By Helen Ryan, Trainee Solicitor, Duane Morris LLP
On 15 May 2024, the Supreme Court handed down judgment in RTI Ltd v MUR Shipping BV [2024] UKSC 18.
The appeal centred around the issue of whether a force majeure clause which required the affected party to exercise ‘reasonable endeavors’ to overcome the effects of the relevant event or state of affairs meant that the other contracting party had to accept an offer of non-contractual performance.
A recent case turned on the question of whether a limitation clause limited liability just for damages or also for debt.
The clause read:
“the total liability of either party shall in respect of all acts, omissions, events and occurrences whether arising out of any tortious act, breach of contract or statutory duty or otherwise arising in any particular Contract Year in no circumstances exceed a sum equal [to zero on the facts]”.
Continue reading “Does a limitation clause apply to a claim in debt? A recent English decision”
The English court decision in Alame & Ors v Shell PLC (formerly known as Royal Dutch Shell PLC) & Anor [2024] EWHC 510 (KB), is relevant to the way that the court will approach disclosure in large scale litigation, including class actions and litigation being pursued under a Group Litigation Order.
The case relates to claims for damages arising from pollution in the Niger delta. The claimants had sought wide ranging disclosure arguing that the defendants had all the information on the pollution, while the claimants had very little.
The judge disagreed. He held that the disclosure requests amounted to a classic fishing expedition and that the touchstone for disclosure is that it should be done against the as-pleaded issues in the case. Moreover, an “information imbalance is not a sufficient reason to order disclosure”.
The key paragraphs are worth quoting in full:
23. As the Defendants accept, that does not mean the case is to halt or that there is not substantial disclosure to be made. There is. But it does require me to consider carefully what is relevant and proportionate now, by reference to the case as it currently is, and not as the Claimants would like it to be, or even as it may be in future. An information imbalance is not a sufficient reason to order disclosure, where relevance has not first been established. The observations of Fraser J in ordering specific disclosure of two documents in the Cavallari case are not to be understood as establishing a free-standing right to disclosure where one side has more information than the other. Relevance to pleaded issues must be the touchstone. Two examples from this case serve to demonstrate the difficulty of taking the general approach advocated by Mr Hermer: first, under Nigerian law there is strict liability for pollution arising from equipment failure. For such events, maintenance records will be irrelevant. Next, if, at the PI trial, I come to the same view as Akenhead J did in the Bodo litigation as to the proper meaning and effect of section 11 of the OPA – that there is liability provided negligence is shown – how is disclosure relevant to negligence in respect of third-party interference to be given where the individual events have not been identified?
24. Some of the documents sought may be relevant and (proportionately) disclosable for other reasons, but not on the sole basis that they might have information which might assist the Claimants in identifying which event(s) have caused an individual’s loss. That would be a classic fishing expedition. I repeat that the Claimants have chosen to bring a case based on multiple polluting events of many differing kinds occurring in a wide area over an extended period of time; it is for them to provide the necessary clarity so as to permit disclosure which is properly tethered to the issues. The Defendants are not to be expected to throw open the doors to their archives or to permit a general trawl through their records. The tail must not be allowed to wag the dog.
Seven companies have a claim against their former director for breach of fiduciary duties. Three of those companies have an arbitration agreement.
All seven companies bring a claim in the English court against the former director who applies to have the court proceedings stayed in favour of arbitration.
The three claimants with an arbitration agreement concede that they must sue in arbitration, and the question then becomes whether the court claims by the other claimants should be stayed in favour of the arbitration or not.
Continue reading “English court stays its own proceedings in favour of arbitration”
By Oliver Kent and Sam Laycock
Disgruntled holidaymakers who have suffered delay at the hands of their airlines are among the potential claimants who may soon find that the familiar phrase, “I’ll see you in court”, doesn’t quite have the same impact it used to. Enter: the ‘Small Claims Paper Determination Pilot’ (“the Pilot”). Introduced under the 143rd Practice Direction Update as PD 51Z1, this update applies to proceedings issued after 1 June 2022 and allows the Courts to determine the outcomes of matters allocated to the small claims track without a hearing (i.e. on paper) and ultimately, without reference to the parties concerned.2
Continue reading “All small claims are equal, but some small claims are more equal than others”
Mr Justice Fraser’s decision in Multiplex Construction Europe Ltd v Bathgate Realisation Civil Engineering Ltd and Others is one of the more curious decisions you will ever read.
Not that I would particularly encourage anyone to read it. The case necessitated some pretty comprehensive and in-depth legal analysis that means the judgment runs to some 206, fairly dense, paragraphs, and an Appendix; I would challenge even the most avid consumer of legal treatises to read the whole thing in one sitting without their eyes glazing over at some point. Helpfully, my colleague Vijay Bange has already produced a very useful summary of the decision and its legal implications here.
However, the density and depth of the judgment does not mean it is without interest; far from it. In fact I suspect this case will prove to be one of the more fascinating legal tangles the Courts will be asked to unravel this year. This article looks at some of the more curious aspects of this dispute, away from the key aspects of the case. Continue reading “Multiplex v Bathgate: Legal Riddles and Unsolvable Problems”
I am an unashamedly massive fan of the Back to the Future film franchise. Yes, even the sequels.
One of my favourite lines from the franchise is spoken at the end of the first film and the beginning of the second. Doc, Marty and Jennifer are about to travel to the distant future (2015, to be precise). When Marty points out there might not be enough road to get up to 88 mph, Doc flips down his brushed aluminium shades and intones: “Roads? Where we’re going we don’t need roads.” And the DeLorean flies off to the future thanks to an early 21st century hover conversion.
Brings a smile to my face every time
Continue reading “The Digital Age Still Needs Infrastructure”
They say that the house always wins, but as the recent case of Andrew Green -v- Petfre (Gibraltar) Limited t/a Betfred illustrates, even the house can get caught out sometimes.
When lucky punter Andrew Green won over £1.7m following a 5 ½ hour stint on Betfred’s ‘Frankie Dettori’s Magic Seven Blackjack’ game in January 2018, he was dismayed to find out a few days later that the company was refusing to pay out, claiming that there was a glitch in the game, and that the house rules stated that, in those circumstances, Betfred were not required to pay. Mr Green sued, and the matter eventually ended up in Court. Following a hearing on 15 October 2020, Mrs Justice Foster DBE granted Mr Green summary judgment and awarded him his winnings.
Continue reading “Luck of the Law: Lessons to be Learned from Green v Petfre”
Introduction
Adjudication can be a frustrating experience, particularly for those who have been faced with a decision of the adjudicator that is quite obviously (to you) wrong, but nonetheless enforceable.
This situation arises because it has long been accepted that, in adjudication, “the need to have the “right” answer has been subordinated to the need to have an answer quickly…” per Chadwick LJ in Carillion v Devonport Royal Dockyard [2005] EWCA 1358.
The Court’s stance on this issue is born from the original intent of the statutory scheme, which was to provide a means for contractors and subcontractors to address cash-flow problems caused by illegitimate delays or refusals to pay. In order to achieve that, adjudication decisions have to bear the weight of authority, otherwise every adjudication decision would immediately be challenged by the losing party.
The Courts also take into account the fact that the adjudicator is tasked with deciding often very complex and detailed disputes in a very short period of time. Errors in decision-making from time to time are therefore inevitable, but the Courts have determined that that shouldn’t be allowed to undermine the process.
