Paul Henton

Paul regularly acts on behalf of major airlines, airports in a number of aviation disputes in a commercial context, including claims under the Montreal Convention and its predecessors, and cases involving aircraft leases, aircraft and engine maintenance agreements, contracts for the sale of aircraft and related commission agreements, and disputes involving aircraft liens / powers of sale and arrest.

He has also defended statutory compensation claims against airlines arising out of denied boarding or delay under EC Regulation 261/2004, and claims brought against travel agents within the framework of the Package Travel, Package Holidays and Package Tours Regulations 1992 (SI 1992/3288, the "PTR"),

Examples of recent instructions have included:

• Junior Counsel to Robert Lawson QC in proceedings arising out of a collision between aircraft under tow (US$8 million claimed.  Trial listed for February 2011).
• Acting for the owner of a private aircraft in a commission dispute arising out of abortive attempts at an aircraft sale.
• Advising a small private airport wishing to assert a lien and/or exercise a right of sale over abandoned aircraft in support of a claim for airport charges.
• Acting for an airline in relation to several US$ multi-million disputes in relation to aircraft and engine maintenance agreements.
• Successfully overturning an injunction and indemnity costs order obtained against an airline.
• Acting for an airline bringing indemnity proceedings against an online travel agent which issued invalid IATA ticket stock.
• A successful trial on behalf of a major airline in a dispute relating to CAA minimum seat pitch requirements.
• A number of cargo claims involving cargoes of (for example) precious stones, fruit and vegetables, and heavy equipment carried by air.
• A successful trial on behalf of an online travel agent in relation to overbooking of return flights.
• A number of successful trials on behalf of major airlines involving the definition of an "accident" and of "operations of embarkation / disembarkation" under the Montreal Convention and its predecessors.
• Acting in personal injury proceedings arising out of a taxiing accident at a major airport, involving multiple claims from baggage handlers and ramp operators claiming to have suffered from the effects of jet blast.
• A two day multi-track trial on behalf of an alleged tour operator under the PTR.

Paul regularly appears in trials, interlocutory applications, and on appeal on behalf of major clearing banks and other lenders and financial institutions. Issues which typically arise include presentation and collection of cheques, breach of mandate claims, professional negligence claims against investment advisers, claims involving alleged account fraud or forged signatures, as well as allegations of undue influence.

Paul is also familiar with trade finance issues such as conformity with the ICC's standardised uniform customs and practice for documentary credits ("UCP"). He has also acted for lenders in debt recovery proceedings, including claims for possession and sale orders, and for banks facing claims under creditor/debtor/supplier agreements and bringing related indemnity proceedings.

Examples of recent instructions:

• Acting for a bank in proceedings which established that the High Court had jurisdiction to transfer enforcement proceedings in banking litigation (National Westminster Bank Plc v King [2008] 2 WLR 1279 (Ch D - David Richards J).
• Representing a major bank at a number of hearings arising out of the freezing of accounts held by an unincorporated association, and payment of sums into court, pending the resolution of a dispute between its members as to administration of the accounts.
• Solely instructed in a £6m dispute in the Chancery Division between a bank and a corporate borrower / property developer.
• Successfully represented the assignee of invoices under a factoring arrangement on appeal.
• Defending allegations of professional negligence in relation to the suitability of investment advice under the Financial Services and Markets Act 2000 (FMSA).
• Instructed in the trial of an action for restitution of sums paid out under countermanded cheque.
• A number of trials concerning the obligations of collecting and paying banks in relation to cheques and bankers drafts.

Paul's practice encompasses the full range of sea carriage disputes arising under bills of lading, sea waybills, delivery orders and contracts of affreightment, as well as the sea carriage documents issued by NVOCCs. He regularly advises and conducts litigation within the framework of the Hague- and Hague-Visby Rules, and has particular experience of advising on title to sue under the Carriage of Goods by Sea Act 1992 (COGSA), as well as in bailment and tort. He also acts across the full spectrum of charterparty disputes - including demurrage, bunker disputes, unseaworthiness disputes, safe port warranties, re-delivery obligations, antitechnicality clauses, and so on.

