Clearlake Shipping Pte Ltd & Anor v Xiang Da Marine Pte Ltd

(hereinafter ‘the vessel’), from Xiang Da. That voyage charterparty (the ‘Clearlake charter’) comprises a recapitulation (‘recap’ for short) which incorporates the BPVoy4 standard form charterparty and amendments made to it by the parties (4/36116). The broker identified in the charterparty is China Grace Asia Pacific Ltd

(hereinafter referred to as ‘China Grace’) (4/38). I should point out that, although it is not in dispute for the purposes of the applications before me that Xiang Da is the contracting party and (disponent) owner of the vessel, a company called Nanjing Petroleum Transportation Co of China is actually named as the contracting party and (disponent) owner of the vessel at the start of the recap.

‘[Recap]

Amendments to BPVOY4

Clause 49 Law

Dispute which may arise out of this Charter, save as hereinafter provided. Any dispute arising out of this Charter less than USD 50,000 shall be referred to a single arbitrator in London, subject to the LMAA small claims procedure.’ (4/57)

‘[BPVoy4 form]

Law

The construction, validity and performance of this Charter shall be governed by English law. The High Court in London shall have exclusive jurisdiction over any dispute which may arise out of this Charter.’ (4/116)

Therefore, reading those together, any dispute (arising out of the Clearlake charter) of less than $50,000 is to be referred to arbitration under the London Maritime Arbitrators Association small claims procedure but, in relation to any dispute involving sums greater than that, the High Court in London shall have exclusive jurisdiction.

‘5. Law and Litigation Clause

This charter shall be construed and the relations between the parties determined, in accordance with the Laws of England.

Any dispute arising out of or in connection with this charter, involving amounts in excess of US$50,000 … shall be subject to the jurisdiction of the English High Court.

Any dispute arising out of or in connection with this charter involving amounts up to and including US$50,000 … shall be referred to arbitration by a single arbitrator in London in accordance with the provisions of the London Maritime Arbitrators Association (LMAA) Small Claims Procedure.’

‘This indemnity shall be governed by and construed in accordance with English law and each and every person liable under this indemnity shall at your request submit to the jurisdiction of the High Court of Justice of England.’

‘At your request’ is referring to the request of the owner. For the purposes of these applications, it is not in dispute (Clearlake reserving its position for other contexts) that that is referring to the request of Xiang Da (although, similarly to what I have pointed to in paragraph 4 above, Nanjing Tanker Corporation is actually named in the letters of indemnity as the owner).

was found guilty of smuggling by making false declarations about the place of origin of light cycle oil being shipped. He was imprisoned for 12 years; and there has been a financial confiscation order against Gunvor requiring it to pay over $54.9 million of evaded tax. But Gunvor was not a party in those criminal proceedings and submits that the Guangzhou Judgment imposes no obligation upon it.

As regards Xiang Da’s proceedings against Clearlake, the Clearlake charter exclusive jurisdiction clause applied to the claims for breach of the charterparty and the tortious misrepresentation claims so that Xiang Da was in breach of contract in bringing proceedings in Singapore; and there were no strong reasons not to grant the anti-suit injunction. The same also applied to Xiang Da’s claim against Clearlake under the re-documentation letter of indemnity because there was no conflict between clause 5 of the letter of indemnity and the exclusive jurisdiction clause in the Clearlake charter.

As regards Xiang Da’s proceedings against Gunvor, Gunvor was entitled to the anti-suit injunction on a ‘quasi-contractual basis’. This basis is explained below at paragraph 25. In any event, Gunvor should be granted the injunction on the basis of vexation or oppression because England was the most appropriate forum for the resolution of the parties’ dispute and, in all the circumstances, including having regard to comity, the ends of justice required the granting of the injunction. At [74], Bryan J emphasised that ‘if I grant an anti-suit injunction both in relation to Clearlake and in relation to Gunvor, then all those claims which are the subject matter of the third party proceedings will … be brought in this jurisdiction.’

