment in England but the Court of Appeal reversed that decision. The Supreme Court has now allowed the appeal from the Court of Appeal's judgment and held as follows:
(1) Section 3 of the State Immunity Act 1978 provides that: "A State is not immune as respects proceedings relating to a commercial transaction entered into by the State" (emphasis added). There is prior caselaw to support the argument that NML was seeking to bring a proceeding "relating to" the New York judgment and not the underlying commercial transaction to which that judgment related (and hence section 3 did not apply). By a majority of 3:2, the Supreme Court has held that that prior caselaw is correct.
(2) However, the Supreme Court found that Argentina did not have immunity on other grounds. Section 31 of the Civil Jurisdiction and Judgments Act 1982 provides that a foreign judgment against a state shall only be recognised and enforced in England if it would have been recognised/enforced if it had not been given against a state and the foreign court would have had jurisdiction applying sections 2-11 of the 1978 Act. The Court of Appeal had held that this section does not create a further exception to the general immunity rule set out in the 1978 Act. The Supreme Court has unanimously held that that decision was wrong. In the words of Lord Philips, "section 31 both reflects and, in part, replaces the exemptions from immunity contained in the 1978 Act".
(3) Section 2 of the 1978 Act provides that "a State is not immune as respects proceedings in respect of which it has submitted to the jurisdiction of the courts of the United Kingdom". In this case, the Supreme Court found that Argentina had submitted to the jurisdiction of the English court because of certain wording in bonds issued by it (namely, that a judgment relating to the bonds would be conclusive and binding on Argentina and may be enforced "in any other courts to the jurisdiction of which [Argentina] is or may be subject").
(4) NML could obtain permission to serve out of the jurisdiction by relying on two grounds which were not advanced at the time of the original application for permission to serve out. However, the reasoning for this conclusion differed slightly. Lord Philips said that the rule in Parker v Schuller [1901] (ie that new grounds for permission to serve out of the jurisdiction could not be raised before the judge) should no longer be applied: "procedural rules should be the servant not the master of the rule of law". However, Lord Collins (with whom Lord Walker agreed) held that the rule in Parker v Schuller did not arise in this case at all because this was a state immunity case (although, if the rule did arise, he agreed with Lord Philips).
Maritsave Ltd v National Farmers Union Mutual Society Ltd
Breach of warranty and claim for damages
http://www.bailii.org/ew/cases/EWHC/QB/2011/1660.html
Clyde & Co (Toby Rogers and Ben Hung) for defendant,
Following a fire at the insured's property, the claimant claimed under its property insurance policy. The insurers alleged the breach of a warranty (which provided that a breach "which contributes to damage" may result in a claim not being paid). On the facts, Supperstone J held that there had been no breach by the insured and hence it was entitled to payment. Of general interest, though, is the fact that the judge agreed that the insured was entitled to damages for breach of the policy. The current rule under English law is that laid down in Sprung v Royal Insurance [1999] i.e. that damages cannot be awarded for a delay or failure in payment of insurance monies (instead, the insured is entitled to interest). This is because English law regards payments under an insurance policy as damages for breach of contract (because an insured loss gives rise to a notional breach of contract) and damages cannot be awarded for a failure to pay damages. The rule in Sprung has attracted criticism and the Law Commission called for its reform in Issues Paper 6 (Damages for Late Payment) in March 2010. Supperstone J does not, however, discuss these issues in the judgment and it is therefore unclear on what basis his decision was reached.
Bristol Alliance v Williams & Anor
Whether motor insurers obliged by English/EU law to satisfy judgment against non-negligent insured
http://www.bailii.org/ew/cases/EWHC/QB/2011/1657.html
A driver deliberately drove his car into a department store (in an apparent suicide bid). The property insurers paid a claim under their policy and then brought a subrogated claim against the driver. The driver's insurers applied to be joined to the action because the property insurers had announced their intention of enforcing any judgment against the driver directly against the motor insurers (pursuant to section 151 of the Road Traffic Act 1988). The motor insurers denied liability under their policy on the ground that the policy excluded cover for the deliberate acts of the insured. Accordingly, they argued that, in this case, the liability of the driver to the third party was not a "liability covered by the terms of the policy" (section 151(2)(a)), and so section 151 did not apply.
