[2025] EWHC 2126 (Comm)

An application to amend by Charterers was filed on 24 January 2025 (following a draft application sent to Owners on 25 November 2024), together with a supplemental witness statement from Mr Samuel dated 16 January 2025.

It is useful to set out the amendment sought by Charterers to the draft amended Claim Form filed with the Amendment Application on 24 January 2025 (this largely mirrors the facts and matters averred by Mr Samuel in his witness statements):

“Particulars of Dishonesty

[Charterers aver] that the fraudulent bad faith alternatively dishonesty of [Owners] in entering into the [Charterparty] can be inferred from the following facts:

(a)

[Owners] took no steps to confirm [Charterers’] board of directors had approved the execution of the purported [Charterparty].

(b)

[Owners] agreed to the nomination by Mr Puria of [SPG] alternatively amendment to the [Charterparty] to place [SPG] in place of [Charterers] without confirming the legal status of [SPG] and its relationship with [Charterers].

(c)

[Owners] accepted [SPG] as the guarantor of payment.

(d)

The only payments made to [Owners] were made by [SPG]; no payments were made by [Charterers].

(e)

Delivery of the vessel was in fact to [SPG] because [Charterers] did not take delivery.

(f)

[Owners have] failed to provide proof of the valid delivery of the vessel in the form of clearance certificate from the relevant local authorities.

(g)

There is no record of an addendum, a new contract or amended fixture note between [Owners] and [SPG] to permit payments from [SPG] to [Owners] through outward remittances, a regulated banking process, which required an amended fixture note in [SPG’s] name.

(h)

[Owners] did not withdraw the vessel prior to 22nd September 2023 despite the failures to pay hire charges and payment defaults. The vessel was deliberately idled, docked, anchored, or delayed for a period exceeding the time stipulated resulting in additional hire charges.

(i)

[Owners] took no action against [SPG] notwithstanding the agreement by SPG to pay the hire charges.

Alternatively, on the basis of the same facts, [Owners were] or should have been aware that [Charterers] had not entered into the [Charterparty].

[Charterers] did not ratify the purported [Charterparty] and obtained no benefit from it because [Charterers were] entirely unaware of the existence of the [Charterparty] until 10 October 2023 and did not enter into any contracts to carry any goods on the vessel.”

Notably, although the amendment is headed “Particulars of Dishonesty”, no dishonesty is averred in the details of claim given in the Claim Form; rather, the real complaint underpinning the unamended pleadings in the Claim Form is that Owners did not take any steps to confirm Mr Puria’s authority to enter into the Charterparty on Charterers’ behalf, or to confirm that Charterers’ board of directors had approved the execution of the Charterparty.

Owner’s position on the Amendment Application is that the amendment should be refused for being:

Further, if the application is allowed, Owners submit the claim should be struck out because Charterers took part in the proceedings. Alternatively, if the amendment application refused, they say the original claim should be struck out both because Charterers took part in the proceedings and because the claim has no real prospects of success, or that the Claim Form is defective for want of particularisation.

I take Owners’ grounds in that order in dealing first with Charterers’ Amendment Application.