Xiang Da’s third party claim against Clearlake is solely based on the letter of indemnity claim (in paragraph 9 of the statement of claim); and, as explained in paragraph 14 above, of the three letters of indemnity, it would appear that this refers to the re-documentation letter of indemnity.

Xiang Da’s third party claim against Gunvor is solely brought in tort for fraudulent and/or negligent misrepresentations (or other breach of duty in tort). Any possible contractual claim against Gunvor has been abandoned.

Xiang Da reinforces this by undertaking to the Court that it will not pursue any claims against Clearlake or Gunvor before the Singapore courts save for those set out in the amended third party proceedings. (But it should be borne in mind that this undertaking relates only to proceedings in Singapore so that it does not preclude Xiang Da bringing proceedings against Clearlake and/or Gunvor in England.)

‘In this hearing, Xiang Da seeks to vary the ASIs granted to Clearlake and to Gunvor. Xiang Da accepts that any claims brought against Clearlake under the Charter are subject to the Charter Jurisdiction Clause. In the Third Party Proceedings in Singapore, Xiang Da wishes to pursue only those claims which are not subject to the Charter Jurisdiction Clause. Those claims are (1) a claim for an indemnity pursuant to a letter of indemnity issued by Clearlake and enforceable by Xiang Da…; and (2) a claim in tort for fraudulent and/or negligent misrepresentation against Gunvor…’

The first main ground is that the foreign proceedings constitute the breach of a jurisdiction clause in a contract between the parties. Where that is so (and it is a question of contractual interpretation whether the jurisdiction clause covers the dispute in question) an anti-suit injunction will be granted unless there are strong reasons not to do so.In the words of Lord Bingham in Donohue v ArmcoInc [2001] UKHL 64, [2002] 1 Lloyds Rep 425, at [24]:

‘the general rule is clear: where parties have bound themselves by an exclusive jurisdiction clause effect should ordinarily be given to that obligation in the absence of strong reasons for departing from it. Whether a party can show strong reasons, sufficient to displace the other party’s prima facie entitlement to enforce the contractual bargain, will depend on all the facts and circumstances of the particular case.’

This can be, and has been, helpfully referred to as ‘the contractual basis’. The root idea is very simple. In English law, a prohibitory injunction is the primary remedy in the context of enforcing a negative contractual obligation (Doherty v Allman (1878) 3 App Cas 709, 720; Araci v Fallon [2011] EWCA Civ 668); and all that the court is here doing is restraining, by a prohibitory anti-suit injunction, the breach of a particular type of negative contractual obligation.

The second main ground is that the foreign proceedings are otherwise vexatious or oppressive. Under this ground (as stressed, for example, in Toulson LJ’s judgment in

Deutsche Bank AG v Highland Crusader Partners LP [2009] EWCA Civ 725, [2010] 1 WLR 1023, at [50]), it is necessary to be satisfied that England is clearly the more appropriate forum for the trial of the action (what is sometimes referred to as ‘the natural forum’) and that it is necessary in the interests of justice to grant the injunction taking into account considerations of comity. In Elektrim SA v Vivendi Holdings I Corporation [2008] EWCA Civ 1178, [2009] 1 Lloyd’s Rep 59, at [84] and [121], Lawrence Collins LJ clarified that, taken together with other matters, the inherent weakness of a claim may here be an important factor. His Lordship also emphasised, at [83], that ‘the categories of factors which indicate vexation or oppression are not closed…’.

