QUEEN'S BENCH DIVISION
IN AN ARBITRATION APPLICATION
London WC2A 2LL
B e f o r e :
|AZOV SHIPPING CO||Applicant|
|BALTIC SHIPPING CO||Respondent|
Harry Counsell & Company
61 Carey Street London WC2A 2JG
Telephone No: 0171-242-9346
MR C SMITH (instructed by Messrs More Fisher Brown) appeared on behalf of the Defendant.
Crown Copyright ©
MR JUSTICE RIX: This is an interesting question under the
"(1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court - "(a) challenging any award of the arbitral tribunal as to its substantive jurisdiction."
"(1) The court may give such directions as to the conduct of the arbitration application as it thinks best adapted to secure the just, expeditious and economical disposal thereof.
(2) Where the court considers that there is or may be a dispute as to fact and that the just, expeditious and economical disposal of the application can best be secured by hearing the application on oral evidence, or mainly on oral evidence, it may, if it thinks fit, order that no further evidence shall be filed and that the application shall be heard on oral evidence or partly on oral evidence and partly on affidavit evidence, with or without the cross-examination of any of the deponents as it may direct.
(3) The court may give directions as to the filing of evidence and as to the attendance of deponents for cross-examination and any directions which it could give in proceedings begun by writ."
MR FLYNN: My Lord, I am very grateful indeed. I would firstly point out the practice direction of Colman J and it seems to me that this judgment is the very one of the judgments that he refers to where "... The judge of the commercial court will endeavour so far as possible to consistency in matters of construction of both the Act and the new order 73. In order to facilitate consistency of approach arrangements have been made for decisions on matters of construction application to be circulated between the judges immediately they are given and then distributing them to practitioners".
MR JUSTICE RIX: Yes.
MR FLYNN: I do not know, my Lord, whether given the judgment of the Court of Appeal in the Imperial Tobacco case whether it is necessary to direct that this judgment be deemed delivered in open court.
MR JUSTICE RIX: No, I think it is the other way now.
MR FLYNN: Yes, I think it probably is. But if it is necessary I would ask your Lordship to direct it under order 32 rule 13 .
My Lord, the second point is costs. This is a discrete issue, we would ask for our costs in this application. The only other question is the further directions. Your Lordship indicated that, as I understood it, that it might be helpful, given my indication that we would like to lead in chief, would that be put in -- the leading be put in writing, if that is the case, obviously, we will need some time to do that. Subject to that, what we would say is 21 days to do that, then the normal directions apply, apart from reply evidence, which we would ask for an extension from seven to 21. But those are the only submissions I have.
MR SMITH: My Lord, in reverse order, I have been thinking about it while I have been listening to my learned friend, if we are both calling evidence again, the first time round was exchange of evidence, and if we are going to, as it were, put our questions in chief in those supplementary statements, it may be more appropriate, and it may not be contentious, but what there should be is an exchange of supplementary witness statements followed by an exchange of supplementary experts' reports, so it takes direction --
MR JUSTICE RIX: Was there supplementary evidence from the factual witnesses as well as the expert witnesses?
MR SMITH: Yes, my Lord, briefly. If may be appropriate if the matter as my learned friend has fairly described, effectively, as a rehearing, as a trial, the directions took effect as they would do then, so that there should simply be an order for mutual exchange of supplementary witness statements followed by a mutual exchange of supplementary experts' reports.
MR JUSTICE RIX: I would like to think that is right.
MR FLYNN: We are very content with that.
MR JUSTICE RIX: I am inclined to give the shortest possible sensible times for that since this is a run that you have already done. I am inclined to say 14 days for factual...
MR FLYNN: My Lord, the only thing I would say is I know that my solicitor would be very anxious because he took the statements last time round by actually going to the Ukraine and we would ask for 21 days.
MR SMITH: My Lord, I think that is -- 21 and then 21 again.
MR JUSTICE RIX: Could one do factual and expert at the same time or would you want to have a...
MR FLYNN: We would want to have a break.
MR JUSTICE RIX: 21 plus 21?
MR FLYNN: Yes.
MR JUSTICE RIX: So be it. 21 days mutual exchange, factual supplementary statements, 21 days after that mutual exchanges of experts' supplementary statements. Otherwise automatic directions, in effect, are they not?
MR SMITH: My Lord, on reporting, I think we are with your Lordship on that, it is not necessary to make an order, but we certainly would not oppose if it was necessary. My Lord, on costs, I appreciate there has been a discrete issue here today, but there would have had to be a directions hearing in any event. I appreciate we have lost, but what we do say to your Lordship is that it is an appropriate case where it has troubled your Lordship, it is a new point, it was a point that was proper to be ventilated, but it should be costs in the application.
MR JUSTICE RIX: Do you want to say anything further about that?
MR FLYNN: My Lord, it is not a run of the mill directions application. The time was extended at Baltic's request. Your Lordship has given a very reasonable judgment, we have succeeded, they have lost, we would ask for costs.
MR JUSTICE RIX: I will say costs in the application.
MR SMITH: My Lord, can I briefly and finally trouble your Lordship on one matter, echoing what my learned friend said about the desirability of emanating this judgment, my Lord, we would ask your Lordship for leave to appeal on what does seem to us to be a fundamental point of principle under the new Act as to the effect of not availing yourself of the section 72 option and whether that really does, as we say, mean that you have limited yourself. We do say, as your Lordship said in giving a slightly longer judgment than normal, it is a very important point that would be appropriate for consideration.
MR FLYNN: My Lord, on that point I am not sure, I was looking up myself whether if we lost we could appeal. I am not sure it is possible, my Lord, but I will not take that point, because if your Lordship deals with the application it is not possible then it certainly saves time. What I would say is even if it is possible to appeal from this judgment this ought to be a matter to be dealt with by the Court of Appeal. If they consider that your Lordship's judgment requires any interference then they can give leave themselves.
MR JUSTICE RIX: That is my view. If it is possible to appeal I refuse leave and you will have to go to the Court of Appeal.