CL-2025-000010 and CL-2025-000091 - [2025] EWHC 1842 (Comm)

“Representative” is defined as:

“in relation to a party, any Affiliate of that party and any director, officer, employee, agent, consultant, adviser or representative (including auditors, investment advisers and investment managers and independent valuers) of that party or any of its Affiliates, in each case from time to time”.

Clauses 38.5 and 38.6 provide:

“38.5

The Representatives specified in Clause 33 shall have the right to enforce the relevant terms of that clause by reason of the Contracts (Rights of Third Parties) Act 1999. This right is subject to: (i) the rights of the parties to amend or vary this Agreement without the consent of any Representative; and (ii) the other terms and conditions of this Agreement”.

38.6

Save as set out in Clause 38.5, a person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 or any other statutory provision to enforce any of is terms.”

Clause 37 addresses “invalid terms” and provides:

“37.1

Each of the provisions of this Agreement is severable.

37.2

If and to the extent that any provision of this Agreement:

(a)

is held to be, or becomes, invalid or unenforceable under the Law of any jurisdiction; but

(b)

would be valid, binding and effective if some part of the provision were deleted or amended,

then the provision shall apply with the minimum modifications necessary to make it valid, binding and enforceable. All other provisions of this Agreement shall remain in force.

37.3

The parties shall negotiate in good faith to amend or replace any invalid, void or unenforceable provision with a valid, binding and enforceable substitute provision or provisions, so that, after the amendment or replacement, the commercial effect of the Agreement is as close as possible to the effect it would have had if the relevant provision had not been invalid, void or unenforceable.”

Paragraph 2.1(b) of Schedule 16 provides that “unless the context otherwise requires … references to an English legal term or concept will, in respect of any jurisdiction other than England, be construed as references to the term or concept which most nearly corresponds to it in that jurisdiction”.

Clause 33.1(b) appears to be directed at events occurring during the performance of the SHA, this being when breaches of the SHA would occur and when rights and remedies in relation to such breaches would arise.

Clause 33.1(c) appears to be similarly so directed, because it has a carve-out of “liability in respect of a breach of this Agreement”. The language of this sub-clause also appears to be forward-looking, in stating that no party or its Representatives “shall owe any duty of care … in relation to the subject matter of this Agreement” (language which is much wider than simply liability in tort for pre-contractual statements), and the same is also true, albeit perhaps less compellingly, about the words “shall … have any liability … in relation to the subject matter of this Agreement.”

The clear impression that clause 33.1(c) is forward-looking is reinforced by the definition of “its Representatives” which applies to Affiliates, directors, officers, etc “from time to time”, as well as a category of identified Representatives (e.g. investment advisors, managers and valuers) who are unlikely candidates for pre-contractual liabilities. While I accept that the definition of “Representative” is used elsewhere in the SHA (e.g. in relation to confidential information), the use of the same definition in clause 33.1(c) in terms which are obviously forward-looking remains significant. It is also reinforced by the words “in relation to the subject matter of this Agreement”, the SHA essentially seeking to regulate matters occurring after its conclusion.

While I accept that exclusion and limitation clauses are a context in which surplusage might be expected (given the tendency for “saturation bombing” in clauses of this type), JPM struggled to identify a realistic scenario where clauses 33.1(b) and (c) would have a substantive effect not achieved by clause 33.1(a) in a pre-contractual context. The absence of a realistic liability for the clauses to bite on if JPM’s time-limited construction is to be adopted is a matter which can be relied upon to give the sub-clauses an interpretation consistent with their language (the only candidate offered was a claim in lawful means conspiracy relating to events leading up to the conclusion of the SHA). This was recognised as a relevant consideration in the construction of exemption clauses even in the context of a more hostile approach once adopted to the construction of exclusion and limitation clauses, in the third of the Canada Steamship Lines Ltd v R [1952] AC 192 guidelines for the construction of clauses said to exclude liability for negligence.

