Case by Case

Thank you to our regular listener, Jim Leighton, for this suggested London arbitration case. You were right about the Yuta controversy, Jim! We always welcome feedback and suggestions.

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On this episode - we have the return of the Divinegate... listeners may remember we looked at a jurisdictional preliminary issue regarding arrest on this case a while back. Now the High Court Judgment is with us.There was not a lot of quantum in dispute, but we're glad this case was run, because it has given us a really interesting judgment on two distinct points:1 - Speed and Performance - particularly the application of a current factor. Some 'new law' on that in this Judgment.2 - Wrongful arrest - The arresting party got the arrest 'wrong'. There was no question of that. But how 'wrong' do you have to be to be 'wrongful'? A very interesting question, and one that might cause a bit of debate.We're very interested to hear thoughts from any of our listeners on this one!

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We are seeing legal decisions on Covid cases regularly come through the courts and arbitral panels now. And this is an interesting one.

Calum and Luke worked very closely together at the height of the pandemic in 2020 on various of these legal cases on responsibility for delays caused by Covid-19. They've been dealing with them ever since.

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In this episode of Case by Case, Luke and Calum discuss the recent ship finance decision of OCM Maritime Nile LLC & Anor v. Courage Shipping Co Ltd & Others (Courage and Amethyst) [2022] EWHC 452 (Comm) from the English Court of Appeal coming from the Commercial Court.

With the imposition of recent US/UK/EU sanctions regimes, we’ve been advising extensively on the consequences. They can be drastic. 

Yes, we have strayed away from commercial litigation and arbitration in the world of PR, celebrity, football, gossip mags, leaks, lies and truth.  This case is a surreal insight into the media industry and what goes on around the world of professional football.

It is amazing that this case went through to hearing. That we have a High Court judgment detailing the ins and outs of text messages between ‘wags’ of the English football team and between celebrity and agent. The English football national former captain in the witness box.

Was Ms Rooney’s great reveal Instagram Post that Ms Vardy was leaking personal information about her life a true statement or a lie?

Huge reputations on the line.  Some have been smashed by this decision - in no uncertain terms. In football, it was also risky going toe to toe with Mr Rooney. Seems as though, in celebrity PR maneuvering, going toe to toe with Ms Rooney is just as risky...

Us being us, we couldn’t only focus on the personality of the decision. We talk about some quite serious takeaways on legal case strategy, evidence gathering, evidence presentation and how to win a high-stakes case.

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A little over two years ago, Covid swept across the world for the first time, swiftly followed by law firm bulletins addressing the question of "What is Force Majeure?". Two years on, one of the earliest examples of alleged Force Majeure caused by Covid is subject to a High Court Judgment.

The parties had agreed a contract for the sale of a ship. Due to Covid restrictions, the sellers could not get the ship into the port at which delivery was anticipated to take place. The buyer alleged force majeure, and sought a return of the deposit. The sellers denied that force majeure applied, and claimed that they were entitled to maintain the deposit (plus other sums).

Luke and Calum discuss the principles of "Force Majeure" and the construction points that the Judge considered in reaching a Judgment.

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Case citation: NKD Maritime Ltd v Bart Maritime (No. 2) Inc [2022] EWHC 1615 (Comm)

In this episode, Joe Gosden, FZ partner, joins Luke to discuss a fascinating topic in shipping law.

A bill of lading in the hands of a charterer is a mere receipt of goods. It is not yet a contract of carriage between bill holder and carrier. When that bill is endorsed, it becomes a contract of carriage in the hands of the non-charterer endorsee.

But what happens if the shipper/charterer holding the bill as a receipt novates away the charterparty. Is the bill operable in the hands of that shipper (and no longer the charterer)?

We study the status of the bill - is it only "suspended" when in the hands of the charterer, or does it "spring to life" on endorsement? A birth, so to speak.

There is also an interesting causation argument on whether the bank would have insisted upon presentation of original bills in any event. If not, then did the failure to present OBLs cause any loss?

Joe and Luke also discuss some of the complications for trade finance banks/companies in protecting their position with adequate security and a few war stories they've experienced along the way.

What is litigation privilege?  When does it apply?  When doesn’t it?

This is one for arbitration enthusiasts.

One of aspects Luke enjoys most about practising international trade and shipping law is its multi-faceted nature. Some of those facets include:

If you’ve enjoyed this podcast episode, please do share it in your networks, and like and subscribe to our Case by Case podcast on Spotify. More topical or interesting cases dropping each Thursday.