Neutral Citation Number: [2016] EWHC 1243 (QB ) 
  Claim No: LM 2015 -000209  
IN THE HIGH COURT OF JUSTICE  
QUEENS BENCH DIVISION  
LONDON MERCANTILE COURT   
   
  27 May 201 6 
B e f o r e :  
HIS HONOUR JUDGE WAKSMAN QC  
(sitting as a Judge of the High Court ) 
____________________  
 R + V VERSICHERUNG AG  Claimant  
 - and - 
 
 ROBERTSON AND CO. SA  Defendant  
____________________  
Charles Dougherty QC and Timothy Killen (instructed by Kennedys Law LLP, 
Solicitors) for the Claimant  
Andrew Legg (instructed by Steptoe & Johnson, Solicitors) for the Defendant   
____________________  
HTML VERSION OF JUDGMENT APPROVED
 
____________________  
Crown Copyright ©  
JUDGE WAKSMAN QC:  
INTRODUCTION  
1. In this application, the Defendant, Robertson and Co. SA, a Swiss company 
("Robertson") seeks to set aside service upon it of pro ceedings brought by the 
Claimant, R+V Versicherung AG ("R&V"), a German company, for want of 
jurisdiction. R&V is a reinsurer which faced claims arising out of the 
earthquakes in New Zealand which occurred between September 2010 and 
June 2011. In early 201 3 it engaged Robertson to provide loss -adjusting 
services in a joint instruction with another reinsurer, AIG Insurance New 
Zealand Ltd ("AIG") which was by then already instructing Robertson.  
2. R&V contends that it contracted with Robertson on the basis of terms 
contained in a Master Agreement ("the Master Agreement") made between 
Robertson and another AIG company called AIG Europe (UK) Ltd ("AIG 
Europe"). The Master Agreement provided in Clause 15.4 thereof for English 
law and the exclusive jurisdiction of the English Courts.  
3. Accordingly, when a dispute arose between R&V and Robertson in relation to 
the performance of its loss -adjusting services, R&V brought proceedings 
against Robertson here. Although it certified on the Claim Form, issued 30 
December 2015 , that permission was not needed because of the operation of 
Article 25 of the "Recast" Brussels Regulation, it is common ground that the 
governing provision is in fact Article 23 of the Lugano Convention, the 
operation of which is specifically retained fo r parties to that Convention by 
Article 73 of the Regulation. In the event, there was no objection to my 
permitting R&V to make reference to Article 23 (which is in materially the 
same terms as Article 25) by way of a formal amendment to the Claim Form, 
since there is no conceivable prejudice to Robertson in so doing and there is 
no other reason not to permit that amendment so as to cure the procedural 
irregularity.  
4. Robertson denies that it contracted with R&V as alleged and thus denies its 
case on the jur isdiction of the English Court.  
THE ISSUE  
5. In fact, on 12 November 2015, and unbeknown to R&V at the time, Robertson 
had commenced proceedings against it in the Swiss court at the Cantonal 
Financial Division of Vaud, claiming unpaid fees ("the Swiss Claim ") and on 
that basis, also alleged lis alibi pendens in respect of the claim made here. 
However, following the conclusion of submissions on the exclusive 
jurisdiction clause, Robertson sensibly dropped the lis alibi  point on the basis 
that even if Robertso n was successful here, the Swiss court would still have to 
decide the issue of exclusive jurisdiction and that being so, it was more 
convenient and proportionate to let this Court deal with that issue in any event. 
Accordingly, the only question before me is whether R&V has a good 
arguable case (in the sense that it has "the better of the argument") that Article 
23 applies.  
