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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> A v B [2018] EWHC 2325 (Comm) (07 September 2018) URL: http://www.bailii.org/ew/cases/EWHC/Comm/2018/2325.html Cite as: [2018] EWHC 2325 (Comm) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
COMMERCIAL COURT (QUEEN'S BENCH DIVISION)
IN THE MATTER OF AN ARBITRATION CLAIM
Strand, London, WC2A 2LL |
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B e f o r e :
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A |
Claimants (respondents in arbitration) |
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- and - |
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B |
Defendants (claimants in arbitration) |
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Christopher Hancock QC & Richard Greenberg (instructed by Thomas Cooper LLP) for the Defendants
Hearing dates: 18-19 July 2018
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Crown Copyright ©
Sir Ross Cranston:
INTRODUCTION
BACKGROUND
Contractual context
Background to the dispute
Reference to arbitration
THE AWARD
The award
"that they would account to the pool for any compensation that they received in these arbitration proceedings which represented their liability to the Pool for the amount that the Pool should have earned if the owners had complied with their charterparty obligations."
"33…[t]he parties' therefore agreed that we should simply make a declaration as to Charterers' financial entitlement under the charterparty, leaving the parties to agree how that entitlement should be dealt with under the Pool Agreement. We were asked to reserve our jurisdiction to make a further award determining what sums were actually payable to the Charterers. It should, however, be emphasised that the agreement did not detract from our conclusion that the Charterers' claims under the charterparty were to be calculated solely by reference to the rights and obligations of the Owners and the Charterers under the charterparty and not by reference to what the ultimate position of the parties might end up being under the Pool Agreement."
Memorandum of clarification
"[W]e find it surprising that it could be said that there was any uncertainty about the basis upon which the charterers' quantum was being calculated. No suggestion was made at the time or subsequently that the owners were not in a position to respond to the charterers' case insofar as it differed from their original claim submissions."
"Although obviously it was unlikely that the [GA] would have earned more than the average market rate over a long period of time, we accepted the expert evidence that the two profitable fixtures could have been performed."
SECTION 68 APPLICATIONS
Heading A: "wasted expenditure" and "loss of profits" together/the compensatory principle
Heading B: loss of profits as a measure of damages
Heading C: Shell and Valero fixtures
Heading D: consideration of reduced distributions from pool
Heading E: Loss of chance principle
Heading F: Typographical error
Heading G: Inordinate delay
"34…If the Award is otherwise unimpeachable and has dealt with all the issues, it makes no difference whether it was produced a month or 12 months after the hearing, since however long the Award has taken to produce, the applicant cannot show that it has caused or will cause substantial injustice. That is why delay on its own does not amount to serious irregularity. Furthermore, since for the reasons I have given, it is never open to an applicant under section 68 to complain about the findings of fact, it avails [the claimant] nothing to criticise the findings of fact, even if there were anything in its criticisms…"
SECTION 69 APPLICATIONS
Question 1: loss of profits, wasted expenditure and compensatory principle
Question 2: the S pool
Question 3: available market
"[72] There are many cases in which courts or arbitrators have to determine what rate of profit would have been earned but for a tort or breach of contract. As I see it, in a case of this kind, where the court has held that the vessel would have been profitably engaged during the relevant period, where there is a relevant market and where the court can and does make a finding as to the profit that would probably have been made (and has been lost), there is no place for a discount from that figure to reflect the chance that the vessel would not have been employed."
Sir Anthony Clarke MR went on contrast a case where it was not shown that the vessel would have been profitably employed, but might have been. In those circumstances, he said, it might be possible to approach the problem as a loss of a chance: [73].
CONCLUSION