MVV Environment Devonport Ltd v NTO Shipping GmbH & Company KG
| Jurisdiction | England & Wales |
| Judge | Pelling |
| Judgment Date | 04 June 2020 |
| Neutral Citation | [2020] EWHC 1371 (Comm) |
| Date | 04 June 2020 |
| Docket Number | Case No: CL-2019-000678 |
| Court | Queen's Bench Division (Commercial Court) |
[2020] EWHC 1371 (Comm)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (QBD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
HIS HONOUR JUDGE Pelling QC
SITTING AS A JUDGE OF THE HIGH COURT
Case No: CL-2019-000678
Mr Simon Rainey QC and Mr Thomas Steward (instructed by Simmons & Simmons LLP) for the Claimant
Mr Charles Debattista (instructed by Winter Scott Solicitors) for the Defendant
Hearing dates: 7 May 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HIS HONOUR JUDGE Pelling QC SITTING AS A JUDGE OF THE HIGH COURT
HH Judge Pelling QC:
Introduction
This is the hearing of the claimant's jurisdiction challenge brought under s. 67 of the Arbitration Act 1996 against the final award on jurisdiction of Ms Clare Ambrose, Ms Daniella Horton and Mr Clive Aston (“Tribunal”) dated 9 October 2019 (“Award”) by which the claimant seeks an Order setting aside the Award. Such a challenge proceeds by way of a re-hearing – see Dallah Real Estate and Tourism Holding Company v. Ministry of Religious Affairs of the Government of Pakistan [2011] AC 763 at paras 25–26.
The hearing took place on 7 May 2020. I heard oral evidence on behalf of the claimant from (i) Mr Nick Webb, a ships agent employed by Sanders Stevens Limited (“SS”), a shipping agency operated by Victoria Group Holdings Limited, which also owns the Victoria Wharf in Plymouth and (ii) Mr Paul Carey, the managing director of the claimant. I record at the outset my conclusion that their evidence was entirely honest and straightforward and I accept it in its entirety.
The Facts
The primary facts are not in serious dispute. I can therefore summarise them relatively shortly.
The claimant is a company that specialises in converting waste products to energy in the form of electricity. Its processes create a waste product known as “unprocessed incinerator bottom ash” (“UIBA”). The claimant generates about 60,000 MT of UIBA each year. It disposes of its UIBA under a contract between it and RockSolid BV (“RS”) made on 26 November 2013 for the transport by RS of the UIBA to its plant in the Netherlands and for its treatment, recycling and disposal by RS in consideration of a monthly payment by the claimant to RS based on the weight of UIBA removed each month (“IBA Contract”).
In the IBA Contract, RS is referred to as the “ Contractor” and the claimant as “ MVV”. In so far as is material, the IBA Contract provides as follows:
“1.5 Responsibility for Related Parties
Subject to the provisions of this Contract, the Contractor shall be responsible to MVV for the acts and omissions of the Contractor Related Parties 1 in respect of their providing any part of the Services as if they were the acts and omissions of the Contractor and MVV shall be responsible to the Contractor for the acts and omissions of MVV Related Parties 2 as if they were the acts and omissions of MVV.
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Principal Obligations of the Contractor
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5.3 The Contractor shall arrange for all IBA produced at the EfW Facility its collection, transportation to the Treatment Facility (including interim storage at Victoria Wharf or such other wharf facility), treatment at the Treatment Facility, sale or reuse of the products and disposal of any residues) including the obtaining, payment of all fees and maintenance of all necessary consents, permits and licences required by law and implementation of all infrastructure for interim storage and loading at Victoria Wharf.
5.4 The Contractor shall carry out all activities necessary to reuse/recycle at least 97% of the IBA and prevent it being landfilled in any country, and to divert any remaining materials to landfill if and only if they cannot be crushed to a smaller size or sent to an energy from waste facility in the country of processing in order to reduce their unburnt carbon content in accordance with the Relevant Planning Conditions, Planning Permission as described in Schedule 9.
5.5 Subject to clause 8.5 the Contractor shall, throughout the Service Period remove, treat and recycle the IBA from the EfW Facility at such times, in such quantities and such frequencies as to ensure that the Maximum Storage Capacity at the EfW Facility is not exceeded.
5.6 The Contractor shall ensure that collections from the EfW Facility take place during the permitted Collection Hours.
5.7 The Contractor shall provide a list of vehicle types and registration numbers 2 weeks prior to the Service Commencement Date and shall notify changes 1 Business Day prior to any change of vehicle.