‘[60] There is a point of construction of the exclusive jurisdiction clause that it is convenient to deal with at this point. It is accepted that the clause is not restricted to contractual claims. A claim for damages for, for example, fraudulent misrepresentation inducing an agreement containing an exclusive jurisdiction clause in the same form as that with which this case is concerned would, as a matter of ordinary language, be a claim in tort that arose “out of or in connection with” the agreement. If the alleged fraudulent misrepresentation had been made by two individuals jointly, of whom one was and the other was not a party to the agreement, the claim would still be of the same character, although only the party to the agreement would be entitled to the benefit of the exclusive jurisdiction clause. The commencement of the claim against the two alleged tortfeasors elsewhere than in England would represent a breach of the clause. The defendant tortfeasor who was a party to the agreement would, absent strong reasons to the contrary, be entitled to an injunction restraining the continuance of the foreign proceedings. He would be entitled to an injunction restraining the continuance of the proceedings not only against himself but also against his co-defendant. The exclusive jurisdiction clause is expressed to cover “any dispute which may arise out of or in connection with” the agreement. It is not limited to “any claim against” the party to the agreement. To give the clause that limited construction would very substantially reduce the protection afforded by the clause to the party to the agreement. The non-party, if he remained alone as a defendant in the foreign proceedings, would be entitled to claim from his co-tortfeasor a contribution to any damages awarded. He could join the co-tortfeasor, the party entitled to the protection of the exclusive jurisdiction clause, in third party proceedings for that purpose. The position would be no different if the claim were to be commenced in the foreign court with only the tortfeasor who was not a party to the exclusive jurisdiction clause as a defendant. He would be able, and well advised, to commence third party proceedings against his co-tortfeasor, the party to the exclusive jurisdiction clause.

In my opinion, an exclusive jurisdiction clause in the wide terms of that with which this case is concerned is broken if any proceedings within the scope of the clause are commenced in a foreign jurisdiction, whether or not the person entitled to the protection of the clause is joined as defendant to the proceedings. An injunction restraining the continuance of the proceedings would not, of course, be granted unless the party seeking the injunction, being someone entitled to the benefit of the clause, had a sufficient interest in obtaining the injunction. It would, I think, be necessary for him to show that the claim being prosecuted in the foreign jurisdiction was one which, if it succeeded, would involve him in some consequential liability. It would certainly, in my opinion, suffice to show that if the claim succeeded he would incur a liability as a joint tortfeasor to contribute to the damages awarded by the foreign court.

This point is of direct relevance in the present case. In the New York proceedings …, several claims are made but most of them are based upon the allegation that Mr Donohue, Mr Atkins, Mr Rossi and Mr Stinson conspired together fraudulently to extract in various ways substantial sums of money from the Armco group of companies. If the allegations can be made good, the liability of the conspirators would be a joint and several liability. There are substantial issues as to which of the claims fall within the language of the exclusive jurisdiction clause but I think it is clear that some of them do. Of the four alleged conspirators only Mr Donohue and Mr Atkins are contractually entitled to the benefit of the exclusive jurisdiction clause. Mr Atkins has settled with Armco, so it was Mr Donohue alone who commenced an action in this country for an injunction enforcing the clause. If Mr Donohue is entitled to an injunction enforcing the clause he is entitled, in my opinion, to an injunction that bars the continuance of the claims in question not only against himself but also against Mr Rossi and Mr Stinson with whom he is jointly and severally liable. If claims against Mr Donohue are within the clause, then so too are the corresponding claims against Mr Rossi and Mr Stinson. Mr Rossi and Mr Stinson are not contractually entitled to enforce the clause, but Mr Donohue is, in my opinion, entitled to ask the court to enforce it by restraining the prosecution in New York of all claims within its scope in respect of which Mr Donohue would be jointly and severally liable.’

‘[82] In light of the consideration given to this question by earlier authorities, it seems to me possible to make the following observations:

Whether an exclusive jurisdiction clause should be understood to oblige a contractual party to bring claims relating to the contract in the chosen forum even if the claim is one against a non-contracting party, requires a consideration of the contract as a whole including not just the language used in the exclusive jurisdiction clause but also all other terms in the contract that may shed light on what the parties are likely to have intended.