Ms Phelps KC suggested that any construction which did not limit the operation of clause 33.1(c) to claims arising out of matters occurring at or prior to the completion of the SHA would have surprising and uncommercial consequences, because the clauses would restrict the ability to claim against directors of Viva for misfeasance in office. However, clause 33.1(c) only takes away claims by members of one grouping (a party and its Representatives) against another grouping (another party and its Representatives) and therefore nothing would prevent Viva, which became a party to the SHA and which I shall assume for present purposes is a “party” for the purposes of clause 33.1(c), suing its own directors. Nor would clause 33.1(c) prevent the derivative exercise of such rights (which would still involve the assertion of a liability of Viva’s directors to Viva). JPM accepted that, if it applied post-contract, clause 33.1(c) could be engaged by a claim by JPM qua shareholder of Viva against the directors of Viva appointed by WRL. However, I would not regard a clause which excluded a direct claim by a shareholder against the directors of a company, but left the company’s claims against the directors intact, as a particularly unusual outcome, still less one sufficiently surprising to reverse the construction argument back in JPM’s favour.

If the parties had been asked, when concluding clause 33.1(c), whether it would be open to one party to bring proceedings to assert a liability which they had agreed with the defendant the defendant should not have, or to do so in a jurisdiction in which the court would not give effect to the “no liability” promise they had made, I would have expected a particularly testy “of course not” to be forthcoming.

It has been held that a promise by A to B to indemnify C against a liability or loss involves an implied promise by A to B not to sue C to establish such a liability. In Deepak Fertilisers and Petrochemicals Corporation v ICI Chemicals and Polymers Ltd [1998] 2 Lloyd’s Rep 139; [1999] 1 Lloyd’s Rep 387 (CA), both Rix J at first instance and the Court of Appeal had little difficulty in accepting this proposition. Rix J at p.166 stated “in the present case, it seems to me that a promise to indemnify ICI or to give ICI the benefit of their insurance is an implicit promise not to sue ICI (of course within the scope of the indemnity and the insurance). After all, a promise to hold harmless or to procure waiver of subrogation is wholly incompatible with a right to sue.” The Court of Appeal, at [77], agreed:

“An agreement to indemnify and hold harmless contains within it by necessary implication an implied term not to sue. It meets any or all of the well known tests for implication of terms. It would be absurd to allow Deepak to sue ICI with the consequence that ICI sues Davy and Davy then have to sue Deepak for acting in breach of art. 10.10.3 by suing ICI.”

That conclusion receives some impetus from the effect of Article 15 of Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (“Rome II”) which provides that the law applicable to a non-contractual obligation will govern “the grounds for exemption from liability, any limitation of liability and any division of liability”. Where a contract between the parties provides for an exclusion of liability in tort in a manner permitted by the applicable law of the contract, but such an exclusion is not valid under the applicable law of the tort, the prevalent view appears to be that the law applicable to the non-contractual obligation is determinative. That view has the formidable support of Professor Andrew Dickinson, who states in Dicey, Morris & Collins on the Conflict of Laws (16^th), [34-019]:

“[A] situation may arise in which the defendant relies on the terms of a contract in answer to a claim made against it otherwise than for breach of contract. If a term contained within a contract between the claimant and defendant purports to exclude or restrict the defendant’s liability, the question arises as to whether that term can be successfully pleaded as a defence to a claim based (for example) on a tort/delict which is governed, under the Rome II Regulation, by a law different from that which governs the contract. In principle, this question should be taken to be concerned with ‘the grounds for exemption from liability’ or ‘limitation of liability’, which must, in accordance with Art.15(b) of the Rome II Regulation, be addressed under the law applicable to the non-contractual obligation and not the law applicable to the contract. If, however, the law to which Art.15(b) points recognises the possibility that a contractual term may offer a defence to the non-contractual claim, the law applicable to the contract must then be referred to in order to determine any matters incidentally in dispute concerning the validity and interpretation of that contract (for example, whether the liability falls within the scope of an exclusion clause).”

That choice of law outcome is capable of having a negative impact on attempts by parties to agreements with an international operation but governed by English law to regulate their mutual liabilities (or those of related parties) in tort, in circumstances in which the English law of contract is not itself sufficient to make English law the applicable law of the non-contractual obligation in issue (see [180]-[182] below). However, those consequences will be avoided to the extent that the provision limiting or restricting non-contractual liability in the English law contract is interpreted as a promise not to bring proceedings to assert such a liability. For example footnote 167 to [34-019] of Dicey provides:

“In some cases, the bringing of a non-contractual claim may be argued to involve a breach of contract, in which case the law applicable to the contract may apply directly to determine whether, for example, that claim may be restrained by an injunction (see, e.g. National Westminster Bank Plc v Utrecht-America Finance Co [2001] EWCA Civ 658, [2001] 3 All E.R. 733; National Westminster Bank Plc v Rabobank Nederland [2007] EWHC 1742 (Comm), [2008] 1 Lloyd’s Rep. 16).”

