Mopani Copper Mines Plc v Millennium Underwriting Ltd, Court of Appeal - Commercial Court, June 16, 2008, [2008] Bus LR D121,[2008] 1 CLC 992,[2008] 2 All ER (Comm) 976,[2008] EWHC 1331 (Comm)
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Mopani Copper Mines Plc v Millennium Underwriting Ltd, Court of Appeal - Commercial Court, June 16, 2008, [2008] Bus LR D121,[2008] 1 CLC 992,[2008] 2 All ER (Comm) 976,[2008] EWHC 1331 (Comm)
Neutral Citation Number: [2008] EWHC 1331 (Comm)
Case No: 2007 Folio 1172IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONCOMMERCIAL COURTRoyal Courts of JusticeStrand, London, WC2A 2LLDate: 16/06/2008Before :MR JUSTICE CHRISTOPHER CLARKE- - - - - - - - - - - - - - - - - - - - -Between:- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Alistair Schaff QC & Rebecca Sabben-Clare (instructed by Clyde & Co) for the ClaimantColin Edelman QC & Neil Hext (instructed by Kennedys) for the DefendantHearing dates: 21st & 22nd April 2008- - - - - - - - - - - - - - - - - - - - -Approved JudgmentI direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic..............................MR JUSTICE CHRISTOPHER CLARKE : Draft 16 June 2008 12:48 Page 331. I have before me for decision five preliminary issues ordered by Walker, J on 16th November 2007, in an action in which Mopani Copper Mines PLC (``Mopani'') claims against the defendant on behalf of itself and other Lloyd's Underwriters and Company Insurers an indemnity in respect of damage done to an electrostatic precipitator. The background2. Mopani is a Zambian company. In 2004 it was making arrangements to construct new copper smelting facilities at its site at Mufulira in Zambia, The project was to comprise a number of freestanding units consisting of: (a) an oxygen plant; (b) an Isasmelt furnace (sometimes referred to as the TSL furnace); (c) an electronic precipitator (``ESP''); (d) a matte settling electric furnace (``MSEF''); and (e) an acid plant. The function of the ESP is to process exhaust gases emitted by the Isasmelt furnace by removing copper dust particles from the gas and allowing cleaned gas to be transferred to the acid plant The precipitator accepts gas from the waste heat boiler at 350°. It contains three separate ``fields'' each of which removes about 85% of the dust entering the field so that the total dust removed across the three fields is about 99.6%. Each field contains 22 collector plates between which are interspersed 21 electrode assemblies. A high voltage emission from the electrodes imparts a positive charge onto the dust particles which drives them to the earthed collector plates. A rapping mechanism dislodges the dust from the plates into hoppers from which the dust is conveyed back into the smelting process. . The particles of dust separated out by this process add to the total production of copper.3. Zambian law required the project to be insured with a Zambian insurer. For that reason the form which the insurance took was that the project was insured with, as it turned out, Zigi Insurance Company Limited, a Zambian insurer, and reinsured in London. In substance the risk was placed in the London market. The terms were negotiated with the reinsurers, the risk being broked to them by Cooper Gay and Company Ltd (``Cooper Gay''). The identity of the insurance company was only determined at the end of the negotiations. Subsequently the arrangements became subject to a Memorandum of Understanding (``the MOU'') by which it was agreed, inter alia, that monies due to the insured in respect of claims as agreed by the reinsurers would be paid by the reinsurers to the brokers for onward transmission to Mopani. 4. The reinsurance policy is, so far as presently relevant, contained in a slip, originally scratched by the defendant on 29th November 2004, being an amended and retyped version of a slip scratched on 12th November 2004, with further provisions agreed on 18th January 2005, together with an endorsement (``Endorsement No 1'') scratched on 11th February 2005 which varied the previous agreement. 5. There has been considerable debate before me as to what material is admissible as a guide to construction of the slip, and as to what use that material may be for that purpose. In the version of the slip as scratched on 18th January 2005 certain words have been deleted. I consider hereafter the extent to which it is possible, or helpful, to look at the words deleted. It is common ground (i) that, in construing the contract, the Court must look at the circumstances surrounding its making in order to see what was the objective...See the full content of this document
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