The Case Against Jury Trials by Lord Sumption ✎

So writes Lord Sumption, in “The case against jury trials” (The Telegraph):

Juries do not give reasons for their verdicts. The drafting of judgments is a demanding task which we cannot reasonably ask juries to perform. They may have up to twelve different reasons. There is a real moral problem about convicting someone of a serious offence without saying why.

This is not just a moral issue. The big problem about jury trials is that we cannot have a proper system of appeals. In Britain, criminal appeals are usually only concerned with the regularity of the trial. Has the judge properly summed up for the jury? Has there been some procedural mishap? Was there any evidence to support the charge? If so, was it legally admissible? The one question which is not asked is whether, assuming that the trial was properly conducted, the jury got the answer right. Yet that is the most important question of all.

Every experienced criminal judge will tell you that juries are careful and conscientious and generally get the answer right. That is true. But inevitably juries sometimes get it badly wrong, especially in really terrible cases such as terrorist murders or sexual interference with children, when they may be too keen to achieve “closure”.

Professional judges can also get the answer badly wrong. They too can sometimes be guided by prejudices, misunderstandings or just plain errors. The difference is that the reasoning of judges is transparent. They give their reasons and their mistakes can be corrected on appeal. By comparison, the reasoning of juries is opaque, and impossible to scrutinise on appeal because we have no idea how they got to their verdict.

All human institutions are fallible. Wrongful convictions and miscarriages of justice do happen. That is why we need a functioning system of appeals to review the merits of criminal convictions and not just the procedural adequacy of the trial. At the moment we do not have one. And we never will, as long as serious cases are tried by juries who simply say “Guilty” or “Not guilty”.

An interesting argument on a fundamental structural flaw in the British justice system.

The system lacks a mechanism to adequately review the safety of the conviction on its merits. As long as the form of the trial is legally perfect, the substance of the jury’s decision remains unassailable, regardless of whether it is actually correct.

Undisclosed Principals and the Construction of Identity: White Rock v Middle Volga [2025] ✎

Can a claimant invoke the doctrine of the undisclosed principal to bind a foreign defendant to a contract that expressly warrants that defendant’s non-existence? In White Rock Corporation Ltd v Middle Volga Shipping Company [2025] EWHC 2089 (Comm), the High Court gave a resounding no. The decision serves as a trenchant affirmation that the identity of a contracting party is a matter of construction, as well as presumption, particularly where sanctions clauses define the commercial reality of the bargain.

The Claimant, White Rock (the Charterers), brought a US$12.6 million claim for wrongful withdrawal of vessels under a time charterparty. The claim targeted two defendants: Middle Volga, a Russian registered owner, and North Global, a Turkish company named as “Disponent Owner”. Seeking to anchor the claim against the Russian entity in London, White Rock contended that North Global had acted merely as an agent for Middle Volga, the alleged undisclosed principal. Middle Volga challenged the jurisdiction, denying it was a party to the contract. 

Mr Peter MacDonald Eggers KC (sitting as a Deputy Judge of the High Court) upheld the challenge. He ruled that the Claimant had failed to establish the requisite “good arguable case” that Middle Volga was the true principal. 

The Undisclosed Principal Doctrine

The judgment reinforces the heavy evidentiary burden facing any party seeking to look behind the face of a written contract. The Deputy Judge grounded his analysis in the “strong presumption” identified by Leggatt J (as he then was) in The Magellan Spirit [2016] EWHC 454 (Comm) where a party signs a contract in their own name, they are prima facie the principal (at [80]). This conclusion aligns with the line of authority traceable to Humble v Hunter (1848), which established that the doctrine of the undisclosed principal cannot be invoked where it would contradict the express description of the parties in the written instrument.

This presumption is not merely a procedural hurdle; it is a substantive bulwark of commercial certainty. In the faceless world of international shipping, where counterparties frequently transact at arm’s length without meeting, the written instrument is the sole repository of the bargain. As the Court observed, displacing the named party requires “convincing proof” that they were authorised to, and did in fact, act as an agent (at [80]). To hold otherwise would be to invite commercial chaos, allowing parties to evade liability or manufacture jurisdiction by retrospectively attributing the contract to a shadow entity.

The “Russia Clause” and Russian shadow fleet

However, the most interesting aspect of the decision lies in its treatment of the “sanctions warranty” as a tool of construction. The charterparty contained an express warranty: “Owners Confirm that The Vessels Has No Connection with Russia ...”.

White Rock’s submission - that Middle Volga (a Russian entity) was the true “Owner” - entailed a fatal paradox. It required the Court to construe the contract in a manner that rendered it self-contradictory. If Middle Volga were the undisclosed principal, the warranty of “no Russian connection” would have been breached at the exact moment of its formation.

The Court rightly recoiled from such a construction. Adopting an objective approach, the Judge reasoned that rational commercial parties could not have intended to contract with a Russian principal while simultaneously warranting that no such link existed (at [86]). The “Russia Clause” thus functioned not only as a performance obligation but as an identifier of the counterparty. The doctrine of the undisclosed principal cannot be used to contradict the express terms of the agreement.

Supply Chains and the Boundaries of Negligence: Limbu v Dyson [2024] ✎

Can a UK domiciled company be held liable in negligence for the acts of an independent foreign supplier? In Limbu v Dyson Technology Limited [2024] EWCA Civ 1564, the Court of Appeal refused to stay proceedings brought by migrant workers alleging forced labour at a Malaysian factory supplying the Defendant. The issue was not whether the Claimants had a valid case, but where that case should be heard on Spiliada principles: the courts of England or Malaysia.

The Claimants were employed by ATA Industrial, a Malaysian supplier of components to Dyson. They alleged false imprisonment, assault, and dangerous working conditions. Crucially, ATA was not a subsidiary of Dyson; the relationship was purely contractual. Dyson, however, enforced a strict “Ethical and Environmental Code of Conduct” and a “Migrant Worker Policy”, monitored by regular audits.

The Court of Appeal (Popplewell LJ, with whom Sir Geoffrey Vos MR and Warby LJ agreed) held that the case must proceed in England. The judgment represents a significant, if provisional, extension of the Vedanta principle from corporate groups to contractual supply chains.

The Supply Chain Extension (Liability Beyond the Subsidiary)

The central doctrinal development lies in the extension of Vedanta. Traditionally, the “parent company duty of care” has been confined to the structure of corporate groups. However, Popplewell LJ accepted that the logic of Vedanta and Okpabi rests not on shareholding, but on “operational reality” (at [18]).

The Claimants relied on “Routes 2, 3 and 4” of the Okpabi framework: that Dyson had intervened in the management of the supplier’s operations (Route 2), promulgated group-wide safety policies (Route 3), and held itself out as supervising them (Route 4). By mandating the “method” of employment practices and auditing compliance, Dyson had arguably inserted itself into the chain of causation. If its policies were defective, or its audits negligently performed, it could be liable.

While the Court acknowledged this was a “novel issue” in both English and Malaysian law (at [71]), it held the argument was plausible enough to go to trial. This conclusion creates a paradox for multinational compliance. The judgment suggests that a company which adopts an “interventionist” model over that specific risk - actively training and auditing suppliers - risks assuming a duty of care. Conversely, a company which adopts a “tick-box” approach - merely requiring suppliers to warrant compliance or sign a waiver in that respect - might successfully divest itself from the requisite “control”. There is a danger that this developing jurisprudence may generate a perverse incentive, encouraging corporations to distance themselves operationally from their supply chains to insulate themselves from liability. After all, a multinational corporation may have thousands of suppliers; how many compliance officers can they employ?

