Fimbank Plc v Discover Investment Corp [2020] EWHC 254 (Comm) (05 February 2020)

Fimbank Plc v Discover Investment Corp [2020] EWHC 254 (Comm) (05 February 2020)

The claimant had no good arguable case for misdelivery because, under its own contractual arrangements, AOS Dubai (or its agent) was authorised to take delivery without production of bills of lading, and the defendant shipowner had no further responsibility after discharge. The loss resulted from a breakdown in the claimant's arrangements ashore, not from any breach by the defendant. Material non-disclosure and failure to present the full factual picture to the court ex parte also justified discharge of the freezing order.

Citation
[2020] EWHC 254 (Comm)
Parties
Claimant: FIMBANK PLC; Defendant: DISCOVER INVESTMENT CORP
Jurisdiction
England and Wales
Judgment Date
05 February 2020
Procedural Posture
Arbitration Claim / Freezing Order Application / Hearing of Inter Partes Return Date for Continuation/discharge of Freezing Order
Outcome
Freezing order discharged; claimant's application dismissed; defendant's cross-application allowed.
Legal Topics
Freezing Orders, Misdelivery of Cargo, Bills of Lading, Risk of Dissipation, Disclosure Obligations, Ex Parte Applications, Standstill Agreements, Breach of Undertakings
Commercial Law Arbitration Banking and Finance Shipping Law Freezing Orders Misdelivery of Cargo Bills of Lading Risk of Dissipation +4 more

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Parties

FIMBANK PLC

Claimant

DISCOVER INVESTMENT CORP

Defendant

Procedural Posture

Arbitration Claim / Freezing Order Application / Hearing of Inter Partes Return Date for Continuation/discharge of Freezing Order

Legal Issues

  1. 1 Whether the claimant has a good arguable case for misdelivery against the defendant shipowner under the bills of lading
  2. 2 Whether the freezing order should be continued or discharged
  3. 3 Whether there was material non-disclosure by the claimant on the ex parte application

Ratio Decidendi

The claimant had no good arguable case for misdelivery because, under its own contractual arrangements, AOS Dubai (or its agent) was authorised to take delivery without production of bills of lading, and the defendant shipowner had no further responsibility after discharge. The loss resulted from a breakdown in the claimant's arrangements ashore, not from any breach by the defendant. Material non-disclosure and failure to present the full factual picture to the court ex parte also justified discharge of the freezing order.

Court Disposition

Freezing order discharged; claimant's application dismissed; defendant's cross-application allowed.

Orders

  • The freezing order is discharged.
  • The claimant's application for continuation of the freezing order is dismissed.