Contracts Law in UK Law

On his appeal to the UT JHB did not challenge either the facts underlying the conviction or finding 1 (see paragraph 9. This was a case in which the UT heard very limited evidence from JHB, for example, that he had not been interviewed by the police about the allegation on which finding 3 was based. The UT does not seem to have heard much evidence which had a direct bearing on the matters on which the DBS relied in making findings 2 and 3, let alone any significant evidence.

The UT began its consideration of finding 2 by announcing that the DBS ‘made a mistake with this finding’. The UT did not, in paragraphs 9–19, explain in what way finding 2 was ‘wrong’, or outside ‘the generous ambit within which reasonable disagreement is possible’. Its approach, rather, was to look at very substantially the same materials as the DBS, and to make its own findings of fact (‘These are our findings’). Those findings were different from the DBS's assessment of those materials.

That inference is supported by the explanation which the UT gave for its different assessment of the materials. On the authorities, a disagreement about the evaluation of the evidence is not ‘an error of fact’. In my judgment the material considered by the DBS did permit such a finding on the balance of probabilities. If such a finding was open to the DBS on the balance of probabilities, the DBS did not make a mistake in coming to that finding.

In applying it, she was correct to proceed on the basis that it was not sufficient to conclude, without more, that in the absence of breach the Cargo would initially have remained on board the Vessel. The loss claimed by the Bank was that discharge without production of the Bill prevented the Bank from being able to enforce its security interest against the Cargo in Owners' hands so as to recoup the lending which Gulf did not repay.

As Mr Russell was inclined to accept, the obligation to deliver against a bill of lading is a contractual one which can be varied by express consent to the contrary. On the Judge's findings, had Owners initially complied with the obligation not to discharge without production of the Bill, what would have happened in practice is that they would have sought and obtained express consent to do so from both the holder and intended indorsee, who brings the present claim.

The proper approach to parallel proceedings was outlined by O'Farrell J in Structure Consulting Limited v Maroush Food Production Limited [2017] EWHC 962 (TCC). The judge should usually give judgment on the claim based on the adjudicator's decision and then – to the extent possible – endeavour to sort out the Part 8 proceedings.

A finding of “ exceptional circumstances” does not cut across or sidestep the regime prescribed in PD57AD. A residual contextual jurisdiction oils the cogs of the formal machinery. Specific disclosure which is reasonable and proportionate can, in exceptional situations, be ordered even where the document is not “ mentioned” in a formal sense and even if it proves to be “ adverse” to the disclosing party as a matter of jurisdictional analysis. This does not undermine the integrity of PD57AD.