Judgment Call: December 3 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 [1952] AC 192, [1952] 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) [2012] EWCA Civ 1397. Mummery LJ; Rimer LJ; Sullivan LJ. 1 November 2012

Appeal dismissed

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.

Roger Stewart
Roger Stewart QC

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

Graham Chapman
Graham Chapman

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). [2012] 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.

Application granted

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. [2012] 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

Application refused

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

Personal injury

Jolly (acting as Widow and Executrix of the Estate of her late husband, Stephen Arthur Jolly) v Harsco Infrastructure Services Ltd. [2012] 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