[2025] EWHC 2746 (Comm)

Fecha: 24-Oct-2025

Do the Claimant’s grounds of appeal have a real prospect of success?

(2)

Do the Claimant’s grounds of appeal have a real prospect of success?

33.

If my decision above is wrong and I do have jurisdiction to determine the Claimant’s application for permission to appeal, I will now consider that application.

34.

I should note that the Claimant did not provide draft grounds of appeal as required by the Commercial Court Guide, para. J12.3, but I believe I was able to discern the substance of the grounds relied on by the Claimant in support of its application.

35.

The Claimant submitted that it is entitled to permission to appeal on the basis that the Court erred in law in the following respects, and on the basis that the following grounds of appeal meet the low threshold of a real prospect of success under CPR rule 52.6(1)(a).

(1)

The Court erred in law in finding that this was not a Kaefer limb (iii) case (referring to Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV [2019] EWCA Civ 10; [2019] 1 WLR 3514). The profoundly curious “head charters” that had been produced by the First Defendant cast doubt on all features of the latter’s case. When the First Defendant’s evidence, which was compromised as a whole in its probative force by the inexplicable and unexplained features of the supposed “head charters”, was balanced against the features directly favouring the Claimant’s case, and in particular the express identification of the First Defendant as Owner in the protocols of delivery, the position either favoured the Claimant’s case or this was a Kaefer limb (iii) case.

(2)

At paragraph 76 of the Judgment, the Court identified the matters that (it held) demonstrated that the Claimant contracted with North Global and not with the First Defendant. The Court erred in law in its treatment of (a) the lie in the Recap about the Vessel having no Russian connections and (b) post-contractual events.

(a)

The Recap states that the Owners confirm that the vessels have no Russian connection. In fact, the Vessels had strong Russian connections (at least three of the Vessels were owned by the First Defendant, a Russian company, and the First Defendant was bareboat charterer of the fourth vessel). In other words, whoever was responsible for the Recap on the Owner’s side was dishonest. However, the Court has treated this feature as supporting the First Defendant’s case that it cannot have been, or at least was not, the contractual counterparty to the Claimant. The warranty is breached as much by a charterparty with North Global as it is breached by a charterparty directly with the First Defendant. The inclusion of the false warranty favours neither over the other. The Court drew the wrong conclusion from the false warranty: it should have counted against, not in favour of, the First Defendant.

(b)

Although the Court rightly accepted that emails of 27th June 2022 demonstrated that the Claimant may not have known with whom they were contracting at the time of the Charterparty, the Court went on to hold that subsequent events (namely the response to being told that North Global was charterers’ counterparty) were relevant to answering the question of who the contractual counterparty was. That cannot be right, as there was no plea of estoppel, and events after entry into the Charterparty are simply irrelevant to the question of the identity of the contracting party.

36.

The First Defendant submitted that the application for permission to appeal should be refused in any event, because neither ground of appeal relied on by the Claimant has any real prospects of success for the purposes of CPR rule 52.6, either individually or cumulatively.

(1)

The Court’s decision in allowing the application to contest jurisdiction is one as to whether or not a claimant has a “good arguable case”. That is an “evaluative decision” (Berge Bulk Shipping Pte Ltd v Taumata Plantations Limited [2025] EWCA Civ 876, para. 54). Appellate courts will rarely interfere with decisions of that nature. In particular, the appeal court will “not carry out a balancing task afresh but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the judge’s treatment of the question to be decided, “such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion”” (In re Sprintroom Ltd [2019] EWCA Civ 932, para. 76). There was no such “identifiable flaw” in the Judgment.

(2)

The first question that the Court had to consider was whether or not, in its evaluation of the matter as a whole, either party had the better of the argument on “good arguable case”. If so, then that would be a Kaefer limb (i) case, and the application would either be granted or refused. Only if no reliable assessment can be made of whether or not a party has a “good arguable case” does Kaefer limb (iii) apply. The Court carried out a detailed analysis of the facts and concluded that the First Defendant had the better of the argument, i.e. this was a Kaefer limb (i) case. There was no flaw of law or logic that might lead to that decision being interfered with on appeal.

(3)

As to the first ground of appeal, the Court had first to consider whether the terms of the Charterparty sufficiently identified the parties to it. It was only “if that is not sufficient to answer the question at hand” that one would look to the surrounding circumstances. The Court was able to reach the conclusion that the Charterparty was fixed between the Claimant and North Global by reference to its terms, in particular those of the recap and the Q88. That conclusion was sufficient for the First Defendant’s application to succeed. It was unnecessary for the Court to go on to consider the wider circumstances, including the disputed status of the head charters. Against that background, the criticisms made by the Claimant of the Judgment fall away.

(4)

As to the second ground of appeal, the identity of the parties is to be determined objectively having regard to their intentions. The relevance of the Recap clause confirming that the Vessel had no connections with Russia was that it negatived a mutual intention that the First Defendant be a contracting party. The question is not whether or not that warranty was breached. It is whether both parties objectively intended the Charterparty to be concluded with the First Defendant. The Court was right to reason that they could not have done so, in light of the terms of that warranty. The Claimant’s submission that the Court ought not to have taken account of post-contractual events is difficult to reconcile with the fact that the delivery certificates were at the forefront of its own case. But in any event, this submission is wrong in law.

(5)

In any event, the appeal has no real prospects of success. The Court set out a number of reasons for its conclusion that the First Defendant had the better of the argument that the Charterparty was concluded with North Global. The Claimant does not and cannot criticise the significant majority of those reasons, including the most important ones concerning the objective ascertainment of the parties from the recap and Q88. The Court made it clear that had it “limited [the] examination to the Recap and the Q88 forms, I would have come to the conclusion that the Charterers’ counterparty is North Global, not Middle Volga”. That conclusion was sufficient for the First Defendant’s application to succeed and would be enough for any appeal by the Claimant to fail.

37.

Assuming that I had jurisdiction to dispose of the application for permission to appeal, I would have refused permission for the reasons given by the First Defendant. In particular, it seems to me that the Claimant’s proposed grounds of appeal are in reality a challenge to the assessment of the evidence and how, as a result, the principles in Kaefer should respond. It is not said, at least as I understood the application, that I misinterpreted the principles in Kaefer.

38.

Similarly, insofar as it is said that I placed too much reliance on the provision in the Recap as to the absence of Russian connections, the challenge is not to the interpretation of the provision, but to its evidential effect. Accordingly, given that the prospect of successfully appealing against a decision based on the assessment of factual evidence is more onerous than in the case of a question of law or construction, I do not consider that there is a real prospect of success on this ground.

39.

As to the ground of appeal relied on by the Claimant that it was not permissible to take into account post-contractual matters in identifying the contracting party to the Charterparty, as far as I recall, this was not an objection raised at the hearing. In any event, had I limited my assessment of the evidence to matters pertaining to the conclusion of the Charterparty, I would not have come to a different decision. Therefore, I do not consider that the Claimant has a real prospect of success on appeal.

40.

Therefore, if I had jurisdiction to determine the application for permission to appeal, I would have refused such permission.