OCEANBULK SHIPPING & TRADING SA V TMT ASIA LTD

[2009] EWHC 1946 (Comm), Queen's Bench Division, Commercial Court, Mr Justice Andrew Smith, 29 July 2009

Procedure - Settlement agreement - Meaning of "without prejudice" - Admissibility of communications "without prejudice" - Whether defendants entitled to rely upon and adduce evidence in relation to exchanges about a settlement agreement before its conclusion

This was an issue in relation to two actions concerning a number of Freight Forward Swap Agreements (FFAs) between the claimant and the defendant. The claimant and the defendant had been variously the buyer and the seller in relation to the FFAs. Some of these FFAs were "sleeved", that is, they had for commercial reasons been concluded between these parties but were back-to-back (but not coupled) with other identical transactions with third parties. There were monthly payments to make under the agreements and Oceanbulk in June 2008 presented TMT with an invoice which it did not pay. The parties concluded settlement agreement positions. Oceanbulk claimed in these proceedings that TMT had not complied with the settlement agreement causing a loss.