The principle that rational businessmen are likely to have intended that all disputes arising out of or connected with the relationship into which they had entered would be decided by the same court cannot apply with the same force when considering claims brought by or against non-contracting third parties. More particularly, whilst it is well established that the language of an exclusive jurisdiction clause is to be interpreted in a wide and generous manner, the starting position in considering whether disputes involving a non-contracting third party might come within the scope of the clause must be that, absent plain language to the contrary, the contracting parties are likely to have intended neither to benefit nor prejudice noncontracting third parties.

Where it is clear from the express terms that the contracting parties have turned their minds to the position of third parties and more particularly whether such third parties are to benefit or bear the burden of rights and obligations agreed between the contracting parties, the absence of any express language in the exclusive jurisdiction clause that provides for the application of that term in relation to claims brought by or against third parties may be an indication that the clause was not intended either to benefit or prejudice such third parties.

Where the exclusive jurisdiction clause is silent on the question, the fact that any provision in the contract dealing with third parties indicates an intention that third parties should not acquire rights as against the contracting parties by virtue of the contract, may be a further indication that the clause was not intended either to benefit or prejudice such third parties.

Where a particular interpretation of the exclusive jurisdiction clause produces a material contractual imbalance because for example it results in one party to a dispute relating to the contract being subjected to an obligation to bring proceedings in the chosen jurisdiction in circumstances where the other party to the dispute is not similarly obliged, or where that interpretation would require a claim against a noncontracting third party to be brought in the agreed jurisdiction even where the chosen forum may not actually have jurisdiction over such a claim against that party, this too may be an indication that the clause was not intended to so apply because such a result is unlikely to be what the contracting parties as rational businessmen would have agreed.

The fact that there is nothing in the contract that might indicate a rational limit in terms of the identity of non-contracting third parties whose rights and interests might be affected by the application of an exclusive jurisdiction clause might provide a further indication that the clause was only intended to affect the rights and interests of the contracting parties.

It follows that where contracting parties intend that any claim relating to the contract be subject to the exclusive jurisdiction clause even where it is one brought by or against a non-contracting party, clear words should be used expressly setting out this intention, the parties to be affected and, if relevant, the manner in which submission of any non-contracting parties to the jurisdiction of the chosen court is to be ensured.’

It is a matter for the interpretation of the jurisdiction clause whether the clause extends to cover the tort proceedings against the third party. Applying the general law of contract, the correct approach to that question of interpretation requires the application of the modern contextual and objective approach. One must ask what the clause, viewed in the light of the whole contract, would mean to a reasonable person having all the relevant background knowledge reasonably available to the parties at the time the contract was made (excluding the previous negotiations of the parties and their declarations of subjective intent). Business common sense and the purpose of the term (which appear to be very similar ideas) may also be relevant. Important cases of the House of Lords and Supreme Court recognising the modern approach, which marks a shift from an older more literal approach, include Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896, HL, especially at 912913 (per Lord Hoffmann giving the leading speech), Rainy Sky SA v Kookmin Bank [2011] UKSC 50, [2011] 1 WLR 2900, Arnold v Britton [2015] UKSC 36, [2015] AC 1619, and Wood v Capita Insurance Services Ltd [2017] UKSC 24, [2017] AC 1173. I have summarised elsewhere that modern approach: see, eg, Greenhouse v Paysafe Financial Services Ltd [2018] EWHC 3296 (Comm) at [11]. The Court of Appeal’s emphasis in UBS AG v HSH Nordbank AG [2009] EWCA Civ 585, [2009] 2 Lloyd’s Rep 272, at [82] (per Lord Collins) and Sebastian Holdings Inc v Deutsche Bank AG [2010] EWCA Civ 998, [2011] 1 Lloyd’s Rep 106, at [39] (per Thomas LJ) on interpreting jurisdiction clauses ‘widely and generously’ and adopting ‘a broad and purposive construction’ can be regarded as consistent with that modern approach.

If, as a matter of interpretation, the jurisdiction clause does extend to cover the tort proceedings against the third party, the contractual basis for an anti-suit injunction applies so that, as regards an application by the contracting party (B), the injunction will be granted unless there are strong reasons not to do so.