THE LAW  
6. Article 23 (1) so far as material provides as follows:  
"If the parties, one or more of whom is domiciled in a State bound by this 
Convention, have agreed that a court or the courts of a State bound by this 
Convention are to have jurisdiction to settle any disputes which have arisen or 
which may arise in connection with a particular legal relationship, that court or 
those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless 
the parties have agreed otherwise. Such an agreement conferring jurisdiction 
shall be either:  
(a) in writing or evidenced in writing; or…"  
7. There is a significant body of EC and d omestic case -law on this particular 
provision from which I derive the following general principles:  
(1) The sole purpose for requiring the agreement as to jurisdiction to be in, or 
evidenced in, writing is so that there is clear proof of that agreement; s ee 
paragraph 5 of the judgment of the ECJ in Iveco v Van Hool [1986] ECR 
1851;  
(2) The agreement, or consensus, itself must be "clearly and precisely" 
demonstrated - see paragraph 7 of the decision of the ECJ in Salotti v Ruwa 
[1976] ECR 1831 ; 
(3) The existence or otherwise of such an agreement is to be regarded as an 
independent concept of EU law - see the decision of the ECJ in Powel l 
Duffryn v Petereit [1992] ECR I -1745  at paragraphs 13 -14, and paragraph 54 
of the judgment of Aikens LJ in Aeroflot v Berezovsky [2013] EWCA Civ 
784;  
(4) Accordingly, the fact that as a matter of domestic law, one or other parties 
argue that the agreement containing the jurisdiction cl ause is itself void or 
invalid is irrelevant, save perhaps where it could be said that as a result, the 
transaction was entered into by the other party in bad faith - see paragraphs 
55-63 of the judgment of Aikens LJ in Aeroflot. Otherwise, a doctrine simi lar 
to that of "separability" in relation to arbitration agreements applies in this 
context also - see paragraph 24 of the judgment of Longmore LJ in Deutsche 
Bank v Asia Pacific [2008] 2 Lloyds Rep 619 , referring back to the decision of 
the ECJ in Benincasa v Dentalkit [1997] ECR I -3767  at paragraphs 23 -32; 
(5) Moreover it is common ground that as with English law, the existence or 
otherwise of the requisite agreement must be decided objectively regardless of 
what either or both parties thought they were agreeing to;  
(6) The writing whi ch evidences the agreement may often be, but need not be, 
in a single document; so, for example, in 7E v Vertex [2007] 1 WLR 2175 , the 
Court of Appeal held that the writing consisted of the seller's quotation and the 
buyer's purchase order which was held to have accepted it. See in particular, 
paragraphs 34 -36 of the judgment of Sir Anthony Clarke MR;  
(7) Finally, the writing relied u pon need not emanate from the party now 
sought to be bound by the jurisdiction clause; so if that party received from the 
other party a written confirmation of the oral agreement previously made, and 
failed to object to that confirmation within a reasonabl e time, this could be 
sufficient "evidence in writing" of the agreement in question: see Berghoefer v 
ASA SA  [1985] ECR 2699  at par agraphs 14 -16. 
8. It might be thought from all of this that if at the time of the agreement, while 
there was an express reference to the relevant terms, the other party had not 
received a copy thereof, the required agreement evidenced in writing could not 
be made out. But in Credit Suisse v Societe Generale d'Enterprises 4th July 
1996, the Court of Appeal held that actual provision of a copy of the terms 
was not required where the party concerned had clearly accepted them by 
reference – see pages 6 and 7 of th e judgment.  
9. Second, there is a question as to whether there is any rule of law, or 
presumption, to the effect that if the terms to be incorporated (which would 
include the jurisdiction clause) are something other than a set of standard 
terms used by the o ther party for the type of contract in question, mere 
incorporation by reference to those terms or to the contract as a whole, is 
insufficient. The logic behind such a distinction is that unless the jurisdiction 
clause relied upon is part of such a set of standard terms, it does not follow 
that all the terms of some other contract will necessarily be apposite for the 
contract in question; in particular, it would not follow that the jurisdiction 
clause was necessary or appropriate.  
10. In The Ethniki [2000] 2 A LL ER 566, the question was whether a reinsurance 
contract which contained the express words "Conditions: wording as original" 
meant that the parties were agreeing to all of the terms of the underlying 
original contract of insurance, including the jurisdic tion clause, or not. The 
Court of Appeal said that they did not because the purpose of the reference 
back to "original" was simply to define the risk insured, to which the 
jurisdiction clause was irrelevant and moreover the original policy included 
some te rms which were wholly inappropriate to the dispute between a 
reinsurer and insurer: see the judgment of Evans LJ at paragraph 40. In this 
context, an analogy was made with cases where a bill of lading had purported 
to incorporate all of the clauses of a ch arter party which itself included an 
arbitration clause.  
11. Moore -Bick J (as he then was) reached a similar view in AIG Europe v QBE 
International [2001] 2 Lloyd's Rep 268 . This was another reinsurance case 
where the reinsurance contract stated "all terms clauses and conditions as 
original in all respects including settlements". Again, the point was that many 
terms of the original cont ract of insurance were simply not appropriate. He 
contrasted the case of "standard trading terms" where most if not all of them 
were likely to be directly relevant. But in making that observation, I do not 
believe that he was seeking to lay down a rule or presumption as to what types 
of collections of terms could or could not be the subject of an incorporation by 
reference into an agreement for the purposes of Article 23. Standard terms for 
the type of contract in question are obviously a paradigm example b ut they are 
not necessarily the only one. As Moore -Bick J himself put it at paragraph 26:  
"in each case the court must construe the language of the contract in the 
context of its commercial background and ask itself whether a consensus on 
the subject matt er of the jurisdiction clauses is clearly and precisely 
demonstrated"  
12. That, in my judgment, is clearly a matter of fact and analysis in each case.  
13. In AEL v Socofi SA [2010] 2 Lloyds Rep. 181, Christopher Clarke J (as he then 
was) took what I believe to be the same approach. He said the following at 
paragraphs 30 and 31 of his judgment:  
30. Where the terms of a wholly separate contract are incorporated, different 
considerations apply. A bill of lading which incorporates all the conditions of 
a specified charterparty will not usually incorporate a charterparty arbitration 
clause, in the absence of express wording to that effect. By analogy with the 
incorporation of arbitration clauses into bills of lading from charterparties, the 
law adopts "a f airly strict approach" — Dornoch Ltd v Mauritius Union 
Assurance Co Ltd [2006] Lloyd's Rep IR 127 , page 141 at para 48 (Aikens J) , 
affirmed [2006] 2 Lloyd's Rep 475  — to the incorporation of jurisdiction 
clauses from an insurance (or reinsurance) contract into  another reinsurance 
contract. Only those terms directly germane to the parties' agreement are 
carried over. The presumption is that these usually exclude a jurisdiction 
clause. In that case a provision in the excess reinsurance slip that it was "to 
follow  all terms and conditions of the primary policy together with riders and 
amendments thereto covering the identical subject matter and risk" was held to 
be inapt to incorporate a Mauritian jurisdiction clause in the primary 
reinsurance.  
31. It is, however, necessary, always to remember that the ultimate issue is 
what objectively did the parties intend: see Dornoch at first instance, para 48. 
In the Court of Appeal in that case Tuckey LJ said this [2006] 2 Lloyd's Rep 
475, page 481:  
27. There are many cases in which the courts have to decide whether terms 
from one contract have been incorporated in another. A number of these cases 
concer n the incorporation of terms from a direct insurance into a reinsurance. 
But no hard and fast rules emerge from these cases as one would expect. The 
question in each case is one of construction: did the parties to the contract in 
which the general words of  incorporation appear intend that their contract 
should include the particular term from the other contract referred to? It may 
be.. that the courts will answer this question in favour of incorporation more 
readily in some categories of cases than in other s, but that is no more than 
saying that the contractual context and the words used are all important."  
14. Once more, the Court in AEL was not seeking to lay down a rule or 
presumption. While Christopher Clarke J did refer to a presumption this was 
in the part icular context of the underlying charterparty or contract of 
insurance, regarded as "wholly different contracts" to those embodied in a bill 
of lading or reinsurance contracts. For reasons that will appear below it cannot 
possibly be said that the Master A greement here was a "wholly different 
contract".  
THE EVIDENCE  
15. For the purpose of this application, there were witness statements from the 
following on behalf of Robertson: Struan Robertson a director of and 
shareholder in that company, Euan Robertson, a loss adjuster employed by it, 
John Sabalis, a claims manager employed by AIG and Mark Handy, a Global 
Knowledge and Technical Officer for Property and Energy Claims for AIG 
Claims Inc. For R&V there were witness statements from Thomas Ullrich, 
head of the Legal and Claims Support unit of its reinsurance division, 
Christian Blöcher, a manager at that unit, and Michael Baier, a partner in 
Aurigon Advisors AG, an insurance and reinsurance consultancy firm which 
was assisting R&V at the time.  
16. This case is more  complicated than some, because most of the relevant cases 
were where the agreement or incorporation by reference clearly embodied a 
set of terms, and the only question was whether such agreement extended to 
all those terms, including the jurisdiction clau se, or not. Here, the parties are in 
serious dispute as to whether there was an agreement to be bound by the 
Master Agreement at all. Indeed, Robertson's position in early solicitors' 
correspondence and to some extent still in its witness statements, was t hat it 
had no agreement with R&V of any kind and the only agreement made by 
R&V was with AIG. That was clearly unsustainable. Indeed, the Conciliation 
Petition issued by Robertson in the Swiss Claim on the question of Applicable 
Law states that there was a  "mandate contract" between Robertson and R&V 
whereby the latter benefited from the former's loss adjustment services, in 
return for agreeing to pay for those services and that the parties were "clearly 
bound by an agency contract". In the course of the he aring Robertson did not 
seriously contend that it had no agreement with R&V and I proceed on the 
basis that it did.  
17. Equally, Robertson's evidence (including that from AIG) suggests now that at 
the material time, the contract which AIG undeniably had with Robertson was 
not based on the Master Agreement either. I deal with this suggestion below 
but I would accept that if there is no good arguable case that in truth 
Robertson and AIG were proceeding on the basis of the Master Agreement in 
respect of this inst ruction, it would be much more difficult for R&V to show 
that it did so, nonetheless.  
18. Where the witness statements set out what the parties say was or was not 
agreed orally at the relevant meeting (see below), that evidence is of course 
admissible althoug h their assertions can and should be tested by reference to 
what they said about these matters in the contemporaneous documents. But 
their evidence as to what they thought they were agreeing to cannot be taken 
into account, nor should the passages on both side's witness statements which 
in reality are not more than argument.  
19. While this case therefore has these complications, it does not mean that it is 
impossible to establish a good arguable case that Article 23 applies.  
THE BACKGROUND FACTS  
20. It is not in  dispute that Robertson acted as a loss -adjuster for various AIG 
companies for many years. The Master Agreement was in fact a written 
agreement made between Robertson and AIG Europe only, and for the period 
30 May 2007 to 30 May 2010. It consisted of AIG's  standard terms, or at least 
a set of terms proffered by AIG, as opposed to Robertson's standard terms and 
indeed on the evidence, it seems that Robertson did not necessarily operate 
with a set of standard terms at all.  
21. When R&V sought to join AIG's instr uction of Robertson, that engagement 
was already underway. The relevant insurer of Christchurch City Council, in 
respect of the losses sustained in the earthquakes, was New Zealand's Local 
Government Corporation Limited ("Civic") and AIG was a lead quota s hare 
reinsurer of 32.5%. R&V had a 40% interest in the balance of 67.5% which 
remained of the reinsurance. AIG had instructed Robertson on this particular 
engagement pursuant to an email from Mr Sabalis dated 1 October 2012.  
22. It made commercial sense for R &V to join in the instruction of Robertson by 
AIG, because although their individual contractual responsibilities to Civic 
differed in some respects, they made fundamentally common cause in terms of 
investigating the losses claimed which would extend to th e instruction, 
through Robertson, of a variety of experts and subcontractors. It would follow, 
from an objective commercial point of view, that if AIG and Robertson 
contracted according to a particular set of terms, if R&V was now to 
participate in that in struction, it would make sense for it to do so according to 
the same terms to avoid any conflicts which might otherwise arise, unless of 
course there were good reasons not to do so. Mr Ullrich's evidence was that 
R&V would need terms set out in a document and while it could in theory 
have done its own, there was no point here when the instruction was already 
proceeding according to its intended partner's terms.  
23. There is something of a dispute as to whether R&V needed at this point to join 
up with AIG becau se it had less rights of access to the insured assets and to 
documents but in my judgment the motivation for joining AIG is not 
important. What is important is the fact of that "joinder".  
24. Although the Master Agreement was (a) made with AIG Europe and not AIG, 
and (b) it had, strictly, expired in 2010, none of that is relevant because all of 
the contemporaneous evidence shows that Robertson and AIG regarded 
themselves as working to the terms of that agreement in respect of this 
instruction. If it were other wise neither Robertson, nor AIG through Mr 
Sabalis, would have referred to that agreement as governing the engagement 
of Robertson by AIG, which the documents show they manifestly did. Indeed, 
at the time of the meeting referred to below, R&V was not even aware of the 
expired term of the Master Agreement or that it was not in fact with AIG but 
AIG Europe. I reach that view despite the assertions by Mr Sabalis and Mr 
Handy in their witness statements that this is not so. For present purposes there 
is at leas t a good arguable case that they are wrong as will be seen from the 
documents.  
25. By early January 2013 R&V, assisted by Mr Baier, had approached Robertson 
to see if they could join in AIG's loss -adjustment instruction to it. This led to a 
meeting being arra nged on 4th and 5 March 2013 in Singapore. The agenda for 
that meeting, prepared by Mr Struan Robertson, did not refer to any particular 
terms of engagement as such but it did mention the sharing of fees and 
expenses and the budget for the work.  
WHAT WAS AGREED AT THE MEETING?  
26. I have before me 3 separate notes of the meetings. One was prepared by Mr 
Euan Robertson, the second by Mr Blöcher and the third by Mr Baier. There is 
a degree of common ground in the witness statements to the extent that on any 
view, Mr Ullrich wanted to check that disbursements passed over to R&V by 
Robertson would not be excessive or unnecessary and otherwise to see 
Robertson's charging structure. Exhibit 3 to the Master Agreement, not 
produced at the meeting but made available la ter, set out the service to be 
provided which was loss adjusting services, and then set out in a box the 
hourly charge -out rate although this was in fact out of date, and finally stated 
that Robertson would not charge for more than 12 hours work per day un less 
otherwise agreed and that Robertson could invoice the customer for "all 
reasonably and properly incurred disbursements".  
27. Robertson's essential case is that R&V at the meeting wanted some 
reassurance that excessive costs could not be claimed and to th is end Mr 
Struan Robertson offered to send Mr Ullrich a copy of the Master Agreement 
and also said that any costs charged would have to be reasonable, but that the 
Master Agreement was referred to and later tendered, for no other purpose. It 
was certainly not agreed that it would form the basis of Robertson's 
engagement as far as R&V was concerned. By way of contrast R&V's 
evidence in the witness statements is that this is exactly what it was, and that it 
was necessary to have something like this document f or Mr Ullrich to be able 
to show his superiors prior to the commencement of the engagement which 
would involve substantial cost. Mr Ullrich accepted that the question of costs 
and the reasonableness thereof, was of particular concern to him but that did 
not explain entirely the reason why the Master Agreement was referred to and 
later produced.  
28. I now turn to the documents. I quote the relevant extracts, and then discuss 
them below.  
(1) Mr Euan Robertson's note included the following:  
"TU-relative proporti ons… 45/55… Start date… 1st of March 2013  
JS issue invoices once a quarter  
TU… Would like copy of AIG contract to R&V and will join instruction…  
Set up of fee fund for subcontractors… Invoices quarterly from R & Co. .. 
Each quarter will need budget for quarter w/ plan of hours.. As bills will have 
to go to management for approval.. TU will email JS confirming participation 
w/ AIG on same terms w/ AIG's master agreement… E.g. want to avoid 
problems w/ "car -rental a llowances"  
SR: expenses at cost but reasonable"  
(2) Mr Blöcher appears to have taken two sets of notes.  
(a) His notes beginning at p196 of the bundle include the following:  
"RS… Quarterly is okay. But question is disbursements for subcontractors.  
TU do you have an agreement in place between AIG and Robertson  
RS yes it's a big doc  
TU if we could have that then we can agree that R&V participated in the costs 
45/55 by email exchange  
SR: okay;  
(b) His notes beginning at page 215 include the following:  
"TU: SR please send me the AIG Robertson agreement -I will state per email 
that R&V will co -join this agreement on a 45/55 basis. I will send you a 
confirmation… I would like you to send me a "plan/budget" for the quarterly 
accounts. Stating what R & Co. wi ll precisely bill and what the subcontractors 
will bill. I need this to show it to the board for approval and so we can make 
the fund payment.  
SR: yes I will send that in a letter…  
SR: In the AIG -Robertson agreement there is a confidentiality clause. But 
since AIG is sitting here I guess they will be okay with the passing it on to you  
JS: yes we are."  
