Magellan Spirit ApS v Vitol SA "Magellan Spirit" [2016] EWHC 454 (Comm)

Case No CL-2015-000903[2016] EWHC 454 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/03/2016
Before
MR JUSTICE LEGGATT
Between
MAGELLAN SPIRIT ApSClaimantVITOL SADefendant“Magellan Spirit”Defendant
Timothy Hill QC and Richard Greenberg (instructed by Ince & Co LLP) for ClaimantAndrew W Baker QC (instructed by Stephenson Harwood LLP) for DefendantHearing Hearing dates: 16 + 17 February 2016
Judgment

Introduction

[1]The claimant in this case (whom I shall call the “Owner”) is the owner of the vessel “Magellan Spirit”. The defendant (“VSA”) is a Swiss trading company which is part of the Vitol Group. The Owner has applied for an anti-suit injunction to restrain VSA from suing the Owner in Nigeria on the ground that the parties have agreed to refer the dispute to the jurisdiction of the High Court in London. VSA denies that there is such an agreement and has cross-applied for a declaration that the English court has no jurisdiction to try the Owner’s claim in this action.

The background

[2]The background, briefly summarised, is that VSA entered into a long-term contract to supply liquefied natural gas (“LNG”) to the Korea Midland Power Company (“KOMIPO”). Under that contract delivery was ex-ship, South Korea. To perform the contract VSA therefore needed to purchase LNG cargoes and arrange for their carriage to South Korea. To perform such carriage the “Magellan Spirit” was chartered under a three year time charter dated 1 July 2012. The charterer was named as Mansel Limited, a Bermudan company in the Vitol Group. The time charter was expressly governed by English law and provided for disputes arising under it to be referred to the jurisdiction of the High Court in London.[3]The vessel was delivered under the charter on 19 September 2013. Seven voyages were performed without mishap. For the eighth voyage the vessel loaded a cargo of LNG at Bonny in Nigeria. On 5 January 2015, when leaving port, the vessel became grounded on a mud bank. She was refloated on 22 January and was ready to continue her voyage on 28 January 2015. However, VSA has alleged that, because of the delay, the cargo could not be used to fulfil VSA’s obligations under its contract with KOMIPO and was sold at a substantial loss. The charter subsequently came to a premature end when Mansel tendered notice of redelivery of the vessel on 28 March 2015, asserting a contractual right of termination based on the length of time for which the vessel had allegedly been off hire. The Owner disputed the validity of the termination and treated the redelivery of the vessel as a repudiation of the charter which it accepted as bringing the charter to an end.[4]On 28 May 2015 VSA obtained an order from a court in Portugal for the arrest of the vessel to obtain security for a prospective claim against the Owner arising out of the grounding of the vessel at Bonny. Such security was provided by the vessel’s P & I Club on 29 May 2015. At that time the Owner was informed that VSA had issued proceedings against it in Nigeria. VSA was subsequently granted leave by the Nigerian court to serve those proceedings out of the jurisdiction on the Owner in Denmark, and service was effected on 2 July 2015. VSA’s claim in the Nigerian proceedings is based on a contract of carriage between VSA and the Owner said to be evidenced by the bill of lading issued at Bonny on 5 January 2015. In its statement of claim VSA claims that the Owner is liable for the consequences of the grounding under the Hamburg Rules, which apply in Nigeria, and that it has suffered loss and damage amounting to some US$15.7m. It is this action in Nigeria which the Owner is seeking to stop VSA from pursuing by applying to this court for an injunction.[5]On 14 July 2015 the Owner commenced proceedings in this court against Mansel under the time charter. In those proceedings the Owner is claiming damages for the alleged repudiation of the charter together with unpaid hire. The total sum claimed is around US$55m.[6]Finally, the Owner commenced this action on 21 December 2015 and on the same day issued the application for an interim injunction which is now before the court.

The law

[7]There is no disagreement about the legal principles which govern the Owner’s application for an anti-suit injunction and VSA’s challenge to the court’s jurisdiction. Taking the latter first, under the Lugano Convention VSA must be sued in Switzerland, where it is domiciled, unless the parties have made an agreement conferring jurisdiction on the English Court which satisfies the requirements of Article 23 of the Convention. Article 23(1) provides:
“If the parties, one or more of whom is domiciled in a member state, have agreed that a court or the courts of a member state are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise.

(a) in writing or evidenced in writing; …”

The meaning of Article 23 is determined by European law, and not by domestic English law: Powell Duffryn plc v Wolfgang Petereit (Case C-214/89) [1992] ECR I-1745. In interpreting Article 23 (and the equivalent provisions of the Brussels Convention and Regulation) the Court of Justice has emphasised that the policy of the legislation requires the existence of the requisite agreement between the parties to be “clearly and precisely demonstrated”: see e.g. Coreck Maritime GmbH v Handelsveem BV (Case C-387/98) [2000] ECR I-9337, 9371, para 13.[8]Where the issue of jurisdiction arises, as it invariably does, at the outset of proceedings, it is desirable to resolve the issue speedily and without the procedural complication, cost and delay that would be involved in a trial. As stated by Lord Rodger, giving the judgment of the Privy Council in Bols Distilleries BV v Superior Yacht Services Ltd [2006] UKPC 45, [2007] 1 WLR 12, para 23, the test to be applied where Article 23 of the Lugano Convention is relied on to establish jurisdiction in England is the following:
“the claimants must show that they have a much better argument than the defendants that, on the material available at present, the requirements of form in Article 23(1) are met and that it can be established, clearly and precisely, that the clause conferring jurisdiction on the court was the subject of consensus between the parties.”
The phrase “a much better argument” has its origin in the judgment of Waller LJ in Canada Trust Co v Stolzenberg (No 2) [1998] 1 WLR 547 at 555 (although the Canada Trust case did not involve a jurisdiction agreement). The inclusion of the word “much” has been subjected to trenchant criticism by Professor Adrian Briggs, who commented in a recent published lecture:
“One only has to ask ‘how much better is much better?’ to see the point. It surely cannot be right that a judge can be expected to say that although the claimant appears to have the better of the argument on jurisdiction, because he does not have ‘much the better of the argument’ the English court will not exercise jurisdiction in a case in which, as far as the judge can presently see, the English court does have jurisdiction and the courts of another Member State do not.”
A Briggs, “The Hidden Depths of the Law of Jurisdiction”, COMBAR Lecture 2015.[9]In JSC Aeroflot-Russian Airlines v Berezovsky [2013] EWCA Civ 784, [2013] 2 Lloyd’s Rep 242, para 50, Aikens LJ (with whom the other members of the Court of Appeal agreed) observed that “[t]oo much emphasis on the word ‘much’ would simply lead to the error of imposing too high a standard of proof on the party wishing to establish the Article 23 jurisdiction” and that “[t]he only point of the word is to emphasise the fact that if the two arguments are equal, then the party asserting the Article 23 jurisdiction will not succeed”. Since the latter point is already achieved by the word ‘better’, it follows that the word ‘much’ adds nothing to the formulation of the test, whilst giving rise to the risk of error identified by Aikens LJ and Professor Briggs. I would therefore respectfully follow the recommendation of the Court of Appeal in the Aeroflot case that this qualifier should be “allowed to slip from view”. [2013] EWCA Civ 784, para 50, per Aikens LJ.[10]If the English court has jurisdiction in this case, the next question is whether there is a contract between VSA and the Owner of which VSA is in breach in suing the Owner in Nigeria. Although this is an interim application, it is common ground that it will in practice be decisive of the action and that in these circumstances the court should approach the matter, not by assessing the balance of convenience if there is a serious issue to be tried, but by judging as best it can on the material available which party has the better case on the merits. In other words, the standard of proof to be applied is similar to that applicable to the question of Article 23 jurisdiction.[11]If the court concludes that the applicant for an anti-suit injunction (in this case the Owner) has the better case, then – applying the principles established in The “Angelic Grace” [1995] 1 Lloyd’s Rep 87 and subsequent cases – the court will normally grant an injunction; but, as always where a party seeks equitable relief, the remedy is discretionary. A relevant consideration in exercising the court’s discretion is whether the applicant has delayed unduly in seeking an injunction. VSA argues that there has been such delay here.

