News

  • The First Annual Conference of SCMAView More

    Wed, 06 July, 2016

    Michael McParland is speaking at the First Annual Conference of SCMA, the Standing Conference of Mediation Advocates in London on 7 July 2016.

    The keynote address is from the Rt Hon Lord Falconer of Thoroton QC, with speakers and led workshops that include a number of leading mediators and mediation advocates, such as Michel Kallipetis QC, Colin Manning (Chairman of the English Bar’s ADR Panel), Tim Wallis (Chairman, ADR Working Party of the Civil Justice Council), Stephen Walker (mediator and author), and Professor Andrew Goodman. Michael has been asked to speak about preparing and delivering an opening statement in mediation.

    Please click here for more information on the event.

  • Banking: Bad Debts and Cross-Border MergersView More

    Fri, 01 July, 2016

    Michael McParland has published a new article in this month’s Butterworths Journal of International Banking and Financial Law entitled “Bad loans, bad banks and cross-border mergers: choice of law questions for troubled times”.

    Michael’s article looks at the vexed question of what laws govern the termination of loan contracts and the rights of creditors when an insolvent bank is acquired by a ‘bad bank’ in a cross-border merger, and analyses the important decision of the CJEU in Case C-483/14 KA Finanz AG v Sparkassen Verischerung AG Vienna Insurance Group (7 April 2016) which provides answers to some of those questions on the relationship between EU company legislation and private international law rules for contractual obligations. For further information, please contact a member of the Clerking Team.

  • Dusek v StormHarbour Securities LLP [2016] EWCA Civ 604View More

    Fri, 24 June, 2016

    The Court of Appeal has today given judgment in Michael McParland’s case of Dusek v StormHarbour Securities LLP [2016] EWCA Civ 604,  dismissing the defendant’s final attempts to obtain permission to appeal the judgment of the trial judge, Mr Justice Hamblen (as he then was), who found in the Claimants’ favour  in January 2015. The action concerns the death of Mr Tomas Dusek, who was working in 2012 for StormHarbour as an investment banker on a project to secure funding for the development of a hydroelectric complex in the Andes Mountains in Peru. On 6 June 2012, Mr Dusek was returning from a project site visit on-board a Sikorsky S58-ET helicopter when it crashed into the Andes Mountains at an altitude of 16,026 ft. above mean sea level. The helicopter disintegrated and caught fire, killing all 12 passengers and 2 crew on board.  Mr Dusek was 37 years old and left a wife and two children, then aged 8 and 5.

    His widow and children brought claims under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934 against StormHarbour, alleging that it was in breach of its duty of care as employers to Mr Dusek.  StormHarbour denied any liability for Mr Dusek’s death, arguing their duties did not extend to an employee’s safety on a helicopter that had been chartered by reputable Peruvian clients from a local carrier with a Peruvian Air Operators Certificate (‘AOC’).

    At trial, after detailed cross-examination and expert evidence, Mr Justice Hamblen agreed with Michael’s submissions that Mr Dusek was acting in the course of his employment, and StormHarbour therefore owed a duty to take reasonable care to see that he was reasonably safe while travelling  to and from his place of work abroad, which, in this case, was the Peruvian project site. His Lordship also found that StormHarbour was in breach of its duty of care in doing nothing to investigate the safety of the proposed helicopter flight.  He rejected StormHarbour’s claims that no specific safety inquiry was needed, or that any such inquiry would have been limited to asking about whether the carrier was properly licenced and held an AOC. The judge held on the evidence that if StormHarbour had made the safety inquiry required to make an appropriate risk assessment, it would have instructed Mr Dusek not to take the flight because of safety concerns, and he would have complied. StormHarbour’s breach of duty therefore caused Mr Dusek’s death. Judgment was given for the Claimants for damages to be assessed.