5.8 The Contractor shall ensure that the HGV vehicles carrying the IBA collected are weighed before leaving the EfW Facility at the weighbridge at the EfW Facility.
5.9 The Contractor shall comply with reasonable rules relating to the EfW Facility that are notified to it in writing prior to attending the EfW Facility.
5.10 The Contractor shall allow MVV to remove from the IBA before it leaves the EfW Facility up to 5 tonnes p.a. of metal materials for the sole purpose of a public work of art and from time to time samples for analysis and experiments.
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Principal Obligations of MVV
6.1 MVV hereby grants exclusive rights to all IBA produced at the EfW Facility to the Contractor and shall not, without the consent in writing of the Contractor cause or permit any third party to collect or treat or dispose of any IBA produced at the EfW Facility.
6.2 During the Service Period, MVV shall ensure that consignment notes (e.g. appropriate assignments or waste transfer notes) are issued at the EfW Facility to accompany each load of IBA collected under this Contract.
6.3 During the Service Period, MVV shall set up and operate a system of vehicle recognition in respect of the vehicles used by the Contractor to collect IBA from the EfW Facility and shall only permit those vehicles employed by the Contractor access to the EfW Facility to collect IBA.
6.4 MVV shall allow all of the Contractor's vehicles access to the EfW Facility during the Collection Hours throughout the Service Period.
6.5 Throughout the Service Period MVV shall ensure that it operates and maintains a weighbridge at the EfW Facility that has been passed as “fit for trade” by the local Trading Standards authority and continues to be so throughout the term of the Contract and shall regularly maintain the same and provide certificates of calibration to the Contractor on demand. Weighbridge tickets will be issued in accordance with schedule (Weighbridge). Where the weighbridge is unavailable, MVV shall provide a suitable alternative weigh facility or suitable measurement arrangements shall be agreed between the Parties (e.g. weighbridge at the Treatment Facility).
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Ownership of IBA
9.1 Risk and title in respect of IBA shall pass to the Contractor once the same are loaded onto the Contractor's vehicle(s) at the EfW Facility.
9.2 MVV will provide training in respect of loading IBA to the Contractor's drivers responsible for the collection of IBA as nominated by the Contractor. The Contractor confirms and acknowledges that its drivers shall comply with the training instructions given to them by MVV when loading IBA at the EfW Facility.
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Facilities
10.1 MVV shall give the Contractor access to loading facilities and equipment at the EfW Facility for the purposes of loading the IBA onto the Contractor's vehicles (the “Central Loading Facilities”) throughout the Service Period.
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13. Equipment
The Contractor shall from the Services Commencement Date provide, repair, maintain and replace all plant, equipment and vehicles necessary for the provision of the Services. For the avoidance of doubt this does not include the loading equipment for IBA of the EfW facility operated by the contractor.
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Entire agreement
52.1 Prior Representations etc. Superseded
Except where expressly provided in this Contract, this Contract constitutes the entire agreement between the Parties in connection with its subject matter and supersedes all prior representations, communications, negotiations and understandings concerning the subject matter of this Contract.”
The sum payable by the claimant to RS was calculated in accordance with a formula set out in Schedule 2. The formula is complex and I need not take up time in describing it in detail. However, in summary it provided that the claimant would pay a fixed sum per ton referable to RS's fixed costs less a contribution from the revenues generated by RS from re-processing the UIBA. Fixed costs were broken down into part denominated in sterling and the other part denominated in Euros. RS's fixed costs denominated in sterling were defined as being costs “ … due to loading and transportation of the IBA from the EfW Site to Victoria Wharf (Plymouth), storage and shipment of the IBA at Victoria Wharf and shipping to the Netherlands”.
The points that emerge from the IBA Contract that are relevant to this dispute are that the contract was not an agency agreement but was a principal to principal contract. It was not one of sale but of disposal of a waste product for which the claimant paid RS a fee. Subject to that, the obligations of the parties were closely akin to an Ex Works sale agreement: (a) RS was under an obligation to collect the product in its own vehicles from the claimant's plant – see clause 5.3 and 6.4; (b) risk in and title to the UIBA passed...
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Trafalgar Multi Asset Trading Company Ltd ((in Liquidation)) v James David Hadley
...of their respective consents to one another…”. 230 Further authority, if needed, can be found in the case of MVV Environment Devonport Ltd v NTO Shipping GMBH & Co KG [2020] EWHC 1371 (Comm) (4 June 2020). In that case the Court rejected the defendant's argument that it had implied authori......