I should add that Mr Struan Robertson in his evidence tried to make something 
of the fact that shortly after this section there appear in the notes the words  
"For Us..The Master Agreement" crossed out, suggesting that it was 
specifically decided that the Master Agreement would not govern. I do not 
accept this – the words might have been crossed out for any number of reasons 
and indeed the Master Agreement had already been referred to as being joined 
by R&V;  
(3) Mr Baier's typed notes of the meeting includes the following:  
"RATES AND FEES OF SUBCONTRACTORS:  
… SR to send master contract with AIG and updated fees table to R&V. This 
together with budget for Rob fe es and subcontractor fees, budget for 
subcontractors on quarterly basis, Rob will send letter to this effect, TU needs 
something as basis for making substantial upfront payment into escrow 
account.  
SR: expenses are at cost, should be reasonable.…  
WRAP UP TO Dos:  
-short message to re -High points of agreement AIG/R&V. Exchange of emails 
sufficient… Finalisation of agreement early next week…"  
29. On 7 March 2013 Mr Sabalis emailed Mr Ullrich, copied to Robertson, what 
he said were "the terms of our agreement on a  joint plan to manage this loss:" 
this referred to the joint employment of the services of Robertson to represent 
the two companies' interests in this matter. The share of all costs would be on 
a 55%/45% basis with AIG bearing 55%. The effective date of th e 
arrangement would be 1 March 2013. There would be a fee fund account 
opened by Robertson specifically to facilitate the payment of the various 
experts. On 15 March, Mr Ullrich replied thanking Mr Sabalis for his note and 
adding the following clauses to t he summary of the agreement:  
"… Robertson.. Will provide detailed quarterly accounts of amounts due to 
consultants plus bank statements documenting that the amounts due have been 
settled from the fee fund account. Robertson… Will also provide a quarterly 
budget plan for the estimated costs of consultants work to be carried out in the 
following quarter; AIG and R&V will make according contributions to the fee 
fund account  
6. Robertson… Will provide detailed quarterly accounts (plus detailed 
timesheets) on t he work carried out by Robertson… Which will be settled by 
AIG and R&V in accordance to their respective proportion… Robertson will 
provide a quarterly budget plan for the estimated costs of the work to be 
carried out by Robertson…  
7. The details of the de alings between Robertson… And AIG are governed by 
their contract dated 2005 (approx.). AIG will provide a copy of this contract to 
R&V. Confidentiality restrictions… Have been lifted by mutual agreement of 
AIG, Robertson… And R&V at the meeting."  
30. This emai l with the additional clauses was not itself copied by Mr Ullrich to 
Robertson, but the whole chain was copied to Robertson by Mr Sabalis on 16 
March. A point was taken as to whether the fact that it was not initially 
forwarded to Robertson showed that the  email was not really about any 
agreement between R&V and Robertson at all, but I do not think there is 
anything in this. After all, even if one puts the Master Agreement to one side, 
this summary clearly sets out the obligations of Robertson in relation t o 
quarterly budgets etc so it must have been intended for Robertson at some 
point.  
31. Then, by an email dated 12 April 2013 Mr Struan Robertson sent a copy of the 
Master Agreement to Mr Baier, copied to Mr Ullrich in the following terms:  
"Dear Michael,  
I have attached our service agreement with AIG with their consent but in 
confidence.  
The original signed document dated 30 May 2007 is not in electronic form so 
if you need this we would have to scan it for you.  
The only changes during the last 6 years are to Exhibit 3 where our current 
charge out rates per hour are:  
S. Robertson  CHF 595.00  
E. Robertson  CHF 295.00  
W. Klein  CHF 320.00  
The main change has been to Euan's charge out rate as he completed his 10 
years of experience training in 2009.  
I hope this is sufficient for your purposes."  
32. On the same day Mr Baier emailed Mr Ullrich, having also received a copy of 
the Master Agreement, saying that in the absence of explicit instructions from 
Mr Ullrich he would not do anything in relation to it. He also thought that 45% 
of Mr Struan Robertson's hourly rates seemed adequate. In his witness 
statement he suggested that what he otherwise wou ld have done would have 
been to review the Master Agreement but it was not in fact necessary.  