Grounds of the Owner’s application

[12]The Owner’s case that VSA has agreed that the dispute which is the subject of the Nigerian proceedings should be decided by the English High Court has been put on three grounds: i) Mansel entered into the charter as agent of VSA with the result that VSA is bound by the terms of the charter, including the English law and jurisdiction clause. ii) Alternatively, the bill of lading issued at Bonny on 5 January 2015 should be rectified to incorporate the terms and conditions of the charter, including the English law and jurisdiction clause. iii) In the further alternative, there is a free-standing jurisdiction agreement between the Owner and VSA under which the Owner has agreed to refer the dispute to the exclusive jurisdiction of the English court.[13]The Owner relies on these grounds both to show that there is an agreement conferring jurisdiction on this court which satisfies Article 23 of the Lugano Convention and to establish the existence of a contract under which VSA has agreed not to sue the Owner in any forum other than England. I will consider these questions together as there is on any view a substantial overlap between them.

Ground 1: Agency

[14]The Owner’s primary case is that Mansel entered into the charter as agent of VSA with the result that VSA is bound by the terms of the charter. Clause 46 of the charter provides that “[a]ll disputes arising out of this charter shall be referred to the exclusive jurisdiction of the High Court in London.” There is nothing in the terms of the charter to suggest that Mansel was entering into it as an agent of VSA or as an agent at all. The Owner contends, however, that VSA was an undisclosed principal. On behalf of VSA, Mr Baker QC did not dispute that, if this contention is correct, the charter records an agreement between the Owner and VSA which satisfies the requirements of Article 23 and thus confers jurisdiction on this court. It was also common ground that, if VSA is bound by the charter, the carriage of the cargo shipped at Bonny on 5 January 2015 was solely governed by the charter, and the bill of lading on which VSA is relying in the Nigerian proceedings was merely a receipt for the goods. It would therefore be a breach of the contract of carriage for VSA to bring its claim against the Owner in any forum other than the English High Court.

The undisclosed principal doctrine

[15]The proposition that a party to a contract should have rights against and obligations towards a principal of the other contracting party whose existence was not disclosed when the contract was made is out of harmony with the objective approach of modern English commercial law. It runs contrary to the salutary principle that “civil obligations are not to be created by or founded upon undisclosed intentions”: Keighley Maxsted & Co v Durant [1901] AC 240, 247, per Lord Macnaghten. Nevertheless, the doctrine is firmly established. As long ago as 1872, Blackburn J said in Armstrong v Stokes (1871-72) LR 7 QB 598, 604, that it had often been doubted whether it was originally right to hold that an undisclosed principal was liable to be sued on the contract made by an agent on his behalf, but that “doubts of this kind come now too late”. The applicable legal principles have been succinctly summarised by Lord Lloyd giving the judgment of the Privy Council in Siu Yin Kwan v Eastern Insurance Co Ltd [1994] 2 AC 199 at 207:
“(1) An undisclosed principal may sue and be sued on a contract made by an agent on his behalf, acting within the scope of his actual authority. (2) In entering into the contract, the agent must intend to act on the principal's behalf. (3) The agent of an undisclosed principal may also sue and be sued on the contract. (4) Any defence which the third party may have against the agent is available against his principal. (5) The terms of the contract may, expressly or by implication, exclude the principal's right to sue, and his liability to be sued. The contract itself, or the circumstances surrounding the contract, may show that the agent is the true and only principal.”

The agent’s intention

[16]In relation to the second of these propositions, Mr Baker for VSA submitted that the test of whether the agent intended to enter into the contract on the principal’s behalf is subjective. On that basis he submitted that there is a very short answer to the Owner’s contention that VSA was an undisclosed principal. Mr David Fransen, who signed the charter for Mansel, has made a witness statement in which he says that he intended to sign the charter on behalf of Mansel as principal and not as an agent for VSA. Mr Baker submitted that, unless this evidence is to be disbelieved, it is sufficient to defeat the Owner’s case on this issue and the court need go no further.[17]I do not accept, however, that Mr Fransen’s subjective state of mind is relevant for this purpose, let alone decisive. It is one thing to infringe the objective principle – as the doctrine of undisclosed principal undoubtedly does – by allowing the existence of contractual rights and obligations to depend on an intention which is not communicated to the other contracting party. But it would go a step further, and would give rise to wholly unacceptable uncertainty, if such rights and obligations were to depend on a purely private intention of the supposed agent which was not even communicated to the supposed principal before the contract was made. As Lord Shand observed in Keighley Maxsted & Co v Durant [1901] AC 240, 256:
“There is a wide difference between an agency existing at the date of the contract which is susceptible of proof ... and an intention locked up in the mind of the contractor, which he may either abandon or act on at his own pleasure, and the ascertainment of which involves an inquiry into the state of his mind at the date of the contract.”
In the same landmark case Lord Macnaghten (at 247) quoted from the year books of Edward IV (17 Edw 4, 2, pl 2) the observation of Brian CJ in 1477 that “the thought of a man is not triable, for the Devil has not knowledge of man's thoughts” In the original: “l'entent d'un home ne serr trie, car le Diable n'ad conusance de l'entent de home.” – a maxim which Lord Macnaghten endorsed as sound – “at least, in its legal aspect”.[18]The question whether an undisclosed agency relationship was created must depend in principle, as I see it, not on the state of mind of the supposed agent at the time of contracting, but on whether the supposed agent had communicated to the supposed principal an intention to contract on its behalf. The principle is confirmed by further binding House of Lords authority. In Garnac Grain Co Inc v HMF Faure & Fairclough Ltd [1968] AC 1130 at 1137, Lord Pearson (with whose speech the other law lords agreed) stated the principle as follows:
“The relationship of principal and agent can only be established by the consent of the principal and the agent. They will be held to have consented if they have agreed to what amounts in law to such a relationship, even if they do not recognise it themselves and even if they have professed to disclaim it … But the consent must have been given by each of them, either expressly or by implication from their words and conduct.”
See also Yukong Lines Ltd v Rendsburg Investments Corp, The “Rialto” [1998] 1 WLR 294, 303. This statement of the law makes it clear that if on an objective analysis of their words and conduct Mansel and VSA consented to the creation of a relationship of agent and principal between them, it matters not that Mr Fransen (or anyone else involved in the transaction) did not subjectively intend or perceive this to be the case.[19]In support of his submission that the test of intention is subjective, Mr Baker referred to Bowstead & Reynolds on Agency (20th Edn, 2014) para 8-072, footnote 399, where six cases are cited. Having looked at those cases, only two of them appear to suggest that the agent’s subjective intention is relevant. The first is National Oilwell (UK) Ltd v Davy Offshore Ltd [1993] 2 Lloyd’s Rep 582, a case involving an unidentified rather than an undisclosed principal. In that case a broker concluded a contract of insurance purportedly as agent for a class of persons who included sub-contractors of the principal assured. The claimant was such a sub-contractor but had not authorised the broker or principal assured to enter into the insurance contract on its behalf. Colman J interpreted the effect of earlier authorities as being that in these circumstances the claimant could nevertheless ratify the contract provided that at the time it was made the principal assured or other contracting party had subjectively intended to contract on the claimant’s behalf (see 596-7). I have serious doubts as to whether this proposition is correct. It was not necessary to the court’s decision, as Colman J found that there was no such intention and that, even if there had been, a term of the insurance contract would in any event have precluded the claim. On any view, however, the proposition expressed obiter in this case is not applicable to undisclosed principals, as it was specifically held by the House of Lords in Keighley Maxsted & Co v Durant, supra, that an undisclosed principal cannot ratify a contract made without authority even if the person who entered into the contract subjectively intended to act on the supposed principal’s behalf.[20]The only other case cited which suggests that subjective intention is relevant is Lai Wo Heung v Cheung Kong Fur Pty Co Ltd [2004] 1 HKLRD 959, a first instance decision from Hong Kong, also involving an unnamed rather than undisclosed principal. The court’s approach is based on the National Oilwell case and I do not find it persuasive. In neither of these cases nor in the passage in Bowstead on Agency on which Mr Baker relied is reference made to the statement of principle in the Garnac Grain case which seems to me to be conclusive of the test to be applied.

