Commercial Disputes Weekly – Issue 20811 June 2024

Aviation – Jurisdiction
In this latest instalment of litigation arising out of the detention of aircraft following the Russian invasion of Ukraine, an English court has found that the claimant aircraft owners/lessors and financing banks were bound by the exclusive jurisdiction clauses in the insurance in favour of the Ukrainian courts. The defendant insurers successfully applied to stay or set aside the proceedings. The leases required the lessees to put insurance arrangements in place but had not specified details of the insurance terms. If the claimants wanted to pursue claims against those insurance and reinsurance policies, they were bound to do so in the Ukrainian courts. In reaching its conclusion, the English court considerations included questions of Ukrainian law, whether the claimants were third parties such that the consent principle applied and the relevance of the lease terms. There were no strong reasons to allow the claims to nonetheless proceed in the English, rather than Ukrainian courts.
Aercap Ireland Capital Designated Activity Company and others v PJSC Insurance Company Universalna and others – In the matter of the Ukrainian Aircraft Operator Policy Claims (Jurisdiction Applications) [2024] EWHC 1365 (Comm), 6 June 2024

Contract interpretation
The Technology and Construction Court has concluded that a clause setting out a limitation of liability for claims and losses in a digital services transformation contract provided a single aggregate cap for all claims, rather than multiple caps for the separate claims. The wording of the clause caused confusion by referring to a figure or £10m of 100% of the charges in the 12 months prior to the claim under consideration. The court gave detailed guidance on the wording of the clause. It also held that a claim described as “loss of anticipated costs savings” was in essence a loss of profits claim and so caught by the clause that excluded claims for loss of profits.
Tata Consultancy Services Ltd v Disclosure and Barring Service [2024] EWHC 1185 (TCC), 17 May 2024

Planning – Maritime
The Administrative Court was asked to consider whether planning permission is required for a change of use in relation to the ‘Bibby Stockholm’, the barge that is currently moored in Portland Harbour to accommodate asylum seekers. The issue revolved around the question of whether the seabed in Portland Harbour constituted land for the purposes of the planning control legislation (Town and Country Planning Act 1990). In dismissing this judicial review application, the court concluded that the definition of land did not extend to the seabed beyond the low water mark and as a result, the seabed underneath the ‘Bibby Stockholm’ was not within the planning control regime.
R. (on the application of Parkes) v Dorset Council and others [2024] EWHC 1253 (Admin), 23 May 2024

Sanctions – Injunctions
The Commercial Court has granted Barclays Bank an anti-suit injunction (“ASI”) and an anti-enforcement injunction (“AEI”), as well as declaratory relief in relation to claims arising out of a syndicated loan agreement that it entered into with PJSC Sovcombank. The loan agreement contained an exclusive English jurisdiction clause in relation to all claims brought by Sovcombank. However, when UK sanctions prevented Barclays making payments to Sovcombank under the facility, Sovcombank commenced proceedings in Russia for damages. The court upheld the English jurisdiction agreement by granting the ASI. There had been minimal delay in the action by Barclays and the respondent had had ample time to obtain legal representation and the requisite licences but had not done so. It was just and equitable to grant the relief. The AEI was required because it was possible that the Russian court would choose to issue judgment, notwithstanding the ASI. The court also declared that Barclays was not liable to the first or second defendant on the claim for damages advanced in the Russian proceedings relating to the freezing of €198,090.70, which it holds as agent under a senior facilities agreement.
Barclays Banks PLC v PJSC Sovcombank and another [2024] EWHC 1338 (Comm), 24 May 2024

Should you wish to discuss any of these cases in further detail, please speak with a member of our London dispute resolution team below, or your regular contact at Watson Farley & Williams: