Berytus Insurance & Reinsurance Company SAL v Golden Adventure Shipping SA [2025] EWHC 664 (Comm)

Case No CL-2024-000483

[2025] EWHC 664 (Comm)

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

COMMERCIAL COURT (KBD)

Venue The Rolls Building, 7 Rolls Buildings, Fetter Lane, London

Date 10 March 2025

EC4A 1NL

Before

HIS HONOUR JUDGE PELLING KC

(Sitting as a Judge of the High Court)

Between

BERYTUS INSURANCE & REINSURANCE COMPANY SALClaimant

GOLDEN ADVENTURE SHIPPING SADefendant

MR GUY BLACKWOOD KC (instructed by Clyde & Co LLP) appeared for Claimant

MR HUGO PAGE KC (instructed by Watling & Co) appeared for Defendant

Approved Judgment

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[1]In these proceedings, which were issued on 17 August 2024, the claimant, a Lebanese registered insurance underwriter, seeks a declaration against its assured, a one-ship company registered in the Marshall Islands, that the claimant is not liable to indemnify the defendant under a policy of marine insurance underwritten by the claimant under which the defendant is the assured, on the ground that the vessel owned by the defendant and insured by the claimant became a total loss caused by an event that was expressly excluded from the scope of the policy.

[2]By an order made by Jacobs J on 20 August 2024, the claimant was given permission to serve the proceedings on the defendant out of the jurisdiction in the Marshall Islands. By its acknowledgement of service dated 17 September 2024, the defendant indicated an intention to challenge jurisdiction and by an application notice of the same date, the defendant applied for an order declaring this court to have no jurisdiction and an order setting aside service of the claim form. This is the hearing of that application.

[3]The Policy underwritten by the claimant (“the Policy”) is contained in a cover note dated 20 July 2022. It contained a law and jurisdiction clause in the following terms:

“ [1] This insurance is subject to English law and practice. [2] Any proceedings by the assured against the underwriters shall only be brought in the courts of the Republic of Cyprus. [3] The underwriters and/or All Marine Insurance Brokers Limited reserve to themselves the right to bring proceedings in respect of any matter which arises out of or in connection with this cover note in the courts of any country which has or claims jurisdiction in relation to that matter. [4] The assured hereby submits to the non-exclusive jurisdiction of the courts of the Republic of Cyprus and waives any objection on the ground of inconvenient forum to any proceedings which arise out of or in connection with this cover note being brought in the courts of the Republic of Cyprus or any other courts by virtue of the above...”

I have added the numbers in square brackets for ease of identification of each paragraph within the clause in this judgment.

[4]The claimant maintains it was entitled to commence these proceedings and that this court has jurisdiction by operation of [3] within the clause I quoted from a moment ago, which, on its face, apparently entitles the claimant to commence proceedings in any court:

“...which has or claims jurisdiction in relation to that matter...”

[5]The defendant maintains that the effect of the clause, when read as a whole, and either by operation of the Hague Convention on choice of law clauses (“the Hague Convention”) the only courts with or with primary jurisdiction in which a claim could be brought by the claimant against the defendant are the courts of the Republic of Cyprus, and to the extent that the courts of the Republic of Cyprus have primary but not exclusive jurisdiction, then by operation of the relevant English common law principles claims could be brought elsewhere only where there were very strong reasons for departing from what had otherwise been agreed as to the jurisdiction of the courts of the Republic of Cyprus.

[6]Since the part of the clause on which the claimant relies is premised on the courts of England and Wales having jurisdiction, it is necessary to start with that issue. It depends upon the well-known tripartite test that is applied in relation to claims brought against defendants located outside England and Wales, mainly:(a) Whether the claimant has a good arguable case that a jurisdiction gateway in Practice Direction 6B, paragraph 31 applies;

(b) Whether there is a serious issue to be tried on the merits; and

[7]As to the first of these requirements, that is plainly satisfied by reference to at least paragraph 3.1(6)(c) of the practice direction because it has been agreed expressly that the Policy is to be governed by English law and practice – see [1] within the clause quoted earlier. The reference to “practice” in this context at least realistically arguably means practice in the London marine insurance market given the factual and contractual context in which that word is used. Equally clearly, there is a dispute to be resolved concerning coverage with the claimant having shown it has at least a seriously arguable case that the loss comes within the express terror or war risks exceptions applicable the Policy.