That argument was rejected by Tugendhat J. The insured driver could not take the benefit of the policy where his act was deliberate. However, the policy should be read, under English law, as including liability as against an innocent third party. In this case, the third party was the store owner, albeit the property insurers were exercising their subrogated rights. The judge acknowledged that this approach reflected the indirect effect of the Motor Insurers Bureau scheme which covers uninsured drivers (whereby a motor insurer is usually liable to discharge the obligations of the MIB for damage done to a third party, even if the motor insurer is not liable under his insurance policy).
Although not required to do so, the judge also concluded that the position was the same under EU law. It did not make any difference (as the motor insurers had sought to argue) that this was a subrogated claim: "There is nothing to justify a definition of victim which excludes third parties who have suffered personal injury or damage to property, but who are also insured, and whose insurers exercise their rights of subrogation. On the contrary, such a limitation of the definition of victim appears to be inconsistent with the principle of subrogation".
Howell & Ors v Lees-Millais & Ors
Court of Appeal decision on whether offer was a Part 36 offer
http://www.bailii.org/ew/cases/EWCA/Civ/2011/786.html
A letter sent by the defendants' solicitors to the claimant's solicitors stated that it "constituted a Part 36 offer" and went on to say that "this offer is open for acceptance up to and including 21 days from the date of receipt of this letter". It offered the claimant 75% of her costs of an application. Following a settlement on 22 April 2010, the defendants sought their costs for the period starting from when the 21 day period in their letter expired (May 2009) up to 22 April 2010. At first instance, the judge rejected that claim, on the basis that the letter was not a Part 36 offer as it related to a costs issue after the substantive issues had been determined and it failed to comply with CPR r36.2(c). The Court of Appeal (the Master of the Rolls giving the leading judgment) has now also held that the offer was not a Part 36 offer:
(1) It could not, by its very terms, comply with CPR r36.10(1) (which provides that "where a Part 36 offer is accepted within the relevant period the claimant will be entitled to the costs of the proceedings up to the date on which notice of acceptance was served on the offeror"). The offer was not Part 36-compliant because it "specifically excluded the offeree from recovering all her costs, as it gave her the option of recovering only a proportion of her costs or a fixed sum in respect of her costs".
(2) However, the fact that the letter had implied that it would be withdrawn after 21 days was not a reason, in itself, to find that the offer was not a Part 36 offer. In this respect, the Court of Appeal followed the recent Court of Appeal decision of C v D [2011] (see Weekly Update 20/11). There an offer in similar terms was held to mean only that the offer would not be withdrawn within the 21 days, and it was also held that that "any ambiguity in an offer purporting to be a Part 36 offer should be construed so far as reasonably possible as complying with Part 36".
(3) Since both the claimant and defendants treated the offer as a Part 36 offer and agreed that the offer was still in force after the 21 days had passed, and since it had not been possible, on the facts, for the claimants to frame their offer so as to fall within Part 36, then (in the absence of a good reason) the offer should be "given substantially the same effect as a Part 36 offer, when it comes to deciding costs issues".
Thompson & Anor v Bruce
Part 36 offer made and accepted before proceedings are commenced
CPR r36.10 sets out the costs consequences of accepting a Part 36 offer. The issue in this case was whether those consequences apply where a Part 36 offer is both made and accepted before proceedings are commenced. It was not in doubt that a Part 36 offer can be made prior to proceedings. However, in the White Book it is suggested that proceedings have to be extant for CPR r36.10 to apply and it is submitted that parties should expressly provide in the offer that if there is an acceptance before proceedings are commenced, the costs provisions of Part 36 (or Part 44 if the parties so wish) will apply, thereby binding those terms into any settlement contract.
That approach was not accepted by the judge, Williams QC. He held that there was no distinction to be drawn between Part 36 offers accepted before or after proceedings have been commenced: "If one were to interpret "costs of the proceedings" in CPR r36.10 as being restricted to post-issue proceedings...it follows that pre-issue costs could not be recovered under these provisions. I cannot think that was the intention of Parliament".
Owners of Samco Europe v Owners of MSC Prestige
Effect of withdrawal of Part 36 offer
CPR r36.14(6) provides that the costs consequences set out in Part 36 do not apply to an offer that has been withdrawn. However, CPR r44.3 provides that in deciding what order to make about costs the court must have regard to an admissible offer which is not an offer to which costs consequences under Part 36 apply. In this case, Teare J followed a line of caselaw authority in deciding that the key question is what has caused the costs incurred after the offer has been withdrawn to be incurred: "If it is the unreasonable conduct of the offeree in failing to accept an offer which ought to have been accepted then the offeree will usually have to pay those costs. In those cases where an offeree wishes at a later stage to settle on terms which have been withdrawn by the offeror the offeree can protect himself against future costs by making an offer in those terms himself".