Paul is familiar with all forms of standard international sale contracts (CIF, FOB, CFR etc.), as well as long term supply contracts and disputes relating to the construction of the ICC's Incoterms.

He has also acted in a number of commodities arbitrations (e.g. under FOSFA, GAFTA, LME Rules, Refined Sugar Association, etc.), as well as inroad carriage disputes (e.g. under the CMR, RHA or BIFA terms)

Examples of recent instructions:

• Solely instructed in a number of ongoing high value charterparty arbitrations, e.g. an LCIA arbitration relating to disputed termination of a series of FOB contracts for sale of coal (US$16 million claimed).
• Junior Counsel in a Charterparty dispute relating to bonus / penalty provisions in a long term Charterparty (led by Luke Parsons QC)
• Sole Counsel at the final hearings of 3 multi-day arbitrations respectively relating to (i) whether a Charterparty was voidable for economic duress, (ii) the disputed termination of a long-term time charterparty, and (iii) off hire resulting from boiler damage under a long term charter.
• OAO Northern Shipping Company v Remolcadores De Marin SL (the ‘REMMAR') [2007] 2 Lloyd's Rep. 302 (Comm Ct - Gloster J)- Ship sale and purchase dispute. Arbitration award set aside for serious irregularity under s. 68 Arbitration Act 1996.
• A seven day LMAA arbitration relating to the quality of bunker fuel supplied under a time charterparty. Led by Nigel Jacobs QC.
• Instructed as junior to Simon Croall QC in Commercial Court proceedings under a longterm period time charter relating to changes in the legal and regulatory regimes for the control of marine pollution ("MARPOL").
• Acting in a Commercial Court dispute relating to shippers' obligations in relation to assisting carriers to obtain an expedited loading berth.
• Junior Counsel to Simon Rainey QC in an ongoing arbitration relating to a cargo which over-heated and resulted in the loss of the Vessel.
• Junior Counsel to Simon Rainey QC in an ongoing charterparty arbitration concerning the Owners' obligations in relation to procurement of oil major approvals.
• Junior Counsel to Nigel Cooper QC in a US$ multi-million dispute relating to the adequacy of management services provided to a fleet of vessels.
• Acting for a group of non-vessel owning carrier interests in the MSC Napoli  litigation.
• Acting as junior counsel in a series of interlocking US$ multimillion commodities arbitrations arising out of China's refusal to allow import shipments of soya beans.
• Conducted a two day trial in a cash-in-transit dispute on the multi-track.
• Assisting with an ongoing arbitration under a long term contract for the sale of lead concentrates on CIF terms.
• Successfully applying for and resolving preliminary issues in the Mercantile Court as to the incorporation of RHA 1998 conditions by usage / course of dealing.

Paul is frequently instructed in shipbuilding, ship sale, and energy disputes.  He is familiar with all the standard forms including the SAJ, AWES and NSF forms.

Recent examples of instructions in these fields have included:

Appeared as sole Counsel in an ongoing shipbuilding arbitration: successfully resisted an application for an anti-suit injunction and obtained an order for security in the region of US$37 million per Vessel.

In addition to the specific practice areas referred to elsewhere, Paul has acted or continues to act in a range of commercial and contractual disputes. Some examples include:-