Was an agency relationship excluded?

[21]Mr Baker also argued that VSA has another short answer to the Owner’s case on agency based upon the last proposition in the summary of the law quoted earlier from the judgment of the Privy Council Siu Yin Kwan: namely, that the contract itself, or the circumstances surrounding it, may show that the agent is the true and only principal and thus exclude the undisclosed principal’s right to sue and liability to be sued. In the light of the decision of the House of Lords in Drughorn Ltd v Rederiaktiebolaget Transatlantic [1919] AC 203, Mr Baker accepted that the description of Mansel in the charter as the “charterer” of the vessel is not sufficient to exclude the possibility that Mansel contracted on behalf of an undisclosed principal. He nevertheless submitted that this possibility was excluded by the way in which Mansel came to be designated as the charterer in the negotiations for the contract. To assess this argument (together with the third ground of the Owner’s claim, which I will come to later) it is therefore necessary to look at what was said in those negotiations.

The pre-contractual negotiations

[22]The negotiations were conducted by Mr David Thomas on behalf of the Vitol Group and Mr Mark Kremin on behalf of the Teekay group of companies which included the Owner. Mr Kremin contacted Mr Thomas in April 2012 after hearing about the long term supply agreement which VSA had concluded with KOMIPO. The two men arranged to meet at a conference in Kuala Lumpur in the first week of June 2012. On that occasion they discussed a potential charter to meet VSA’s shipping requirements for the KOMIPO contract. Mr Kremin proposed the “Magellan Spirit” as a potentially suitable vessel. The meeting was followed by some email correspondence in which Mr Thomas indicated that the Vitol interest was serious and requested a term sheet.[23]In response to this request, Mr Kremin sent to Mr Thomas on 13 June 2012 draft Heads of Agreement for the charter of the “Magellan Spirit”. In this document the charterer was designated as VSA. Opposite the head “Law”, the draft Heads of Agreement stated:
“The construction, validity and performance of this Term Sheet and the Charter Party shall be governed by English law. All disputes arising under this Term Sheet or the Charter shall be referred to the exclusive jurisdiction of the High Court in London.”
[24]Mr Thomas forwarded the draft Heads of Agreement to an in-house lawyer in the Vitol Group who advised him that the charterer should be Mansel. An amended version of the draft Heads of Agreement was prepared with tracked changes. One of these changes was, where the name of the charterer was shown, to delete VSA and insert Mansel. Mr Thomas sent the revised draft to Mr Kremin on 15 June 2012 explaining this proposed change on the basis that “long term time charters are with Mansel Ltd – as per oil tankers”. Mr Kremin’s response on this point was: “Accepted Mansel”. The parties signed Heads of Agreement dated 18 June 2012 which accordingly named the charterer as Mansel. A preamble in the Heads of Agreement described that document as a “proposal” which was not intended to be binding on either party “unless and until the parties execute and deliver definitive agreements”. There were no further relevant communications before the charter was executed.[25]Mr Baker for VSA sought to derive from this history an express agreement that VSA was not contracting with the Owner. I do not accept that such an agreement can be found. The email correspondence certainly evidences an agreement that the charterer would be Mansel and not VSA. Once it is accepted, however, as it was by Mr Baker, that describing a party as the charterer is consistent with that party entering into the contract on behalf of an undisclosed principal, then it follows that agreeing that the charterer would be Mansel rather than VSA did not exclude the possibility that Mansel might be contracting on behalf of VSA as such an undisclosed principal. I do not accept the submission that such an arrangement would be absurd. It is possible to envisage perfectly good commercial reasons – for example, a desire to raise Mansel’s profile and standing in the market – for requesting that Mansel be named as the charterer even if the intention within the Vitol Group was that VSA should also have the right to sue and liability to be sued under the contract. Nor did Mr Kremin say anything to suggest that the Owner would not consent to such an arrangement. To the contrary, the history of the negotiations confirms that the Owner would have been happy to have a contractual relationship with VSA.[26]It is true that nothing was said to suggest to the Owner that Mansel was contracting as agent of VSA. But it is part of the very definition of an undisclosed principal (as opposed to an unidentified or unnamed principal) that the other party is not informed of its role in the transaction. I see no material difference in this regard between a situation in which the existence of the principal is hidden throughout and one where a person initially proposed as the named contracting party is subsequently replaced by someone else but remains involved in the transaction as a principal behind the scenes.[27]Mr Baker sought to draw support for his argument from Yukong Lines Ltd v Rendsburg Investments Corp, The “Rialto” [1998] 1 WLR 294. In that case the claimant owners chartered their vessel under a time charter which named the charterer as Rendsburg, a company controlled by Mr Yamvrias and ultimately owned by him and his family. The charterparty was signed by Mr Yamvrias as director of a broking company, Marcan, acting on behalf of Rendsburg. Toulson J rejected an argument that Mr Yamvrias entered into the charterparty as an undisclosed principal of Rendsburg. In doing so the judge said that the capacity in which Mr Yamvrias signed the charterparty was inconsistent with an intention that Mr Yamvrias, and not Rendsburg, should be the principal. I am not convinced that there was such an inconsistency. I see no reason in principle why a person cannot be involved in the making of a contract in two capacities: if, for example, the charterparty had stated that the broking company, Marcan, was acting on behalf of Mr Yamvrias, I do not see that it would have been inconsistent with such an agency relationship for Mr Yamvrias to have signed the contract as director of Marcan; and the same would apply equally to an undisclosed agency relationship. But the facts of that case are in any event distinguishable from the present case, as it is not suggested that VSA entered into the time charter with the Owner in any capacity other than that of undisclosed principal.[28]A further, and in my view surer, basis for the decision in The “Rialto” was that the ordinary intention of someone who conducts trading activities through the vehicle of a one-man company is precisely to avoid incurring personal liability under contracts made by the company; and it would be inconsistent with that intention for the company to contract as agent for its beneficial owner. That point can, I think, be generalised in this way. Where a contract is made by or on behalf of a named legal person and there is nothing in the terms of the contract or surrounding circumstances to indicate to the other contracting party that the named person is making the contract as an agent, then the presumption must be that the named person is contracting as a principal. That presumption is capable of being displaced; but in order to displace it, convincing proof is needed that the named party was – contrary to appearances – contracting on behalf of an undisclosed principal.