Sovarex v Alvarez
Enforcement of arbitration award under section 66 of the Arbitration Act 1996
A party wishing to enforce an arbitration award may do so under the common law (by a claim on the award) or under statute (section 66 of the Arbitration Act 1996). The statutory method is usually preferred because it is speedier and cheaper. In this case, the claimant sought permission to enforce an award in its favour under section 66. The defendant argued that section 66 was not suitable in this case because "there is a real ground for doubting the validity of the award". Hamblen J held as follows:
(1) The defendant had not lost the right to object to enforcement by participation in the arbitration. Correspondence sent by the defendant to the tribunal made it clear that it was protesting the jurisdiction of the tribunal. It was not asking the tribunal to exercise its jurisdiction just because it asked the tribunal to decline jurisdiction. The defendant was not asking the tribunal to consider any substantive issue as to its jurisdiction.
(2) The court does have the power to direct that there be a determination of disputed issues of fact under section 66. There is no necessity for this to be done by way of action on an award: "Section 66 is meant to deal with enforcement generally and there is nothing in s.66 itself or in the CPR which requires an alternative mode of procedure to be adopted in the event of the application being challenged on the facts". Hamblen J held that even if he was wrong on that point, he would have ordered the proceedings to continue as if they had been begun by a claim form in an action on the award.
(3) Should the court decline jurisdiction or stay proceedings on the basis that the Spanish courts are considering the issue of jurisdiction? Hamblen J found that the current position was that no determination of the validity of the contract (which purportedly contained the arbitration agreement) was going to be made in Spain and hence there was no possibility of a duplication of proceedings. In any event, it was "difficult to see why the English court, being the court of the seat of the arbitration, should stay enforcement proceedings properly before it on the basis of the possibility of proceedings being brought elsewhere should the Spanish High Court decision be successfully appealed". It was not an interference with the Spanish proceedings for the English court (as the court of the seat) to determine the validity of the arbitration agreement.
Fenice Investments v Erram Falkus
Challenging the reasonableness of arbitrator's fees
http://www.bailii.org/ew/cases/EWHC/TCC/2011/1678.html
This case concerned a challenge to the reasonableness of an adjudicator's fees. By analogy though, the parties referred to the position for arbitrators. There is textbook commentary to the effect that if an arbitrator has taken fees in advance, and then taxed them, it is only possible to challenge the fees by arguing that the arbitrator has misconducted himself or exercised his power to tax his fees in bad faith. That stance was rejected by Waksman HHJ. He referred to section 28 of the Arbitration Act 1996 which deals with the joint and several liability of the parties to pay to the arbitrators "such reasonable fees and expenses...as are appropriate in the circumstances". Accordingly, "the touchstone is reasonableness" and there is no need to demonstrate bad faith.
Relational LLC v Hodges
Effect of set-off argument on an application for security for costs
http://www.bailii.org/ew/cases/EWCA/Civ/2011/774.html
The claimant obtained a default judgment against the defendant in the USA and sought to enforce it in England. The defendant applied for security for costs on the ground that the claimant is resident out of the jurisdiction and is not resident in a contracting state under Brussels/Lugano Convention or Regulation EC 44/2001.
The claimant offered security of £25,000, which it said was adequate to cover the extra costs which might be incurred if the defendant had to enforce any judgment for costs abroad against it. However, it was recognised that if the defendant were to attempt to enforce a costs order in the USA, the claimant would ask the court to set-off the amount of the judgment which the claimant had obtained in the USA (the practical result of which, in this case, would be that the defendant would be left with nothing when trying to enforce any costs order). The defendant argued that if he was therefore prevented from recovering his costs, there would be a substantial obstacle to the enforcement of the English judgment for costs, such that it would be just to make an order for security for the full amount requested (£100,000).
The Court of Appeal held that the availability of set-off in the US courts was not an obstacle to enforcement. Longmore LJ pointed out (in agreement with the judge at first instance) that "an EU litigant with an Illinois judgment in his favour would not have to put up security. If a US litigant with such a judgment has to put up security, that would be the very discrimination which Article 14 of the European Convention on Human Rights requires the court to avoid". (Article 14 prevents prevents discrimination on the grounds of, inter alia, nationality). At first instance, Gloster J had also pointed out that the defendant would still benefit from a set-off because it would reduce the amount which he would have to pay under the US judgment.