Applying privity of contract, only the contracting party (B) and not the third party (C) can enforce the jurisdiction clause (against A) by an anti-suit injunction on the contractual basis (unless an exception to privity of contract applies). But the jurisdiction clause may be a relevant factor in granting the third party (C) an anti-suit injunction on the alternative basis that the foreign proceedings are vexatious or oppressive. (It is also presumably possible in certain circumstances that the jurisdiction clause, even though not contractually enforceable by the contracting party (B) in favour of the third party (C), may be a relevant factor in granting the contracting party (B) an anti-suit injunction against the other contracting party (A) on the basis that the foreign proceedings are vexatious or oppressive.)

‘quasi-contractual’ ground for an anti-suit injunction falls away and has therefore not been pursued by Gunvor.

Is Clearlake entitled to an interim anti-suit injunction to prevent Xiang Da’s letter of indemnity claim against Clearlake proceeding in Singapore?

Is Gunvor entitled to an interim anti-suit injunction to prevent Xiang Da’s tortious misrepresentation claims against Gunvor proceeding in Singapore?

Is Clearlake entitled to an interim anti-suit injunction to prevent Xiang Da’s tortious misrepresentation claims against Gunvor proceeding in Singapore?

I shall deal with each of these in turn although, as will become clear, my decision on the second issue renders it unnecessary for me to answer the third.

‘[50]… There is … no conflict between those clauses, between the charter and the LOI clauses, and the jurisdiction clause in the charter mandatorily requires both parties to refer all disputes to the English courts, whereas, at its lowest, clause 5 of the LOI simply does no more than require one of the parties to submit to the English jurisdiction if requested to do so. So there is no conflict. It either does not deal with the situation at all or only deals with it in certain circumstances.’

There is an exclusive English jurisdiction clause in the Clearlake charter as well as in the Gunvor sub-charter, and in the switch bills of lading by reason of the incorporation of the charter terms. This indicates that, although Xiang Da, Clearlake and Gunvor are all incorporated in Singapore, England is, in the required sense, the natural forum for the third party claims. As Bryan J said, at [74], ‘England is the most appropriate forum for the resolution of the parties’ dispute.’

Xiang Da has manipulated its third party claims to try to avoid being caught by the exclusive jurisdiction clause in the Clearlake charter. It was Clearlake (through China Grace), not Gunvor, that directly dealt with Xiang Da. The email of 1 April 2016, containing the alleged misrepresentation ‘due to receiver’s request’, was directly provided to Xiang Da (through China Grace) by Clearlake not Gunvor. In other words, despite the criminal case mentioned in paragraph 11 above, the most obvious tortious misrepresentation claim, open to Xiang Da, would be against Clearlake not Gunvor; and it appears that the claim against Gunvor rests on the misrepresentations being passed on by Clearlake to Xiang Da. If Gunvor were to be held liable to Xiang Da for tortious misrepresentation, it is hard to see why Clearlake would not also be so liable; and certainly one would normally expect Clearlake to be sued for tortious misrepresentation if Xiang Da were suing Gunvor for such misrepresentations. Yet such a claim against Clearlake would have fallen within the exclusive jurisdiction clause in the Clearlake charter; and, had the misrepresentation claim been brought against Clearlake in England (as required by the exclusive jurisdiction clause in the Clearlake charter) it would plainly have constituted unacceptable forumfragmentation on the same issues for the misrepresentation claim against Gunvor to have been heard in Singapore. Although I reject the submissions, forcibly put on behalf of Gunvor (and Clearlake), that the tort claim against Gunvor is hopeless (so that I do not think that this case is equivalent to Shell International Petroleum Co v

Coral Oil Co Ltd (No 2) [1999] 2 Lloyd’s Rep 606), I consider that the bringing of the tortious misrepresentation claim solely against Gunvor and not against Clearlake is a procedural manoeuvre designed to evade the exclusive jurisdiction clause. It may well be that this precise type of procedural manoeuvre has not previously triggered an antisuit injunction on the ground of being vexatious or oppressive; but, as we have seen at paragraph 18(ii) above, the categories of what counts as vexation or oppression should not be regarded as closed.

