A Summary Of Recent Developments In Insurance, Reinsurance And Litigation Law - 18/11

This Week's Caselaw

Bacon v Automattic Inc

Service out of the jurisdiction by alternative means

http://www.bailii.org/cgibin/ markup.cgi?doc=/ew/cases/EWHC/QB/2011/1072.html&query=title+(+bacon+and+auto mattic+)&method=Boolean

There has been some recent debate by the judiciary as to whether the court can allow service of a claim form out of the jurisdiction by an alternative method. In this case, the claimant applied to serve a defendant domiciled in the USA by email. The claimant wished to thereby avoid delay which might result in data being deleted (due to the defendant's document retention policy). Tugendhat J said that it is preferable: "if solicitors writing letters asking for information to be provided (if necessary pursuant to a Norwich Pharmacal order) should specifically ask defendants such as these whether service of the claim by e-mail is a method permitted by the law of the country in question, and if so, for their consent to service by e-mail".

Following a review of the recent caselaw, the judge concluded (following the Court of Appeal decision in Bayat Telephone Systems v Cecil (see Weekly Update 08/11) that he did have power to order service on the defendant in the USA by email at the email addresses which it had notified to the claimant's solicitors (or by its website): "But in future claimants should put before the court evidence as to whether that method is permitted by the law of the country in which the claim form is to be served (or a good reason for not doing so), since if it is, service by an alternative method will be unnecessary".

Carboex SA v Louis Dreyfus Commodities

Meaning of delay caused by strike in a charterparty

http://www.bailii.org/ew/cases/EWHC/Comm/2011/1165.html

The claimant appealed under section 69 of the Arbitration Act 1996 following an arbitral award. Of issue was the interpretation of a clause in the charterparty which provided that the charterers of a ship would pay demurrage if discharge of the cargo was delayed but that: "In Case of strikes, lockouts, civil commotions or any other causes ....beyond the control of the Charterers....which prevent or delay the discharging, such time is not to count unless the vessel is already on demurrage". In this case, discharge was delayed because of congestion at the port which in turn was due to a strike which had ended by the time the vessel had berthed. The claimant charterers argued that the discharge was delayed by reason of the strike. The owners...