[8]Finally, in so far as forum conveniens is concerned, that requirement, on the face of it, is satisfied in the circumstances of this case because (subject to the limited exception I refer to in a moment) the defendant is contractually estopped from arguing the contrary by operation of the final paragraph of the jurisdiction clause within the Policy because it:

“...waives any objection on the ground of inconvenient forum to any proceedings which arise out of or in connection with this cover note being brought ... in any ... courts by virtue of the above.”

The words “by virtue of the above” can only refer to a claim brought by the claimant in the court of any country which has or claims jurisdiction as apparently permitted by [3] of the law and jurisdiction clause. In these circumstances, forum non conveniens will generally not arise other than in the very limited circumstances summarised by Flaux J (as he then was) Standard Chartered Bank (Hong Kong) Ltd & Anor v Independent Power Tanzania Ltd & Ors

[2015] EWHC 1640 (Comm)

[2016] 1 All ER 233

, a case to which I will return in more detail later in this judgment.

[9]In those circumstances, this court has jurisdiction in relation to the claimant’s claim unless the defendant is able to show that the effect of the law and jurisdiction clause within the Policy as a matter of law either precludes or materially restricts the ability of the claimant to take advantage of what has apparently been agreed between the parties in [3] of the jurisdiction clause.

[10]The claimant’s case is that the opening sentence of [4] of the jurisdiction clause, which provides “the assured hereby submits to the non-exclusive jurisdiction of the courts of Cyprus” operates as an asymmetrical jurisdiction agreement which precludes the claimant from suing in the courts of England, or which, as a matter of English domestic law, does so other than in very limited circumstances.

[11]The part of the clause relied upon by the claimant and quoted above is an asymmetrical non-exclusive jurisdiction agreement. That part of the clause must be read in the context of the clause as a whole. [2] is concerned with claims by the defendant against the claimant. [3] is concerned with claims by the claimant but [4] performs two functions. The first is a submission by the defendant in respect of claims brought by the claimant under or in connection with the Policy to the non-exclusive jurisdiction of the Cyprus courts, presumably necessary on the basis that the Cyprus court would not have personal jurisdiction over a Marshall Islands registered company with no presence in Cyprus. The other function of [4] is the one I alluded to earlier. It is a forum non conveniens waiver by the defendant, which precludes the defendant from objecting, other than in the very limited circumstances I referred to earlier, either to the courts of Cyprus or any other relevant court on forum non conveniens grounds. The issue that arises, therefore, is whether an asymmetric non-exclusive jurisdiction agreement in relation to claims by the claimant against the defendant precludes the defendant from being sued other than in the courts of Cyprus or severely circumscribes the circumstances in which that may occur in a manner that on the facts of this case precludes the claimant from suing the defendant otherwise that in the courts of the republic of Cyprus.

[12]The defendant’s case is that the claimant is precluded from commencing proceedings in the courts of England and Wales or anywhere other than the courts of Cyprus on a proper construction of the Hague Convention. The claimant maintains that the Hague Convention is not engaged in the circumstances of this case as a matter of construction of the Convention and/or the jurisdiction agreement between the parties. .

[13]By Article 1 of the Hague Convention, the Convention applies only to “exclusive choice of court agreements”. What is an exclusive choice of court agreement for Convention purposes is defined by Article 3 of the Hague Convention. It requires that the relevant agreement must be in writing. It is not in dispute that that requirement is satisfied in the circumstances of this case.