The starting point is Gore v Van der Lann [1967] 2 QB 31. The claimant had obtained a free bus pass from the Liverpool Corporation, on terms which provided “neither the Liverpool Corporation nor any of their servants or agents responsible for the driving, management, control or working of their bus system, are to be liable to the holder ... for ... injury ... however caused." After being injured, the claimant sued the bus conductor for negligence, the conductor seeking to rely on the “no liability” provision. Liverpool Corporation applied to stay the claim under s.41 of the Supreme Court of Judicature (Consolidation) Act 1925.

The stay application failed. It was accepted in that case that the conductor’s own reliance on the term could not succeed (due to privity of contract issues which do not arise here). Wilmer and Salmon LJJ also found that the relationship between the claimant and the Liverpool Corporation was one in contract, with the result that the “no liability” term was rendered void by s.151 of the Road Traffic Act 1960. This provides that “a contract for the conveyance of a passenger in a public service vehicle shall, so far as it purports to negative or to restrict the liability of a person in respect of a claim which may be made against him in respect of the death of, or bodily injury to, the passenger while being carried in, entering or alighting from the vehicle, or purports to impose any conditions with respect to the enforcement of any such liability, be void.” That would appear to have rendered any implied promise not to sue invalid as well, given the words “or restrict” and the reference to “impos[ing] any conditions with respect to the enforcement of any such liability.”

Wilmer LJ reached this conclusion by applying the contra proferentem rule in its full pre-UCTA 1977 rigour (“in my judgment the conditions are to be construed strictly against the corporation who put them forward. It is not enough to say that a promise not to sue the employee is to be implied. At the best for the corporation, the condition relied on is ambiguous, and any ambiguity must be resolved in favour of the plaintiff.”) Salmon LJ dealt with the issue even more briefly, noting that the argument “presupposes a contractual promise by the plaintiff not to sue the corporation's servant. I do not think that any such promise can be implied.” Harman LJ did not address this issue, proceeding on the basis that the Liverpool Corporation had not shown a sufficient interest in obtaining a stay.

While only one of two reasons for Wilmer and Salmon LJJ’s conclusion, that does not prevent the conclusion on construction being part of the ratio of the case (Miliangos v George Frank (Textiles) [1975] QB 487). However, Gore might be successfully parried by the observations of Lord Wilberforce and Lord Diplock in Photo Production Ltd v Securicor Transport Ltd [1980] AC 827, 843 and 851 as to the fact that the strained construction of exemption clauses was no longer necessary, now that Parliament had intervened in the form of UCTA 1977. However, matters do not end there.

In Homburg Houtimport BV v Agrosin Private Ltd (The Starsin) [2004] 1 AC 715, a clause on a bill of lading provided “It is hereby expressly agreed that no servant or agent of the carrier (including any person who performs work on behalf of the vessel on which the goods are carried or any of the other vessels of the carrier, their cargo, their passengers or their baggage, including towage of and assistance and repairs to the vessel and including every independent contractor from time to time employed by the carrier) shall in any circumstances whatsoever be under any liability whatsoever to the shipper, for any loss, damage or delay of whatsoever kind arising or resulting directly or indirectly from any act neglect or default on his part while acting in the course of or in the connection with his employment.”

An important issue in the case was whether the shipowner, on the assumption that it was not the contractual carrier, was entitled to rely on the quoted text as a defence. The cargo claimants argued that it was not, for various reasons including that the text was “merely a promise not to sue third parties, enforceable only by the carrier” (i.e. a Gore v Van der Lann case). The case was not concerned with the question of whether the clause was capable of operating both as a defence by the party sued and an agreement not to sue.