Implication from conduct

[29]The most obvious method of proof would be to point to an express agreement establishing an agency relationship. There was in the present case, however, no relevant written agreement between Mansel and VSA and there is no evidence of any relevant oral agreement. In these circumstances the argument that an agency relationship was created has to be based on conduct. In principle what must be shown is conduct from which(i) a reasonable person in the position of Mansel would have understood that it was authorised to enter into the charter as agent of VSA and(ii) a reasonable person in the position of VSA would have understood that Mansel was agreeing to do so. As in any case where an agreement is sought to be implied from conduct, it is not enough to point to conduct which was consistent with an agreement or mutual intention that Mansel would contract as agent of VSA. It is necessary to identify conduct which was only consistent with such an agreement or mutual intention and inconsistent with any other intended relationship between the two Vitol Group companies. Put another way, it must be fatal to the implication of an agency relationship if the parties would have or might have acted as they did in the absence of such a relationship: see, by analogy, cases such as The “Aramis” [1989] 1 Lloyd’s Rep 213 and The “Gudermes” [1993] 1 Lloyd’s Rep 311.

Analysis of the evidence

[30]The evidence adduced by VSA shows the following: i) Mansel was established in 1995 with the intention that time chartering and ship management operations should be located in a separate entity within the Vitol Group and ring-fenced from the Group’s trading operations. ii) Initially Mansel only entered into time charters for oil tankers. Its business was then expanded to include other vessels. The “Magellan Spirit” was the first LNG vessel time chartered in the name of Mansel. iii) Where a vessel is time chartered by Mansel with the aim of earning income from sub-chartering the vessel to third parties, all profit and loss from operating the vessel is retained by Mansel. Where, however, Mansel enters into a time charter solely in order to meet the shipping requirements of another Vitol Group company, the vessel is operated by Mansel “at cost”. This means that Mansel is reimbursed by that other Group company for all costs incurred in operating the vessel, but does not receive any other payment and therefore makes no profit or loss from chartering the vessel. iv) Between 2009 and the beginning of February 2016, Mansel entered into 304 time charters “at cost”. In 195 of these cases the company for whose use the vessel was chartered was VSA and in the remaining cases it was another trading company within the Vitol Group. Most of the vessels concerned have been oil tankers. v) Although for voyage charters the charterer is generally VSA (or other relevant trading company within the Vitol Group), the policy of the Vitol Group is that time charters of more than three months duration should be entered into by Mansel, provided the shipowner is willing to contract with Mansel (which is not always the case). That policy is reflected in the email dated 15 June 2012 from Mr Thomas to Mr Kremin, quoted at paragraph 24 above.[31]It is clear from the evidence that the purpose of chartering the “Magellan Spirit” was solely to carry cargoes bought and sold by VSA. There was no intention of trying to make a profit by re-letting the vessel to any entity outside the Vitol Group. In these circumstances, against the background of the Vitol Group practices referred to above, it went without saying that the vessel would be operated “at cost” such that Mansel would be reimbursed by VSA for all costs and liabilities incurred in operating the vessel.[32]The evidence confirms that this is indeed how the vessel was operated. In particular: i) The vessel was recorded in the Vitol Group’s internal records as “re-let” by Mansel to VSA “at cost”; ii) Invoices for hire, bunkers and other costs incurred in operating the vessel were paid by Mansel; and iii) Mansel periodically invoiced VSA for the costs incurred in operating the vessel and those invoices were paid by inter-company transfers of funds to Mansel from VSA.[33]For the Owner, Mr Hill submitted that the court should look at the substance of the arrangements, which is that the “Magellan Spirit” was chartered solely for the use and benefit of VSA and with the intention that Mansel would make no profit and suffer no loss from chartering the vessel. I agree that this is the effect of the evidence. I do not accept, however, that these facts are sufficient to show that Mansel intended to enter into the charter as agent for VSA. It is true that, if the evidence showed an intention that the vessel would or might be operated by Mansel for its own profit, that would have been inconsistent with an agency relationship. But the converse is not true. It is perfectly possible to have an arrangement between parties dealing as principals whereby one agrees to make a ship or other property available for the other’s use in return for reimbursement of all operating costs. The critical difference between such an arrangement between principals and an agency relationship is that a principal may sue and be sued on a contract made by an agent on its behalf. In order to infer an intention that Mansel should charter the “Magellan Spirit” as agent of VSA, it would therefore be necessary to identify conduct which signifies an intention that VSA would have rights directly against or liabilities directly towards the Owner. There is nothing in the practices adopted by the Vitol Group where vessels were time chartered by Mansel “at cost” which indicates such an intention. On the contrary, those practices are all explicable on the basis that the only party with rights and obligations enforceable by and against the Owner would be Mansel.[34]Not everything done in the performance of the charter exactly fitted that model. In principle, however, subsequent conduct is only relevant if and in so far as it sheds light on what the parties’ understanding and intention was when the contract was made. No inference that an agency relationship must have been established can be drawn from the fact that invoices for hire were sent by the Owner to VSA, given that Mansel paid those invoices. Contracts for the purchase of bunkers were concluded in VSA’s name. The fact, however, that invoices for bunkers were also paid by Mansel (which was reimbursed by VSA) is again consistent with an intention that the liability should be assumed only by Mansel; at the very least it does not demonstrate a contrary intention. Nor is the analysis affected by a letter which the Owner was asked by VSA to provide, and which it did provide, at a time when VSA was bidding for a contract to supply gas to an Egyptian company, stating that VSA was the charterer of the vessel. At best this episode shows that there was not always clarity within the Vitol Group about which company had chartered the “Magellan Spirit”; at worst it shows a willingness to misrepresent the position for commercial advantage. It is not reasonably capable of founding an inference that an agency agreement must have been created before the charter was entered into.[35]Mr Hill also submitted that there is no rational explanation for why Mansel was interposed as the charterer in this case and that, in circumstances where all previous charters of LNG carriers had been entered into by VSA, the proposal that Mansel should be the charterer was probably a mistake. There are two points here. First, whether it represented an advertent or inadvertent departure from the previous practice whereby LNG carriers had been chartered by VSA, there was clearly a deliberate decision that the “Magellan Spirit” should be chartered by Mansel and operated “at cost” in just the same way as had often been done for time charters of oil tankers. Second, whatever commercial merits this arrangement may or may not have had, it is in no way self-evident that it would make more sense from a business point of view if VSA was entitled to sue and be sued under the charter than if the only company with such contractual rights and obligations was Mansel.[36]I conclude that the evidence available does not support the Owner’s case that Mansel entered into the time charter as agent of VSA. There is nothing which displaces the presumption that the time charter was just what it appeared on its face to be: namely, a contract made by Mansel dealing as a principal. It follows that VSA is not bound by the terms of the time charter and hence is not bound by clause 46 of the charter to submit disputes to the jurisdiction of the English court.