In the light of what I have decided in relation to the letter of indemnity claims by

Xiang Da against Clearlake – which will be heard in England and not Singapore –

there is very good reason (as I have already said in paragraph 31), so as to avoid forum-fragmentation on the same issues, to have all third party proceedings (by Xiang Da against Clearlake and Gunvor) heard in the same jurisdiction (ie England). There is no obvious prejudice to Xiang Da in having all the third party proceedings heard in England rather than Singapore; and, while it may be that there would have been some overlap between the issues in the third party proceedings and the issues in the main claim by China-Base against Xiang Da – had that claim not been discontinued (see paragraph 2 above) - that would have been insignificant compared to the overlap of issues that would occur if the third party proceedings were split as between England and Singapore.

In the light of what I have just said in points (i) - (iii), I am satisfied that it is necessary in the interests of justice to grant the injunction taking into account considerations of comity.

‘quasi-contractual’ basis), cannot itself seek an anti-suit injunction for breach of that exclusive jurisdiction agreement, the question here is whether Clearlake should be granted an anti-suit injunction on the contractual basis in relation to Xiang Da’s tort claim against Gunvor.

The misrepresentation claims against Gunvor may be said to constitute ‘a dispute arising out of this charter’. The alleged misrepresentations arose in relation to the performance of the Clearlake charter.

There is nothing in the Clearlake charterparty expressly indicating that the jurisdiction clause should not apply in relation to Xiang Da’s tort claims against Gunvor.

There is a close relationship between Clearlake and Gunvor. Both are part of the Gunvor Group and Clearlake is the chartering arm of the group. In that role, it had a long-term contract of affreightment with Gunvor and it was pursuant to that contract that the Gunvor sub-charter was entered into.

It is clear that, had Clearlake been sued by Xiang Da for the tort of misrepresentation in relation to the Clearlake charter, that would have been caught by the exclusive jurisdiction clause. Similarly, had Xiang Da sued both Clearlake and Gunvor for the (same) misrepresentations, it would appear that the jurisdiction clause would have applied not only as regards Clearlake but also as regards Gunvor. If that is correct, it is not clear that it can make a significant difference that Xiang Da has chosen to sue only Gunvor for misrepresentation and not Clearlake.

Clearlake has an interest in the proceedings by Xiang Da against Gunvor. This is because, for at least two reasons, there is potential prejudice to Clearlake if the claim by Xiang Da against Gunvor goes ahead in Singapore. First, if Gunvor is found liable to Xiang Da, there is a realistic prospect of Gunvor having a contribution (or indemnity) claim against Clearlake as a joint and several tortfeasor. It is therefore of importance to Clearlake that the English courts make the determination of Gunvor’s tort liability to Xiang Da. Secondly, I have decided on issue (1) above (see paragraphs 27-32) that Xiang Da’s claims against Clearlake based on the re-documentation letter of indemnity should be heard in England not Singapore. There is a close link between those claims and the tort claim brought by Xiang Da against Gunvor and it is in the interests of Clearlake to avoid forum-fragmentation (and the waste of resources involved) by having all third party proceedings (by Xiang Da against Clearlake and Gunvor) heard in the same jurisdiction (ie England).

‘[120] … I think that the principles in the cases can be summarised as follows. (1) The power of the court to grant declaratory relief is discretionary. (2) There must, in general, be a real and present dispute between the parties before the court as to the existence or extent of a legal right between them. However, the claimant does not need to have a present cause of action against the defendant. (3) Each party must, in general, be affected by the court's determination of the issues concerning the legal right in question. (4) The fact that the claimant is not a party to the relevant contract in respect of which a declaration is sought is not fatal to an application for a declaration, provided that it is directly affected by the issue… (5) The court will be prepared to give declaratory relief in respect of a “friendly action” or where there is an “academic question” if all parties so wish, even on “private law” issues. This may particularly be so if it is a “test case”, or it may affect a significant number of other cases, and it is in the public interest to decide the issue concerned. (6) However, the court must be satisfied that all sides of the argument will be fully and properly put. It must therefore ensure that all those affected are either before it or will have their arguments put before the court. (7) In all cases, assuming that the other tests are satisfied, the court must ask: is this the most effective way of resolving the issues raised. In answering that question it must consider the other options of resolving this issue.’

