It is sometimes suggested that the judges in our law courts fail to adopt a common-sense approach to cases and base their judgments on technicalities and make fine distinctions of no obvious merit. Of course, some cases do depend on which side of a border line the court decides that the facts fall, but often they lay themselves open to accusations of pedantry. However, in recent times, judges have been adopting a more robust attitude, as illustrated by the following cases. Putting a stop to foreign proceedings that amount to abuse The first case is Turner v Grovit and Others, decided by the Court of Appeal on 28 May 1999. The interest of the case to purchasers is not in the facts but the way in which the Court of Appeal refused to allow technicalities to deter it from doing justice. Briefly, Turner had been employed by Chequepoint UK as their group solicitor. Chequepoint was subsequently taken over by Harada. Grovit was the ultimate owner of Harada and Changepoint, which were both part of the Chequepoint group of companies. Turner was moved to the group’s Madrid office and disputes arose between him and the company. He subsequently resigned and commenced proceedings against Harada in the industrial tribunal, claiming compensation for unfair dismissal and damages for wrongful dismissal on the grounds that he had been constructively dismissed. The industrial tribunal held that it had jurisdiction on the grounds that Turner was ordinarily working in the UK and had only temporarily relocated to Madrid. It found in favour of Turner. Harada appealed to the employment appeal tribunal and then Changepoint issued proceedings in Madrid against Turner, alleging breach of his contract of service. Turner did not respond to the Madrid proceedings but applied in England for an injunction restraining the defendants from commencing or continuing proceedings outside English jurisdiction. Article 21 of the Brussels Convention provides that where proceedings involving the same cause of action and the same parties are brought in two different countries, any court other than the one in which proceedings were first brought shall decline jurisdiction. The Court of Appeal held first that the two sets of proceedings were upon the same cause of action, even if technically they differed. Both were concerned with Turner’s contract of employment and its termination. The parties were the same, even if Harada (the English defendant) and Changepoint (the Spanish claimant) were separate legal entities. The use of Changepoint was only a device and amounted to an abuse of the process, thus it would be wrong for the court to treat it as a reality rather than the pretence it clearly was. The court therefore granted the injunction. Bank cannot reject a document that is clearly an original The facts in the second case, Kredietbank Antwerp v Midland Bank Ltd, 12 May 1999, relate to a situation that frequently occurs in commercial practice, and the issue raised is important in international trade. The seller, a Swedish company known as Michael Goldstein AB, sold steel scrap to a Jersey-based buyer, Karaganda, for delivery from Casablanca to Alexandria. A letter of credit was opened by Midland Bank on behalf of the buyer through Kredietbank in favour of the sellers. When the documents were presented to Midland Bank for payment, the bank refused to pay, alleging that there were discrepancies. In particular, it was concerned that the “insurance policy was not marked ‘original’”. As students of international trade will know, there is a doctrine known as “strict compliance”, and Midland Bank complied. The documents required under the letter of credit included the original policy. In this case, two documents had been tendered; the original and a photocopy. But the original had been produced on a word-processor and, although the policy was signed, it was not marked as original. Midland Bank argued that the letter of credit incorporated Article 20(b) of Uniform Customs and Practice for Documentary Credits (published by the International Chamber of Commerce), which states that “banks will also accept as originals a document produced by an automated or computerised system, provided that it is marked as original”. The court held that Article 20(b), in stating that “banks will also accept”, showed an intention to widen the class of documents that would be accepted as originals but that the article had no application in a case where, as here, the document presented was clearly an original. Among other things, the document was printed on the company’s high-quality water-marked paper and, even more tellingly, with the company’s name and blue logo on it. On the copy, the logo was not coloured but was in the same black print as the company’s name and that document was marked “duplicate”. The court therefore ruled that Midland Bank was wrong to reject the document. Although purchasers should always try to prepare their contract documents in such a way that they leave no room for the introduction of arguments based on technicalities, it is refreshing to know that the courts will give short shrift to such arguments when to accept them would fail to do justice. The spirit of Lord Denning would seem to live on in the Court of Appeal. Peter Marsh and Frank Griffiths are associatesat project strategy and contract managementconsultancy FGA (tel: 0116 279 3383, www.fga-construction-procurement.co.uk) and are members of the CIPS legal committee