Westwood Shipping Lines Inc. and another v Universal Schiffahrtsgesellschaft MBH (Formerly GMB Schiffahrts GMBH and another)
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Flaux |
| Judgment Date | 11 December 2012 |
| Neutral Citation | [2012] EWHC 3837 (Comm) |
| Docket Number | Case No. Folio 1340 of 2012 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 11 December 2012 |
[2012] EWHC 3837 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Rolls Buildings
Mr. Justice Flaux
Case No. Folio 1340 of 2012
Mr. A. Trace QC and Mr. A. Winter (instructed by Thomas Cooper) appeared on behalf of the Claimants.
Mr. T. Hill QC (instructed by Ben Macfarlane & Co) appeared on behalf of the Defendants.
The first claimants in this matter are Westwood Shipping Lines, who were the time charterers of the relevant vessel from a German company, which I will call for convenience, "GMB", GMB in turn having chartered the vessel from her head owners, Kimberley. Those charterparties were entered into at a time when Westwood were using the vessel by way of a potential backup for their trade. It transpired that they did not need her for that, so at a time when the market charterparty rates were very high, they sub-chartered the vessel back to GMB.
What then happened is that the market dropped and, for reasons which I need not go into, GMB purported to terminate the sub-charter and there was then a claim brought by Westwood against GMB both for breach of the sub-charter and also for breach of the main charter between themselves and GMB. That matter was dealt with in London arbitration and the arbitrators made an award in September of last year, following which GMB went into liquidation in Germany. Mr. Bremen, who is the liquidator of GMB, was appointed on a provisional basis by the German court on 25 January of this year and he was then appointed as the liquidator towards the end of July of this year.
The present application is an application by the claimants for leave to be permitted to rely upon the documents in the arbitration, which I will identify in more detail at the end of my judgment, in relation to which the claimants either submit that there has been a waiver because the documents were referred to at a creditors' meeting by Mr. Bremen, alternatively, they are in the public domain because they were referred to in a judgment of Christopher Clarke J dealing with the attempt by the claimants to enforce the arbitration award they obtained for $11 million. Alternatively, the claimants submit that one of the exceptions to confidentiality recognised by the Court of Appeal in Emmett v Michael Wilson [2008] Bus LR 1361 applies.
The claimants wish to use these materials in support of a proposed claim which they have issued in the Commercial Court dated 5 September 2012 and in relation to which they have served draft particulars of claim on Kimberley NSC, which is an entity which is 50 per cent owner of Kimberley, and Mr. Echevarria, who is one of the principals of NSC, together with Reed Smith, who acted as solicitors for GMB in the arbitration, and Mr. O'Neil, who is the relevant partner of Reed Smith. That claim is a very complicated claim, which I do not need to go into the detail of, but in essence it is alleged that at various stages all of those entities and individuals were parties to an unlawful means conspiracy to damage the claimants, and that includes, at the heart of the allegations against Mr. O'Neil and Reed Smith, that they were aware of a backdated agreement which purported to waive any rights that GMB had against Kimberley up the line, thereby precluding any claim under the head charter, in circumstances where there is, on the material that is pleaded, at least an arguable case that that agreement was not in fact made in November 2009, as it purports to be, but at a much later date, and that the backdating of that agreement, which Mr. Anthony Trace QC on behalf of the claimants, submits is a sham, is part and parcel of the conspiracy.
So far as the position today is concerned, until relatively recently, by which I mean yesterday, the position of Mr. Bremen as the liquidator appears to have been that he resisted the making of any order by this court, on the basis that the court had no jurisdiction. Towards the end of last week Mr. Macfarlane, who is Mr. Bremen's London solicitor, made an application to the Commercial Court for this matter to be adjourned from today, and in the material that was put before the court it was said that, amongst other things, Mr. Bremen would be challenging the jurisdiction of the court. Cooke J determined that the matter should be heard today and that any issue of adjournment should be dealt with by me.
As it transpires, Mr. Timothy Hill QC on behalf of Mr. Bremen has made it clear that Mr. Bremen takes no point today on jurisdiction, which is probably just as well for him, since there is no point on jurisdiction to be taken. It is quite clear that the arbitration having come to an end, the only court that has jurisdiction to determine whether materials which are produced in a confidential arbitration should be released, so the party can use them for the purposes of English proceedings is the English court, and specifically the Commercial Court, which is the supervising court under the Arbitration Act 1996. Therefore this application is properly brought before this court under s. 44 of that Act and there always was jurisdiction to serve the liquidator out of the jurisdiction in relation to this claim.
As matters have transpired, Mr. Bremen does not resist an order being made, but essentially what he says is that he should be given more time before any order comes into effect, and therefore before the claimants are in a position to use the materials they seek, so that he can investigate further whether or not to bring his own claim against the officers of GMB, or Reed Smith, or Kimberley.
In order to assess the strength or weakness of that point, it is necessary to look in a little bit more detail at what Mr. Bremen has or has not been doing. He was appointed, as I say, in January of this year, and, as he says in paragraph 7 of his witness statement served very late yesterday, one of the matters that a provisional liquidator is required to do...
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