31 Mar 2015
A meeting of minds
Fergal Quinn, senior associate at Hill Dickinson, has brought an important superyacht-specific judgment to the attention of SuperyachtNews.com. The judgment is regarding a dispute arising from the sale of then-Darius, now Radiant, in 2008.
While the original transaction has triggered previous litigation, this judgment, given in October 2014 is significant because of owner/industry preponderances with conducting their superyacht business under English law.
The following article is written by Mr Quinn as part of the Hill Dickinson Yacht Focus, Spring 2015:
The High Court in London has now given judgment in related proceedings brought by the incoming captain, Mr Sean Wrigley, against the Florida-based brokers, Merle Wood.
Mr Wrigley was seeking recovery of a commission of €3 million which he claimed was due to him arising out of an agreement made in email exchanges with Merle Wood in 2008.
Whereas initially Mr Wrigley was given permission on an ex parte basis (i.e. without all of the parties to the claim being represented) to bring his case in the English courts, that permission was challenged on the basis that there was no good arguable case that:
(a) There was a contract for the payment of a commission;
(b) Such contract was governed by English law; and
(c) A breach occurred within England and Wales that would give rise to English jurisdiction.
The court heard that Mr Wrigley is a yacht captain whose family residence was in Cornwall. However, at the relevant time, he resided at the family home only during his holiday period - about five weeks in the year. For the rest of the year, he was aboard the yacht wherever it happened to be based – ordinarily in the Mediterranean, the Caribbean and the USA.
The court heard arguments about the proper forum for the litigation, including considerations as to whether Mr Wrigley was acting in the course of a trade or profession, particularly given that allegations were made that Mr Wrigley was in effect seeking to take the benefit of a substantial ‘secret commission’, as it was described in the evidence.
It was also pointed out that Mr Wrigley banked offshore and was not subject to UK tax, yet sought to argue that the English courts had jurisdiction. Having considered the relevant law relating to jurisdiction in the absence of an agreed choice of jurisdiction, the court concluded that the contract was most closely connected with Florida and that Florida was the most ‘convenient forum’ in which to hear the dispute.
Whether these proceedings will rumble on in the Florida courts remains to be seen, we will be keeping a watching brief. The ongoing litigation of this matter demonstrates amply that the age-old legal maxim of consensus ad idem still applies, that for certainty there must be a meeting of minds between the parties to a contract, and to minimise the scope for argument, whether about jurisdiction or a party’s entitlement to a payment, it is essential for all intermediaries, introducers and brokers to ensure that their rights are clearly enshrined in a written contract.
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