In assessing the reasonableness of the claimants conduct the court will take

In assessing the reasonableness of the claimants

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In assessing the reasonableness of the claimant's conduct, the court will take cognisance of the fact that the claimant is "not bound to nurse the interest of the party in breach" per Roskill LJ in Harlow & Jones v Panex (International) Ltd. [1967]2 Lloyd's Rep 509 at 530) but, at the same time, cannot disregard the defaulting party's interests. The approach taken by the court --- In my judgment, given the urgency of the situation, it was reasonable for the defendant to have proceeded to engage Y & Q and Capital Builders and to utilise some of its workers as well. Mitigation is neither an exact science nor a mathematical exercise. It must be viewed through a commercial lens and measured by commercial common sense. The court will not audit every decision made in the turmoil of a difficult and fluid commercial situation. In China Resources Purchasing Co. Ltd. v Yue Ziu
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Enterprises (S) Pte Ltd. [1996] 1 SLR (R) 397 at [24] Karthigesu JA opined that when a duty to mitigate arises, then the standard of reasonableness to be applied to the decision of the innocent party is not a high one. I should add that the issue of whether the claimant has acted reasonably is clearly a matter of fact and not law." Turning however to the primary issue of whether or not Shell acted reasonably it appears to this Court that- (a)Shell had no option but to accord priority to one of the two competing projects; (b)lt is difficult for this Court to conclude, in hindsight, that Shell acted unreasonably in according priority to the Baram 8 project. Shell is entitled to weigh up and balance its competing interests and obligations and determine reasonably which project was to be given priority. Consideration was accorded to the subject at several levels and there appears to be sufficient factual basis to warrant Shell determining the matter as it did. I am guided by the key principle of reasonableness and the fact that it is not necessary for Shell to 'nurse the interests' of the Defendant while it cannot of course act arbitrarily,
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  • Spring '17
  • Shell, Complaint

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