[14]Article 3(a) provides that an exclusive choice of court agreement is one that:

“...designates for the purpose of deciding disputes ... the courts of one contracting State or one or more specific courts of one contracting State to the exclusion of the jurisdiction of any other courts...”

[15]Article 3(b) provides that if the agreement in question designates the courts of one contracting State or one or more specific courts of one contracting State that is deemed to be exclusive unless the parties have expressly provided otherwise. Where an agreement is, as a matter of construction, an exclusive choice of court agreement within the meaning of the convention, then its effect is provided for by Articles 5 and 6 of the Hague Convention. Article 5 provides that the designated court shall have jurisdiction and Article 6 provides that courts other than the chosen court shall suspend or dismiss proceedings to which an express choice of court agreement applies unless one or more of the various narrowly cast exceptions applies. It is not suggested that any of the exceptions identified within the Convention apply.

[16]I reject the proposition that the Convention applies to the clause in issue in this case. To be an agreement to which the Convention applies, it must be “exclusive”. Whilst Article 3(b) deems a clause to be exclusive, it does so only “unless the parties have expressly provided otherwise”. Whether the parties have so provided does not require any special language and is a question to be resolved applying the English law principles of contractual construction to the clause when read as a whole and to the Policy within which it appears. Applying those principles, I do not see how a reasonable person having all the background knowledge the parties had or ought reasonably to have had could understand the phrase “the assured hereby submits to the non-exclusive jurisdiction of the courts of the Republic of Cyprus” [emphasis supplied] as being anything other an express agreement that the submission of the defendant to the courts of Cyprus was non-exclusive. To my mind, that point receives further emphasis from [3] within the jurisdiction clause which makes clear that the claimant reserved the right to commence proceedings in any other country or state. That provision would be rendered meaningless if the part of [4] on which the defendant relies was to be construed as meaning that it required the defendant to be sued in the courts of Cyprus to the exclusion of the jurisdiction of any other courts. To do so would be an abuse of language to construe the agreement between the parties here as being exclusive when plainly it was not.

[17]This conclusion makes it unnecessary for me to decide whether an asymmetrical agreement that was either expressed to be exclusive or which was deemed to be exclusive by Article 3(b) would come within the scope of the Convention. Had it been necessary for me to decide that issue, I would have decided that it did not, for the reasons set out by Henderson LJ in Etihad Airways PJSC v Flother

[2020] EWCA Civ 1707

;

[2022] QB 303

. That case was concerned with a clause that was expressed to be exclusive but subject to a carve out for the benefit of one party. Henderson LJ noted the commercial purpose of asymmetrical jurisdiction agreements at [5] of his judgment. Henderson LJ addressed the issue of the applicability of the Hague Convention to such provisions at [82] and following of his judgment. At [83], Henderson LJ rejected the proposition that the Convention applied to asymmetrical exclusive jurisdiction agreements for the reasons he set out at [85]-[87]. It is not necessary for me to set out the reasoning. Whilst it is obiter, both Newey and Hickinbottom LJJ agreed with it. Unless there was something new not considered by Henderson LJ (and none was identified by the defendant) I would have regarded it as wrong not to follow what he said on this issue, with which, in any event, I respectfully agree.

[18]In the result, I conclude that the Hague Convention is not engaged and is immaterial to the issues that arise in this case.

[19]The defendant’s alternative submission is that as a matter of English domestic law, the effect of the non-exclusive submission by the defendant to the courts of Cyprus is that the claimant is bound to commence proceedings against the defendant before the courts of Cyprus unless there are very strong reasons not foreseeable at the time the agreement was entered into that merit the commencement of proceedings elsewhere.

[20]In my judgment, this proposition too is wrong. Although significant weight was placed on the decision of Gloster J (as she then was) in Antec International Ltd v Biosafety USA Inc

[2006] EWHC 47 (Comm)

, in my judgment, that reliance was misplaced. That case was concerned with an agreement by both parties that they would each submit to the non-exclusive jurisdiction of the English courts (see [2]) and the issue in that case was concerned with a forum non conveniens (“FNC”) determination in that context. In the circumstances that applied in Antec (ibid.) Gloster J’s conclusions at [7(1)] that where the parties have freely negotiated contracts providing for the non-exclusive jurisdiction of the English courts and English law, that created a strong prima facie case that the English jurisdiction was the correct one and was, with respect, entirely correct. However, that is not what the parties have agreed in this case because here the non-exclusive submission is asymmetrical, there is an express agreement permitting the claimant to commence proceedings against the defendant elsewhere and the FNC issue is the subject of an express FNC waiver.

[21]Exactly similar considerations applied to UCP PLC v Nectrus Ltd

[2018] EWHC 380 (Comm)

where the jurisdiction agreement was:

“The courts of England shall have non-exclusive jurisdiction to settle any claim or dispute arising out of or in connection with this agreement or the legal relationships established by this agreement.”

Cockerill J referred at [59] and following of her judgment in that case to the principles that were appropriate where considering a symmetrical non-exclusive jurisdiction clause. That much is apparent from her emphasis on [61] and [64] on the Court of Appeal judgment in Highland Crusader Offshore Partners LP v Deutsche Bank AG

[2010] 1 WLR 1023

where it was said that a nonexclusive jurisdiction clause precludes either party from later asserting that the forum identified is not an appropriate forum.

[22]In this case, the submission on which the defendant relies precludes the defendant from arguing that Cyprus is not an appropriate jurisdiction but the agreement does not require the claimant to start proceedings in Cyprus if it wishes to commence proceedings in another jurisdiction as permitted expressly by pa1ragraph [3] of the clause. What the agreement expressly precludes the defendant from doing is asserting that in that event, the courts chosen by the claimant are in an inconvenient forum. Thus, whilst I agree that the effect of the authorities in relation to symmetrical non-exclusive jurisdiction clauses is to create a strong prime facia case, that the identified forum is forum conveniens, that is not to the point where the clause is asymmetrical there is FNC waiver that applies wherever the claimant chooses to commence proceedings against the defendant.

[23]The other authority relied upon by the defendant is Catlin Syndicate Ltd v Adams Land & Cattle Co

[2006] EWHC 2065 (Comm)

. That concerned a forum conveniens dispute where the claimant, who had started proceedings in England, had agreed to a foreign forum in the event of an election by the defendant. The claimant in that case, the underwriters, had expressly agreed to submit to the United States’ jurisdiction if required to do so by the assured. That was held to be highly relevant to the forums conveniens issue that arose in that case in circumstances were both the United States and English jurisdictions were available. None of that is reflective of the issues that arise in this case.

[24]In this case, the parties had agreed that the claimant could sue the defendant either in Cyprus or elsewhere as it chose, and the defendant had agreed not to contend that any forum chosen by the defendant was not convenient. There may be limited circumstances in which the defendant could avoid the effect of its FNC waiver by reference to convenience issues that were not foreseeable at the date the agreement was made, particularly relating to the interests of justice, but the circumstances in which such is available are highly circumscribed - see the judgment of Flaux J (as he then was) in Standard Chartered Bank v Independent Power Tanzania Ltd (ibid.) at [109].

[25]Whilst, of course, parallel proceedings are not satisfactory as a general proposition, that is not a reason for concluding that the claimant should be precluded from commencing proceedings other than in Cyprus, or that the defendant should be permitted to object to such proceedings on that ground notwithstanding its FNC waiver. As Toulson LJ acknowledged in Highland Crusader(ibid.) at [107], the possibility that there will be parallel proceedings is an inherent risk where the parties agree a non-exclusive jurisdiction provision. That risk is all the greater where the parties agree an asymmetrical provision that requires one party - here the defendant - to commence proceedings in Cyprus but permits the other - here the claimant - to commence proceedings elsewhere. The possibility of parallel proceedings was foreseeable at the time such an agreement is made and, in my judgment, is not a bar or basis for granting a stay on the application of a party who has agree a FNC waiver – see Dexia Credit Local SA v Patrimonio del Trentino SpA

[2024] EWHC 2717 (KB)

per Bryan J at [153]-[155] and [164].

[26]There remains one issue that is relied upon by the defendant as justifying a stay. It is that these proceedings have been brought in order to pre-empt proceedings by the claimant in Cyprus. The point that is made is that prior to the commencement of these proceedings, the defendant had sent the claimant a Cyprus pre-action protocol letter and the claimant commenced proceedings in England without having sent an English pre-action protocol letter and after the commencement of the Cyprus courts’ long vacation, with the result that the defendant commenced its proceedings in Cyprus after these proceedings had been commenced.

[27]In my judgment, that does not justify staying these proceedings in the particular circumstances of this case. First, as I have said, the risk of parallel proceedings is inherent in the agreement the parties chose to reach. Secondly, the defendants have not been deprived of any legitimate juridical or other advantage by the commencement by the claim ant of these proceedings because it is fully entitled to counterclaim in the English proceedings for a declaration that it is entitled to be indemnified under the Policy. Thirdly, any difficulties in enforcement will be the same whether these proceedings are in England or Cyprus. Fourthly, the issue is one which is governed by English law and practice so that there will be clear and legitimate juridical advantages to both parties in the dispute being resolved in England for all the reasons identified by Brandon J (as he then was) in The Eleftheria

[1970] P94

. Fifthly, the defendant could not have been in any doubt as to the claimant’s position well before it sent its Cyprus pre action n letter. The claimant had informed the defendant as long ago as 22 March 2024 - see the letter of from Clyde & Co of that date - as to the basis on which the claimant intended to proceed in relation to the defendant’s claim. That letter culminated at paragraph 13 with the defendant being informed that the claimant considered the evidence was overwhelming that the loss was not one within the scope of the Policy and that no settlement would be forthcoming for that reason. At that point, the defendant was fully aware of the position. The claimant could not be expected to do nothing and was fully entitled to commence proceedings in England for the purpose of legitimately obtaining the juridical advantage of having the dispute resolved by an English court applying English law principles, which is what the parties had agreed must apply to and govern the Policy. No prejudice could be caused to the defendant by this approach for the reasons I have identified and because the defendant was well aware of the position being adopted by the claimant in relation to the claim policy. There was no geographical advantage to either party in suing in Cyprus as opposed to England, there is an obvious linguistic benefit in the proceedings taking place in English (the language of the agreement) and whilst the cost of the proceedings may be greater in England than in Cyprus, that is a risk that applies to both parties.

[28]In those circumstances therefore, and for those reasons, I conclude that the application by the defendant fails and must be dismissed. (See separate transcript for continuation of proceedings)

[29]The issue I now have to determine is whether or not the costs, which are to be paid by the defendant to the plaintiff, should be assessed on the indemnity or the standard basis. The test which applies to a decision whether or not costs should be assessed on the indemnity as opposed to the standard basis is the Excelsior test. The Excelsior test requires that a party seeking costs to be assessed on the indemnity basis must demonstrate conduct on the part of the paying party which is beyond the norm, or, as it is sometimes put in some of the authorities, conduct by the paying party has been unreasonable to a high degree.

[30]So far as that is concerned, Mr Blackwood KC, who appears on behalf of the successful claimant, maintains that this was a challenge brought by reference to the Hague Convention when it plainly did not apply and in breach of the contractual FNC waiver provided by the defendant and as such was a wate of time and costs. Mr Page KC, on behalf of the defendant, submits that it was not a breach of contract to challenge jurisdiction on forum non conveniens grounds because the authorities emphasise that a forum non conveniens waiver may be departed from only in limited circumstances. Secondly, that the challenge to jurisdiction based on the Hague Convention was a challenge which did not depend upon forum non conveniens. Both these points are without merit for the reasons set out in the judgment delivered a moment ago.

[31]That said, I start with the frequently made observation that merely because a party loses a case does not lead necessarily to the conclusion that costs should be awarded on the indemnity basis even if, in the end, a court concludes that the claim was one which failed and very clearly failed in the absence of any other aggravating factor. If it were otherwise then many more directions that cost be assessed on the indemnity as opposed to the standard basis would be made and would undermine the point that for such an order to be made requires not merely conduct that was unreasonable but was unreasonable to a high degree. That of itself, to my mind, provides an answer to the application made by the claimants. In those circumstances, whilst the defendant has lost comprehensively, none of that justifies assessing costs on the indemnity as opposed to the standard basis and I therefore conclude that the claimant is entitled to recover its costs of and occasioned by the application, to be assessed on the standard not the indemnity basis. (See separate transcript for continuation of proceedings)

[32]The issue which now arises concerns the assessment of the successful claimant’s costs of and occasioned by the application. For the reasons I gave earlier in this hearing, these costs are to be assessed on the standard not the indemnity basis. That requires me to identify and permit recovery of costs only in respect of work that it was reasonable and proportionate to carry out, and in respect of such work, only a reasonable and proportionate amount. In the context of keenly fought commercial litigation, what is proportionate is what is the minimum sum required in order for the successful party to have proper representation in relation to the issues that arise.

[33]The first point that I have to consider is the rates which have been claimed for solicitors’ time costs. So far as that is a concerned, Mr Page had no submissions to make. I therefore assume that he accepts the submission made on behalf of the defendant by Mr Black KC that this was a suitably complex case to justify the London 1 guideline rates applying because it is a very heavy commercial case being conducted by centrally based London law firms.

[34]Mr Blackwood’s submission is that the case is of general importance in the insurance market because it is the first time that the applicability of institute clauses concerning war and terrorism risks are to be considered in the context of Houthi activity in relation to merchant shipping. I am prepared to accept that submission particularly in light of the fact that it is not opposed and the consequence is that the guideline rates applicable would be the guideline London 1 rates which for an A-grade solicitor of £566 an hour, that is to say more than in fact has been claimed by Mr Roderick, a partner. The C fee earner rate would be £299 which is less than the £460 an hour claimed by Mr Oakhill. For D fee earners, the guideline rate is £205 for an hour whereas the sums claimed for the grade D fee earners are both in excess of that level.

[35]In circumstances where Mr Page has not opposed the rates which have been identified and claimed by the solicitors concerned, it would be difficult for me to come to the conclusion that I should not allow them, although the general principal which applies in this area would be to require the justification of any increase above guideline rates on reasonableness and proportionality grounds. I accept, therefore, the position adopted by the claimant which is that the rates that have been charged are reasonable and proportionate having regard to the issues that arise.

[36]There appears to be no challenge to the various attendances that have been identified and there appears to be no challenge either to the work done on documents which are set out in the schedule to the costs summary schedule. The only challenge which appears to be advanced therefore, aside from a submission that the costs appear high for a half day hearing, is that the brief fees that have been incurred in relation to this dispute are in excess of what is reasonable and proportionate by reference to the instruction of junior counsel (Mr Ward). There is no criticism of Mr Blackwood KC’s fees.

[37]So far as junior counsel’s role is concerned, there appears to be no dispute concerning the £2,000 that is claimed in respect of work in connection with the application and preparation of the response to it, nor, I think, the cost of reviewing the second statement of Mr Watling and advising on documents for inclusion. The focus of attention has been on the brief fee of £10,000. So far as that is concerned, plainly it is in excess of what is proportionate to pay £10,000 for a junior barrister to attend a half day hearing where the client’s submissions are made exclusively by leading counsel. The only point that could be made is that work done in connection with the preparation of the written submissions by junior counsel is likely to have been significant. The preparation of a skeleton argument comes within the scope of the brief fee unless it is agreed it should be paid for separately, and there is no indication on the face of the schedule that that is what has happened in this case. Therefore, I infer that a part of Mr Ward’s brief fee will be attributable to the preparation of or contributing significantly towards the preparation of the skeleton filed in support of this application.

[38]That, as it seems to me, leads to the conclusion that of the brief fee of £10,000, £2,500 should be allowed, which will be attributable to the skeleton, but the remainder of that brief fee of £7,500 should be omitted on the basis that it is not proportionate for that fee to have been incurred. Therefore, in the light of the limited submissions which have been made on behalf of the paying party, I allow the sums claimed at the level they have been claimed because there is no challenge to the time rates charged by the solicitors or the categories of work for which solicitors time costs have been claimed and I make only the modest reduction I have indicated in relation to junior counsel’s fees. (See separate transcript for continuation of proceedings)

[39]The issue I now have to determine is whether or not I should extend time and, if so, on what terms for the filing of the second acknowledgement of service having dismissed the jurisdiction challenge brought by the defendant against the claimant.

[40]The circumstances are, at any rate for me, novel. Mr Page KC, on behalf of the defendant, tells me that he has instructions to apply for permission to appeal but declines to make that application to me and has instructions only to apply to the Court of Appeal for permission. Mr Page went so far as to suggest he did not intend to apply for permission from me because he didn’t think I would grant it. That is inappropriate on a number of different levels. Firstly it ignores the expectation of the Court of Appeal that applications for permission will generally be made to the first instance judge. Secondly it deprives the Court of Appeal of the benefit for what they are worth of the views of the first instance judge on the permission issue, and thirdly it leads to the suggestion that I should determine the extension application without regard to what I consider to be the merits of the permission to appeal application. None of this is at all appropriate. Mr Page submits that what I should do is to extend the time for filing the second acknowledgement of service, therefore initially for a period of 21 days and thereafter until the disposal of his application for permission to appeal, or the appeal if permission be granted so as to avoid any misunderstandings or difficulties concerning the filing of a further acknowledgement of service.

[41]Mr Blackwood KC, on behalf of the claimant, says that this is all heterodox and that if there is no application for permission to appeal then any applications consequential upon the success of an application for permission to appeal ought to be made to the Court of Appeal. In principle I agree entirely with this approach, although a degree of pragmatism is also required.

[42]Had an application for permission to appeal been made to me then I would have concluded that permission should be refused because there was no realistic prospect of success for the reasons identified in the substantive judgment I gave a moment ago – that is to say, reliance on the Hague Convention given the terms of the clause, was misconceived and because the defendant provided an express contractual FNC waiver in relation to proceedings commenced by the claimant anywhere it chose to commence them, which was determinative of the FMC issue subject only to the qualifications in the Standard Chartered Bank case which on the facts was of no application.

[43]With some hesitation, I have to say, because I conclude the purist position is indeed that contended for by Mr Blackwood, which is to do nothing and to leave the claimant to make whatever application it wants to make to the Court of Appeal, I am prepared to extend the time for the filing of the further acknowledgement of service by 7 days to 21 days. If, as I consider probable, there is no application for permission to appeal then relatively little harm has been caused to the claimant by this modest extension. If on the other hand an application for permission is to be made then there will be sufficient time for the defendant to apply to the Court of Appeal for any further extension in the appeal notice. I am not prepared to go further because (a) where an application for permission to appeal is not being made to the first instance judge on the acknowledged basis it will probably be refused then it is wrong for the first instance judge to proceed on the assumption that an application for permission to appeal may be made to the Court of Appeal.

[44]In those circumstances, I conclude that no order is appropriate above and beyond extending the time for filing the acknowledgement of service for the 21 day period to the end of the period for replying to the Court of Appeal for permission. (See separate transcript for continuation of proceedings) - - - - - - - - - (This Judgment has been approved by the Judge.) Digital Transcription by Marten Walsh Cherer Ltd 2nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP Tel No: 020 7067 2900. DX: 410 LDE Email: info@martenwalshcherer.com Web: www.martenwalshcherer.com

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