The Dekagram: 8th September 2025

This week we consider yet another case on expert evidence, and a decision bringing clarity on the new(ish) jurisdictional gateway relating to contractual claims. And as if that were not enough, after a break over the summer the dekinar series is returning with aplomb, with Sarah Prager KC and Julia Brechtelsbauer bringing us up to date on the position as to local standards; you can register to attend here: Webinar Registration – Zoom. 

More Avoidable Issues with Experts

With apologies to readers who may, understandably, be suffering from Expert Fatigue, the current glut of judgments criticising experts shows no signs of abating. In the latest, Cockerill J took a somewhat kinder approach than the judges in other recent judgments, but her comments are no less important for that.

The claim, in Ceto Shipping Corporation v Savory Shipping Inc [2025] EWHC 2033 (Comm), arose out of a dispute relating to a charterparty. Happily we need not grasp the underlying dispute in order to appreciate the issues relating to the expert evidence, and the claim itself is outside the scope of this article (I don’t make the rules). Suffice to say that there was a dispute as to insurance broking which centred around market rates and in respect of which expert evidence was called by both parties. For our purposes, the important parts of the judgment come at paragraphs [149] to [153] and [213] to [215]:

1. The insurance broking experts were Peter Mellett for Ceto and Athanasios Karaindros for Savory. Their evidence was given in person over the course of a morning.
2. There was an unfortunate issue as to the experts’ joint memorandum in this discipline.
3. Mr Mellett, although his CV was vestigial, was plainly a senior person and was a calm firm witness. He was not easily moved from the positions he had taken and gave his evidence in a laconic manner which sometimes came across as a little uninterested. That impression was reinforced by the evidence that (i) he had deputed the drafting of the joint report to Stephenson Harwood and then had not taken enough time to read the draft of the joint report sent to him, (ii) he had not signed his own report (iii) he used data without fully understanding the makeup of the data set and without checking it, other than by a couple of conversations with Beazley which he did not reference in his report. There was a flavour of disengagement about his evidence overall.
4. I should add that, having heard Mr Mellett and formed this impression, it entirely explains the circumstances which gave rise to concerns on the part of Savory as to whether Ceto’s solicitors had interfered with the expert process by producing the draft sent on to Mr Mellett which he then forwarded to Mr Karaindros. I conclude that they did not do so, but that they were slightly unusually tasked by Mr Mellett with the transcription and formatting of what he considered should go into the joint report.
5. Mr Karaindros was a much younger witness though his fuller CV indicated his experience reaches back to 2006 when he started as a trainee. He was earnest, fluent and precise in giving his evidence. His approach to his evidence was much more hands on and he was able to give firm evidence about how he personally had gone about analysing data for the purposes of his report. One issue highlighted by Ceto was his connections with Savory/other IMS companies – in that as he accepted, he had placed business for a number of them and worked closely with the IMS executives and owners. He was clearly unusually close to the party for whom he was acting and, while this does not disqualify him from acting as an expert, I have scrutinised his evidence particularly closely as a result. Notwithstanding this I found him to be an impressive witness…
6. It is fair to say that the expert evidence for both sides had problems. On the one side, Mr Mellett’s experience was essentially non-existent – he had no experience in the war risks market and his views appeared to be based on conversations with unidentified others, rather than his own experience of testable research. On the other side Mr Karaindros’s links to the Savory camp meant that his evidence required to be closely examined.
7. Overall, the lack of faith which Ceto themselves had in their expert evidence was reflected in their reliance in closing at least equally on the evidence of [lay witness] Mr Grigoriou that he was able to negotiate an initial war risk quotation of 0.3–0.4% down to 0.13%, and that he viewed that this reflected the prevailing market rate for AWRI. However, that evidence while honest and straightforward, was not necessarily of great help to Ceto. It was probably a figure for just ten days – which would extrapolate to a figure (after negotiation down) to approximately US$60,000 per month. Also, this evidence which was plainly an attempt at unassisted recollection some years after the event, does not really advance matters further.
8. For the following reasons I slightly prefer the evidence of Mr Karaindros to that of Mr Mellett:

1) Mr Mellett’s expertise was not in the war risks market, and it as clear that he was to a considerable extent dependent on input and data which had been provided to him;

2) Mr Karaindros did have more relevant expertise and had taken a proactive and analytical approach to the material;

3) Mr Mellett was not very clear or able to assist on the contents of the dataset on which he relied;

4) While both made assumptions about where within the range to pitch the market rate, Mr Karaindros took a broadly balanced approach (the middle) whereas Mr Mellett took the end most favourable to the party instructing him.

In a nutshell – as with barristers, so with experts: seniority does not always trump knowledge. The Claimant’s expert was the more senior of the two, but not in the niche area in question, and his apparent lack of interest in the question at issue counted against him. Perhaps most crucially, although the Defendant’s expert had a prior relationship with that party, he was able to demonstrate his independence from them by fairly taking a balanced approach rather than defaulting to the end of the range most favourable to those instructing him. The takeaway point from the judgment therefore is that careful expert selection is always key, and that experts who support the case of the instructing party too enthusiastically are often more to be feared than celebrated. All of which ought to be readily ascertainable by way of conference with the proposed expert(s) prior to final instruction.