    StormHarbour had been seeking permission to appeal this verdict for 18 months, with it being refused by Mr Justice Hamblen, and by Lord Justice Tomlinson on paper. The Court of Appeal has now refused their application after a lengthy contested oral application,  with a detailed judgment explaining the Court’s reasons why StormHarbour had no realistic prospects of success in their appeal. A copy of the original trial judgment  ([2015] EWHC 37 (QB) is attached here. A copy of the Court of Appeal’s judgment of 24 June 2016 ([2016] EWCA Civ 604) is attached here.

  • Robert-Jan Temmink successful in solicitor’s fraud caseView More

    Thu, 16 June, 2016

    Robert-Jan Temmink, instructed by Teacher Stern, successfully acted for Mr Alade, a former client of Alpha Rocks Solicitors, in defence of a claim for professional fees. The defence alleged fraud on the part of the solicitors and counterclaimed for fees paid on account.  The Court found that an “invoice and bill of costs were false as regards a majority of the fees charged and Alpha Rocks must have known that, or at the very least been reckless”.  The Court found that another “bill was false.  Alpha Rocks could not have submitted its invoice and bill without knowing, or being at least reckless as to its falsity… I have no alternative but to find that Alpha Rocks’ instructions to [a costs consultant], the failure to correct the bill of costs created by [the costs consultant] and Alpha Rocks’ continuing reliance on it was all dishonest”.

    The claim had an interesting procedural history, having been struck out as an abuse of the Court’s process at an interlocutory stage ([2014] 6 Costs LR 1039), only to be reinstated by the Court of Appeal ([2015] 1 WLR 4534) on the basis that strike out at an early stage of the proceedings had been too draconian a remedy and the findings then made of dishonesty should not have been made without oral evidence. 

    At trial, after cross-examination of the firm’s witnesses, the Court found “Alpha Rocks appeared to demonstrate a high level of ineptitude.. much of its argument might be described as perverse, naïve or even preposterous.. I must conclude that many of its shortcomings in dealing with and for Mr Alade were not the result of negligence or eccentricity, however gross.  In particular, its bills.. were each variously false… this can only have resulted from a dishonest plan to charge for sums which it knew it was not entitled on the basis claimed, or was at least reckless as to the same..”. 

    The Court dismissed the firm’s claim for fees and ordered Alpha Rocks to pay back all sums paid by Mr Alade on account together with interest. A copy of the judgment can be found via the attached link

  • International Corporate Rescue - Quadrant Chambers Special EditionView More

    Mon, 06 June, 2016

    We are delighted to present Quadrant Chambers’ special edition of International Corporate Rescue. We have worked closely together with the team at International Corporate Rescue to ensure that all of the articles contain market relevant topics in cutting edge areas of the law

    The articles selected focus on cross-border insolvency issues, with particular emphasis on International Trade. Please do not hesitate to contact our Clerking Team should you have any questions, comments or if you would like further information.

  • Simon Rainey QC outlines the recent decision in NYK v Cargill (the Global Santosh) in TradewindsView More

    Fri, 20 May, 2016

    Simon Rainey QC discusses last week's Supreme Court decision in the latest edition of Tradewinds.

    A copy of the article is available here. To view the online version, please fillow the attached link.

  • PST Energy 7 Shipping LLC and anr (Appellants) v O W Bunker Malta Ltd and anr (Respondents)View More

    Mon, 16 May, 2016

    [2016] UKSC 23. On appeal from [2015] EWCA Civ 1058

     

    Stephen Cogley QC and Liisa Lahti appeared for the Appellants in the Supreme Court who handed down judgment this week in the much-anticipated RES COGITANS dispute arising out of the insolvency of OW Bunker. 

    The decision is one of the most significant cases on the Sale of Goods Act in many years.

    The judgment concerns whether a contract for the supply of bunkers by a subsidiary of the now insolvent OW Bunker was a contract to which the Sale of Goods Act 1979 applies.

    The Supreme court affirmed the decision of the Court of Appeal and the first instance Judge Males J that a contract for the supply of bunkers is not a contract to which the Sale of Goods Act 1979 applies.