• Junior Counsel to the Defendants in a US$4 million fraudulent misrepresentation claim in the context of a share sale and purchase agreement (Invertec Ltd v de Mol Holdings BV [2009] EWHC 2471 (Ch - Arnold J).
• Appearing in the Commercial Court in an ongoing claim to compensation under the Commercial Agents (Council Directive) Regulations 1993.
• A dispute relating to the sale and supply of excavation equipment under an alleged exclusive distributorship agreement.
• Successfully resisting applications for security for costs brought against a Ukrainian Claimant seeking specific delivery of goods held in this jurisdiction.
• Obtained summary judgment of £250k in Chancery Division proceedings relating to the debts of a number of car dealerships.
• Representing a company whose business included the sourcing and supply of medical professionals to hospital authorities, at several hearings during the course of interpleader proceedings which it commenced between a self-employed surgeon and a provider of medical payment services.
• Acting for producers and distributors of rock music CDs, DVDs, video cassettes and associated printed material destroyed by fire.
• Instructed to appear in High Court proceedings on behalf of a company specialising in the introduction of purchasers for established business ventures.
• Obtaining judgment on behalf of a property owner successfully alleging dishonest accounting practices by its property management company.
• Acting for petitioners seeking the compulsory winding up of a conference league football club.
• Acting in a High Court dispute between members of rival boxing associations.

Paul's practice takes in the full range of arbitration claims, including challenges to arbitration awards under s. 67, 68 and 69 of the Arbitration Act 1996 and applications for urgent interlocutory relief under s. 44 of the Act. Paul also conducts documents-only arbitrations, and has appeared as junior Counsel in larger arbitrations, which invariably have an international dimension.

Examples of recent instructions in these fields:

• Successfully resisting applications for (i) an anti-suit injunction to restrain commercial court proceedings said to have been issued in breach of an arbitration clause, and (ii) an order seeking to limit the choice of Counsel instructed in an ongoing shipbuilding arbitration. (led by Luke parsons QC)
• Acting for Buyers in an ongoing shipbuilding arbitration (related Commercial Court proceedings reported at Wilhelm Finance Inc v Ente Administrador Del Astillero Rio [2009] EWHC 1074 (Comm Ct - Teare J)).
• Acted for successful Buyers in OAO Northern Shipping Company v Remolcadores De Marin SL (the ‘REMMAR') [2007] 2 Lloyd's Rep. 302 (Comm Ct - Gloster J)- award set aside for serious irregularity under s. 68 Arbitration Act 1996.
• Appearing for Bulgarian Charterers at the inter partes stage of a freezing injunction granted in support of arbitration proceedings under s. 44 of the Arbitration Act 1996.
• Successfully resisting an application under s. 63 of the Arbitration Act 1996 for summary assessment by the Commercial Court of the costs of an arbitration held under RSA Rules.
• Settling application for relief under s. 12 of the Act, on behalf of claimants seeking to extend time to commence arbitration, and seeking related declaratory relief under CPR 62.4(3).
• Acting successfully for respondents to s. 69 Appeals from arbitrations on numerous occaisions.
• Settling numerous applications to challenge LMAA / LCIA / ICC awards under sections. 67, 68 and 69 of the Act.
• Four ICC arbitrations (three of them consolidated) arising out of a series of contracts for the construction of split hopper barges, in which appx. US$50 million is in dispute.
• Junior counsel in a heavy arbitration arising out of a contract to build a bespoke "superyacht" for appx. €17 million.

Junior counsel in a US$30 million arbitration arising out of a contract for the hire of an off-shore drilling rig.

Paul is a popular choice for advice and advocacy in coverage disputes in relation to all lines of insurance. He is comfortable running both policy defences (misrepresentation, non-disclosure, excluded peril etc.) as well as, in appropriate cases, allegations of fraud or fraudulent devices.

In this field, Paul has, for example:

• Successfully defended an insurance claim at a full trial in which he was solely instructed by a Lloyd's Syndicate, on the basis that the claim was fraudulent.
• Instructed as research junior to Guy Blackwood on behalf of the primary underwriters in a three week arbitration under a worldwide fleet policy.
• Advised a major Club on the construction of its P&I and FDD Rules, and in relation to allegations that the right to avoid cover had been waived following the total loss of a merchant vessel. Led by David Goldstone QC.
• Successfully resisted a strike out application in the Mercantile Court in a dispute which raised issues of the scope of a CIF seller's duties in relation to the procurement of insurance documents.
• Advised goods in transit insurers seeking to avoid cover following an apparent arson attack at the insured's compound.
• Advised brokers in relation to their duties in connection with the placing of a policy of marine and war risk insurance for a fleet of fishing vessels, in circumstances where claims under the policy had been rejected.

