Geoquip Marine Operations AG v Tower Resources Cameroon SA
| Jurisdiction | England & Wales |
| Judge | Sir Geoffrey VOS,Lady Justice King,Lady Justice Falk |
| Judgment Date | 21 March 2023 |
| Neutral Citation | [2023] EWCA Civ 304 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-001142 |
[2023] EWCA Civ 304
Sir Geoffrey VOS, MASTER OF THE ROLLS
Lady Justice King
and
Lady Justice Falk
Case No: CA-2022-001142
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
COMMERCIAL COURT (KBD)
PETER MACDONALD EGGERS KC, sitting a Deputy Judge of the High Court
Royal Courts of Justice
Strand, London, WC2A 2LL
Julia Dias KC and Jason Robinson (instructed by Clyde & Co LLP) for the Claimant/Appellant (Geoquip)
S J Phillips KC and Rebecca Jacobs (instructed by Richard Slade & Company) for the Defendants (Tower)
Hearing date: 2 March 2023
Sir Geoffrey VOS, MASTER OF THE ROLLS:
Geoquip claimed in this case against Tower 1 under a contract dated 30 October 2019 (the Contract) and on the basis of estoppel. The Contract obliged Geoquip to provide Tower with offshore geotechnical investigation services and a site survey to be carried out off the coast of Cameroon by Geoquip's vessel Investigator (the Vessel). Geoquip brought these proceedings to recover an outstanding balance of the contractual lumpsum of US$610,091.68 and standby charges of US$1,619,541.69 in respect of delay allegedly occasioned by Tower's failure to secure a necessary licence extension and to provide security and permits for the Vessel. Mr Peter Macdonald Eggers KC (the judge) gave Geoquip judgment for the lumpsum, but dismissed the claim for the standby charges both under the Contract and on the basis of any estoppel. He made costs orders in favour of Geoquip on the lumpsum claim, and in favour of Tower on the standby claim.
Lord Justice Phillips refused Geoquip permission to appeal the detailed findings of the judge as to estoppel and as to costs, but granted it on the ground that the judge had “erred in law” in holding that Geoquip had no contractual right to standby charges under clauses 4.5 and 34 of the Contract. The error of law was said to involve one question of contractual interpretation and one issue as to the law of causation. One might have been forgiven for thinking that the appeal did not involve any challenge to the judge's detailed findings of fact. In reality, however, Tower's respondents' notice contended that the only operative cause of the delay to the Vessel was “the absence of a Presidential decree confirming [Tower's] licence extension”, when the judge had found at [109] that the absence of a Presidential decree confirming the licence extension, the absence of permits for the Vessel, and the absence of security for the Vessel were all “equal causes of the delay suffered by the Vessel”, a finding on which Geoquip, initially at least, heavily relied.
When Geoquip opened its appeal, it took the court to several extracts from the evidence in an attempt to show that the absence of a Presidential decree confirming the licence extension was irrelevant to the delay for which standby charges were claimed. Ms Julia Dias KC, leading counsel for Geoquip, ultimately realised that, if that was her case, she might need to amend her notice of appeal, which she applied to do. She sought to add an alternative ground to the effect that the judge had been wrong not to find that “the only operative or effective cause of any delay was [Tower's] failure to provide security” – or, to put the matter positively, that the judge should have found that the absence of security was the only cause of delay. The problem, I should say at once, with that submission, as Mr SJ Phillips KC, leading counsel for Tower, pointed out, was that it was significantly different from what Geoquip submitted to the judge. We said during the hearing that we would decide the application for permission to amend Geoquip's appellant's notice in our judgments.