33. Finally, at about the same time, Mr Blöcher prepared a draft note of the 
arrangements between R&V and Robertson for the purpose of being submitted 
to R&V's board . This stated as follows, among other things:  
"2. An ongoing business relationship exists between AIG and Robertson… 
Which is regulated by a framework agreement dating from the year 2005 (not 
yet confirmed). This framework agreement is being made availabl e to R&V. 
The provisions of the framework agreement will apply by default to the 
relationship between R&V and Robertson and co -unless individual variations 
to the contrary have been agreed."  
34. Before analysing those documents individually, I should say that if one reads 
all of them together it seems to me to be clear that there is at least a good 
arguable case for two propositions:  
(1) First, despite what the witnesses now say, AIG and Robertson were 
proceeding on the basis of the Master Agreement which was indeed "in place";  
(2) Second, that R&V, AIG and Robertson agreed to proceed with each other 
on the basis that Robertson's own charges were as per the hourly rates set out 
in the email of 12 April 2013, there would be the quarterly budgets referred to 
in paragraphs 6 and 7 of the revised notes of the agreement completed on 15 
March 2013, the contributions being in the ratio 55/45, and otherwise in 
accordance with the terms of the Master Agreement.  
35. As to the individual documents:  
(1) Euan Robertson's note shows that at the same time as agreeing to join 
AIG's instruction, Mr Ullrich wanted a copy of the relevant agreement. It is a 
reasonable assumption that he did so because R&V would "join" that 
agreement as part of joining the "instru ction"; that is backed up by the later 
words that "TU will email JS confirming participation with AIG on same 
terms [as] AIG's master agreement"; it is right that the example given of that 
was to avoid excessive expenditure and have reasonable costs, but t here is no 
limitation in this note of what was said at the meeting being simply as to the 
terms of the Master Agreement which dealt with costs;  
(2) Mr Blöcher's note also refers to the Master Agreement and although Mr 
Sabalis said that it was a "big docum ent" Mr Ullrich asked for it and "then we 
can agree that R&V participates in the costs 45/55 basis". On its face that is an 
intention to proceed according to the same terms as AIG; if its only relevance 
was costs there would be no need to saddle Mr Ullrich  with the whole of this 
large document; the second note recorded that R&V would "co -join" the 
Master Agreement;  
(3) Mr Baier's typed note is also at least consistent with R&V proceeding upon 
the basis of the Master Agreement;  
(4) It seems to me that all of  the meeting notes show that R&V was interested 
in the Master Agreement more than simply because of its provisions on costs 
and having discovered that there was an agreement which was treated as 
governing the position between AIG and Robertson Mr Ullrich w anted any 
instruction to be on the same basis so that it was truly "joint"; this would then 
satisfy his superiors;  
(5) It also seems a fair inference from the revised summary of the agreement 
prepared by Mr Ullrich that, although not stated explicitly, R&V  would be 
instructing Robertson on the same basis as AIG, which was the Master 
Agreement. It is not as if Robertson (or AIG) came back afterwards and 
objected to this part of the summary;  
(6) Equally Mr Struan Robertson's email to Mr Ullrich and Mr Baier o n 12 
April suggests that the Master Agreement would now form the basis of the 
agreement with R&V; otherwise it is not clear why Mr Robertson should go to 
the trouble of not only updating the charge out rates but pointing out that these 
were "the only chang es" to the Master Agreement in the last 6 years; I agree 
that in theory he could have been providing the Master Agreement simply on 
the basis that Mr Ullrich wanted to show the board what sort of agreement 
AIG had with Robertson but if so, it is difficult to see why R&V's position 
would be that its agreement with Robertson was something different; that 
makes little commercial sense;  
(7) Mr Baier's email of 12 April 2013 does not take matters much further;  
(8) One is then left with the undated draft note for  the board. That, of course, 
is R&V's internal document only and no board minutes have been produced, 
but taken at face value, it is certainly stating that absent any particular 
alterations, R&V would also be operating according to the Master Agreement.  
