Claim No: CL-2022-000527 - [2025] EWCA Civ 1387

This claim was brought using the CPR Part 8 procedure and no oral evidence was called. The judge apparently saw some witness statements from Messrs A.H. Johnston and A.J. Kemp, but those statements have not been referred to on appeal. Notwithstanding the approach taken at trial, the Owner and the Club have referred in argument to what the Charterer is to be taken to have known or not known about the Certificate and the Booklet, and the Insurer has made an extensive application to admit much evidence of other wordings commonly available in the global marine insurance market including (and not including) pay first clauses. Both seem to me to be inappropriate approaches. Had the parties wanted to adduce evidence about how the insurance contract came into being and what the parties knew about its terms and conditions, no doubt they would have followed a CPR Part 7 procedure and sought to adduce witness evidence on those matters. Likewise, if evidence were needed as to the utilisation or the usual or unusual nature of pay first clauses, no doubt such evidence could have been adduced at trial. Instead, the parties willingly proceeded to trial on the basis that the case would be decided on the papers.

We are told by the Insurer that the Owner and the Club only raised their red hand ground just before trial, so that the Insurer did not have time to adduce evidence of the usual nature of pay first clauses. I am not persuaded that the Insurer could not, had it wished, have applied for an adjournment to enable it to call the evidence it wanted to resist the new argument. It is, in my judgment, now too late to call evidence about the prevalence or otherwise of pay first clauses. It is equally inappropriate to ask the Court of Appeal to infer, for the first time, things about what the Charterer knew or did not know when such evidence could, had the Owner and the Club wanted, have been called at trial.

I would dismiss the Insurer’s application to adduce new evidence. For the avoidance of doubt, we agreed to consider that evidence on the basis that we would decide in our judgments whether to admit it. In the event, it was only referred to briefly in oral submissions and we were taken to none of its detail.