It is also interesting that the judge dealt explicitly with an aspect of the presentation of the case which we know is important to the current Lady Chief Justice; the use of junior advocates. She noted:

155. As this Court expects, both the legal teams had given active consideration to enabling junior counsel to contribute to the oral advocacy. This was an excellent example of how this can be done – counsel of 2022 and 2023 call introduced key witnesses and conducted such examination in chief as was needed. No issue was then taken as to leading counsel conducting re-examination where re-examination was necessary.

156. In addition…many of the issues as to disclosure were addressed on Savory’s behalf by Ms Bond. She dealt elegantly and thoroughly with a topic which is always close to the heart of clients and often fails to attract equal attention from judges.

It is encouraging to see judges and leading advocates engaging in the advancement of the professional development of junior colleagues, and equally encouraging that the parties themselves were content to entrust part of the presentation of their case to the juniors instructed. Indeed, in the experience of the author juniors could undertake a much more active role in many cases, and the instructing party would gain greatly from their enhanced involvement, both because of the fresh perspective they may bring to case preparation, and because (quite frankly) what judge doesn’t want a change of tone every now and again during a trial?

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories as a Band 1 practitioner in travel law for many years, and, more recently, listed in aviation as well. Together with Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases.

Service Out in Contractual Claims: the Jurisdictional Gateway

In a recent decision, White Rock Corporation Limited v Middle Volga Shipping Company [2025] EWHC 2089 (Comm), the High Court considered a jurisdictional challenge centring around the interpretation of CPR6.33(2B)(b) and (c), which, as readers will recall, state as follows:

“The claimant may serve the claim form on the defendant outside of the United Kingdom where, for each claim made against the defendant to be served and included in the claim form –

…

(b) a contract contains a term to the effect that the court shall have jurisdiction to determine that claim; or

(c) the claim is in respect of a contract falling within sub-paragraph (b)“

The underlying issue in the case related to a charterparty, the finer points of which once again (alas!) lie outside the scope of this article. In summary, the question was whether the charterers had established a good arguable case that they had contracted with Middle Volga by the terms of the charterparty, by which Middle Volga was bound by an English jurisdiction agreement. Middle Volga challenged jurisdiction on the basis that they were not the contracting counterparty under the charterparty and were therefore not bound by its jurisdiction clause. Spoiler: the court agreed, and found therefore that it had no jurisdiction to hear the claim.

For the purposes of the interested observer, the important point to be taken from the judgment is the reiteration that the contract referred to in subparagraph (c) must bind the defendant.

As the court observed, at paragraph [58]:

This makes sense because a contractual term endowing the Court with jurisdiction can only be relevant if the claimant and the defendant are a party to that contract, i.e. the claimant is contractually entitled to assert that the defendant must submit to the English Court’s jurisdiction and the defendant is contractually obliged so to submit.

At first glance, then, subparagraph (c) appears to add little to subparagraph (b); if the defendant is bound by the contract, then surely it is also bound by the jurisdiction clause, rendering the subparagraph otiose?

A rootle around in the minutes of the Civil Procedure Rules Committee provides the answer. Subparagraph (c) is intended to be used where a defendant is asserting reliance on a contract, for example as an assignee or pursuant to a direct action statute, and where the claimant disputes that there is a binding contract, but nevertheless wishes to hold the defendant to the jurisdiction agreement in the contract insofar as the defendant seeks to assert rights under that contract or to start proceedings in relation to the contract other than in accordance with the jurisdiction agreement. It is, in effect, designed to allow the claimant to have their cake and eat it – to argue that the contract is not binding, but that the jurisdiction clause effectively binds the defendant.

The court concluded at paragraphs [64] and [65]:

64.    It seems to me that the grounds of jurisdiction allowed under CPR rule 6.33(2B)(b) and (c) are limited to cases where:

(1) There is a good arguable case that there is a contract which contains a term endowing the English Court with jurisdiction and which is binding on the defendant and can be relied on and asserted by the claimant as a matter of contract.

(2) The defendant asserts that it is entitled to rely on a contract against the claimant, which the claimant disputes, but the defendant seeks to enforce its claim other than in accordance with the jurisdiction agreement contained in that contract, and the claimant wishes to hold the defendant to the jurisdiction agreement in that contract.

65.    I do not consider that these sub-rules may be relied on by a claimant merely because the claim relates to or is “in respect of” a contract in circumstances where there is no good arguable case that the defendant is a party and subject to the contract or where the defendant is itself not relying on the contract. I do not consider that CPR rule 6.33(2B)(c) should be construed so broadly so as to permit service of a claim form on a defendant without the Court’s permission where the defendant had not contractually obliged itself to submit a dispute to the jurisdiction of the English Court or had not chosen to rely on any rights it might have under such a contract.

The relevance of this determination to tour operators and their suppliers will be readily appreciated; where a tour operator seeks to enforce an indemnity against a supplier in the courts of England and Wales it will be crucial for them either to anchor the claim within this jurisdiction by reference to an English underlying claim or to ensure that there can be no doubt that the entity against whom proceedings are brought is in fact bound by the contract between the parties, which is a matter which may be governed by foreign applicable law and can often be highly contentious whether inadequate thought has been given to the supply contract (it is not unusual for such contracts not to have been properly executed under the applicable law). As ever, the answer is for parties entering into agreements to seek advice from experts before doing so.

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories as a Band 1 practitioner in travel law for many years, and, more recently, listed in aviation as well. Together with Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases.