Unicredit Bank AG v Euronav NV

Factual and Procedural Background

The dispute arises from a financing arrangement whereby the Plaintiff financed the purchase of part of a cargo of low sulphur fuel oil ("the Cargo") by a third party from another company. The Defendant was the owner of the vessel involved in the carriage of the Cargo. The Plaintiff alleges that the Defendant delivered the Cargo to an unauthorized party or without proper authorization from the lawful holder of the Bill of Lading. The Defendant denies this, contending that delivery was authorized by the lawful holder or that the Plaintiff waived certain rights relating to delivery against production of the Bill of Lading.

The Plaintiff accepts it authorized delivery to certain identified sub-buyers but contends that the Cargo was discharged to other vessels without proper documentation and that it does not know the actual recipients. The Plaintiff’s claim was initially quantified at approximately US$26 million, later amended to approximately US$14 million, while the Defendant contends the value is about US$13 million. The Plaintiff now claims damages based on a later valuation in a counterfactual scenario.

The procedural history includes a series of consent orders allowing amendments to pleadings and disclosure of documents. The Defendant sought to amend its Defence based on additional disclosure received pursuant to a consent order dated 14 January 2022. The Plaintiff opposed these amendments as beyond the scope of that order and as a late application. The trial was scheduled to commence on 28 March 2022, and the issue of amendments was heard at a Pre-Trial Review on 4 March 2022.

Legal Issues Presented

1. Whether the Defendant's proposed amendments to its Defence fall within the scope of the 14 January 2022 Consent Order.
2. If not within the scope, whether the Defendant should be granted permission to make the proposed amendments at this late stage.

Arguments of the Parties

Defendant's Arguments

• The proposed amendments arise from disclosure provided pursuant to the 14 January Consent Order and are necessary to respond to new information.
• The Consent Order did not explicitly limit amendments to only consequential ones, and the context indicated that amendments arising from disclosure were contemplated.
• The amendments concern key issues in the case, including the relationship between Gulf and the sub-buyers and whether the Cargo was misdelivered.
• The amendments have a reasonable prospect of success and relate to an agreed issue within the scope of disclosure requests.
• Any delay in making the amendments is justified by the timing of disclosure and the nature of the new evidence.
• Justice requires that the Defendant be allowed to rely on the recent disclosure to advance its case fully.

Plaintiff's Arguments

• The amendments sought are not within the scope of the 14 January Consent Order, which only permits consequential amendments related to quantum.
• The Defendant’s application to amend is late and could have been made earlier, particularly since the Plaintiff disclosed relevant information in October 2021.
• The Defendant failed to adequately explain why it did not advance this case earlier despite earlier disclosure of relevant emails.
• The additional disclosure (Athena Reports) was privileged and not obliged to be disclosed; the Defendant could have conducted its own investigations.
• The amendments introduce a new case that is not merely a refinement but substantively different, alleging involvement of sub-buyers in fraud.
• Allowing the amendments at this late stage would prejudice the Plaintiff’s trial preparations, as there is insufficient time for further investigations or evidence gathering.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first considered the proper construction of the 14 January Consent Order. It found that the language of the order, when read objectively and in context, permitted only consequential amendments related to the Plaintiff’s quantum amendments. There was no express or implied provision allowing the Defendant to make new or different amendments arising out of additional disclosure. The court rejected the Defendant’s submission that the order should be construed as permitting broader amendments, noting that consent orders are formal documents drafted by competent solicitors and typically spell out agreed terms clearly.

Regarding the late application to amend, the court applied established principles requiring the Defendant to justify the lateness, demonstrate the strength of the new case, and explain why justice requires permission. The court found that the Defendant’s new case was not a mere refinement but a substantively different case alleging involvement of the sub-buyers in fraud, which was not advanced earlier despite relevant disclosure in October 2021.

The Defendant failed to adequately explain why it did not advance this case earlier and did not justify the delay. The court noted that the evidence relied upon (Athena Reports) did not conclusively support the Defendant’s inference and that the Defendant’s case was largely based on drawing inferences rather than direct evidence.

The court also weighed the prejudice to the Plaintiff if the amendments were allowed at a late stage against the prejudice to the Defendant if they were not allowed. The Plaintiff would be prejudiced as it was not prepared to meet this new case, and there was insufficient time for further investigations or trial preparation. Although the Defendant would be prejudiced by not being able to advance the new case, the court found the balance of justice favored refusing permission.

Holding and Implications

The court REFUSED the Defendant’s application to amend its Defence beyond the scope of the 14 January Consent Order and denied permission to make the proposed late amendments.

The direct effect is that the Defendant must proceed with its Defence as currently pleaded without the new amendments relating to the sub-buyers and the alleged misdelivery. No broader precedent was established, and the decision underscores the importance of adhering to the scope of consent orders and the high threshold for late amendments close to trial.