“..it cannot be right that an allegation of fraud should assist the potential claimant to obtain pre-action disclosure unless his allegations carry both some specificity and some conviction and his request for disclosure is appropriately formulated” and it will obviously be easier for a respondent to resist any pre-action disclosure if he has acted reasonably in exchanging information and documents relevant to the claim. (3) The purpose of the rule is not just for the assistance of a prospective claimant to improve his prospective pleading but also of those who need disclosure as a vital step in deciding whether to litigate at all or as a vital ingredient of the pleading. It is relevant in the context of conditions (a) and (b) to take account of a number of matters including these: (a) whether the injury or wrong in respect of which compensation is claimed is clear and (b) called for an examination of the documents in question and (c) the disclosure requested was narrowly focussed and (d) bore directly on the injury complained of and responsibility for it and (e) the documents would be decisive on the conduct or even the existence of the litigation (4) There is a clear distinction between a personal injury action on the one hand and speculative commercial actions [where the disclosure sought is broad or ill defined]. The more diffuse the allegations and the wider the disclosure sought the more sceptical the court is entitled to be. (5) In order that the court can determine whether condition (c) has been fulfilled, there needs to be clarity as to the issues, which would arise once pleadings in the prospective litigation had been formulated. “The court must be clear what the issues in the litigation are likely to be, that is what case the claimant is likely to be making and what defence is likely to be being run so as to make sure the documents being asked for are ones which adversely affect the case of one side or the other or support the case of one side or the other.”
“They appreciate that the Sellers preference is to work on a clean and outright basis however as the Graig shipping will be buying the vessels under a UK tax scheme, they will require a 30 day subject on the deal to clear UK tax authorities. Provided a deal can be structured then while awaiting for these subjects, documentation, sales agreement etc could proceed and agreed between Buyers/sellers. However they cannot get around this issue. In order to encourage Sellers of their seriousness they have advised that they could pay in the region of US$34.4 /34.5 million less 2% here per ship. This is for an en bloc deal for both Vessels. Frankly we see little risk from the Sellers’ side. The price is a premium over those which German buyers are prepared to pay and deals are going through under UK tonnage tax schemes. Can you please discuss with Sellers and advise whether they could consider this type of scheme. If so, we will ask for a formal offer from the Buyers’ side.”
“On behalf of a company to be nominated by clients of Graig Shipping of Cardiff, Wales, we are authorised to present the following offer firm for reply here 1200 hrs London time31 May 2001 as follows:” and there followed a list of ‘terms’. The Sellers were described as “nominated companies of EF Shipping” and the Buyers as “clients of Graig Shipping or nominee”
“Please note our buyers are very serious and now have the necessary funding in place, but they require time to allow for this complex UK Tax lease transaction to be documented. Very privately, Graig is buying these vessels in conjunction with a LEADING European shipping Bank for placement into their shipping fund. All the cards are in place for this transaction to go through and the Buyers are geared up to do it. … They are now offering the Sellers US$ 500,000 per ship as a premium over your existing negotiations in order to secure their additional subject. We would strongly suggest Sellers postpone [negotiations] with your German Buyers and give Graig the chance to explain their position and offer.”
“As discussed, Graig still remain very seriously interested in the second Vessel. Appreciate your Sellers comments about not wanting to work on subjects but do they realise that this has to do with the UK tax authorities rather than a subject from Buyers board? In order to try to find a solution, please advise how we move forward. As brokers, can you please advise: - If Buyers re-offer without a Buyers approval but still a subject to the tax authorities accepting the deal, will this satisfy the Sellers’ concerns? The permission from the UK tax people could take 10 days, 3 weeks or whatever. Graig are offering on the basis of a 30 days subject because they want to be sure that there is sufficient time to get these approvals and they know that 30 days will be sufficient. If we offered on a shorter subject, say 15 days, with a week-by-week rollover if the authorities haven’t approved, is this workable? Alternatively if Buyers put up a deposit to hold the vsl for 1 month and which they would lose if they did not lift their subjects, would this work? If buyers come down to have a face-to-face meeting with the Sellers and explain their situation, would this help? It is clear that they want to do a deal but we really do not know how we move forward. As far as we know, EF are not negotiating on the 2nd ship and Graig are offering an attractive price – I really do not see what the Sellers have to lose. UK Tax Lease deals are going through and Graig have their finance in place. But Graig need the tax authorities stamp before a deal can be done….”
“Still negotiating. It takes some more days. Presently only one vessel tied up. For the second one for delivery Jan 2002 still there. Presently only your offer has been submitted but other buyers (Germans) showing interest. Once again sellers will move once the first definitely sold.”
“Ref Daedong S-1069 Buyers thank the Sellers very much for conclusion of this deal and they will now do their utmost to make for smooth discussions and delivery. Buyers appreciate the prompt forwarding of the documents yesterday but they would appreciate to have a full recap of terms and conditions agreed first – please kindly send this morning. The Buyers would also need to see a copy of the original new building contract and charterparty – please kindly forward this fastest means possible. After an initial look at the documents forwarded yesterday the Buyers can see that their form will not be acceptable to the UK Tax authorities. As Sellers may appreciate the UK Tax authorities have to have forms which are acceptable to them and they are not willing to deviate. The Buyers appreciate that this is something unknown to Sellers so they will ask their lawyers to draft same in the knowledge that it will be acceptable to the UK Tax authorities. To this end the Buyers are willing to meet with Sellers to iron out these documents at the earliest opportunity. In the meantime the Buyers would like to send their senior representative from their Shanghai office to Daedong. His name is John Coffin and we would appreciate contact details/person at Daedong for him to liase with. We await your Full Recap.”
“We refer to the recent exchange of correspondence with reference to the …..message from Arrow dated 16 August to the Seller’s and a message from the Seller’s dated 16 August, (and following the return of Buyer’s representatives to their office today following a period of travel late last week), on behalf of the Buyer’s we confirm their position is as follows. The Buyer’s are unable to complete the UK Tax Lease documentation. Therefore, the Buyer’s regret that the subject as set out under clause 12-(e) is unable to be fulfilled and the proposed transaction cannot be concluded. As a result of this situation the Buyer’s consider the arrangements between the parties to be terminated and the Seller’s are in a position to negotiate with another third party, if so elected. This message serves to confirm the Buyer’s position regarding the UK Tax Lease documentation and the message forwarded by Arrow dated 16 August should be disregarded.”