At first instance ([1999] CLC 1769, 1785), Colman J accepted that argument, on the basis that were the quoted text to constitute an exclusion of liability, it would entirely supersede the narrower and more nuanced exclusion and limitation of liability in the text which followed. He concluded:

“that first part has the contractual function of prohibiting actions against the servants or agents of the carrier, a prohibition which can be enforced by the carrier by injunction: see Nippon Yusen Kaisha v International Import & Export Co Ltd (‘The Elbe Maru’) [1978] 1 Ll Rep 206.”

The Court of Appeal ([2001] CLC 696, Morritt VC, Chadwick and Rix LJJ) agreed ([116]), although Rix LJ noted that he was concerned only with what the text in question was seeking to do, not with its effectiveness as a promise not to sue.

Before those courts, possibly due to the failure to spot the unintentional omission of some of the words in the relevant clause, the argument proceeded on the basis that if the clause took effect only as an agreement not to sue and not as an exclusion, it could not avail the shipowner on privity of contract grounds.

However, in the House of Lords, that conclusion was reversed. Lord Bingham at [24] stated:

“Colman J [2000] 1 Lloyd's Rep 85, 99-100 interpreted this provision as a covenant nottosue, enforceable by injunction, such as was considered in Nippon Yusen Kaisha v International Import and Export Co Ltd (The Elbe Maru) [1978] 1 Lloyd's Rep 206. All three members of the Court of Appeal [2001] 1 Lloyd's Rep 437, 461, para 116; 471, para 169; 476, para 201 agreed with him. Given this unanimity of opinion, one is reluctant to disagree. But it is in my judgment impossible to spell a covenant nottosue out of the language of this clause, as the Court of Appeal found it to be in Gore v Van der Lann [1967] 2 QB 31. The language construed in The Elbe Maru was strikingly different.”

Lord Steyn said that part 1 of the clause was “not capable of being read as a mere” – that word again – “covenant not to sue” ([55]).

Lord Hoffmann dealt with the matter at rather greater length. First, he noted at [94] and again at [97] that the carrier had contracted on the shipowner’s behalf in entering into that part of the bill of lading contract contained in part 1 of clause 5. At [100] he stated of the “mere covenant not to sue”:

“[I]n my opinion, and I understand it to be that of all your Lordships, part (1) simply cannot be read as a covenant not to sue. It does not say that the shipper is not to sue the third party. It says that he shall not be under any liability. A similar point arose in Gore v Van der Lann … in which the plaintiff contracted with the Liverpool Corporation that their bus drivers would not be liable to her for any damage however caused. The corporation did not purport to contract as agent for the drivers and when the plaintiff sued a driver it was conceded that he could not rely upon the exemption … But the corporation intervened to claim that the contract was a covenant not to sue the drivers which they could enforce. The Court of Appeal rejected this argument, saying that the agreement could not be construed as containing such a covenant. So it seems to me that either part (1) is a contract of exemption between shipper and third party or it is wholly ineffective. In my opinion it is the former.”

Lord Hobhouse at [145] stated “as regards the argument that the first part of the second paragraph of clause 5 should be construed as a contract not to sue, I do not consider that this is a possible construction of the wording.” While it is possible to read this paragraph as rejecting the argument that part 1 could “only” be read as a covenant not to sue, that would not be a fair reflection of the tenor of the judgments overall.

Lord Millett at [195] stated that “the opening words of the clause are words of exemption; they cannot be construed as a covenant not to sue. They are the very antithesis of such a covenant, which presupposes the continued existence of liability, albeit a liability which the covenantor undertakes not to enforce. The present clause by contrast operates to prevent any liability from arising in the first place.”

First, on the basis that it was “a very narrow decision based upon the wording of that particular clause”. However, subject to one point arising from the circumstances of this case to which I return below, I am unable to discern a material difference between the “no servant …. shall in any circumstances whatsoever be under any liability whatsoever” clause in The Starsin and the “no party (nor any of its Representatives) shall owe any duty of care or have any liability in tort or otherwise to any other party (or its respective Representatives)” here. Further, the House of Lords reached its decision by applying a general proposition which Gore v Van der Lann was held to establish.

