QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Rolls Building, 7 Rolls Buildings Fetter Lane, London EC4A 1NL |
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B e f o r e :
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GLORY WEALTH SHIPPING PTE LTD |
Claimant |
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- and - |
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FLAME S.A. |
Defendant |
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Robert Bright QC and Charles Holroyd (instructed by Reed Smith LLP) for the Defendant
Hearing date: 3 February 2016
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Crown Copyright ©
Mr. Justice Teare :
"Where a party to a contract (A) would, had it been performed, have directed the other party (B) to make payment of the sum due upon performance of the contract to a third party (C), where C is not an agent of A, and where C would not hold the funds to the order of A, nor would C transfer or be obliged to transfer the funds to A upon demand by A, does A for that reason not suffer substantial loss by reason of B's non-performance of the contract?"
"We were not persuaded by Glory Wealth's assertion that in the circumstances described Glory Wealth would still suffer a loss. Those circumstances were (a) that it had been deprived (by Flame's breach) of its right to receive the freight, and (b) it would never in fact have received the freight (because it would have been paid directly to Evensource or First Goal and not transferred to Glory Wealth). Nevertheless, it was submitted by Glory Wealth, it should still be regarded as having suffered a loss and therefore entitled to recover substantial damages. Glory Wealth's case was that Evensource and First Goal did not transfer the funds in 2011 or 2012; it was not their case that the funds had been transferred subsequently and they provided no evidence that they were. On that basis, we conclude and so find and hold that Glory Wealth's deprivation (by Flame's breach) of its right to receive the funds was not sufficient to establish that Glory Wealth would have suffered a loss."