Jessica Sutherland

Jessica has experience in matters of salvage, general average, and other aspects of admiralty law. Cases include:

• St Maximus Shipping Co Ltd v AP Moller-Maersk A/S [2014] 2 Lloyd’s Rep. 377: Jessica appeared with Stephen Kenny QC for the Claimant in its claim to enforce the terms of a Letter of Undertaking provided to it by the Defendant (“Maersk”) by way of security for the potential liability in general average of cargo interests.
• Two arbitral references one governed by English law and one governed by Chilean law. Jessica acted for the claimant Cargo Interests against the owners of the vessel in respect of losses suffered as a result of the grounding of the vessel in Chile.
• Two arbitral references in respect of losses suffered due to a grounding off the coast of Iceland.

Jessica is ranked as a “Tier 1” Leading Junior in the Legal 500 for Commodities work. Cases include:

• A high value dispute involving two of the world’s largest coal traders. The issues included whether the certificate of quality issued by Inspectorate (one of the world’s leading cargo surveyors) could be challenged for “manifest error or fraud”.
• Acting for the claimant/sellers of the Vessel “Glenda Megan” in two related references involving the Chinese financing company Minsheng and its subsidiary OTSL.
• Instructed in various disputes concerned claims for unpaid bunkers.
• Acting for Europe’s largest sugar provider in a claim for unpaid invoices and short fall claims.
• A dispute concerning the transportation of 2 ‘supercars’.
• Acting for the seller in a claim for damages under a sale and purchase contract for “copper concentrate”.
• Great Elephant Corporation v Trafigura Beheer BV (The “Crudesky”) [2014] 1 Lloyd’s Rep. 1 A two day appeal acting for the appellant charterers (Trafigura) in their appeal from the decision of Teare J. The case concerned the law on the Sale of Goods Act, implied terms of right to sell and quiet possession, and the law on force majeure.

Jessica appears in court on a regular basis both conducting trials and handling interlocutory matters in a wide variety of general commercial disputes. Jessica has particular experience of large-scale, complex commercial disputes.

Jessica is often instructed directly by in-house counsel at major global companies and is well regarded for her advisory work. Her clients include MACE, Serco Plc, UBS, Travelers, Thyssen Krupp, Enterprise Rent-a-Car UK, General Electric and Brit.

Cases include:

• A commercial dispute between two high-street names – the car rental company Enterprise and the insurance company Direct Line (settled shortly prior to trial in February 2021).
• Hardy Exploration and Production (India) Inc v Government of India [2019] Q.B. 544. Together with Dominic Kendrick QC Jessica acted for the claimant who had obtained a third party debt order. The court considered how to determine the situs of a debt, and how to establish whether a debt was “due or accruing due” for the purposes of CPR r.72.2.
• Excalibur Ventures LLC v Texas Keystone and others: Jessica acted (with Simon Picken QC, Timothy Kenefick and Keir Howie) for the Claimant (Excalibur) in a billion pound claim concerning the granting of oil concessions in Iraqi Kurdistan. The trial commenced in October 2012 and finished in February 2013.
• Macquarie Internationale Investments Ltd v Glencore UK Ltd [2009] EWHC 2267 (Comm) (Andrew Smith J). Together with Richard Southern QC, Jessica acted for the Defendant in a breach of warranty claim arising out of a share sale and purchase agreement for the sale of a UK gas retail business; the claim was successfully defended. The case considers the concept of “true and fair” in the context of financial statements and warranties in a mergers and acquisitions case.

Jessica has successfully obtained freezing injunctions and anti-suit injunctions from the High Court. Cases include:

• XL Insurance Co SE v Little [2019] EWHC 1284 (Comm) (Philips J, Butcher J, Popplewell J). Jessica successfully obtained an interim, and then final, anti suit injunction restraining a US resident from pursuing proceedings in the US in breach of an English arbitration clause.
• Jessica has assisted South African Counsel with issues arising from a ship arrest and associated judicial sale.
• Jessica assisted Hong Kong counsel in obtaining a worldwide freezing injunction over the personal assets of three of the former directors of Parakou Shipping.
• Steamship Mutual Underwriting Association (Bermuda) Limited v Sulpicio Lines [2008] EWHC 914 (Comm) (Walker J): Jessica acted for the Claimant, successfully obtaining a final anti suit injunction in support of English arbitration proceedings.