Ground 2: Rectification

[37]In these circumstances the Owner falls back on an alternative argument that an English jurisdiction agreement was made between the Owner and VSA when the bill of lading was issued for the cargo loaded on the vessel at Bonny on 5 January 2015.[38]The bill of lading was drawn up by Nigeria LNG Ltd from whose terminal the cargo was shipped. Nigeria LNG sold the cargo to Galp Gas Natural, which sold it on to VSA. Both contracts were on FOB terms. The contract between VSA and Galp provided for title to the LNG to be transferred when the product passed the vessel’s flange, and it is reasonable to assume that the contract between Galp and Nigeria LNG contained a similar term. Thus, from the time of shipment the only party which had any interest in the cargo was VSA, which was named as consignee in the bill of lading. Mr Hill cited authority for the proposition, which Mr Baker did not contest, that in such circumstances it may be inferred that any contract of carriage evidenced by the bill of lading was between the shipowner and the named consignee: see Cho Yang Shipping v Coral UK [1997] 2 Lloyd’s Rep 64, 643; The Berge Sisar [2002] 2 AC 205, 220.[39]The front of the bill of lading contained the following statement:
“This shipment is carried under and pursuant to the terms of the Master FOB Sales and purchase agreement dated as of 23 September 2010 between Nigeria LNG Ltd as Seller and to the order of [VSA] as buyer.”
It is difficult to attribute any sense to these words. There was no sale and purchase agreement dated 23 September 2010 between Nigeria LNG and VSA. There was a sale and purchase agreement dated 27 February 2007 between Nigeria LNG and VSA, but the cargo shipped on 5 January 2015 was not being supplied under that agreement. In addition, there may have been a sale and purchase agreement dated 23 September 2010 between Nigeria LNG and Galp, but it makes no sense to suppose that VSA intended the shipment to be carried under the terms of a contract to which it was not privy. It may be that the words quoted above should be rejected as meaningless. But whatever those words do or do not mean, they cannot possibly be interpreted as incorporating in the bill of lading the terms of the time charter between the Owner and Mansel nor (by that means or any other) as evidencing an agreement to refer disputes under the bill of lading to the jurisdiction of the English courts. Nor are there any other words on the front or back of the bill of lading which express or incorporate such an agreement.[40]The Owner has claimed, however, that the absence of language providing for the terms of the charter including the jurisdiction clause to be incorporated in the bill of lading was a mistake, and that the bill of lading should be rectified to include such language. It was assumed in argument and I shall proceed on the footing that, if the requirements for rectification are made out under English law (as the putative applicable law), that would not only provide a contractual basis for an anti-suit injunction but would also demonstrate an agreement which satisfies the requirements of Article 23 of the Lugano Convention.[41]A party seeking rectification has to show that:(1) the parties had a common continuing intention, whether or not amounting to an agreement, in respect of a particular matter in the instrument to be rectified;(2) there was an outward expression of accord;(3) the intention continued at the time of the execution of the instrument; and(4) by mistake, the instrument did not reflect that common intention: see Chartbrook v Persimmon Homes [2009] 1 AC 1101, para 48, approving the summary of the law in Swainland Builders Ltd v Freehold Properties Ltd [2002] 2 EGLR 71, para 33, per Peter Gibson LJ.[42]In Chartbrook at paras 57-66, Lord Hoffmann (with whose speech the rest of the House agreed) expressed the opinion that the requisite common intention or consensus must be ascertained purely objectively by reference not to what the parties believed or understood but solely to what a reasonable observer would understand the meaning of their communications to be. Evidence of a party’s subjective understanding is only admissible if and in so far as it sheds light on what was or was not objectively agreed. In effect, the first two requirements for rectification set out above are collapsed into one. Although this part of the judgment in the Chartbrook case was obiter and is controversial, it has been treated as authoritative in a number of subsequent cases and I consider that I must for present purposes take it to represent the law. It is therefore necessary to focus, and to focus only, on communications which ‘crossed the line’ between the parties and on what a reasonable observer would have understood those communications to mean.[43]In this regard Mr Hill placed particular reliance on an exchange of emails which took place shortly before the first bills of lading under the time charter were issued at Zeebrugge for the carriage of a cargo of LNG to Argentina. On 12 October 2013 Ms Alison More, the vessel’s Voyage Manager, sent an email to Mr Stuart Sanders, who works for VSA in Geneva. The email said:
“I have been talking with the Master today and although he has not yet seen the BL’s [bills of lading] for this cargo, can you kindly confirm the following; Usually there is a statement referring to the Charter Party on the front of BL, if there is no reference will Master issue LOP [letter of protest]? Please confirm.”
Mr Sanders replied the same day:
“There should be reference to the TCP [time charter party] on the BLs. If there isn’t on this occasion, no need to issue a LOP as we will be cancelling the BLs once originals received; agents in Argentina will be re-issuing them for customs clearance purposes and we will be discharging against an LOI [letter of indemnity].”
Please confirm.”[44]Mr Sanders had previously on 1 October 2013 sent instructions to the shipper of the cargo (ENI) that the bills of lading must clearly state (amongst other things) “Freight payable as per charter party”. Consistently with these instructions, the bills of lading signed by the Master on 12 October 2013 stated on the front “Freight payable as per charter party” and gave the date of the relevant charter party as 1 July 2012 – which was the date of the time charter between the Owner and Mansel. The bills of lading were on the Congenbill form, which states in one of the printed conditions on the back:
“All terms and conditions, liberties and exceptions of the Charter Party, dated as overleaf, including the Law and Arbitration Clause / Dispute Resolution Clause, are herewith incorporated.”
