Verslot Dredging BV (claimant/Appellant) v HDI Gerling Industrie Vesicherung AG
| Jurisdiction | England & Wales |
| Judge | Mr Justice Christopher Clarke |
| Judgment Date | 04 February 2013 |
| Neutral Citation | [2013] EWHC 658 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: 2011/1465 |
| Date | 04 February 2013 |
[2013] EWHC 658 (Comm)
IN THE HIGH COURT OF JUSTICE
COMMERCIAL DIVISION
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Mr Justice Christopher Clarke
Case No: 2011/1465
MR CHIRAG KARIA QC (instructed by Sach Solicitors) appeared on behalf of the Claimant
MR NIGEL JACOBS QC (instructed by Ince) appeared on behalf of the Defendant
(As Approved)
Digital Transcript of Wordwave International Ltd (a Merrill Corporation Company) 8th Floor, 165 Fleet Street, London, EC4A 2DY Tel No: 020 7421 4036 Fax No: 020 7404 1424 Web: Email: (Official Shorthand Writers to the Court)
It is necessary for me to determine whether I should accede to the application made on the part of the claimants that I should vary the order of Beatson J, as he then was, on 11 September 2012 so as to provide that in relation to the first tranche of security ordered, namely £550,000, the security may be provided in the form of an indemnity from QBE Insurance (Europe) Limited. The history of the security applications and the orders made is well known to the parties and I do not propose to set it out.
The first question is whether the claimants should now be allowed to make an application for a variation of this order. The order provided for a general liberty to apply and, in particular, that the claimants should have liberty to apply to the court in relation to any ATE insurance which they might obtain. Mr Nigel Jacobs QC for the defendant insurers submits that either as a matter of principle or, in any event, as a matter of discretion, it should not be open to the claimants to make the application which they make. There has, he submits, been no sufficient change of circumstance to allow them to seek to vary an order which they never appealed; and, he further submits, the general liberty to apply is inapplicable because, in order to take advantage of that, it will be necessary to show that there had been a significant change of circumstances. The particular liberty to apply is not available to the claimants either.
I have come to the conclusion that this is a matter that falls within the particular liberty to apply. The claimants indicated before Beatson J that they might secure after the event insurance, in which case, they suggested, all questions of security would be resolved because the ATE insurance could stand in the place of security and would be something against which, in the event the claimants failed, the defendants would be able to secure a recovery of costs. It is true that the claimants do not now put forward the ATE insurance which they have obtained from QBE Insurance (Europe) Limited as the security. What they proffer as security is a deed of indemnity in favour of the defendants which that company has executed.
It seems to me that the question as to whether or not that deed is acceptable is a matter which arises in relation to the ATE insurance which the claimants have obtained. The claimants can, with some force, submit that that which they propose to offer, namely the deed, is something better than the insurance itself which they previously contemplated offering, since any insurance might be subject to avoidance, misrepresentation or nondisclosure or be such that, in the end, there could be no recovery in respect of it and would not in any event constitute a direct contract with the defendants; whereas the deed that is offered is not subject to those defects. Whether those points are good or bad, it seems to me that the contention that the security should now be permitted to take the form of a deed of indemnity is, as I say, something that arises in relation to ATE insurance which the claimants have obtained.
The next question, therefore, is whether or not the claimants should be allowed to proffer the deed of indemnity which they have obtained from QBE Insurance in substitution for the first-class London...
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