ADVOCACY SCRIPT
Good Morning Master, my name is…… . I appear for the Claimant Nesbo Gas PLC
represented by Collows LLP.
My friend,…………….., appears for the defendant Ezra Gases ( Calcutta) Limited represented
by Swallow & Co.
Master, this is an application for the Claimant for summary judgement. Master do you have
a copy of the bundle which has been filed.
…………..GROUNDS:
I’m grateful. Master this claim relates to an alleged breach of contract of the termination of
a Joint Venture Agreement between both parties. The alleged breach is of the implied term
that the defendant would pay the claimant for any sums the claimant pays under the terms
of such guarantee clause 19(b) JVA. The defendant defends on the basis that there was no
implied term due to it not being enforced, and the claimant breached the contract by
terminating the contract without 6 months notice clause 29 JVA.
Master would you like a summary of the facts?
Master, the Claimant seeks summary judgement on the basis that under Civil Procedure
Rule 24.2, the defendant has no real prospect of successfully defending the claim and there
is no compelling reason why the case should be disposed of at trail.
………ISSUES:
Master, the issues between the parties are as follows:
PLAN OF ISSUES:
- Firstly, has there been a breach of the implied term that of contract JVA clause 19(b)
that the Defendant agreed to indemnify for any sums the Claimant pays under the
terms of such guarantee?
- Secondly, was there a breach of contract by the Claimant for terminating the
contract without providing the Defendant 6 months’ notice?
FACTS/EVIDENCE: 1ST ISSUE Claimant must show that the term JVA 19 (b) was still enforce.
refer you to page 6 of JOINT VENTURE AGREEMENT 16 May 2016:
- can clearly see that clause 19 (b) is incorporated in the contract ‘EGC agrees to indemnify
NGP for any sums NGP pays under the terms of such guarantee’ the defendant is obliged
to pay back the Claimant.
- first point, the defendant defends that JVA 19(b) was not enforced. refer page 7 Defence,
Paragraph 4. The defendant states that ‘it was never the intention of the parties that clause
19(b) would be enforced’.
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, Paragraph 5 states the discussion of June meeting, when Mr Hermann Maier and Mr
Lancelot Ezra agreed to not enforce clause 19(b). Witness statement of Mr Hermann Maier,
page 13, Paragraph 7. ‘Hermann recalls the meeting but had not notes in reference to that
meeting’. Paragraph 8 – is states, the Defendant said he did not want to be left holding a
baby.’Herman assured him that the Claimant was fully committed to JVA. He ‘did not
agree to not enforce clause 19 (b)’ as he mentioned on paragraph 9.
- EXHIBIT PE1 page 20. The notes Ezra made, from his father’s recounting of the meeting.
Clearly states ‘Lancelot Ezra was concerned that Nesbo would enforce it if they were
required to pay out on the guarantee. Hermann Maier assured him that he wouldn’t expect
Ezra to pay back like that’ There is no mention of agreeing to not enforce clause 19 (b).
Second point, the defendant breached clause 19(b)
-the defendant agreed to the contract to pay the Claimant back. May I refer to page 3, POC
paragraph 5, the defendant agreed to repay Metro Bank the loan + interest.
-On 6th August the claimant paid £ 6,322,440 (6 million 3 hundred, 22 thousand, 440 ).
page 4, POC paragraph 10 ‘Dr Hermann Maier telephoned Paul Ezra, to demand the
payment of the Guarantee Sum. But was refused. 17th August 2020, the Claimant wrote to
the Defendant, did not receive any response. ‘
-This led the Claimant to suffer loss, as stated in paragraph 13.
Submisson the Claimant has proved that clause 19 (b) was still enforce, defendant
breached the contract. The defendant has no real prospect of succeeding on this issue at
trail.
ISSUE 2: the claimant must show it did not breach the contract clause 29 of the JVA and Ezra
Gases terminated the contract.
- Witness Statement of Hermann Maier, page 13 Paragraph 12. felt it was important to
announce the Claimant’s intentions regarding JVA to professional investors earliest
opportunity. But on the same date 13th April, Claimant received a letter from the
Defendant’s solicitors, ‘Defendant was treating the JVA as being at the end with immediate
effect’.
-At EXHIBIT HM1 page 16- you can see the letter the Claimant received from Defendant’s
solicitors which states ‘JVA is immediately terminated’.
-At Page 14, of the witness statement paragraph 13, states Claimant was prepared to
continue JVA for the notice of 6 months as JVA clause 29 states. But no opportunity was
provided to explain this. Claimant had no intention to breach the contract.
In my submission, the Claimant has proved that the Claimant did not breach clause 29 of the
JVA. The Defendant was therefore not entitled to treat JVA as terminated from 13th April,
and was not released from any future obligations it had under clause 19(b).