Paul is an advocate of mediation in appropriate cases, and has been instructed to appear as a mediation advocate on several occaisions. For example, he recently acted for Buyers at the mediation of a high-value shipbuilding dispute, for a bank at the mediation of £multi-million Chancery Division proceedings, and for industrial machine strippers at a mediation relating to the dismantling and stowage of industrial printing presses. Paul is also conscious of the benefits of obtaining suitable mediation directions and/or Ungley Orders in appropriate cases. He is often called upon to advise on the extent to which mediation or similar mechanisms should form part of the pre-trial strategy in a given case.  He also frequently drafts position papers for mediations to be conducted without his attendance.

In addition to dry shipping disputes referred to elsewhere in this CV (charterparties, demurrage, bills of lading, ship construction or sale and purchase agreements, etc.), Paul has also acted in all forms of wet shipping work, including collision claims, limitation actions, salvage arbitrations, general average disputes and cases involving docks, harbours, pilotage and pollution. He also has experience in cases of disputed ownership of vessels and smaller craft, including delivery up applications and other appropriate interim relief.

Paul has also been instructed (both in his own right and as part of a team of barristers) in urgent interlocutory applications in shipping matters. Examples have included arrest proceedings, applications to place surveyors onboard vessels ("Vasso orders"), applications for the preservation or sampling of cargo, Mareva (i.e. asset-freezing) injunctions, Angel Bell relief, and applications for mandatory injunctions to specifically enforce receivers' obligations to take delivery of cargo.

Examples of recent instructions:

Instructed as junior counsel in a heavy salvage arbitration

• Appeared at a series of hearings before Teare J which considered the standing of a number of in rem claimants, their claims for judgment, relative priorities, and applications for payment out of court.  Also acted in related Companies Court proceedings in the liquidation of the Vessel Owning entity.
• The MSC Napoli (Comm Ct / Adm Ct. - Steel J) - Acting for a number of non-vessel owning carriers in ongoing limitation proceedings arising out of the well-publicised beaching of a cargo vessel.
• Assisting with disclosure issues in a US$ multi-million salvage arbitration.
• Solely instructed in the Admiralty Court in relation to the arrest, appraisement and sale of a small craft in support of a shiprepairer's lien.
• Settling collision statements of case in a dispute arising out of a yachting incident in the Solent.

Paul is regularly instructed to advise on jurisdictional disputes under EC Regulation 44/2001 ("the Brussels Regulation", summarised in CPR 6.19), and at common law (summarised in CPR 6.20 and Pt 11). He is able to advise clients strategically on matters of "forum shopping", as well as the interaction of the above regimes with the International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going Ships 1952 ("the Arrest Convention"). He has been instructed on a number of successful jurisdictional challenges.

Some examples of recent instructions include:

• Successfully applying to set aside jurisdiction seised contrary to the Brussels Regulation in an international trade / commodities dispute proceeding in the High Court and said to be worth over £1 million.
• Instructed to resist a jurisdictional challenge in a Commercial Court sea carriage dispute, which was based on forum non conveniens principles and the construction of a letter of undertaking obtained to secure the release of the vessel from arrest.  Settled after hearing before Burton J.
• Successfully challenging jurisdiction under the UK's internal jurisdictional provisions for allocation of jurisdiction between England & Wales and Scotland.
• Assisting in the compilation of advice to cargo interests on the effect of the lis pendens / related actions provisions of the Brussels Regulation on cargo claims and limitation actions commenced in multiple jurisdictions.
• Advising those interested in a cargo of hot wire rods which allegedly sustained damage during sea carriage from China to Portugal on available jurisdictions under the Brussels Regulation and Arrest Convention.

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