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Up for interpretation

Has the ruling in Oceanbulk created a new exception or are just old principles being applied? Graham Huntley and Richard Viegas investigate

13 December 2010

The Supreme Court judgment in Oceanbulk Shipping and Trading SA v TMT Asia Limited [2010] UKSC 44 has been hailed as creating a new exception to the without prejudice rule, now known as the ‘interpretation exception’. But has the law changed or are public policy considerations merely being consistently applied?

These were inevitably complex and related to an argument between the parties as to who was responsible for delay in closing out several open freight forwarding agreement (FFA) contracts between them. In two meetings the parties and their lawyers decided to resolve matters by agreeing to “cooperate to close out [the FFAs] against the market” by a certain date (15 August 2008). Had closing taken place by that time, Oceanbulk would have been in the money and receiving a payment from TMT. Instead, the market moved dramatically following the collapse of Lehmans and the position was reversed with Oceanbulk now owing TMT.

The delay meant that TMT would b...

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