…….CONCLUSION:
Master, you will be familiar with the Civil Procedure Rule 24.2., which give you the
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Good Morning Master, my name is…… . I appear for the Claimant Nesbo Gas PLC
represented by Collows LLP.
My friend,…………….., appears for the defendant Ezra Gases ( Calcutta) Limited represented
by Swallow & Co.
Master, this is an application for the Claimant for summary judgement. Master do you have
a copy of the bundle which has been filed.
…………..GROUNDS:
I’m grateful. Master this claim relates to an alleged breach of contract of the termination of
a Joint Venture Agreement between both parties. The alleged breach is of the implied term
that the defendant would pay the claimant for any sums the claimant pays under the terms
of such guarantee clause 19(b) JVA. The defendant defends on the basis that there was no
implied term due to it not being enforced, and the claimant breached the contract by
terminating the contract without 6 months notice clause 29 JVA.
Master would you like a summary of the facts?
Master, the Claimant seeks summary judgement on the basis that under Civil Procedure
Rule 24.2, the defendant has no real prospect of successfully defending the claim and there
is no compelling reason why the case should be disposed of at trail.
………ISSUES:
Master, the issues between the parties are as follows:
PLAN OF ISSUES:
- Firstly, has there been a breach of the implied term that of contract JVA clause 19(b)
that the Defendant agreed to indemnify for any sums the Claimant pays under the
terms of such guarantee?
- Secondly, was there a breach of contract by the Claimant for terminating the
contract without providing the Defendant 6 months’ notice?
FACTS/EVIDENCE: 1ST ISSUE Claimant must show that the term JVA 19 (b) was still enforce.
refer you to page 6 of JOINT VENTURE AGREEMENT 16 May 2016:
- can clearly see that clause 19 (b) is incorporated in the contract ‘EGC agrees to indemnify
NGP for any sums NGP pays under the terms of such guarantee’ the defendant is obliged
to pay back the Claimant.
- first point, the defendant defends that JVA 19(b) was not enforced. refer page 7 Defence,
Paragraph 4. The defendant states that ‘it was never the intention of the parties that clause
19(b) would be enforced’.
1
, Paragraph 5 states the discussion of June meeting, when Mr Hermann Maier and Mr
Lancelot Ezra agreed to not enforce clause 19(b). Witness statement of Mr Hermann Maier,
page 13, Paragraph 7. ‘Hermann recalls the meeting but had not notes in reference to that
meeting’. Paragraph 8 – is states, the Defendant said he did not want to be left holding a
baby.’Herman assured him that the Claimant was fully committed to JVA. He ‘did not
agree to not enforce clause 19 (b)’ as he mentioned on paragraph 9.
- EXHIBIT PE1 page 20. The notes Ezra made, from his father’s recounting of the meeting.
Clearly states ‘Lancelot Ezra was concerned that Nesbo would enforce it if they were
required to pay out on the guarantee. Hermann Maier assured him that he wouldn’t expect
Ezra to pay back like that’ There is no mention of agreeing to not enforce clause 19 (b).
Second point, the defendant breached clause 19(b)
-the defendant agreed to the contract to pay the Claimant back. May I refer to page 3, POC
paragraph 5, the defendant agreed to repay Metro Bank the loan + interest.
-On 6th August the claimant paid £ 6,322,440 (6 million 3 hundred, 22 thousand, 440 ).
page 4, POC paragraph 10 ‘Dr Hermann Maier telephoned Paul Ezra, to demand the
payment of the Guarantee Sum. But was refused. 17th August 2020, the Claimant wrote to
the Defendant, did not receive any response. ‘
-This led the Claimant to suffer loss, as stated in paragraph 13.
Submisson the Claimant has proved that clause 19 (b) was still enforce, defendant
breached the contract. The defendant has no real prospect of succeeding on this issue at
trail.
ISSUE 2: the claimant must show it did not breach the contract clause 29 of the JVA and Ezra
Gases terminated the contract.
- Witness Statement of Hermann Maier, page 13 Paragraph 12. felt it was important to
announce the Claimant’s intentions regarding JVA to professional investors earliest
opportunity. But on the same date 13th April, Claimant received a letter from the
Defendant’s solicitors, ‘Defendant was treating the JVA as being at the end with immediate
effect’.
-At EXHIBIT HM1 page 16- you can see the letter the Claimant received from Defendant’s
solicitors which states ‘JVA is immediately terminated’.
-At Page 14, of the witness statement paragraph 13, states Claimant was prepared to
continue JVA for the notice of 6 months as JVA clause 29 states. But no opportunity was
provided to explain this. Claimant had no intention to breach the contract.
In my submission, the Claimant has proved that the Claimant did not breach clause 29 of the
JVA. The Defendant was therefore not entitled to treat JVA as terminated from 13th April,
and was not released from any future obligations it had under clause 19(b).
…….CONCLUSION:
Master, you will be familiar with the Civil Procedure Rule 24.2., which give you the
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