The Undertakings Battle (the Access to Justice Shield)

The decision is equally significant for its treatment of the second limb of Spiliada: whether the claimant faces a real risk of a denial of justice abroad. In Vedanta, a key reason the case stayed in England was “access to justice” - i.e. the claimants were too impoverished to fund a case in Zambia, and conditional fee agreements (CFAs/“no win, no fee”) were illegal there. Given that Malaysian lawyers might take the case on a partial CFA, and they were similarly impoverished; the Claimants faced an insurmountable funding deficit.

To bridge this “justice” gap, Dyson offered “unprecedented” undertakings, agreeing to pay for the Claimants’ interpreters, court fees, and remote technology costs. The High Court accepted these as sufficient. Popplewell LJ robustly disagreed, identifying two fatal flaws in the proposal.

First, the “paymaster” conflict. The undertakings allowed Dyson to vet costs for “reasonableness”. This would force Claimants to justify their expenditure to their adversary, potentially revealing privileged strategy. As Popplewell LJ observed, a litigant cannot be expected to seek funding approval from the very party they are suing (at [50]).

Second, the problem of incompleteness. Litigation is inherently unpredictable. The undertakings were calibrated to the current case management plan but failed to account for the “known unknowns” - interlocutory applications, unilateral experts, or procedural delays. Consequently, there remained a “real risk” that the Claimants would exhaust their funding mid-trial.

The judgment suggests that the bar for such “remedial justice” undertakings is set exceptionally high. To survive the scrutiny of the courts, a defendant seeking to displace an English forum may need to appoint an independent third party (such as independent solicitors or an escrow agent) to administer the funds, thereby removing the “paymaster” conflict. Furthermore, nothing short of an uncapped indemnity is likely to satisfy the court that the risk of a funding shortfall has been eliminated. Without such robust mechanisms, the “access to justice” argument remains a potent shield for claimants seeking to anchor cross-border disputes in England.

Price “To Be Fixed” vs. “To Be Agreed”: KSY Juice v Citrosuco [2025] ✎

Is a long-term commercial contract enforceable where the price for the majority of the goods is left “to be fixed” by the parties? In KSY Juice Blends UK Ltd v Citrosuco GMBH [2025] EWCA Civ 760, the Court of Appeal considered the boundary between a open-price contract and an “agreement to agree.”

The contract specified a fixed price for 400 metric tonnes (MT) of product per year. However, for an additional 800 MT per year, the contract stated the price was “to be fixed” periodically. When the market price for the product dropped, the Buyer stopped taking delivery of the additional 800 MT. They argued that because the price was never agreed upon, that portion of the contract was a mere “agreement to agree” and therefore legally unenforceable.

The Court of Appeal (Zacaroli LJ, with whom Popplewell and Baker LJJ agreed) held the contract enforceable in its entirety.

“To be Fixed”: Machinery v. Condition Precedent

The Court’s analysis turned on the distinction between a condition of formation and the machinery of performance. Zacaroli LJ correctly rejected the High Court’s conflation of “to be fixed” with “to be agreed.” The phrase “to be agreed” explicitly requires the future consensus of the parties, attracting the strictures of May & Butcher. By contrast, “to be fixed” describes an outcome - that a price will be established - without prescribing a specific method (i.e. mutual agreement).

This distinction is sound. Where, as here, the parties have acted upon a long-term relationship and the intention to be bound is manifest, the silence as to the method of fixing the price is not fatal. It creates a gap which the law can fill, in line with Hillas and Mamidoil.

The High Court’s rigid application of May & Butcher ignored the distinction between the negotiation phase and the performance phase. The parties were not negotiating; they were performing a signed deal. To permit a party to treat a “price to be fixed” clause as an option to withdraw whenever the market moves against them would be to sanction a breach of contract under the guise of uncertainty.

Commercial Efficacy

The judgment affirms the robust approach of the English courts to commercial certainty. As Zacaroli LJ observed, the “to be fixed” clause was merely the mechanism for adjusting the consideration for an existing obligation. By invoking the “reasonable price” mechanism, the Court gave effect to the parties’ objective intention to trade, privileging commercial substance over the technical gaps.