Longmore LJ added that even if that position was wrong, he would not have exercised his discretion to award the full amount: "I would, if it had come down to the exercise of a general discretion be doubtful whether it would normally be appropriate to order security for costs when a claimant is suing upon a judgment obtained in a country which in general terms has a similar process for enforcement of judgments as we in this country do. That would certainly be the case if the foreign judgment was a judgment on the merits since the defendant would have to displace the judgment and would, therefore, effectively be a claimant who has the burden of proof".
Shah & Anor v HSBC Private Bank
Money laundering suspicions and public interest immunity/court's approach to Redactions
http://www.bailii.org/ew/cases/EWHC/QB/2011/1713.html
The claimants sought damages for the defendant bank's delay in executing certain transactions. It is the defendant's case that it suspected money laundering and it was therefore obliged, instead, to make a number of authorised disclosures to the Serious Organised Crime Agency ("SOCA"). The main issue in the case was therefore whether the bank could prove that, at the relevant time, it had a genuine suspicion that the claimants were involved in money laundering.
The defendant disclosed its internal reports and its reports to SOCA. However, save for the identification of the employee who was in charge of their money laundering reporting office ("MLRO"), it redacted the names of all other employees involved in the reporting process. The defendant sought an order under CPR r31.19 permitting those redactions and the claimants disputed that application. Coulson J held as follows:
(1) The disclosed reports were plainly relevant to the issue of whether the defendant had a genuine suspicion. It has been accepted by the courts that the mere fact that a document is relevant does not mean that all of the document is relevant and it may be open to the disclosing party to redact those parts which he considers are not relevant (see GE Corporate v Bankers Trust [1995]) (although Coulson J thought that the approach suggested in the judgment of Hoffmann J in that case (that the disclosing party can consider each paragraph and sentence to see if if is relevant) should not be encouraged). However, it is for the redacting party to demonstrate, if challenged, the justification for that redaction. On the facts of this case, the bank could not justify the redactions.
(2) Bank employees who report their money laundering suspicions are covered by public interest immunity (and are therefore to be treated in the same way as police informers). Accordingly, they are prima facie entitled to anonymity.
(3) However, the judge had to balance the public interest in anonymity against the public interest in open justice. Although Coulson J said that in most cases the public interest in anonymity will prevail, on the facts of this case, the bank was not entitled to completely withhold disclosure. That was because there was no suggestion that the claimants were involved in money laundering or that the defendant's employees were at risk of reprisals or physical harm from the claimants.
The bank was therefore required to produce a schedule of each employee involved in the reporting process (without revealing their identities at this stage). The claimants could then make a further application if they believed that one or two individuals were closely involved in all the reports (because that might possibly suggest bad faith by those particular individuals).
Love v Fawcett & Anor
Arguments concerning legal advice privilege and waiver
http://www.bailii.org/ew/cases/EWHC/Ch/2011/1686.html
The defendant applied for an order to strike out a witness statement (served by the claimant) which had been made by a solicitor. That solicitor had acted for both the defendant and the claimant in the past. The issue then arose whether there had been (a) a joint retainer or (b) a joint interest, such that there was no confidence between the two clients (and so legal professional privilege could not be asserted by one against the other).
Morgan J restated the principles of law and concluded that there had not been a joint retainer in this case (even though the claimant had acted as the defendant's agent and was expected to bear the costs of instructing the solicitor). He found that there was a joint interest between the parties, though, in communications between the defendant and the solicitor relating to the letting of a property (because the claimant was entitled to "share in the fruits" of a development and the proposed letting was intended to realise the fruits of the development). Furthermore, the claimant was involved day to day in dealing with the solicitor and paid the solicitor's charges. However, there was no joint interest between the parties in relation to communications considering the financial relationship between the parties. Although the defendant had undoubtedly waived privilege in relation to documents listed in its list of documents, Morgan J was unable to say to what extent the waiver included collateral or associated matters. He therefore ordered the witness statement to be withdrawn but gave the claimant permission to serve a revised statement, removing all privileged material (unless it had been waived).
