B2/2001/2120

Neutral Citation Number: [2001] EWCA Civ 1872
IN THE SUPREME COURT OF JUDICATURE      
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(His Honour Judge Hallgarten QC)
								Royal Courts of Justice
								Strand
								London WC2

							Tuesday 4th December, 2001

B e f o r e:

LORD JUSTICE BUXTON
LORD JUSTICE LONGMORE

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COLI SHIPPING (UK) LIMITED
Claimant/Respondent

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ANDREA MERZARIO LIMITED
Defendant/Applicant

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040
Official Shorthand Writers to the Court)

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MR M DAVEY (Instructed by Messrs Hardnick Stallards, London EC3N 2ER) appeared on behalf of the Applicant

THE RESPONDENT did not appear and was not represented

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J U D G M E N T
1.	LORD JUSTICE BUXTON: This is an application for permission to appeal from a judgment of His Honour Judge Hallgarten QC in the Central London County Court, permission to appeal having been rejected on paper with full reasons by my Lord, Lord Justice Longmore. 
2.	I do not intend to go into the detailed facts of this case, which are set out in considerable detail in Judge Hallgarten's judgment. Anybody who wishes further illumination on the background of this matter can look at that judgment. 
3.	Before us today Mr Davey has supported the grounds upon which Judge Hallgarten's judgment is criticised by him and by his clients. He has also sought to persuade us that an aspect of the matter that was of concern to my Lord ‑ that is to say the imbalance between costs and the amount in issue ‑ should not deflect us from giving permission. 
4.	On that first point, speaking for myself, it is always a consideration that this court will bear strongly in mind as to whether the amount in issue justifies the considerable costs ‑ and, for that matter, the considerable occupation of court time ‑ that are involved in a contested appeal. I would not, however, refuse permission solely on that ground; If I thought it to be the case, as Mr Davey urged upon us, that this case involves large issues of principle that are of interest to the freight forwarding industry in general. If that were so and had been made good, then I quite agree that the mere fact that a very large amount of costs was going to be spent over a small claim would not be dispositive. But that, of course, was not in itself the concern of His Honour Judge Hallgarten. Nor was it the concern solely of my Lord when he refused permission on paper. The trouble with this case is that, properly analysed in the way that it was analysed by Judge Hallgarten, the question is basically one of fact. 
5.	The central issue - and that on which Mr Davey, with good judgement, concentrated his observations on today - is whether the claimant in this case indeed had a title to sue for the amount that it claimed, and by the same token whether it was entitled to sue for the amount of demurrage in issue. Mr Davey says that clearly there was no title to sue and no obligation. He relies upon, in particular, the description of itself in its documents given by Coli Shipping (UK) Ltd as a freight forwarder and as an agent, and also by the terms of the bill of lading that was in issue in this case - until a late stage thought by Merzario to be a bill of some third party and not, as it turned out, a trading name of Coli and, secondly, made out in the names of the principals. 
6.	However, Judge Hallgarten did not confine himself simply to the documents, and rightly so. He looked at those documents in the context of the flow of relationships between the parties. He took account, and rightly so, of the fact that the amount of demurrage had been directly negotiated by gentlemen representing Coli on the one hand and Merzario on the other, representatives of both of which companies gave evidence before him. He also took account of such previous relations as existed between the parties. In particular, at paragraph 22 of his judgment he points out that there was regular settlement of statements of account between the two parties, and that they acted in that connection as if principal liability was being accepted. In paragraph 36(iv) of his judgment he says this: 
“In my view it is abundantly clear from the exchanges between the parties that in relation to all monetary rights and obligations, Coli and Merzario were acting as principals, albeit Merzario may have confused Coli with a fictitious intermediary, Rusco Line International. The whole tenor of negotiations was that terms were being agreed between Coli and Merzario, irrespective of what may or may not have been operative between Coli and Transfennica and between Merzario and Samsung respectively. Moreover, there were clear arrangements between Coli and Merzario, whereby it was established that Coli would look to Merzario for payment and, for their part, Merzario accepted liability for payment: see the invoices raised directly to Merzario and the way in which Merzario sought to dispute them.” 
7.	The judge considered, and it was a matter for him, that that arrangement had been supported by the evidence of Merzario's own witnesses. In those circumstances, it was well open to the judge to say, as he did, that he did not place weight on the formal wording of Coli's invoices. 
8.	In order to offset the judge's judgment it would be necessary to show that as a matter of law Coli were bound by the terms of the invoices in a way that limited the relationship between them and Merzario to one of agency only. The invoices come nowhere near to establishing that, and indeed could not have that overriding status in the face of findings properly arrived at by the court as to the actual nature of the relationship between the two parties. 
9.	The judge's view that there was a parallel (as he described it) liability between the freight forwarders was again, in my judgement, well open to him. Mr Davey ‑ I do not, I hope, say this derogatorily ‑ sought to alarm us with the prospect of multiple claims for the same sum of demurrage due. That of course does not arise in this case, and should such a situation arise there is no doubt that the court would have means of regulating it. 
10.	This was a question of the nature of a commercial relationship looked at after a great deal of evidence had been given. A very experienced commercial judge came to the conclusion that the judge did in this case as to the nature of the relationship. That was also the view of my Lord when he considered the matter on paper. If I may speak from a slightly less informed position so far as trade of this sort is concerned, it seems to me that on general principles those views cannot be gone behind. 
11.	For those reasons, therefore, it would not be right to permit this case to go forward. I would not grant permission. 
12.	LORD JUSTICE LONGMORE: I agree. 
13.	I would only say that, for my own part, I would pay tribute to the judge, who obviously took a considerable amount of care in this case. He records the appalling fact that in a case that was thought to raise a matter of great importance to the parties, nobody even took the trouble to assemble a chronological bundle. He must have had a very difficult task, and I entirely agree that it would be inappropriate for this court to give permission to appeal. 
ORDER: Application for permission to appeal refused.
(Order not part of approved judgment)
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