Jessica is recommended as a leading junior in this area where she is described as ‘Very bright, responsive and effective on her feet.’ Jessica has wide ranging experience including experience of Bermuda Form arbitration.

Jessica has acted as a sole arbitrator (appointed by the LCIA and in ad hoc arbitrators) and is a member of Lloyd’s Arbitration Scheme Arbitrators Panel – tiers 1 & 2 and ARIAS.

Cases include:

• Advice on business interruption claims following the COVID-19 pandemic including PARKDEAN RESORTS UK LIMITED and others -v- AXIS MANAGING AGENCY LIMITED (due for trial in June 2022),
• Advising on two Residual Value Insurance Policies relating to the purchase and lease-back of two Airbus aircraft.
• Advice on coverage issues arising out of the Grenfell Tower disaster and the public inquiry.
• Advising a leading bank on coverage issues arising out of the ‘Forex Scandal’.
• Advising a global insurance company on purported cancellation of cargo reinsurance cover following the attacks on shipping in the Persian Gulf and Strait of Hormuz.
• Advising a global energy company on a coverage dispute under a bespoke “Judicial Review Insurance Policy”.
• A Bermuda Form arbitration involving a US$140 million claim by a US telecommunications company against its D&O insurers arising out of securities litigation in the United States.
• A Bermuda Form arbitration involving a US$350 million dollar high-rise condominium, in San Francisco.
• A Bermuda Form arbitration involving a US$700 million insurance claim by US drugs company arising out of a class action brought by users of its hormone replacement drugs.
• An arbitration concerning a quota share reinsurance between a Bermudan Reinsurer and a Lloyd’s Syndicate. Jessica acted for the respondent reinsurers who agreed to reinsure the Lloyd’s Syndicate in respect of the Syndicates’ own reinsurance of underlying regulated and unregulated Japanese Kyosai business.
• An ARIAS Arbitration involving the effect of subjectivities in a slip.
• Beazley Underwriting Limited v The Travelers Companies Incorporated [2012] Lloyd’s Rep. IR 78 (An insurance dispute arising out of the judgment in Standard Life Assurance Ltd v Oak Dedicated Ltd and Others [2008] EWHC 222 (Comm), [2008] Lloyd’s L.R. 552. The case concerned issues of policy construction, and the effect of subjectivities on a slip.)

Jessica regularly appears International Arbitration proceedings including ship building arbitrations and Bermuda Form disputes. Cases include:

• Challenge pursuant to s67 of the Arbitration Act 1996 (substantive jurisdiction) to a partial final award in an ICC arbitration.
• A high value shipping building dispute concerning a €100 million build project for a super yacht.
• A high value shipping building dispute concerning a €400 million build project for a super yacht.
• Application pursuant to s45 of the Arbitration Act 1996 (the first occasion that the Commercial Court has considered such an application) Goodwood Investments Holdings Inc v Thyssenkrupp Industrial Solutions AG (the M/Y PALLADIUM) (the application of section 45 of the Arbitration Act 1996) [2018] Lloyd’s Rep. Plus 78.
• Enforcement of an ICC arbitration, resisting an application to set aside a third party debt order, Hardy Exploration and Production (India) Inc v Government of India [2019] Q.B. 544 (situs of a third party debt order under Part 72 of the CPR).
• Two arbitral references, one governed by English law, and one governed by Chilean law. Jessica acted for the claimant Cargo Interests against the owners of the vessel in respect of losses suffered as a result of the grounding of the vessel in Chile.
• A Bermuda Form arbitration involving a US$140 million claim by a US telecommunications company against its D&O insurers arising out of securities litigation in the United States.
• A Bermuda Form arbitration involving a US$350 million dollar high-rise condominium, in San Francisco.
• A Bermuda Form arbitration involving a US$700 million insurance claim by US drugs company arising out of a class action brought by users of its hormone replacement drugs.