Garnat Trading & Anor v Baominh Insurance
Issues of seaworthiness
http://www.bailii.org/ew/cases/EWCA/Civ/2011/773.html
The insurers appealed against a finding that they were not entitled to avoid for nondisclosure and that there had been no breach of the implied warranty of seaworthiness. The Court of Appeal reviewed the trial judge's findings and found that he had been entitled to reach this conclusion. Accordingly, the case turned on its particular facts. There was also no dispute about the applicable legal principles, save for one issue: The implied warranty of seaworthiness requires the vessel to be seaworthy at the commencement of the voyage for the purposes of the contemplated voyage and the vessel will be deemed to be seaworthy if she is reasonably fit in all respects to encounter the ordinary perils of the seas of the adventure insured.
At trial, it was assumed that the floating dock had to be fit to encounter the ordinary perils of the sea "assuming a maximum wave height of 3.5m on the voyage". The Court of Appeal agreed with that assumption, holding that: "the correct analysis is that the adventure insured was one where it was contemplated by the parties that there would be a maximum wave height of 3.5 m, so that the Dock had to be fit in all respects to encounter the ordinary perils of the seas for that adventure, rather than some other voyage. In short, the "contemplated voyage" for insurance purposes was one where the maximum wave height would be 3.5 m".
Cook v Cook & Anor
Postponing the quantification of long term loss
http://www.bailii.org/ew/cases/EWHC/QB/2011/1638.html
The claimant applied for an order that a quantum assessment scheduled to take place later in the year be confined to the determination of damages.It was requested that the exercise of quantifying long term loss be postponed until such time as there is solid evidence available. Eady J accepted that the court did have the power to make such an order under CPR r3.1. He noted that it is the normal rule that all outstanding issues between the parties should be resolved at a single hearing, where possible. From the point of view of an insurer or defendant, there are obvious disadvantages in postponing the resolution of quantum issues because of the "incubus of potential liability and the uncertainty confronting the defendant's insurers" (see Adan v Securicor Custodial Services [2005]). However, this was an exceptional case "in which the long term outcomes for the Claimant are uncertain and speculative. In order to do justice, in accordance with the overriding objective, it seems to me to be plainly right that I should make an order in the terms sought".
Russian Commercial Bank v Khoroshilov
Non-disclosure when applying for injunction/application to extend time to challenge arbitration award
http://www.bailii.org/ew/cases/EWHC/Comm/2011/1721.html
The applicants obtained injunctions restraining the respondent from enforcing consent judgments and an arbitration award. They applied to extend the injunctions. The respondent alleged serious non-disclosure and/or misrepresentation in obtaining the injunctions and Blair J found two of the allegations proven. The issue was then the effect that those non-disclosures/misrepresentations should have. The authorities which the judge was referred to all concerned non-disclosure in the context of freezing orders. The principles established by those cases can be summarised as follows: orders will generally be discharged if there has not been full and fair disclosure (even if a breach was innocent), although the court can re-grant an order; the court must assess whether the outcome of the application was affected by the non-disclosure; the court can take into account the merits of the claimant's claim but that may not be enough to prevent discharge of the order (see Arena Corp v Schroeder [2003]).
Blair J accepted that these principles also applied in the context of an application for an injunction: "The injunctions related to consent judgments entered after a trial had begun (and an arbitration award). There is a significant public interest in such circumstances, and it would not, in my view, be disproportionate to decline to renew the injunctions".
The applicants had also applied for an extension of time to bring a challenge under section 68 of the Arbitration Act 1996. Blair J held that the non-renewal of the injunctions did not mean that the applicants could not pursue their claim to have the consent orders/arbitration award set aside on the ground of fraud. Blair J concluded that it would be unsatisfactory to deny the applicants the opportunity to pursue that claim (relying, in particular on Colman J's comments in Kalmneft v Glencore International [2001] that one consideration when deciding whether to extend time is "whether in the broadest sense it would be unfair to the applicant for him to be denied the opportunity of having the application determined"). The applicants had argued that, since the arbitral tribunal was unable effectively to act before 2 May 2011 because one of its members was away, "a substantial injustice would be done if the court were not to extend time, since the arbitrators would not have the opportunity of assessing whether or not to set aside the award before the [respondent] took steps to enforce it".
Other News
FSA publishes modification for (co-insurer) employers' liability insurers (who are required to produce a register). Modification allows omission of certain policy details from the register:
http://www.fsa.gov.uk/pages/Doing/Regulated/Notify/Waiver/Consent/icobs8_4.shtml
Government explains its view on the ECJ ruling on the use of gender by insurers. The government's view is that the judgment only applies to new contracts for insurance and related financial services entered into on or after 21 December 2012:
http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110630/wmstext/110630m 0001.htm
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