    According to the Supreme Court the It was a sui generis agreement, with two aspects:  The OW subsidiary must (a) permit consumption prior to any payment and without any property ever passing in the bunkers consumed, and (b) if and so far as bunkers remained unconsumed, to transfer the property in the bunkers remaining to the shipowner in return for the shipowners paying the price for all of the bunkers, whether consumed before or remaining at the time of payment. 

    The practical effect of this is that, in many cases and at least insofar as English law is concerned, OW Bunker subsidiaries are entitled to sue for contract debt and shipowners may be liable to pay twice for the bunkers that they procured.

    The Supreme Court further considered whether s. 49(2) of the Sale of Goods Act contained an exhaustive list of circumstances in which a seller could claim the price for goods. Lord Mance stated that a court should be cautious about recognising claims to the price of goods in cases not falling within s. 49.  However there was at least some room for claims for the price in circumstances not covered by section 49. Lord Mance declined to set the precise limits for the circumstances in which the price may be recoverable outside s. 49. 

  • The Supreme Court Decision in THE GLOBAL SANTOSHView More

    Wed, 11 May, 2016

    The Supreme Court handed down its decision today in NYK Bulkship (Atlantic) NV v Cargill International SA (The Global Santosh) [2016] UKSC 20.

    Simon Rainey Q.C., who was brought in to argue the case on the Supreme Court appeal, represented the successful appellants, Cargill. The decision of the Supreme Court is a landmark one in relation to a contracting party’s responsibility for the vicarious or delegated performance by a third party of its contractual obligations, both in the common charterparty and international sale of goods contexts and more generally.

    A copy of the judgment is available here. Further details regarding the case are available in the attached article.

  • Paul Henton successful in upholding US$1.6 million commodities AwardView More

    Mon, 09 May, 2016

    The Commercial Court has handed down judgment in proceedings relating to a US$1.6 million commodities arbitration relating to supply of blast-furnace grade coking coal.  Paul Henton acted for the successful buyers in the arbitration and the Commercial Court proceedings, in which the Court dismissed applications by the Sellers for (i) an extension of time to challenge the Award under s. 80(5) of the Arbitration Act 1996, (ii) a challenge to the Award on grounds of serious irregularity under s. 68 of the 1996 Act, and (iii) an application for leave to appeal the Award under s. 69 of the 1996 Act.

    The Judgment is noteworthy in that it confirms the continued applicability to post-1996 Act cases of Hobhouse J’s guidance in the Faith [1993] 2 Lloyd's Rep. 408 in cases where the statutory time-limit for appealing or challenging an Award is missed due to delays in collecting/paying for the Award.  In obiter remarks, the Judge queried whether the approach ought not to be even stricter post- Mitchell v News Group Newspapers Ltd [2014] 1 W.L.R. 795 and Denton v TH White Ltd [2014] 1 W.L.R. 3926.  The indications are therefore that the Courts will continue to take a strict approach against allowing time extensions where the necessity for an extension is due to the would-be appellant’s failure to pay for the Award in time.

    The Judgment was reported on Lawtel on 9 May 2016 and on Lloyd’s Reporter on 25 April 2016.  A free copy of the Judgment is available here.

  • Court of Appeal upholds anti-suit injunction against 3rd party on the contractual basisView More

    Wed, 20 April, 2016

    The Court of Appeal has ruled that a party to a contract containing a London arbitration clause is entitled to an anti-suit injunction on the contractual/The Angelic Grace basis against a 3rd party claiming under that contract in a foreign court pursuant to a foreign right of direct action even though there is no contract between the parties.  In so doing, the Court of Appeal in The Yusuf Cepnioglu (2016) preferred its decision in The Jay Bola (1997) to that in The Hari Bhum (No. 1) (2004). 

    Chirag Karia QC of Quadrant Chambers acted for the successful claimant, The Shipowners’ P&I Club, in the Commercial Court and the Court of Appeal against Turkish charterers suing the Club in the Turkish courts under Turkey’s right of direct action against liability insurers. 

    A copy of the judgment is available here.