Judgment Call: 23 April 2012

(1) Enercon GmbH and (2) Wobben Properties GmbH v Enercon (India) Ltd (2012) EWHC 689 (Comm). Commercial Court (QBD (Comm)). Eder J.


(1) Enercon GmbH and (2) Wobben Properties GmbH v Enercon (India) Ltd (2012) EWHC 689 (Comm). Commercial Court (QBD (Comm)). Eder J.

23 March 2012

The English court declined to determine whether the seat of an arbitration would be in England for the purposes of service out of the jurisdiction under CPR r.62.5(1)(c)(ii) when that issue had been raised and remained to be determined in proceedings between the parties in India.

Judgment accordingly

For the claimants

Enercon GmbH & Wobben Properties GmbH

Essex Court Chambers’ David Joseph QC; 3 New Square’s Joe Delaney; Cripps Harries Hall partner Peter Ashford

For the defendant Enercon (India)

20 Essex Street’s Philip Edey QC and Malcolm Jarvis; Enyo Law partner Simon Twigden

Banking and finance

Lomas & Ors (together the joint administrators of Lehman Brothers International (Europe)) v (1) JFB Firth Rixson Inc; (2) FR Acquisitions Corporation (Europe Ltd);

(3) Beig Midco Ltd; (4) KP Germany Zweite GmbH (2012) EWCA Civ 419. Court

of Appeal (Civil Division). Longmore LJ; Tomlinson LJ; Patten LJ.
3 April 2012

The Court of Appeal determined various questions of construction in relation to derivatives in the form of interest rate swaps and forward-freight agreements

that were subject to the ISDA 1992 Master Agreement.

Judgment accordingly

For the appellants Lomas & Ors

South Square’s William Trower QC and Daniel Bayfield; Linklaters partner Simon Firth

For respondents (1) JFB Firth

Rixson Inc and (2) FR Acquisitions Corporation (Europe Ltd)

Brick Court Chambers’ Mark Hapgood QC; One Essex Court’s Henry Forbes Smith; Macfarlanes partner Barry Donnelly

For respondent (3) Beig Midco Ltd

South Square’s Robin Dicker QC and Joanna Perkins; Clifford Chance partner Roger Leese

For respondent(4) KP Germany Zweite GmbH

South Square’s Richard Fisher; Freshfields Bruckhaus Deringer partner Andrew Hart

For intervener International Swaps and Deriviatives Association

South Square’s Antony Zacaroli QC and Jeremy Goldring; Allen & Overy partner Mark Florent



(1) Pegasus Management Holdings SCA; (2) Ivan Harold Bradbury v (1) Ernst & Young

(a firm); (2) Ernst & Young LLP (2012) EWHC 738 (Ch). Chancery Division (Ch D). Mann J.

23 March 2012

The claimant’s assignment of its cause of action to another company did not have the effect that it could no longer be said n to have suffered any loss.

Appeal dismissed

For the appellants (1) Pegasus Management Holdings SCA;

(2) Ivan Harold Bradbury

One Essex Court’s Rhodri Davies QC and Conall Patton; Edwards Wildman partner

Kevin Perry

For the respondents (1) Ernst & Young (a firm); (2) Ernst & Young LLP

Brick Court Chambers’ Simon Salzedo QC; Clyde & Co

senior associate Simon Schooling


Charlotte Church v MGN Ltd (2012) EWHC 693 (QB). Queen’s Bench Division. Tugendhat J.

28 March 2012


The requirement of open justice supported the proposition that applications for a ruling on meaning should be made at a hearing in open court.

Judgment accordingly

For the claimant Church

5RB’s David Sherborne; Lee & Thompsons partner Mike Brookes

For the defendant MGN

5RB’s Mark Warby QC; RPC partner Keith Matthieson



Bailey v R&R Plant (Peterborough) Ltd (2012)

EWCA Civ 410. Court of Appeal (Civil Division). Ward LJ; Dame

Janet Smith; McFarlane LJ.

2 April 2012

The Employment Equality (Age) Regulations 2006 sch.6 para.2(1)(a) required an employer who was informing an employee that it was time for them to retire to tell them that they had a right to make a request not to retire pursuant to sch.6 para.5. It

was important for an employee to be told that the employer was invoking a statutory procedure and not merely writing to terminate the employment.

Appeal dismissed

For the appellant R&R Plant (Peterborough) Ltd

Farrar’s Building’s Changez Khan; Fraser Dawbarns partner Steve McGregor

For the respondent Bailey

Cloisters’ Jason Galbraith-Marten; Leigh Day & Co barrister Michael Newman

Civil procedure

(1) SKA; (2) PLM v (1) CRH; (2) Persons unknown who have threatened to reveal private information about the claimants (2012) EWHC 766 (QB). Queen’s Bench Division. Tugendhat J.

28 March 2012

The claimants were unlikely to succeed at trial in establishing that they had a reasonable expectation of privacy in respect of the bare fact of their relationship and the imminent birth of their twins when faced with the threat of disclosure to the first claimant’s wife and children.

Judgment accordingly

For the claimants (1) SKA and (2) PLM

Matrix Chambers’ Hugh Tomlinson QC; Mishcon de Reya partner Charlotte Harris

For the defendant (1) CRH and (2) Unknown

CRH appeared in person; Unknown was unrepresented


DKH Retail Ltd v Republic (Retail) Ltd (2012) EWHC 877

(Ch). Chancery Division.

Judge Birss QC. 3 April 2012

The court construed Civil Procedure Rule (CPR) r.30.5(3) and determined that, despite its wording, it did not apply to cases falling within section one of CPR pt 63. The current practice whereby applications to transfer cases to and from the Patents County Court were handled by judges of the court from which the case was to be transferred was therefore correct.

Judgment accordingly

For the claimant DKH Retail

8 New Square’s Michael Tappin QC; Fox Williams partner Simon Bennett

For the defendant Republic (Retail)

11 South Square’s Jacqueline Reid; Kempner & Partners senior solicitor Brian Whitehead