The bills of lading were subsequently cancelled and reissued, as Mr Sanders had said they would be. The replacement bills of lading were sent to Ms More by Vitol Services Limited (purportedly on behalf Mansel as charterer) on 30 October 2013. They were in materially similar terms.[45]For the Owner, Mr Hill submitted that these communications showed a common intention that all bills of lading issued during the period of the time charter should incorporate the terms of the charter including the law and jurisdiction clause. I do not accept, however, that such an intention can properly be inferred.[46]The email exchange on 12 October 2013 between Ms More and Mr Sanders undoubtedly expressed a common intention that there should be a statement on the front of bills of lading issued by the Master of the vessel referring to the charter. I also accept Mr Hill’s submission that the intention expressed was a general one, not confined solely to the bills of lading issued for that particular voyage. But an intention to include a reference to the charter on the front of bills of lading is not sufficient for the Owner’s case. Such a requirement was satisfied by the words “Freight payable as per charter party”, which on VSA’s instructions were included on the front of the bills of lading issued for the voyage from Zeebrugge. Yet it is clear as a matter both of language and of law that such words only incorporate terms of the charter connected with the payment of freight: see e.g. Scrutton on Charterparties and Bills of Lading (23rd Edn, 2015) at 6-025. Since in this case the only charter of the vessel was a time charter and there was no voyage charter under which freight was payable for the carriage of the cargo, the inclusion of these words in the bills of lading makes no sense. Even if it could be inferred that the intention was to incorporate all the terms of the charter dated 1 July 2012, however, that still would not be enough for the Owner. On any view of the law, general words of incorporation of charter terms in a bill of lading are insufficient to incorporate a jurisdiction clause which refers only to disputes under the charter and which cannot without verbal manipulation be applied to disputes under the bill of lading: see e.g. Scrutton on Charterparties and Bills of Lading (23rd Edn, 2015) at 6-030. Clause 46 of the charter in the present case refers only to “disputes arising out of this charter”. It would in these circumstances take specific words of incorporation of the jurisdiction clause in the charter to establish an agreement to refer disputes under the bill of lading to the jurisdiction of the English courts.[47]There are in fact such specific words of incorporation on the back of the Congenbill form. But there is nothing in the communications on which the Owner relies which indicates that the parties regarded it as necessary that bills of lading issued by the Master should be issued on the Congenbill form. Nor is there anything else in those communications which manifests any common intention or consensus that bills of lading issued during the period of the charter should contain words specifically incorporating the jurisdiction clause contained in the charter.[48]In order to see whether there was a relevant continuing common intention capable of supporting a claim for rectification, it is also necessary to examine what happened on subsequent voyages. The bills of lading for the second voyage, which were issued at Rotterdam on 13 November 2013, were in materially similar form to those issued for the first voyage. The bills of lading for the third, fourth and fifth voyages were in each case issued at Bonny in Nigeria. They were drawn up by Nigeria LNG and were in similar form to the bill of lading dated 5 January 2015 which the Owner is seeking to rectify. The bills of lading issued for those three voyages therefore do not assist the Owner’s case. To the contrary, they make it necessary for the Owner to argue that those bills of lading also mistakenly failed to record the common intention of the parties.[49]The bill of lading for the sixth voyage was issued at Ras Laffan in Qatar on 6 August 2014. It was not on the Congenbill form and there was no relevant printed condition on the back. The front of the bill of lading included the following statement:
“This shipment is carried under and pursuant to the terms of the Charter Party dated 18 June 2012 between [the Owner] and Mansel Ltd as Charterers, and all the terms whatsoever of said Charter Party, except the rate and payment of freights specified therein apply to and govern the rights of the parties concerned in this shipment.”
The date of 18 June 2012 was obviously a mistake (being in fact the date when the Heads of Agreement were executed) and the intention was plainly to refer to the charter dated 1 July 2012 between the Owner and Mansel. However, the words “all the terms whatsoever” were held in The “Delos” [2001] 1 Lloyd’s Rep 703 to be insufficient to incorporate an arbitration clause, and the same must apply to a jurisdiction clause. This bill of lading is therefore also inconsistent with the continuing common intention which the Owner is seeking to establish.[50]The bill of lading for the seventh voyage was issued at Sagunto in Spain on 4 October 2014. It was on the Congenbill form and had a similar statement on the front to the bills of lading for the first and second voyages. That was the last voyage before the voyage with which this case is directly concerned.[51]I think it quite impossible to find in this sequence of events any consensus or objectively manifested common intention of the parties that any dispute between VSA and the Owner arising out of the carriage of the cargo shipped at Bonny on 5 January 2015 should be referred to the jurisdiction of the English courts. The most that can reasonably be deduced is that the parties preferred to have a reference to the time charter on the front of any bill of lading issued, but did not regard this as essential.[52]The reason why incorporation of the charter terms into the bills of lading was not regarded as essential may be that the parties did not focus on the fact that the charterer of the vessel was not VSA but a different company, Mansel. That was true at any rate of Captain Pedersen, the Master of the vessel who signed the bill of lading for the subject voyage. Captain Pedersen has said in a witness statement:
“… the fact that the bill of lading did not incorporate the Charter did not concern me unduly because again the bill of lading was to the order of [VSA], who I understood to be the true charterer. I therefore understood the document’s significance to be as a receipt for the quantity loaded and not a document that would be relevant to the contract of carriage.”
It may well be that if Captain Pedersen had appreciated that VSA was not the charterer and that the bill of lading was a document evidencing a separate contract of carriage between the Owner and VSA, he would – as he says in his witness statement that he would – have requested that the bill of lading should incorporate the terms of the charter. It seems likely that VSA would have agreed to such a request and possible (although far from certain) that in the result the bill of lading issued at Bonny would, if it had been on the Congenbill form, have incorporated the jurisdiction clause found in the charter. To that extent it can be seen as adventitious that the bill of lading did not provide for disputes under it to be referred to the English court. I can understand in these circumstances the Owner’s feeling that VSA is taking advantage of an opportunity to sue the owner in Nigeria which has come about by accident rather than design. But the fact – assuming it to be the fact – that the parties would have agreed to English jurisdiction if they had noticed that the bill of lading evidenced a contract between VSA and the Owner which was separate from the charter is not an available basis for seeking rectification. The doctrine of rectification enables a document to be corrected so that it reflects an actual, objectively expressed prior consensus of the parties. It does not enable a document to be altered so as to accord with a hypothetical consensus which the parties would have reached in circumstances which did not actually happen.[53]I therefore reject the Owner’s rectification case and conclude that the bill of lading contract between the Owner and VSA does not include a term conferring jurisdiction on the English court.