Second, because in this case clause 38.5 gave the Representatives the right “to enforce” clause 33.1. I was not persuaded that this point went anywhere:

While in Gore v Van der Lann, the relevant clause would not have been effective as an exclusion in the place where proceedings were brought, this was either because it could not be availed of by the defendant in those proceedings as a matter of privity of contract (which is not the position here) or because it was unenforceable as a matter of statute law, a conclusion which would appear to have applied as much to a covenant not to sue. It was not, therefore, a case in which an otherwise effective agreement between parties that one of them was to have no liability of a certain kind to the other was being negated by proceedings in a forum which would not give effect to that agreement.

The entire premise of The Starsin was that the exception would be effective on the terms of the agreement if it was open to the shipowner to rely upon it. At first instance and in the Court of Appeal, it was held it was not (for privity reasons), but not otherwise. In the House of Lords, it was found that there was no privity issue, and that the exception took effect save as contractually qualified by other terms in the contract between the shipowner and the carrier (viz. the paramount clause).

Neither case, therefore, addresses a position in which there is a contract, valid under its applicable law, between two parties that they will each have no liability to the other in certain circumstances, the effects of which one party wishes to avoid by bringing proceedings in a jurisdiction which will not give effect to their agreement.

Reverting to Lord Millett’s formulation at [195], the implied term here is subservient to the purpose of preserving clause 33’s role in ensuring that no liability arises, rather than accepting that such a liability has arisen but agreeing not to enforce it.

These are the circumstances here, and in such circumstances, I am satisfied that the implied term accepted so readily by Rix J and the Court of Appeal in Deepak Fertilisers is equally applicable, and is not precluded by authority.

If I am right in my view that JPM has promised the Directors not to bring the Greek Proceedings, then I did not understand JPM to submit that an ASI should not follow on conventional Angelic Grace principles (see National Westminster Bank plc v Utrecht America Finance Co [2001] EWCA Civ 658, [35] for their application in this closely analogous area), provided the Directors could establish that the court had and should exercise jurisdiction (matters of which, as I explain below, I am satisfied). To the extent that it is said that the defamation proceedings commenced against the JPM Directors, or the criminal complaint filed and rejected, are reasons why the court should refuse to enforce what I have found to be JPM’s promise not to sue the Directors in the manner of the Greek Proceedings, I am wholly unpersuaded by this. The former may well have involved a breach of clause 33.1(c), but JPM did not advance an argument to this effect, and I would not in any event have treated the Directors’ assumed breach as a reason to refuse to enforce JPM’s promise. The criminal complaint did not, in my view, constitute a breach of clause 33 – clause 33.1(c) is concerned with private law liabilities “to any other party”, language wholly inapposite to a criminal complaint to public authorities.

If I am wrong, then the contrary conclusion has the potential significantly to impact the other arguments in this case, because it would mean that in the place in which any obligation limiting JPM’s right to sue the Directors would most obviously be found, it is not there.

The SHA is governed by English law, which famously leaves a relatively limited role for illegality under foreign law to prevent enforcement of the contractual bargain or liability for failing to do so (Banco San Juan Internacional Incv Petróleos De Venezuela S.A. [2020] EWHC 2937, [75]-[83]). It would be extremely surprising if the contractual immunities afforded by the SHA were to be rendered ineffective merely because there are jurisdictions which would not give effect to them, because of this fairly standard piece of contractual boilerplate.

I am satisfied that clause 37 is concerned with those jurisdictions where the SHA requires conduct to be performed, or its applicable law (i.e. illegality under the governing law of the agreement or of a place where the contract as interpreted in accordance with its governing law required particular steps to be taken).

That construction is consistent with the terms of clause 37.2 and, especially, clause 37.3, which appear to contemplate a single adjustment to the relevant clause of the SHA, rather than the jurisdiction-by-jurisdiction or “lowest common construction” solution which JPM’s argument would necessitate.

By contrast, JPM’s construction would allow any party to bring proceedings in a jurisdiction of no relevance to the contract for the purpose of securing a finding that clause 33.1(c) was not valid, which would then trigger an obligation to re-negotiate the clause for all purposes to the extent necessary to overcome that finding.

The subject matter of the SHA is broadly defined in Recital (C) as follows:

“JPM and WRL are entering into this Agreement in order to set out the terms governing: (a) their relationship as shareholders in the Company; (b) the management and administration of the affairs of the Company; and (c) the potential exit by either JPM or WRL as shareholders in the Company, in each case following the Effective Date.”

