A v. B

At a glance

Parties

A (claimant, award creditor) v. B (defendant, referred to as KFG)

Case no.

CL-2017-000792; [2019] EWHC 275 (Comm)

Court

High Court of Justice of England and Wales, Business and Property Courts, Commercial Court (QBD), Mrs Justice Moulder

Underlying award(s)

ICC award of 11 September 2017 (ICC 20958), seat Paris

Treaty

New York Convention, Art. V(1)(a), as enacted in s.103 of the Arbitration Act 1996

Sector

Franchising

Outcome

The defendant's application to declare parts of the claimant's French-law expert report and the joint expert report inadmissible was dismissed.

The dispute

A obtained an ICC award (ICC 20958, 11 September 2017, seat Paris) awarding it damages for breach of a franchise development agreement (FDA) dated 16 July 2001. The FDA is governed by English law and contains a Paris arbitration clause. The tribunal held that the defendant, KFG, became a party to the FDA by novation and became a party to the arbitration agreement under French law principles, mainly through its performance of the FDA. A sought recognition and enforcement in England under s.103 of the Arbitration Act 1996. KFG resisted under Art. V(1)(a) of the New York Convention, arguing that the law governing the transfer of the FDA, or failing that English law, decides whether it was bound by the arbitration agreement. A argued that French law applies. KFG also brought annulment proceedings in France. In this interlocutory application, KFG asked the court to declare inadmissible parts of the expert report of Professor Gaillard (A's French-law expert) and the matching paragraphs of the joint expert report.

Key holdings

1. The principle in Rogers v Hoyle [2014] EWCA Civ 257 is not limited to the rule in Hollington v Hewthorn, or to expert reports outside CPR Part 35. Except in very clear cases, editing out inadmissible opinion from an expert report is unnecessary and disproportionate. The trial judge should see the whole report and disregard what is inadmissible. ¶¶ 19–25
2. The court followed Carr J in Moylett v Geldof: it is much better to let the trial judge consider the report in full than to pick through it. KFG showed no real prejudice from the reports going in their entirety to the judge at the March 2019 hearing. ¶¶ 27–28
3. The joint report should stand in full. In it, KFG's expert M. Honlet had already responded to Professor Gaillard's opinions, for example that his paragraph 49 applies the law to the facts. Reissuing the reports would cause needless time and cost. ¶¶ 29–30, 32
4. Professor Gaillard's opinions on the interpretation of Article V of the New York Convention (paras 18–24 of his report) do not prejudice KFG. KFG remains free to argue at the March hearing that they are inadmissible, and a Commercial Court judge can disregard inadmissible evidence. ¶¶ 33–34
5. The defendant's application was dismissed. ¶ 35

Procedural history

1. 16 July 2001Franchise development agreement concluded, with a Paris arbitration clause (clause 14) and an English governing-law clause (clause 15).
2. 11 September 2017ICC award (ICC 20958) awards A damages against KFG.
3. March 2018A applies to adjourn the English s.103 proceedings pending KFG's annulment proceedings in France.
4. 15 June 2018At a case management conference, Teare J directs a hearing on the adjournment and security application and on preliminary issues under s.103. The hearing is later fixed for March 2019.
5. 26 November 2018KFG applies to have parts of Professor Gaillard's report of 28 September 2018 and of the joint expert report of 14 January 2019 declared inadmissible.
6. 25 January 2019Hearing. The court dismisses A's separate application of 25 October 2018 seeking answers to its requests for clarification from KFG's expert, M. Honlet.
7. 15 February 2019Judgment: KFG's admissibility application dismissed.

Tribunal, counsel and experts

For the claimant

Brown Rudnick LLP

For the respondent

Reynolds Porter Chamberlain

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Keywords

• New York Convention Article V(1)(a)
• Arbitration Act 1996 s.103
• recognition and enforcement
• expert evidence admissibility
• Rogers v Hoyle
• Moylett v Geldof
• CPR Part 35
• foreign law expert
• French law
• non-signatory
• novation
• law governing arbitration agreement
• ICC
• franchise development agreement
• annulment in France
• adjournment

Summary generated with AI from the published documents — refer to the award for the authoritative text.