Ground 3: freestanding jurisdiction agreement

[54]The third alternative ground of the Owner’s application is that a freestanding agreement was made between the Owner and VSA that any dispute arising out of the carriage of VSA’s LNG cargoes by the vessel should be governed by English law and subject to the jurisdiction of the English High Court.[55]For the Owner, Mr Hill submitted that such an agreement was reached during the negotiations for the charter. In circumstances where even the Heads of Agreement signed on 18 June 2012 was expressly stated not to be a legally binding document, the contention that a binding contract was concluded during the negotiations preceding the execution of the charter is impossible to maintain. Mr Hill pointed out, however, that Article 23 of the Lugano Convention is capable of being satisfied by a written consensus between the parties which does not amount to a legally binding contract – a non-binding memorandum being an example: see Antonio Gramsci Shipping Corp v Lembergs [2013] 2 Lloyd’s Rep 295, [2013] EWCA Civ 730, para 39. He argued that a consensus between the Owner and VSA that the English High Court should have jurisdiction to settle any disputes arising from their relationship was established during the negotiations which, even if it did not amount to a binding contract, was still sufficient to confer jurisdiction on the English Court.[56]Even if such a consensus could be demonstrated, however, it would not provide a basis for granting an anti-suit injunction. A non-contractual consensus which satisfied the requirements of Article 23 would confer jurisdiction on the English court and hence enable the Owner to bring proceedings in England. But it would not give the Owner any legal right not to be sued in Nigeria (which is not a member state for the purposes of the Lugano Convention), let alone a right capable of being enforced by an injunction. To establish such a right, the Owner needs to show that there is a legally binding contract of which VSA’s suit against the Owner in Nigeria constitutes a breach. It is clear that no such contract – and indeed no legally binding contract at all – was made during the negotiations which preceded the execution of the charter.[57]It is also clear that there was in any case no relevant consensus. The only proposal made during the negotiations to refer disputes between VSA and the Owner to the jurisdiction of the English court was that contained in the draft Heads of Agreement sent by Mr Kremin to Mr Thomas on 13 June 2012. The proposal was limited to “disputes arising under this Term Sheet or the Charter”. Even if this proposal had been accepted, therefore, it would not have covered the present dispute arising under the bill of lading issued at Bonny. As it was, the proposal was not accepted. Instead, Mr Thomas made a counter-proposal which included substituting Mansel as the proposed charterer. That counter-proposal was (in the relevant respects) accepted by the Owner. The only consensus reached in the negotiations therefore was that disputes between the Owner and Mansel arising under the Heads of Agreement signed on 18 June 2012 or the charter should be referred to the exclusive jurisdiction of the English court. It is quite impossible to find in the email exchanges any agreement, binding or otherwise, that the English High Court should have jurisdiction to decide any disputes between the Owner and VSA.[58]Although it did not form part of the Owner’s pleaded case, Mr Hill also sought to argue that such an agreement was reached through the email exchange between Ms More and Mr Sanders quoted earlier at the time when the bills of lading for the first voyage were issued. This argument was based on the contention that the email exchange evidenced a consensus to incorporate into the bills of lading the jurisdiction clause in the time charter. As I have already rejected that contention when considering the Owner’s rectification claim, it follows that this iteration of the Owner’s case is also untenable.[59]On the basis of the material before the court I conclude that there was no freestanding agreement of any kind made between the Owner and VSA to refer disputes arising out of the carriage of the cargo shipped at Bonny to the jurisdiction of the English court. It follows both that this court has no jurisdiction to try VSA’s cargo claim and that the Owner has no contractual right not to be sued on that claim in the courts of Nigeria.

Delay

[60]Even if on the material available I had reached the conclusion that the court has jurisdiction to try the Owner’s claim and that the claim is well founded, I would still have refused the Owner’s application for an injunction. That is because there has, in my view, been fatal delay in making the application.[61]In The “Angelic Grace” [1995] 1 Lloyd’s Rep 87 the Court of Appeal held that the English court need feel no diffidence about granting an anti-suit injunction, provided that it is sought promptly and before the foreign proceedings are too far advanced. The proper approach to delay in this context has recently been considered by Walker J in Essar Shipping Ltd v Bank of China Ltd [2015] EWHC 3266 (Comm), in a judgment which both parties in the present case accepted as correctly stating the law. Walker J emphasised that the need to apply for an injunction promptly and before the foreign proceedings are too far advanced are separate and cumulative principles (see para 42). Thus, injunctive relief may be refused if the foreign proceedings have advanced too far, even if the application cannot be criticised for lack of promptness. Equally, lack of promptness alone may justify refusal of an injunction, even if there has been no significant progress in the foreign proceedings and no detrimental reliance upon the delay. As Walker J observed at para 43:
“The starting point is that it is generally desirable to resolve issues speedily. Moreover, there are significant dangers to the interests of the parties and to the public interest if applications for coercive relief are delayed. If such applications are made promptly they are inherently likely to be much less complicated than will be the case at a later stage. Where a party seeking coercive relief does not act promptly, the other side is likely to be understandably aggrieved by the delay. An anti-suit injunction is a particularly intrusive form of relief, barring a party from access to justice in the forum that it would prefer. In the particular context of anti-suit and anti-enforcement injunctions, lack of promptness will increase the danger that such injunctions, although they are granted against a party and are not directed to the foreign court, will nevertheless be seen as inappropriately interfering with the jurisdiction of the foreign court.”
[62]A further principle established by The “Angelic Grace” and emphasised in Essar is that steps taken in the foreign proceedings to challenge the court’s jurisdiction do not justify delay in applying to the English court for an anti-suit injunction.[63]On the facts of the present case I do not think that criticism can reasonably be made of the Owner for not taking any action before it was served with the Nigerian proceedings in circumstances where VSA did not engage in any meaningful pre-action correspondence to explain the nature and basis of its intended claim. However, once the proceedings were served on 2 July 2015, prompt action was called for. The natural time to have launched an application for an injunction to prevent VSA from pursuing the Nigerian proceedings would have been when the Owner commenced proceedings in this court under the charter on 14 July 2015.[64]In explaining why the present action and application were not brought until 21 December 2015, more than five months later, Ms Fionna Gavin of Ince & Co, the Owner’s solicitors, has indicated that her firm did not even turn its attention to the Nigerian proceedings until after the claim form and particulars of claim in its action under the time charter had been served. I can see no good reason for that approach. She says that it then took a little time to secure the services of Nigerian lawyers and to obtain their advice on whether there were good grounds to challenge the jurisdiction of the Nigerian court. It is clear, however, as I have indicated, that a decision to dispute the court’s jurisdiction in the foreign proceedings does not justify delaying any application to the English court for an anti-suit injunction. It is in any event Ms Gavin’s evidence that it has always been the Owner’s intention to have the jurisdictional issue determined by the English court.[65]A further reason given by Ms Gavin in a later witness statement for the time which elapsed before the issue was raised is that the bill of lading “does not at first blush appear to be subject to a law and jurisdiction provision at all” so that the Owner “could not therefore be expected to assert on day one that there had been a breach of a jurisdiction agreement”. She emphasises that the rectification claim is “one that required legal consideration and advice”. There had certainly been ample time for such consideration and advice by 17 August 2015 when Ince & Co wrote to VSA’s solicitors setting out the Owner’s proposed rectification claim and asserting that, in consequence, the Nigerian proceedings had been brought in breach of a jurisdiction agreement. The letter invited VSA to agree to discontinue the Nigerian proceedings and to bring their cargo claim in England. The final paragraph stated:
“Our clients are required to take formal steps in the Nigerian proceedings by 5 October 2015. Further, should it be necessary in English proceedings to seek an order for rectification of the bill of lading and an anti-suit injunction then our clients need to prepare such an application imminently. We would therefore be grateful to receive your response to this letter by Tuesday 1 September 2015 at the latest.”
The recognition that any application for an anti-suit injunction would need to be prepared “imminently” was, in my view, entirely correct.[66]VSA’s solicitors replied shortly after the date requested on 4 September 2015 rejecting the claim for rectification and maintaining that Nigeria is the proper jurisdiction for the cargo claim. At that point, at the latest, it was in my opinion incumbent on the Owner to apply to this court for an injunction if it believed that there was a proper basis for doing so. As it was, over three more months then passed before the Owner’s application was brought. Nor during that time did the Owner’s solicitors ever mention in correspondence that the Owner was still contemplating the possibility of making such an application. I regard this delay, by itself, as sufficient reason to refuse injunctive relief.[67]The explanation for this delay offered by the Owner is that on 8 September 2015 Mansel’s defence to the claim under the charter was served which led the Owner’s legal advisors to perceive an “oddity” surrounding the relationship between VSA and Mansel which they decided to enquire into. That was done by way of a Request for Further Information made on 25 September 2015 in which Mansel was asked to explain the contractual or other basis on which it had agreed to carry cargoes purchased by VSA. The response provided by Mansel on 16 October 2015 was considered inadequate and a further request for information was made. That further request was itself delayed to see if any further information would be provided in Mansel’s Reply and Defence to Counterclaim, which was finally served on 12 November 2015. However, it was not. The Owner’s solicitors then served on 16 November 2015 a Request for Further Information of the Further Information provided by Mansel. VSA had still not answered this request when on 21 December 2015 the Owner finally commenced this action and issued its application for an anti-suit injunction. By implication, therefore, the Owner did not regard the further information sought as essential in order to make such an application.[68]This history does not begin to justify the Owner’s delay after 4 September 2015 – particularly when the Owner’s solicitors kept their cards close to their chests and said nothing to indicate that the further information they were requesting in the proceedings against Mansel was being sought not simply for the purposes of those proceedings but for the ulterior purpose of seeing whether Mansel’s response would assist the Owner in arguing that VSA had agreed to refer its cargo claim against the Owner to the English court. There was nothing wrong in itself with the Owner seeking information which it hoped would support such an argument. But in doing so the Owner was choosing to take the legal risk of allowing the clock to run. The fact that the delay in applying for an injunction was the result of a deliberate tactical decision to first wait and see if more information might emerge which would bolster the claimant’s case is no reason to discount the delay or belittle its significance.[69]The significance of the delay is compounded by the fact that in the meantime the Owner became actively engaged in the Nigerian proceedings. Under Nigerian law a defendant has 30 days from the date of service of proceedings within which to file a memorandum of appearance, failing which a claimant is at liberty to apply for judgment in default. If within 21 days from the date of service a defendant files a memorandum of appearance stating that it is appearing conditionally together with an application disputing the court’s jurisdiction, then the Nigerian court will deal with the question of jurisdiction first. If on the other hand a defendant files an acknowledgement of service after the 21 day period has expired, it may still raise questions of jurisdiction but it must file a defence on the merits and Order 29 rule 5 of the applicable Nigerian civil procedure rules states that in these circumstances any application disputing the court’s jurisdiction “can only be taken at the conclusion of the trial”.[70]In this case the 21 day period expired on 28 September 2015. At that date the Owner had not filed a memorandum of appearance and had not applied to challenge the court’s jurisdiction. On 30 September 2015 a hearing took place at which the Owner’s lawyers confirmed service of the writ and other documents but said that they had no specific instructions. The case was adjourned by consent until 30 November 2015.[71]In circumstances where it had not entered a conditional appearance and applied to dispute the jurisdiction of the Nigerian court within the 21 day period, the Owner was required to file a defence within a further 7 days. Hence the statement made in the letter from Ince & Co dated 17 August 2015 that the Owner was required to take formal steps in the Nigerian proceedings by 5 October 2015. No defence was, however, filed by that date. On 16 November 2015 VSA issued an application for judgment in default of defence. On Friday 27 November 2015, no doubt to avoid judgment in default being entered at the hearing on the following Monday, the Owner’s lawyers filed a defence to VSA’s claim along with a memorandum of conditional appearance and an application for an extension of time. The application was supported by an affidavit which contained the entirely bogus assertion that, at the time when the proceedings were served, “the defendant’s Head of Legal who has the sole duty of instructing external solicitors was offshore and could not be reached by telephone, email or otherwise and as such the defendant was unable to instruct its counsel in Nigeria to defend the action”. The defendant’s “Head of Legal” was said to have returned from this period of complete isolation on 24 November 2015, by which time the latest dates for entering an appearance and filing a defence had passed.[72]At the hearing on 30 November 2015 the Nigerian court granted the extension of time requested by the Owner for the service of its defence and adjourned the case until 24 February 2016. (That date was subsequently postponed by agreement after the present application for an anti-suit injunction was brought.)[73]It is unnecessary to decide whether in these circumstances the position in Nigerian law is, as VSA contends, that the Owner has lost the right to challenge the jurisdiction of the Nigerian court until after the merits have been tried or whether, as the Owner maintains, it is still possible for it to raise an objection to the court’s jurisdiction as a preliminary issue. The fact that a significant amount of evidence has been devoted to this question and to other matters of Nigerian procedural law is itself illustrative of the sort of complication which is liable to arise when an application for an anti-suit injunction is not made promptly. Moreover, whatever their significance for the further conduct of the Nigerian proceedings, the fact is that steps have been taken and costs incurred in those proceedings – including through the filing by the Owner of a defence on the merits and two hearings in the Nigerian court, with a further hearing date set – without any application being made to this court to prevent VSA from pursuing the Nigerian proceedings and without anything being said to the Nigerian court to suggest that the Owner might be contemplating making such an application. In these circumstances I consider that the Owner has allowed the Nigerian court to become seised of the matter to an extent which would make it inappropriate for the English court to intervene at this stage.

Other strong reason

[74]In view of my conclusions on the issues discussed above, it is unnecessary to consider an argument advanced by Mr Baker for VSA that there is another strong reason not to grant an injunction. The broad nature of the argument is that, even if the bill of lading contract had incorporated an English jurisdiction agreement, that agreement would not be enforceable in Nigeria because it is inconsistent with the Hamburg Rules, which form part of Nigerian law; and in circumstances where the jurisdiction agreement is not recognised as valid in the foreign forum, the English court should not enforce it. This is a complex area of the law on which there was insufficient time to receive submissions at the hearing and on which I express no opinion.

Conclusion

[75]For the reasons given, I refuse the Owner’s application for an anti-suit injunction and will make a declaration that the English court does not have jurisdiction to try the Owner’s claim in this action.

Cited in 12 later judgments

and 3 more of the most senior