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.

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 causation defence required an assessment of what would have happened to the Bank's security interest had Owners initially refused to discharge without production of the Bill. That was indeed the inquiry which both parties invited the Judge to undertake, and which she undertook.

Considering the relationship between the two articles, the inconsistency between them, and the absurdity of treating article 9.2 (a) as a stand-alone provision, unaffected by article 10.1, I accept Mr Collingwood's submission that something has clearly gone wrong with the drafting because the two articles do not work together.

Read literally and in isolation, the wording of article 9.2 (a) is clear and unambiguous: the preferred shares automatically convert into ordinary shares upon notice in writing from an ‘Investor Majority’. This is not a case where a provision in a contract is unclear because a word has two different meanings. Nor is this a case where the language of the articles, either read on their own, or, at any rate, when read in context, could be seen to give rise to possible rival interpretations.

On that basis, there is a clear tension between articles 9.2 (a) and 10.1 so it becomes apparent, on examination, that the drafter cannot have meant clause 9.2 (a) to be read literally as it makes no rational sense, when construed in light of the protection afforded to the special rights of the preferred shareholders by article 10.1.

I also agree with Mr Collingwood that the court's finding that there is a variation, or abrogation, of the special rights attached to the preferred shares involves no inconsistency with the conclusion reached by Buckley J in Re Saltdean Estate Co Ltd, as later approved and applied by the House of Lords in the House of Fraser case and later applied by Patten J in Re Hunting Plc.