RTI Ltd v MUR Shipping BV: a party required to use reasonable endeavours to mitigate a force majeure need not accept non-contractual performance

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.

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Does a limitation clause apply to a claim in debt? A recent English decision

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]”.

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English court ordered disclosure – an “information imbalance” not a reason to order the defendant to provide additional disclosure

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.

English court stays its own proceedings in favour of arbitration

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.

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Court of Appeal rejects challenge to yacht seizure and sanctions designation

The Court of Appeal in London has today handed down judgment in Dalston Projects Limited & Ors v Secretary of State for Transport [2024] EWCA Civ 172.

The decision relates to two appeals:

      1. a challenge by a non-designated Russian national to the seizure and freezing of his yacht in London; and
      2. a challenge to his designation by Eugene Shivdler, originally from the Soviet Union but now a British national.

Both had been unsuccessful at first instance and both lost on appeal.

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Bribery begins at Home

Two recent anti-corruption enforcement actions in the U.K. are a reminder of how readily the UK’s anti-corruption laws can apply to people who are not ordinarily based here.

On 10 August, the National Crime Agency arrested the Chief of Staff of the President of Madagascar along with another man who is a French national. The next day they were charged with requesting a bribe contrary to the Bribery Act 2010 and made their first appearance in court on 12 August. They are due to appear again on 8 September. The offences are alleged to have taken place at a meeting in London where the two are alleged to have sought significant cash payments as well as an equity stake in a mining project in Madagascar in return for the award of licences.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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