36. I now make some other general points: -  
(1) I accept that there are various clauses in the Master Agreement which 
might not be particularly necessary for R&V for example in relation to third -
party recipients of Robertson's services, but that does not mean th at the Master 
Agreement did not work or was inapposite from R&V's point of view; I agree 
also that there is a limitation of liability in clause 11.2 to £1m and there might 
be a question as to whether that would have been suitable for R&V. On the 
other hand , I think the likelihood is that had this been addressed specifically, 
R&V would have fallen into line with AIG. It is not, after all, such an unusual 
provision;  
(2) In addition, if the Master Agreement was not incorporated entirely, there is 
a question wh ether, for example, clause 2.2 of Exhibit 3 was included or not. It 
does not deal with the quantum of payments so on that footing, on Robertson's 
case, it would not be included. On the other hand, it gives an important 
contractual right to the customer to suspend payment of any sums due where 
Robertson was in breach of duty of any of its obligations to the customer until 
the breach was rectified. In a joint instruction situation where, for example, 
Robertson was in breach of duty in respect of its performan ce where both 
parties were sharing the costs, it would seem to me to be very odd, objectively, 
to have a situation where only one party could suspend payment and the other 
party could not. In that regard, one could make a similar point about 
jurisdiction, namely that it would be odd if one of the jointly instructing 
parties had a clause in favour of England whereas for the other party, 
jurisdiction was at large. It also means that it cannot be said that Robertson 
would have had some objection in principle t o an English jurisdiction clause, 
had it been asked to consider that matter because (as all the documents 
suggest), it already accepted that it was contracting with AIG on the basis of 
the Master Agreement, notwithstanding Robertson's assertions now that t he 
Master Agreement had expired and did not govern AIG anyway;  
(3) While the Master Agreement is not Robertson's standard terms, it is 
nonetheless a set of terms dealing with precisely the subject matter of the 
dealings between R&V and Robertson, namely th e latter's instruction of it as a 
loss adjuster. The set of terms may have been as between Robertson and a 
third party but (a) the third party was here working alongside R & V to 
instruct Robertson and (b) the Master Agreement cannot be seen as an 
agreemen t essentially about something else; compare the charterparty as 
against the bill of lading or the original contract of insurance as against the 
contract of reinsurance;  
(4) The very fact of a joint instruction commercially supports the notion of 
instructi ons on the same terms. I quite accept that when a third reinsurer, Axis, 
came later to join in the instruction to Robertson (although it did not stay very 
long) there is no evidence that the Master Agreement was mentioned. But the 
fact that Axis seems to h ave taken a very informal approach does not in my 
judgment affect the commercial points made above;  
(5) It follows for all those reasons that the facts of this case are materially 
different from those in, say AEL. There, the agreement sought to be 
incorpor ated as whole and not merely as to its payment conditions, was 
different to the main agreement because it was a freight forwarding agreement 
and not a slot charter and a number of its provisions simply could not be 
carried over. Moreover the documents take n as a whole showed that the 
reference to that agreement was only referred to in relation to its payment 
conditions. While in that case one could then conclude (as the Court did) that 
any incorporation of the terms should be limited and not general, the st arting 
point in this case is crucially different: it is that the whole set of terms in 
question were already operative as between Robertson and AIG, the party 
whose instruction R&V was now to join.  
37. Therefore I take the view first that there is a good argua ble case that R&V and 
Robertson and indeed AIG agreed that they would all proceed upon the basis 
of the Master Agreement varied only as to chargeable hours and the 
production of quarterly budgets and that this was agreed by 12 April 2013 at 
the latest.  
38. However, I also need to be satisfied that there is a good arguable case that 
such an agreement is clearly and precisely evidenced in writing. In my 
judgment, there is. The relevant writings consists of Mr Euan Robertson's note 
of the meeting, the revised sum mary of the agreement as forwarded to 
Robertson and Mr Struan Robertson's email of 12 April 2013 containing the 
Master Agreement. Since those documents were either sent or made by 
Robertson or received by it without objection, they all "count" for present 
purposes. Strictly, Mr Blöcher's note of the meeting and the draft note 
prepared for the board cannot "count" but simply act as corroboration.  
39. Of course, the actual issue of incorporation of the Master Agreement, insofar 
as it remains relevant, will be a matter for determination by the court hereafter 
and it may come to a different view.  
40. But at this stage, and for the purposes of Article 23, I am quite sure that R&V 
has the better of the argument. I therefore dismiss Robertson's application.  
41. I am gratefu l to both Counsel for their very helpful oral and written 
submissions .