Berge Bulk Shipping PTE Ltd v Taumata Plantations Limited & Ors

For jurisdiction under the Civil Procedure Rules 1998, rule 6.33(2B), a claimant must show a good arguable case that the jurisdiction agreement binds the defendant. Where a contract names a person as principal and contains no indication of agency, the starting point is that the named person contracted as principal. Agency must be proved on the ordinary balance of probabilities, although the evidence must be convincing in light of the document and commercial context. Agency inferred from conduct requires objective mutual consent, demonstrated by conduct only consistent with that relationship. Economic interest, reimbursement arrangements and approval of performance may have other explanations. Apparent authority cannot create the actual authority required for an undisclosed-principal claim through estoppel.

The appellant, a disponent owner, claimed under letters of indemnity issued by TPT Shipping Ltd to enable timber cargoes to be discharged in India without production of the bills of lading. The letters were governed by English law and conferred jurisdiction on the English court. The appellant alleged that three New Zealand companies were liable as Shipping’s undisclosed principals.

The High Court, in [2024] EWHC 2371 (Comm), held that there was no good arguable case that the respondents were undisclosed principals under either the charterparties or the letters of indemnity. The central issue on appeal was whether that conclusion was wrong.

The Court of Appeal unanimously dismissed the appeal. The alternative issues concerning election and the effect of acceptance of the appellant’s claim in Shipping’s liquidation were not decided because they would have been obiter.

1. Under Civil Procedure Rules 1998, rule 6.33(2B), the applicable jurisdictional threshold was a good arguable case. The court adopted the approach summarised in Clifford Chance LLP v Société Générale SA [2023] EWHC 2682 (Comm): the claimant must have the better argument, although not much the better argument; the court should assess the evidence where it can do so reliably; and, where reliable assessment is impossible, a plausible contested evidential basis may suffice.
2. Agency is consensual and requires objective mutual consent. The undisclosed-principal rule also requires the agent to act within actual authority and intend to act for the principal. Where the contract gives no indication of agency, the named contracting party is presumed to be the principal. The ordinary balance of probabilities applies; the need for convincing evidence reflects the contractual and commercial context, not a heightened standard.
3. The contractual purpose and structure strongly indicated that Shipping contracted as principal. Shipping had been established to insulate the Exporters from chartering risks. The Agency Agreements distinguished between charterparties concluded by Forests as agent and carriage on vessels chartered by Shipping, where no agency was stated. The phrase for and on behalf of was not conclusive. The Exporters’ economic interest, reimbursement obligations and accounting treatment were also consistent with a principal contract supported by indemnity arrangements. The timing of the charterparties, before the cargo owners were known, reinforced that conclusion.
4. The same conclusion applied to the letters of indemnity. Shipping’s request for Forests’ approval was explicable by the need to protect the Exporters’ security under the bills of lading and did not demonstrate that Shipping issued the letters as agent. Appendix 2 imposed an express procedure for authorising letters of indemnity. There was no plausible evidence that this limitation had fallen into disuse.
5. The appellant’s ostensible-authority argument was a new point. Applying The Dijilah [2024] EWCA Civ 580 and Rana v Ealing London Borough Council [2018] EWCA Civ 2074, it was not permitted because evidence of holding out and reliance might have been adduced below. In any event, AJU Remicon Co Ltd v Alida Shipping Co Ltd [2007] EWHC 2246 (Comm) concerned a different situation and could not extend the anomalous undisclosed-principal doctrine through fictional actual authority created by estoppel.

The respondents therefore had the better argument that they were not liable as undisclosed principals under the letters of indemnity, and the English court had no jurisdiction over the claims.

1. Court of Appeal (Civil Division) — The appeal was unanimously dismissed. The respondents had the better argument that they were not liable as undisclosed principals under the letters of indemnity: [2025] EWCA Civ 876.
2. High Court of Justice, King’s Bench Division, Commercial Court — Christopher Hancock KC, sitting as a Deputy High Court Judge, held that there was no good arguable case that the respondents were undisclosed principals and set aside service based on the jurisdiction challenge: [2024] EWHC 2371 (Comm).