Riva Bella SA v Tamsen Yachts GmbH
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eder,MR JUSTICE EDER |
| Judgment Date | 12 September 2011 |
| Neutral Citation | [2011] EWHC 2338 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: 2009 FOLIO 1303 |
| Date | 12 September 2011 |
[2011] EWHC 2338 (Comm)
Mr Justice Eder
Case No: 2009 FOLIO 1303
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Peter Ferrer (instructed by Clyde & Co) for the Claimant
Mr Christopher Smith Q.C. (instructed by Ben Macfarlane) for the Defendant
Hearing date: 6 September 2011
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.
Introduction
This is an application by the claimant pursuant to CPR 40.12(1) to correct the order which I made dated 6 June 2011 following the trial in this action ("my Order") which provided in material part as follows:
"IT IS HEREBY ORDERED THAT:—
1. Subject to the question of set-off and paragraph 2 below:
(1) The Claimant's claim succeeds in the total sum of €54,900;
(2) The Defendant's counterclaim succeeds in the sum of €279,694.11.
2. The Claimant's claim in paragraph 1(1) above is subject to a set-off against the Defendant's counterclaim in paragraph 1(2) above, and the Defendant is therefore entitled to:
(1) Judgment in the sum of €224,794.11; and
(2) Interest from January 2009, at the rate of 3 monthly EURO LIBOR plus 1% with 3 monthly rests, in the sum of €11,238.50 as at the date hereof and continuing until payment at the daily rate of €8.94."
In addition I made various further orders including an order that the claimant make a payment on account of costs to the defendant in the sum of £250,000 within 28 days; and a refusal of the claimant's application for a stay.
The corrections now sought by the claimant in the present application are as follows:
"IT IS HEREBY ORDERED THAT:
1. Pursuant to CPR 40.12, the Order of the Honourable Mr Justice Eder dated 6 June 2011 be corrected so that it reads as follows:
[1(2) The Defendant's counterclaim succeeds in the sum of €192,194.11
2(1) Judgement in the sum of €137,294.11]
[Alternatively
1(2) The Defendant's counterclaim succeeds in the sum of €211,911.95
2(1) Judgement in the sum of €157,011.95]
[Alternatively
1(2) The Defendant's counterclaim succeeds in the sum of €230,888.51
2(1) Judgment in the sum of €175,988.51]."
As I say, the application is made pursuant to CPR 40.12(1) which provides as follows:
"40.12(1) The Court may at any time correct an accidental slip or omission in the judgment or order."
Background
The trial of this action commenced on 21 st March 2011. Both sides served lengthy written opening submissions and made brief oral opening submissions. The evidence was concluded on 31 st March and the court then adjourned to allow the preparation of written closing submissions. These were exchanged on the morning of 4 th April. The court then heard oral closing submissions on 5 th and 6th April. Both parties were invited to submit a list of "typing corrections and other obvious errors". The defendant's junior counsel submitted a list on 2 nd June and the claimant's junior counsel made some further suggestions on 3 rd June. I handed down judgement on 6 th June at which time I heard argument and ruled on various consequential matters. The defendant had submitted a proposed draft order prior to the hearing on 6 th June. This was amended to reflect the rulings which I made on 6 th June and circulated between counsel. On 8 th June, leading counsel for the claimant confirmed that "the order is agreed" and it was subsequently signed and lodged and, following my signature, perfected in the usual way. That is the order which I have already referred to above and which the claimant now seeks to correct pursuant to CPR 40.12.
I understand that the claimant has applied to the Court of Appeal for permission to appeal against my judgment. The result of such application is still outstanding at the date of this hearing before me.
As to the underlying disputes, the relevant facts are set out in my earlier Judgment. For present purposes it is sufficient to note that the figure of €279,694.11 which appears in paragraph 1 (2) of my Order was the total of the figure of €134,241.50 (in respect of crew costs) and €145,452.61 (in respect of other costs and expenses) referred to respectively in paragraphs 250 and 251 of my judgment. These had been the headline figures set out in the defendant's closing submissions. However, on 16 th June and prior to the expiry of the 14 days for payment, the claimant's solicitors, Messrs Clyde & Co, wrote to the defendant's solicitors asserting (in summary) that although the first figure of €134,241.50 had not been disputed it did not take into account payments previously made by the claimant in respect of crew costs totalling €87,500. The letter continued in material part as follows:
"During the trial, the claimants did not recollect that these sums had already been paid. It was in this light that the claimants did not dispute the sums claimed by the defendants in respect of crew costs. It has now been drawn to our attention by our clients that they have in fact already paid a significant sum in respect of the judgement against them.
Therefore, we consider that the claimants have already satisfied €87,500 of the judgement made against them and that this reduces the sums owing by them to the defendants in respect of crew costs to €46,741.50. We hereby seek your clients' agreement that the Judgement sum in respect of crew costs be reduced to €46,741.50."
The effect of such proposed reduction would be to reduce the figure in paragraph 1 (2) of my Order from €279,694.11 to €192,194.11 and a similar reduction in paragraph 2 (1) of my Order from €224,794.11 to €137,294.11.
There followed some correspondence between the parties which it is unnecessary to refer to in detail save to say that the defendant's position was and remains that it did not agree any correction of my Order and that full payment was expected.
The claimant did not pay and has not yet paid the sums due under my Order.
On 1 July 2011, the defendant arrested the vessel "Namasté" in Italy by way of enforcement of my Order. For present purposes, it is sufficient to note that shortly thereafter on or about 7 th July, the claimant paid €224,794.11 into court in Italy and a further sum of €280,000 into an escrow account, both to secure the release of the vessel from arrest. The claimant is arguing that my Order was not enforceable in Italy and that the defendant was not entitled to arrest the vessel. If these arguments (which the claimant is actively pursuing through the Italian court) succeed, the money in court and in escrow will, as I understand, be released to the claimant and my Order will remain wholly unsatisfied.
As to the alleged payment of €87,500, the position is somewhat complicated. The defendant's original pleaded case was that its counterclaim was for a total sum of €230,888.51 i.e. approximately €50,000 less than the amount referred to in paragraph 1(2) of my Order. The breakdown of this figure of €230,888.51 was set out in a schedule attached to the counterclaim. Included in that breakdown was a credit for two payments for €32,890.93 and €32,891.23 totalling, as stated in the schedule, €67,782.16. That total figure was in fact an arithmetical error. The total of the two figures was only €65,782.16 i.e. €2000 less than the amount stated in the schedule.
Initially, the defendant denied that there had been any relevant previous payment and that there was no basis for any variation of my Order. However, the position has been clarified in particular by the fourth witness statement of Mr Tamsen dated 2 nd September 2011. In paragraph 6 of that statement, he accepts that the sum of €65,782.16 was paid to a related company, Tamsen Yachts International Ltd., and that "…this should only have reduced the counterclaim amount to €232,888.51…" That latter figure is the same as set out in the schedule to the defendant's counterclaim that I have referred to after adjustment for the arithmetical error of €2000. Before me, Mr Smith QC on behalf of the defendant accepted that I could and should ignore the arithmetical error of €2000. I therefore put that to one side. He also accepted that but for my Order and ignoring the arithmetical...
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