Case by Case

What is litigation privilege?  When does it apply?  When doesn’t it? There is a fine line between a probable prospect of litigation and a mere possibility of it.  Where to draw that line is the challenge.  We explore this in detail. This episode also serves as a user guide on litigation privilege, highlighting the key principles and how to navigate them. The dreaded ‘waiver of...

This is one for arbitration enthusiasts. “We’ve always done it that way,” is said to be one of the most dangerous phrases in business. Sometimes a case comes along that questions a process you’ve been doing for years.  Appointing arbitrators - easy enough, right?!  Well… In this episode, Calum and Luke discuss what is required for an effective arbitrator appointment.   Is it a contr...

One of aspects Luke enjoys most about practising international trade and shipping law is its multi-faceted nature. Some of those facets include: ➡️ substantive law - who is right and wrong on the arguments in the underlying dispute? ➡️ jurisdiction - where in the world should the dispute be heard? ➡️ arguably most importantly, security and enforcement - how do you secure that there are assets to e...

We're back from a brief break with a fresh episode of Case by Case. This time Luke and Calum review London Arbitration 16/22. No - the analogy is not about the lights being turned off and on our podcast series. We are looking at vessel blackouts causing off-hire under a charterparty. A topic we know well from other cases we've handled recently. In addition to off-hire, our chat also touches on red...

Calum and Luke have been wanting to share this episode for a while now. It was great to catch up with Ben Hobden of Forbes Hare - a leading and highly regarded restructuring and insolvency lawyer in the Cayman Islands. Here it is: Administration and insolvency proceedings are on the rise. This was before the horrific events in Eastern Europe of the past week, which have caused major turmoil on glo...

Yes, that’s right - we recorded our first live podcast episode to an audience! And what an exceptional audience it was. The luncheon was put on by the Society of Maritime Arbitrators, New York, and we were very fortunate to speak with approximately 40 leading US maritime arbitrators and counsel at the event. We took the recent English Court of Appeal decision in the Eternal Bliss to the US. Litera...

For the first time, we welcome an external colleague onto the show. Among many accolades and prestigious awards, Ade is a highly-respected Nigerian lawyer, with an expertise in maritime disputes. Ade joins Luke and Calum on today's episode to discuss a recent decision in the Nigerian Courts, the effect of which appears to constrain the ability of the Nigerian Courts to give an order for a vessel a...

Luke and Calum review London Arbitration 5/22 - A decision which looks at issues involving mitigation, remoteness and correctly particularising a damages claim. During the podcast, Calum references Court of Appeal obiter comments, which deal with a potentially large claim for failure to re-deliver a vessel on time. The case is The Achilleas, and the citation is: Transfield Shipping v. Mercator Shi...

The leading sports news story of 2022 has been a legal one. Novak Djokovic has run the full gamut of the Australian immigration system. First he had a visa, then he was put into detention, then he was released, before finally the Australian Government revoked the visa and sent him home. In this episode of case by case, Luke and Calum look at the final decision of the Federal Court, by which Djokov...

At the risk of interrupting the Eternal Bliss buzz from the English Court of Appeal today (more on that next episode), we are very pleased to share our latest CxC, featuring special guest, Aiden Lerc. Aiden is one of our star associates, based in London. Aiden is completing a PhD at University of Oxford on a Clarendon Scholarship, and working part time with Floyd Zadkovich . Aiden and Luke are bot...

Judgment in the CMA CGM Libra has been handed down yesterday by the Supreme Court. The result is that negligent passage planning can render a vessel “unseaworthy”, and liability for that unseaworthiness is not covered by the Article IV Rule 2 exception for errors in navigation. The Court carried out a detailed and comprehensive review of a number of established precedents. In doing so, the Court a...

Luke and Calum welcome special guest, Lucy Noble, one of FZ’s London based Associates, to recap a battle of the forms judgment. Handed down only last week by the English Court of Appeal. Lucy has made an excellent start with Floyd Zadkovich , handling an array of commodities/shipping/commercial matters, and is currently on a short term secondment at an energy trading company. We also touched on a...

...when an option taken gets written in. Sometimes episodes take unexpected turns. That's the fun of it. The format is simple. Calum and Luke pick a legal case, read it separately, turn on record, and talk. No pre-planning or even chat about what we are going to discuss. Where it goes is anyone's guess. What started as an examination of nominations in London Arbitration 20/21 led into a wider disc...

Eva in the red corner, Calum in blue... Featuring special guest, Eva-Maria Mayer. This is a different episode. We don't tackle one recent case. We address two leading cases on a key point of difference between English and US law. The scenario: when you have a time barred claim, can you still use that claim as a defence/defense to an incoming non-time barred claim? England - no. US - yes. We get in...

So in this week's episode we get serious on damages. Particularly where you should give credit for costs saved. It provides an interesting application of the recent Supreme Court decision in the New Flamenco: Space Shipping Ltd v ST Shipping and Transport PTE Ltd [2021] EWHC 2288 (Comm) We dissect the cause of saved costs and its connection with the cause of the damages. There’s a compar...

Featuring special guest, Edward Floyd! Ed is a co-founder of Zeiler Floyd Zadkovich and leading attorney in the US. He is based in our New York office. Recently English qualified too. Luke and him have been on this entrepreneurial journey together for over four years now. Still enjoying the challenge. Still getting on. Avoiding an esoteric philosophical debate on the meaning of time, as tempting a...

Luke and Calum are back! Series 2 of Case by Case. Kicking off with a special guest, Philip Vagin, and with a special topic: Maritime (Leans, no...) Liens. Our focus is the incorporation of lien clauses under US and English law. We use the London Arbitration 9/21 as our stepping off point into the topic. A key question we come onto is whether parties should be able to create US statutory maritime...

"On demand" or "See to it" - those are the two main types of guarantee. But what do those terms actually mean? Is it always clear if a guarantee is one, rather than the other, type? And, if not, what are the tell tale signs of each of these categories of guarantee? All of this was discussed in the recent Shanghai Shipyard's case - Judgment handed down on 23 July 2021. Luke and Calum discuss the ca...

When faced with a breach of contract an innocent party will often want to know if they have a right to terminate and walk away from the agreement, or whether they must continue with the contract and limit themselves to a recovery in damages. This is a tightrope for the parties and their lawyers. Does a breach of that specific term give a right to terminate? Alternatively, is this breach sufficient...

Costs are a hugely important factor in nearly all legal cases. Interestingly, there is a big distinction between English Court and US Court treatment of costs, which was an issue in the recent SMA decision of the MV BETTY KIX. The decision also looks at issues of arbitrator bias. That is currently a big talking point on the English side of the pond following the Halliburton v Chubb decision. This...

In the recent case of the DIVINEGATE, the English court was faced with a difficult jurisdictional question. The Claimant arrested a vessel in Gibraltar thought to belong to the Defendant. The Defendant argued that the arrest was wrongful, and that the Defendant was in fact the time charterer of the arrested vessel. The Defendant brought a counter-claim against the Claimant, for losses arising as a...

This episode responds to our first request. Inspired by recent events in the Suez, we are taking a look at the law of General Average. The case is a fascinating one. In January 2009, Pirates boarded the LONGCHAMP in the Gulf of Aden. They demanded a ransom of USD6m. That was negotiated down to USD1.85 over a period of 51 days. The ransom and the negotiator's fees fell squarely within General Avera...

In a wonderfully wide-ranging judgment, the Court of Appeal recently looked at the rights and obligations between two parties relating to the sale of a Ferrari 250 GTO. By looking at this judgment, Luke and Calum discuss the Sale of Goods Act, signing contracts "as agent", and how the Court can penalise a party in costs where that party fails to take steps to resolve a dispute at an early stage. S...

Parties routinely exclude "consequential losses" in their contractual agreements. But what is a consequential loss? And what is actually covered by a consequential loss exclusion? With his partner in CxC crime, Calum, Luke discusses a recent Arbitration decision (London Arb 13/21) and explore the law on consequential losses. This is a great place to start for a refresher on consequential dama...

Anyone familiar with the world of shipping, commodities and international trade will be familiar with agreements where the key commercial terms are agreed in a "recap", with full conditions to be incorporated by reference to a separate document (the "printed terms"). But what happens when the terms in the Recap would give a different result - if read in isolation - to the terms in the printed term...