Cases include:

• Jessica acted for the Defendant (bunker supplier) in successfully opposing an application by vessel owners for (a) permission to serve out a claim form out of the jurisdiction and by an alternative method of service on the Defendant’s legal advisors in Paris, and (b) for an expedited timetable to trial.
• ED & F Man Sugar Ltd v Lendoudis [2007] 2 Lloyd’s Rep 579 (Clarke J): Jessica acted for the Defendant. The case concerned the enforcement of a Greek Judgment which was said to have recognised an English Arbitration Award. Issues covered included: the scope of the Judgments Regulation and Brussels Convention, enforcement at common law, service out of the jurisdiction and whether permission ought to be granted to amend a claim form after the expiry of the limitation period.

Jessica has particular expertise in disputes concerning insurance brokers, auditors and solicitors. Cases include:

• Acting as sole counsel for the Financial Reporting Counsel in relation to its investigation of Ernst & Young’s audit of Stagecoach and Virgin Trains’ East Coast Mainline franchise.
• Allied Dunbar v TUIC and Willis: Jessica acted for an insurance broker in relation to a dispute arising out of the PIA/FSA review of FSAVC and endowment products in early 2000.
• CNA Insurance Company Limited and others v Willis Limited: Jessica acted for the Defendant in respect of substantial claims arising out of the PA LMX and Occupational Accident reinsurance markets in the 1990s.
• The Law Society of England and Wales and others v Margaret Jean Compton and others: Jessica acted  in  multi-party litigation involving subrogated  claims  against  the  former  partners  of  various solicitors firms pursuant to the Solicitors Act 1974.
• Newline Corporate Name Limited v Morgan Cole (a firm) (2007) EWHC 1628 (Comm) (Simon J): together with Christopher Butcher QC Jessica acted for the Claimants in a claim against their former solicitors.

Jessica has particular expertise in disputes concerning contracts for the carriage of goods by sea, sale of goods, contracts of insurance (both marine and non-marine) and shipbuilding. Cases include:

• A series of LMAA arbitrations concerning an alleged dangerous cargo (NPK fertiliser).
• A LMAA arbitration concerning a €100 million build project for a superyacht (warranty and damages claims).
• A high value shipping building dispute (warranty dispute and damages claims) concerning a €400 million build project for a 100 metre super yacht. The case concerned complex technical issues regarding the build process and paint work.
• A series of arbitrations concerning the construction and delivery of three bulk carriers (each worth US$ 50 million). Issues included the fatigue life of the vessels’ propulsion shafts and associated coupling bolts, and whether the builder could rely on the prevention principle.
• Two arbitrations (heard concurrently) concerning the construction and delivery of two fully fitted offshore platform supply vessels. The cases were concerned with whether the contractual Delivery Date had been extended.
• An arbitration concerning the construction and delivery of four Product Oil/Chemical tankers. The dispute concerned whether the buyer was entitled to cancel the shipbuilding contracts.
• Jessica assisted South African Counsel with issues arising from a ship arrest
• Goodwood Investments Holdings Inc v Thyssenkrupp Industrial Solutions Ag [2018] EWHC 1056 (Comm) A case under section 45 of the Arbitration Act 1996 – the court determined a point of law in support of international arbitration (underlying shipbuilding dispute). The question of law was whether an arbitration claim under a shipbuilding contract had been settled in without prejudice correspondence between the parties’ solicitors. The case considered the effect of the terms “Subject to Contract” and “Subject to Board Approval”.
• Carboex SA v Louis Dreyfus Commodities [2012] 2 Lloyd’s Rep. 379. A two day hearing before the Court of Appeal concerning the proper construction of the ‘strikes’ exception in the AMWELSH Voyage Charter. The case is one the leading authorities on exceptions to laytime and demurrage.
• Churchgate Nigeria Ltd v Pace Shipping Co Ltd [2008] EWHC 1619 (Comm). Jessica acted for the Claimant in its successful appeal from a partial arbitration award pursuant to section 69 of the Arbitration Act 1996. The appeal concerned the interpretation of sections 2(2) and 2(4) of the Carriage of Goods by Sea Act 1992 and issues of contractual and proprietary title to sue.
• Pace Shipping Co Ltd (Malta) v Churchgate Nigeria Ltd (Nigeria) [2010] 1 Lloyd’s Rep 183: Jessica successfully defended applications made by the Claimant pursuant to sections 68, 69 and 70 of the Arbitration Act 1996. The appeal concerned the construction of section 2(2)(a) of the Carriage of Goods by Sea Act 1992 (CoGSA 92). The case is one of the few authorities on the interpretation of this section.