The SHA addresses the governance of Viva, including which matters require JPM approval (clause 5), the appointment and removal of directors and the conduct of board meetings (clause 6), the conduct of shareholder meetings (clause 7) and information and reporting (clause 10). Under clause 5.6, each party “agrees that it shall comply with, and fully and punctually perform any obligations to which it is subject under, the Articles, and the Company shall, so far as it is legally able, procure that (and the Shareholders shall, so far as they are legally able, exercise their rights in relation to the Company to procure that) each other Group Member shall comply with, and fully and punctually perform any obligations to which it is subject under such Group Member’s constitutional documents.”

The Greek Proceedings assert claims against the Directors arising from their conduct as directors of Viva which are alleged to have adversely affected JPM’s rights as shareholders in Viva and its rights under the SHA in relation to the conduct of Viva. The complaints include interference with JPM’s rights to nominate directors and the activities of the directors so nominated or intimidation intended to cause JPM to part with its shares in Viva.

The complaints in the Greek Proceedings centre on three types of rights: governance rights, information rights and veto rights. Rights of all three kinds form part of the subject matter of the SHA and have featured in varying degrees in correspondence and statements of case concerned with disputes between JPM and WRL under the SHA. The fact that they may also be found in the Articles of Association (amended to reflect the SHA, as the claim in the Greek Proceedings notes) or Greek company law in the form of Law 4548/2018 does not change the position. Clause 33 is not concerned with claims related to a subject matter only dealt with in the SHA, and the clause would lose almost all of its effect and utility if this was not the case (cf. the finding that minority shareholder claims formulated by reference to a company’s articles of association which mirrored the terms of the SHA fell within the arbitration agreement in the latter in NDK Ltd v Huo Holding Ltd [2022] EWHC 1682 (Comm)).

A connecting factor like the “subject matter” of an agreement requires the test for the relevant nexus to be approached with a degree of abstraction, rather than at an unduly granular level. It is not sufficient, to establish a lack of connection, to point to individual features of the broader allegations in the complaint in the Greek Proceedings which have no counterparts in the SHA (see by analogy Lombard North Central Plc v GATX Corpn [2013] Bus LR 68, [14]).

JPM raised a similar argument as to whether the Greek Proceedings involve “a dispute … arising out of or in connection with” the SHA for the purposes of clause 42 (putting the identity of the parties aside). That argument was referred to only briefly in a footnote in JPM’s skeleton, and not otherwise developed, a decision which fairly reflected its merits.

Clause 33.2 is a provision of a kind commonly found in entire agreement clauses. There is a rule of English law that a party cannot, as a matter of public policy, exclude liability for its own fraud (S Pearson & Son Ltd v Dublin Corporation [1907] AC 351). The contours of the operation of this principle outside the tort of deceit are not entirely clear (Chitty on Contracts (33^rd), [18-067]).

In Thomas Witter Ltd v TBP Limited [1996] 2 All ER 573, Jacobs J held that a widely worded entire agreement clause which did not expressly exclude fraud purported to apply to fraud, and was for that reason alone unreasonable and unenforceable under s.3 of the Misrepresentation Act 1967. That controversial decision (see Zanzibar v British Aerospace (Lancaster House) Ltd [2000] 1 WLR 2333), which counterintuitively incentivised claimants to argue for an expansive reading of “entire agreement” clauses and defendants for a narrower scope, led transaction lawyers drafting agreements which were subject to English law to include fraud carve outs in entire agreement and other exemption clauses (see Standard Chartered Bank (Hong Kong) Ltd v Independent Power Tanzania Ltd [2016] EWHC 2908 (Comm), [124]).

The concept of fraud under English law generally connotes conscious dishonesty or impropriety of some kind, and it is generally treated as a “thing apart” under English law because parties contract with one another in the expectation of honest dealing (MAN Nutzfahrzeuge AG v Freightliner Ltd [2005] EWHC 2347 (Comm), [209]).

