Judgment Call: December 3 2012
3 December 2012
When called on to interpret an exclusion or indemnity clause the court’s function was to interpret the contract in the context in which it was made. The principles derived from Canada Steamship Lines Ltd v King, the  AC 192,  CLY 610 should be regarded as no more than guidelines.
Mir Steel UK Ltd v (1) Christopher Morris; (2) Mark Fry; (3) David Hudson; (4) Alphasteel Ltd (in liquidation)  EWCA Civ 1397. Mummery LJ; Rimer LJ; Sullivan LJ. 1 November 2012
For the appellant Mir Steel UK Ltd
2 Temple Gardens’ Paul Downes QC; 2 Temple Gardens’ Emily Saunderson; Clyde & Co associate Tamsyn Pickford
For the respondents (1) Morris & Ors
South Square’s Lloyd Tamlyn; Lipman Karas principal Jeremy Scott
Capita Alternative Fund Services (Guernsey Ltd) (formerly Royal & SunAlliance Trust (Channel Islands) Ltd) (2) Matrix-Securities Ltd v Drivers Jonas (A Firm). Gross LJ; Lloyd LJ; Moore-Bick LJ. 8 November 2012
While a judge had to have a reasoned or rational basis for a decision, on issues of quantum as on other issues, he was not confined to figures contended for by the experts. Indeed, the figure arrived at by a judge in a valuation case may well lie between the figures proposed by the experts.
Moreover, having regard to the nature of quantum disputes, a judge would often find himself having to do the best he could.
Appeal allowed in part
For the appellant Drivers Jonas (A Firm)
4 New Square’s Roger Stewart QC; 4 New Square’s Sian Mirchandani; Berrymans Lace Mawer associate Andrew Layton-Morris
For the respondent Capita Alternative Fund Services (Guernsey Ltd) (2) Matrix-Securities
4 New Squasre’s Sue Carr QC; 4 New Square’s Graham Chapman; 4 New Square’s Lucy Colter; Enyo Law partner Anna Maxwell
Turville Heath Inc v Chartis Insurance UK Ltd (formerly AIG UK Ltd).  EWHC 3019 (TCC). Edwards-Stuart J. 1 November 2012
A clause that provided for the parties to appoint independent appraisers who would submit any differences to an arbitrator and that a decision agreed to by the two appraisers or by an appraiser and the arbitrator would be binding was not an arbitration clause within the meaning of the Arbitration Act 1996.
For the claimant Turville Heath Inc
Atkin Chambers’ Peter Fraser QC; Russell-Cooke partner Francesca Kaye
For the defendant Chartis Insurance UK
Keating Chambers’ Adam Constable QC; Kennedys partner Tony Hannon
Fairstar Heavy Transport NV v (1) Philip Adkins; (2) Claranet Ltd.  EWHC 2952 (TCC). Edwards-Stuart J. 1 November 2012
There was no binding authority to the effect that there was a proprietary right in information, nor did logical or practical considerations suggest that the content of an email, being information, was a form of property
For the claimant Fairstar Heavy Transport NV
Henderson Chambers’ Peter Susman QC; Ince & Co partner Nicholas Gibbons
For the defendant (1) Philip Adkins
4-5 Gray’s Inn Richard Spearman QC; Schillings partner John Kelly
Jolly (acting as Widow and Executrix of the Estate of her late husband, Stephen Arthur Jolly) v Harsco Infrastructure Services Ltd.  EWHC 3086 (QB). 2012 WL 4867193. Cranston J. 5 November 2012
Where a defendant accepted the claimant’s part 36 offer outside the 21-day period specified in CPR r.36.2(2)(c), but before its withdrawal, the applicable regime was r.36.10 and r.36.11. No order for costs could be made under r.36.14 because the issue of liability had been compromised by the late acceptance of the Part 36 offer and judgment had not been entered.
Judgment for defendant
For the claimant Jolly
12 King’s Bench Walk’s Harry Steinberg; Field Fisher Waterhouse partner Andrew Morgan
For the defendant Harsco
Ropewalk Chambers’ Philip Turton; Plexus Law senior partner Damon Burt