Against that background, it can be seen that, cutting away the fine detail, Geoquip submitted to us that the cause of the delay was Tower's failure to provide security for the Vessel, and Tower submitted to us that the cause of the delay was the absence of a Presidential decree confirming Tower's licence extension. The intriguing twist in this
story is that neither party was in a position to tell us (or apparently the judge) whether such a Presidential decree was ever granted. But despite that, Geoquip's work seems eventually to have gone ahead with security provided by Cameroon's armed forces, the Battalion d'Intervention Rapide (the BIR), after a diplomatic meeting that took place on 30 January 2020 between the British High Commissioner and the Secretary General of the Presidency. I shall return to that meetingThe issues that we have to decide may be summarised as follows: (i) whether the proper interpretation of the terms “services” and “facilities” in clause 4.5 of the Contract (clause 4.5) anyway allows Geoquip to claim standby charges for delays caused by Tower's failure to provide security for the Vessel, (ii) whether the judge was right to hold at [106] that Geoquip could not recover standby charges for delay under clause 4.5 on the grounds of a failure to obtain the licence extension, because the Contract was conditional on such an extension having been delivered, (iii) whether the judge ought to have found that the only operative cause of delay was the absence of a Presidential decree confirming the licence extension, (iv) whether Geoquip ought to be allowed to amend its appellant's notice to argue that the only operative cause of delay was Tower's failure to provide security, (v) if so, and in any event, whether this court should disturb the judge's causation findings to find either that the failure to secure a licence extension or Tower's failure to provide security was the sole operative cause of the delay, and (vi) whether the judge's findings that Tower's failure to provide security and Tower's failure to secure the licence extension were independent concurrent causes of the delay ought to have entitled Geoquip to the standby charges under clause 4.5. The logic of considering the issues in this order will become apparent.
I have decided that Geoquip is right on both issues of contractual interpretation (at (i) and (ii) in the previous paragraph). On that basis, the parties' competing contentions that there was a single (different) cause of the delay are irrelevant to the outcome and cannot anyway be satisfactorily determined without a new trial. In my judgment, as will appear, Geoquip was entitled to recover its standby charges under clause 4.5 of the Contract.
This judgment proceeds to deal with the relevant contractual provisions, the necessary factual background, and the judge's judgment before addressing the 6 issues I have mentioned.
Relevant provisions of the Contract
The Contract was contained in a number of documents based on bespoke amendments to the Standard Contracts for the UK Offshore Oil & Gas Industry LOGIC Form (edition 2, October 2003). The judge described the Contract in detail at [7]–[17] ( Geoquip v. Tower Resources [2022] EWHC 531 (Comm)), to which reference should be made.
Section I of the Contract provided that the effective date of commencement of the Contract was to be 30 October 2019, and that the duration of the Contract should be two months.
Section II of the Contract provided the General Conditions as amended by the Special Conditions including:
4. [Geoquip's] GENERAL OBLIGATIONS
4.1 [Geoquip] shall provide all management, supervision, personnel, materials and equipment, (except materials and equipment specified to be provided by [Tower]), plant, consumables, facilities and all other things whether of a temporary or permanent nature, so far as the necessity for providing the same is specified in or reasonably to be inferred from the [Contract].
4.2 [Geoquip] shall carry out all of its obligations under the [Contract] and shall execute the WORK with all due care and diligence …
4.5 In order to ensure that performance and completion of the WORK are not delayed or impeded [Geoquip] shall be responsible for the timely provision of all matters referred to in Clauses 4.1 and 4.4 and, where provided for elsewhere in the [Contract], for the timely request of [Tower]-provided materials, services and facilities. However, [Geoquip] cannot be responsible for the timely delivery of [Tower]-provided materials, services and facilities. If such are delivery [sic] late and cause delay in the performance and downtime of [Geoquip's] equipment, [Tower] shall pay Standby time for such downtime. …
34. PERMISSION AND PERMITS
[Tower] will be responsible for obtaining all necessary permissions to enable survey work to be carried out, including but not limited to, permits from the appropriate authorities for the vessel to operate in National waters of the country or operations, and for ensuring safe access within the area of survey operations.
Section III of the Contract concerned “Remuneration” and was specified to be “ [a]s per section 10 of the attached Technical and Commercial Proposal [TCP] P19050”. The TCP comprised two parts under the headings “Pricing” and “Contractual”.
The “Contractual” part of the TCP included the following at section 10.2 (section 10.2):
It is understood security vessels will be provided from entry into Cameroon waters, during mobilisation, throughout fieldworks, through demobilisation and exit from Cameroon waters.
The offer is subject to the Investigator arriving in Cameroon between [15] November and [31] December 2019, and the contract is also contingent on the permits and license extension required for the site survey having been delivered prior to departure of the vessel to Cameroon.
The offer is subject to contract signing by [15] November 2019 and advanced payment of $250,000 to arrive in Geoquip's Swiss bank account prior to...
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