Commercial Disputes Weekly – Issue 21530 July 2024

Maritime
The Commercial Court held that the guarantor of charterers of the MV Green Ace was liable following repudiation of the charter by the charterers. Negotiations for the charter took several months with counteroffers and subjects. The vessel was delivered into the charter without the formal contract being signed by the parties. No hire was paid and the charterers confirmed by email that they would not be loading cargo on the vessel. The court held that there had been a binding agreement evidenced in the terms of the recaps that the defendant would guarantee charterers’ obligations. The guarantee satisfied section 4 of the Statute of Frauds as the email chain constituted writing and a signature, and was immediately binding. The charterers had repudiated the contract and so the defendant was liable for owners’ losses in the region of US$27m.
SFL Ace 2 Company Inc v DCW Management Limited (formerly Allseas Global Management Limited) [2024] EWHC 1877 (Comm), 22 July 2024

Disclosure
The English court has granted permission for the claimant bank to disclose to the Ukrainian Bureau of Economic Security two schedules to its particulars of claim from English proceedings. It had been ordered to disclose the documents in criminal proceedings in Ukraine. The information was relevant to investigations being carried out into alleged forgery and fictitious cash transactions by one of the defendants, who was in prison in Ukraine. Court permission was required because the documents were deemed not to have come into the public domain. The bank had satisfied the applicable burden for establishing cogent and persuasive reasons, and special circumstances for the permission they sought. Further, there was no prejudice amounting to injustice to the defendants if the order sought was made.
JSC Commercial Bank Privatbank v Kolomoisky and others [2024] EWHC 1837 (Ch), 15 July 2024

Contract Interpretation
The Court of Appeal has upheld the conclusion of a High Court judge that a fraudulent misrepresentation claim against a bank was barred by the terms of a settlement deed. Mr and Mrs Riley had been directors of a building development company who took out loans from the bank. Management of the loans was transferred to the bank’s restructuring group and eventually the parties entered into a settlement deed which involved the Rileys paying a lesser sum in settlement of the outstanding debt. The Rileys obtained new information about their dealings with the bank and subsequently brought a claim against the bank alleging fraudulent misrepresentation. The lower court had held that the new claim could not be brought because it came within the definition of claims in the settlement agreement. It was always possible that a settlement agreement might encompass claims of which the parties were not yet aware and it was not for the court to interfere in the parties’ bargain.
Riley v National Westminster Bank Plc [2024] EWCA Civ 833, 22 July 2024

Abuse of Process
In a dispute arising from a contract to build a ‘waste to energy’ power plant in Hull, the Court of Appeal has upheld a lower court decision that refused to strike out related claims as an abuse of process. The court acknowledged that the claims for misrepresentation against the subcontractor should have been raised in the main proceedings involving the employer and contractor. However, the judge did not strike out the claims because there was minimal overlap between the substance of the claims. The Court of Appeal upheld that decision. The judge had evaluated all the relevant factors. There had been a serious breach of the guidelines in relation to raising additional claims, but for such additional claims to be abusive, there also needed to be vexation, oppression or harassment.
Outotec (USA) Inc v MW High Tech Projects UK Ltd [2024] EWCA Civ 844, 24 July 2024

CDW will now take a break until September to coincide with the English court summer vacation.

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: