CL-2024-000668 - [2025] EWHC 2788 (Comm)

At the hearing in front of me, Mr Russell KC on behalf of the Claimant pointed to the questions of law on which Dias J had given permission to appeal. He said that the present case was unusual because there was no substantive dispute as to the correct answers to those questions of law. The Defendant accepted that the law was stated correctly in Benjamin on the Sale of Goods (12^th ed) at [19-072], namely that ‘A CIF seller is under an obligation to provide an effective policy of insurance, ie one which is not void or voidable for misrepresentation.’ In the circumstances, the Court should answer the questions of law for which Dias J gave permission ‘No’ and ‘No’, set the Appeal Award aside, and remit it to the Appeal Board to determine whether the Policy was invalid or ineffective in the relevant sense, namely that it was void or voidable as a matter of Belgian law.

In the course of his submissions, Mr Russell KC accepted that one course open to the Court on this hearing was, in conjunction with answering the questions of law in the way he proposed, to remit the Appeal Award to the Appeal Board, and that on such remission it would be open to the Appeal Board to hold that those answers to the questions made no difference to the result, including on the basis that it had already found that the policy was actually void or voidable.

For the Defendant, Mr Smith KC argued with characteristic force that the questions of law on which permission had been granted were not ones which the Appeal Board was asked to determine. Whilst that submission involved revisiting one of the bases on which permission to appeal had been granted, there was no legal impediment to the court’s doing so. Further or alternatively, he contended that there was no error of law on the part of the Appeal Board given that, as he submitted, the Appeal Board had affirmed the finding of the FTT that the insurers had been entitled to avoid the policy; and in circumstances where the insurers had in fact avoided the policy for material non-disclosure and where the Claimant was not contending that the insurers had been wrong to do so, the Appeal Board was entitled to rely on the insurer’s avoidance of the policy as establishing a breach of contract. In relation to this alternative case, he submitted that, if the court was in doubt as to whether the Appeal put its mind to the question of whether the insurers were entitled to avoid the policy, then the Appeal Award should be remitted.

In response, Mr Russell KC submitted that the court should not revisit the permission stage hurdles; and submitted also that Dias J had been right in her analysis of the Appeal Award.