It has been held that a “fraud” carve out from an exemption clause will generally only be engaged by “liability in relation to which fraud is a necessary averment” and that “the only workable criterion is whether an allegation of fraud is a necessary ingredient of the legal basis on which loss is claimed: in other words whether an allegation of fraud is a necessary averment to support a cause of action” (Interactive E-Solutions JLT v O3B Africa Ltd [2018] EWCA Civ 62, [23], [25]). While that interpretation is not determinative of this aspect of the present case, the practical considerations which led Lewison LJ to construe the carve-out before him in this way apply with equal force in this case. This construction ensures that the parties can, when the relevant claim is formulated, determine whether or not the carve out is engaged. This would not be the case if the proviso was capable of being triggered by a claim which did not have fraud as a necessary averment, but where it might be found at trial that the conduct giving rise to the claim had involved dishonesty. I do not accept that the fact that clause 33.2 falls to be applied to a claim under Greek law justifies a different approach in this case. It is first necessary to interpret clause 33 as a matter of English law, as the applicable law of the agreement. Having done so, that interpretation will fall to be applied to claims under other applicable laws with the benefit of paragraph 2.1(b) of Schedule 16. If, as a matter of English law, clause 33.2 requires claims of which fraud is a necessary averment, then it extends to claims under some other law where the concept which most nearly corresponds to fraud is a necessary averment.

While English law prohibits a party excluding liability for its own fraud, it has no similar rule of public policy in relation to excluding liability for intentional harm. Indeed, the intentional causing of harm is not, per se, tortious under English law (Allen v Flood [1898] AC 1), nor does a bad motive make the exercise of a contractual right unlawful (SNCB Holding v UBS AG [2012] EWHC 2044 (Comm), [73]). Were matters otherwise, there could be no concept of efficient breach of contract. The exclusion of liability for loss intentionally caused is a well-known drafting option (e.g. Article 25 of the Warsaw Convention Relating to International Carriage by Air) but that option was not adopted here. TheLaw Commission and Scots Law Commission, Exemption Clauses, rejected the suggestion that clauses which excluded liability for intentional acts should be made void regardless of any assessment of their reasonableness, noting that some deliberate or intentional breaches of contract “would be innocent or even praiseworthy” (Law Com. No.69, Scot. Law Com. No.39 (1975) paras 287–289). Similarly, “gross negligence” occupies no special status so far as the ability to exclude liability under English law is concerned. When the parties have used that expression as a proviso to an exclusion or limitation clause, the courts have held that it involves a difference of degree, rather than kind, from negligence simpliciter (The Hellespont Ardent [1997] 2 Lloyd’s Rep 547, 587; Armitage v Nurse [1998] Ch 241, 254 and Camerata Property Inc v Credit Suisse Securities (Europe) Ltd [2011] 1 CLC 627, [161]).

When asking which “term or concept” of Greek law “most nearly corresponds to” fraud or fraudulent misrepresentation, it is conceptual similarity which matters, not similarity of consequence. The mere fact that Greek law makes it impossible by an agreement in advance to exclude or limit liability for a wider class of conduct than is the case under English law does not mean that such types of conduct “most nearly correspond” to fraud or fraudulent misrepresentation. The concept which most closely corresponds with fraud is the deception of one party by another. The Greek law evidence did not address the concept of fraud under Greek law, and JPM resisted a late attempt by WRL to adduce evidence of Greek law on this subject. However, it is absolutely obvious that, like every civilian system, Greek law has a concept of the deliberate deception of another person. In particular, I am not persuaded by the suggestion that “the intentional infliction of harm involves or is akin to dishonesty”, if dishonesty is used as a synonym for fraud. The former is not actionable per se at all under English law, the latter always so. Professor Gortsos’ use of the word “dishonest” as a synonym for “contrary to good morals and [with] intent to cause damage” does not assist in determining whether Article 919 is the nearest equivalent to the English law concept of fraud.

It is not a necessary averment of a claim under Article 919 of the GCC that the defendant has acted fraudulently in the sense of clause 33.2. Nor, had this been enough, am I persuaded that the allegations in the Greek Proceedings involve allegations of fraud as a matter of fact in the relevant sense, even though these were not necessary averments for the purpose of formulating an Article 919 claim. The allegation, for example, that the Directors purportedly sought to impose a board charter on Viva which had been “dishonestly designed to prevent [JPM’s] nominated directors from being able to perform their duties”, is not an allegation of fraud or fraudulent misrepresentation in the clause 33.2 sense.