Judgment Call: 11 June 2012

Where an insurance policy provided for Brazilian law and jurisdiction but contained an arbitration clause providing that the seat of arbitration was in London, there was no implied choice of Brazilian law to govern the arbitration agreement and its proper law was English law because that was the law with which it had its closest and most real connection.

Sulamerica Cia Nacional de Seguros SA v Enesa Engenharia SA (2012) EWCA Civ 638. Lord Neuberger MR; Moore-Bick LJ; Hallett LJ. 16 May 2012

Appeal dismissed

For the appellant Enesa

One Essex Court’s David Wolfson QC and Nehali Shah; White & Case associate Edward Attenborough

For the respondent Sulamerica

Fountain Court’s Michael Crane QC; Essex Court Chambers’ Stephen Houseman and Damien Walker; Clyde & Co associate Richard Butt



Telchadder v Wickland (Holdings) Ltd (2012) EWCA Civ 635. Mummery LJ; Black LJ; Dame Janet Smith. 16 May 2012

A judge was correct in holding that it was reasonable to terminate a mobile home owner’s licence to occupy his mobile home. A letter sent to the owner, who had a mild learning disability, asking him to desist from acts of antisocial behaviour and warning him that his occupation was at risk if he failed to comply was a notice that met the requirements of the Mobile Homes Act 1983, Sch.1 Pt I para.4(a).

Appeal dismissed

For the appellant Telchadder

Doughty Street Chambers’ Lindsay Johnson; Fisher Jones Greenwood solicitor Glenn Craig

For the respondent Wickland

East Anglian Chambers’ Stephen Goodfellow; Asher Prior Bates partner Michael Hicks



Procter & Gamble Co v Svenska Cellulosa Aktiebolaget SCA (2012) EWHC 1257 (Ch). Hildyard J.

14 May 2012


Early retirement benefits did not fall to be treated as such after normal retirement age. Pension instalments paid after normal retirement age fell to be characterised as old-age benefits within the Transfer of Undertakings (Protection of Employment) Regulations 2006, reg.10, notwithstanding that the pension had first come into payment before normal retirement age.

Judgment accordingly

For the claimant Procter & Gamble

Wilberforce Chambers’ Christopher Nugee QC; Jones Day partner Stephen Brown

For the Defendant Svenska Cellulosa Aktiebolaget SCA

Maitland Chambers’ James Clifford; 11 KBW’s Joseph Barrett; Reynolds Porter Chamberlain associate Matthew Dando


Deutsche Bank AG v Total Global Steel Ltd (2012) EWHC 1201 (Comm). Andrew Smith J.

11 May 2012

A company was in breach of contract by providing certified emissions reductions to a buyer through the European Union Emissions Trading System because the certified emissions reductions had previously been surrendered and the European Commission, as regulator of the trading system, had introduced a check that prevented surrendered certified emission reductions from being used for compliance purposes.

Judgment for claimant

For the claimant Deutsche Bank

One Essex Court’s Orlando Gledhill; Norton Rose senior associate Ben Morgan

For the defendant Total Global Steel

New Square Chambers’ Claire Staddon; Milbank partner Dimitri Iesini



MK Airlines Ltd (in liquidation), Re (Ch D). Unreported. N Strauss QC. 16 May 2012

The principle set out in Lundy Granite Co, Re (1870-71) LR 6 Ch. App. 462, which enabled rent due during a liquidation period to be treated as an expense of the liquidation where the liquidator retained the relevant property for the benefit of the liquidation and continued to use it, applied to provisional liquidations.

Judgment accordingly

For the applicant’s joint administrators

4 Stone Buildings’ Hermann Boeddinghaus; Eversheds partner Andrew Jordan

For the respondent’s joint liquidators

4 Stone Buildings’ Andrew Clutterbuck; Rosenblatt managing partner Tania Macleod


Civil procedure

JSC BTA Bank v Ablyazov (2012) EWHC 1252 (Comm). Teare J.

15 May 2012


A bank’s request for a firm of solicitors to disclose the contact details of its client, who was in an unknown location following a finding of contempt of court against him, was refused. The court had jurisdiction under the Senior Courts Act 1981, s.37 to make such an order, but it was not “just and convenient” to do so in the instant case.

While there was a public interest in enforcing the contempt of court order, the contact details were connected to the receipt of legal advice and were therefore protected from disclosure.

Application refused


For the applicant JSC BTA Bank

New Square Chambers’ Stephen Smith QC and Tim Akkouh; Hogan Lovells partner Chris Hardman

For the respondent Addleshaw Goddard

Fountain Court Chambers’ Timothy Dutton QC; Addleshaw Goddard partner Richard Leedham



Bates van Winkelhof v Clyde& Co. Unreported. EAT. Judge Peter Clark. 26 April 2012


An equity partner within an LLP who was guaranteed a certain level of remuneration from profit fell within the definition of ‘worker’ in the Employment Rights Act 1996, s.230(3)(b). There was less force in an argument that an equity partner who was wholly dependent on profit share for remuneration met the ‘worker’ definition.

Appeal allowed; cross-appeal dismissed

For the appellant Bates van Winkelhof

Essex Court Chambers’ David Craig; Mishcon de Reya associate Jennifer Millins

For the respondent Clyde & Co

Littleton Chambers’ Christopher Quinn; Clyde & Co partner Stephen Blunt