[2025] EWHC 2126 (Comm)

Was Charterers’ delay lengthy? In my judgment, it was. The Claim Form was issued on 6 August 2024; the Amendment Application was only issued on 15 January 2025 (and a draft of it only sent to Owners’ solicitors on 25 November 2024). That is a delay of some five months relative to the 28-day statutory limit for challenging the Award (or three months until the date on which it was provided in draft form to Owners).

I cannot accept Mr Bowen KC’s submission that Owners waived their right to argue the amended claim is out of time. While the Claim Form referred to an alleged lack of authority on Mr Puria’s part to enter into the Charterparty, it does not allege fraud. The first intimation of fraud is found only in Mr Samuel’s witness statement dated 26 September 2024 – some 50 days after the Claim Form was filed on 6 August 2024 – at paragraph 9, where he says Owners’ failure to insist on a board resolution from Charterers granting authority to Mr Puria to enter into the Charterparty:

“give rise to concerns about the genuineness, validity and enforceability of the purported [Charterparty]. While there could have been multiple reasons for the collusion between the [Owners] and [Mr Puria], I understand upon enquiry that the vessel was likely idling and the opportunity to defraud the [Charterers] by using the idling vessel and that too at higher than market rates had driven the [Owners] to participate in the fraud with [Mr Puria]. Therefore, the said [Charterparty] was entered into between [Mr Puria] and the [Owners] without the knowledge and/or approval of the [Charterers] but in the name of the [Charterers] with a collusive and mala fide intention to defraud the [Charterers] and enrich themselves unjustly.”

As I mentioned at [‎13] above, no evidence was filed by Charterers with the Claim Form on 6 August 2024. The fact that Owners were later served with Mr Samuel’s witness statement does not, in and of itself, amount to a waiver on their part. Charterers could not force an election by so doing.

Was the delay reasonable? It is not suggested that any of the facts and matters (or even the speculation) now set out in Mr Samuel’s witness statement and relied upon by Charterers were (or was) not able to be given by Mr Samuel at the time the Claim Form was issued. Even though the burden is on Charterers, no reason has been offered for their failure to plead the fraud allegations from the outset.

A remarkable feature of Charterers’ application is that no witness statement by their solicitors has been offered to explain the reasons why this allegation was not pleaded from the very outset. Mr Samuel offers no explanation why. Mr Bowen KC argued (at [2] of his skeleton argument) that, “At that stage allegations of fraud were not supported by a witness statement and were accordingly not pled”, but (a) counsel cannot give evidence; (b) there is no explanation why a witness statement was not provided in accordance with CPR r.8.5(1) together with the Claim Form; and (c) it is not a prerequisite to pleading fraud that a witness statement be filed alongside it, it requires only clear instructions and reasonably credible material to establish an arguable case: see the Bar Standards Board Handbook (v.4.8), Part 2: Code of Conduct, r.C9, which provides (in relevant part, and my emphasis):

“Your duty to act with honesty and with integrity under CD3 includes the following requirements:

…

.2 you must not draft any statement of case,witness statement, affidavit or other document containing:

.a any statement of fact or contention which is not supported by your client or by your instructions;

.b any contention which you do not consider to be properly arguable;

.c any allegation of fraud, unless you have clear instructions to allege fraud and you have reasonably credible material which establishes an arguable case of fraud;

.d (in the case of a witness statement or affidavit) any statement of fact other than the evidence which you reasonably believe the witness would give if the witness were giving evidence orally; …”

If the absence of evidence filed within the statutory period was reasonable, then the applications in Leibinger and Konkola should have been allowed. They were not. And, in any event, the regulator’s requirement that fraud be pleaded only in the circumstances set out (here, by the Bar Standards Board (the “BSB”) at r.C9.2.c) is not a minor or technical pleading point: allegations of fraud stand apart from other allegations and are expressly regulated by, amongst others, the Solicitors Regulation Authority, the BSB, and the Commercial Court Guide, which provides at C.1.3(c):

“(i)

Full and specific details should be given of any allegation of fraud, dishonesty, malice or illegality; and

(ii)

where an inference of fraud or dishonesty is alleged, the facts on the basis of which the inference is alleged must be fully set out.”

It is not for Owners to try and guess whether these allegations of fraud were ones that were being made by Charterers in the Claim Form. The sole basis for Mr Samuel alleging fraud is what he says was Owners’ failure to insist on a board resolution from Charterers granting authority to Mr Puria to enter into the Charterparty. That, coupled with the other facts and matters upon which he relies to make out a case for fraud is, with respect, and in my judgment, insufficient to establish an arguable case of fraud. I return to this aspect below in considering Charterers’ prospect of success.

That aside, I see no good reason why the allegations were not pleaded in the Claim Form together with supporting evidence: the very same allegations now set out in the draft amended Claim Form (and in Mr Samuel’s witness statement dated 26 September 2024) are materially identical to those set out by Charterers in their Interim Response in the arbitration in February 2024. Indeed, they appear to be materially identical to the various police reports filed by Charterers on 2 November 2023, 21 December 2023, and 7 March 2024. Further, Charterers did not act promptly to seek to amend their pleadings even after it was made clear by Owners that they had to do so: Charterers had been on notice from Owners since 1 October 2024 that (a) their pleading was deficient; (b) an application to amend was necessary; and (c) Owners’ position was reserved.

Was the delay caused or contributed to by Owners? I do not think so. By their first skeleton argument dated 20 September 2024, Owners applied for the claim to be struck out. It suggested that, in the alternative, the Court direct Charterers to amend the Claim Form and serve witness evidence (subject, of course, to Charterers obtaining the Court’s permission to do so). By their skeleton dated 27 September 2024, Charterers opposed Owners’ strike-out on the basis of Mr Samuel’s witness statement and requested that they be directed to file particulars of claim. As Mr Samuel’s witness statement contained allegations of fraud upon which Charterers relied, they had to be pleaded. They were not. Owners’ skeleton dated 1 October 2024 noted the new allegations of fraud had not been pleaded. It said:

“Insofar as the Claimant wishes to provide proper particulars, it must apply to amend its Claim Form. The Respondent’s position on that, in particular in circumstances where a further application would be out of time, is reserved”.

So, in all, I do not think it can justifiably be said that the delay was caused or contributed to by Owners.

Permission to amend is therefore refused on this ground.