‘The most important consideration is likely to be whether the parties have a legitimate interest in obtaining the relief sought, whether to grant relief by way of declaration would serve any practical purpose and whether to do so would prejudice the interests of parties who are not before the court.’

In Lord Woolf MR’s words in Messier-Dowty Ltd v Sabena SA (No 2) [2000] 1 WLR 2040, at 2050:

‘The deployment of negative declarations should be scrutinised and their use rejected where it would serve no useful purpose. However, where a negative declaration would help to ensure that the aims of justice are achieved the courts should not be reluctant to grant such declarations. They can and do assist in achieving justice … [T]he development of the use of declaratory relief in relation to commercial disputes should not be contained by artificial limits wrongly related to jurisdiction. It should instead be kept within proper bounds by the exercise of the courts’ discretion.’

‘[The Claimant claims] A declaration that the Claimant has no liability to the Defendant in misrepresentation or tort, contrary to what is pleaded in the Proposed Third Party Claim.’

Sara Masters QC, for Xiang Da, submits that the English court does not have jurisdiction in relation to that claim for a declaration of non-liability. Michael Ashcroft QC, for Gunvor, submits to the contrary that CPR 6B PD 3.1(4A) here applies. Under that provision, service out of the jurisdiction may be permitted where:

‘A claim is made against the defendant in reliance on one or more of paragraphs (2), (6) to (16), (19) or (21) and a further claim is made against the same defendant which arises out of the same or closely connected facts.’

I agree with Michael Ashcroft QC that that provision here applies (although I would express the reason for that in a slightly different way than he formulated it).

‘A declaration that the Defendant is required to submit any claims under or in respect of the Charterparty, the carriage of goods pursuant to the Charterparty or the issuance of the Switch Bills (including any alleged misrepresentations made in respect of the aforesaid), exclusively to the High Court of Justice of England & Wales.’

In my view, paragraph D falls within CPR 6B PD 3.1(6). It is a claim (for a declaration) made in respect of a contract (ie the Clearlake charter and/or the contract contained in, or evidenced by, the switch bills of lading) where the contract ‘contains a term to the effect that the court shall have jurisdiction to determine any claim in respect of the contract’. Both the Clearlake charter and the switch bills of lading have clauses specifying that the English High Court has exclusive jurisdiction. It then follows that CPR 6B PD 3.1(4A) applies to paragraph C because paragraph C includes a further claim (for a declaration of no liability for tortious misrepresentation) against the same defendant (Xiang Da) which arises out of the same or closely connected facts as those in paragraph D ie the alleged tortious misrepresentations arise in relation to the Clearlake charter and/or the switch bills of lading. I reject Sara Masters QC’s submission that the question of forum in paragraph D is ‘entirely separate’ from the question of whether Gunvor is liable to Xiang Da for tortious misrepresentation in paragraph C. On the contrary, both claims for declarations arise ‘out of the same or closely connected facts.’

Clearlake is entitled to an interim anti-suit injunction to prevent Xiang Da’s letter of indemnity claim against Clearlake proceeding in Singapore.

Gunvor is entitled to an interim anti-suit injunction to prevent Xiang Da’s tortious misrepresentation claims against Gunvor proceeding in Singapore.

Permission should be granted to Clearlake to amend its statement of case so as to allow it to seek a declaration that Gunvor has no liability to Xiang Da in respect of the alleged misrepresentations.

Permission should be granted to Gunvor to amend its statement of case to include paragraph C.