[2025] EWHC 2036 (Comm)

Fecha: 31-Jul-2025

Discussion and conclusion on the evidence that can be considered when determining reasonableness of the Claimant’s decision

Discussion and conclusion on the evidence that can be considered when determining reasonableness of the Claimant’s decision

79.

Applying the approach of Teare J in The Triton Lark at [55] of his first decision, an extract of which appears at paragraph 44 above, the judgment must be made in good faith and must be objectively reasonable. Moreover:

“…An owner who wishes to ensure that his judgment is objectively reasonable will make all necessary enquiries. But if he makes those enquiries which he considers sufficient but fails to make all necessary enquiries before reaching his judgment I do not consider that his judgment will on that account be judged unreasonable if in fact it was an objectively reasonable judgment and would have been shown to be so had all necessary enquiries been made.”

80.

If the judgment is based on speculation, it will not be an objectively reasonable judgment: see Foxton J in the Litasco case at [64].

81.

In relation to the admissible evidence that can be considered when assessing the reasonableness of the judgment:

(1)

I hold that, applying the approach in The Triton Lark outlined above, I am entitled to have regard to material that was available to the Claimant at the time the decision was made, even though it may not have been considered by it when making the decision, if in fact its decision was an objectively reasonable judgment and would have been shown to be so had all necessary enquiries been made;

(2)

Materials that were not in existence at the time of the Claimant’s decision or which were in existence at the time of the decision, but which did not relate to the existing state of affairs, are in my judgment of little evidential value and are of no assistance to me. I do not accept Mr Coldrick’s submission that subsequent material which came into existence after the event is evidence which I can and should take into account. In any event the version of the UK Statement of Reasons dated 16 December 2022 does not address the position prevailing as at November 2021. All it says it is that Mr Gutseriev carried on business through Netfisa, without specifying the material time. The version current in November 2021 makes no mention of his involvement in Netfisa;

(3)

In relation to the ECJ decision in Gutseriev v. Council. I accept Mr Coldrick’s submission that this judgment falls within an exception to the exclusionary rule in respect of public or general rights: see Petrie v. Nuttall (1855) 11 Ex 569, Phipson on Evidence 20th Ed., 43-83 and Spencer Bower, 6^th Edn, 11.02-11.08. I will consider whether the ECJ judgment takes matters any further when considering the evidence below.