- and - CLAIMANT S SKELETON ARGUMENT RESTORED CASE MANAGEMENT CONFERENCE. Estimated pre-reading time: 1 hour

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1 IN THE HIGH COURT OF JUSTICE QUEEN S BENCH DIVISION COMMERCIAL COURT CLAIM No. CL B E T W E E N: SEADRILL GHANA OPERATIONS LIMITED Claimant - and - TULLOW GHANA LIMITED Defendant Introduction CLAIMANT S SKELETON ARGUMENT RESTORED CASE MANAGEMENT CONFERENCE Estimated pre-reading time: 1 hour 1. Numbers in square brackets refer to tab and page numbers in the Case Management Bundle. 2. The first CMC took place on 3 February before Males J. His order [17] provided that the trial be fixed for 12 days and gave directions as to disclosure of high level planning documents in order to assist the parties in narrowing part of the case. He also gave directions in relation to the amendment of the pleadings and for a stay of a relatively minor and discrete part of the case in order to enable the parties to concentrate on the main issue, i.e. alleged force majeure. 3. Since the first CMC there have been the following developments: a. the trial has been fixed for 8 May 2018; b. there has been detailed correspondence between the parties as to the scope and methodology of the Defendant s electronic disclosure. The burden of disclosure in 1

2 this case falls on the Defendant, who has the burden of proving its force majeure defence. The Defendant has made significant modifications to the approach which, prior to the first CMC, it was proposing in relation to electronic disclosure. Whilst the Claimant still has reservations as to some aspects of the Defendant s proposals, there is now a considerable measure of agreement as to the searches which are to be conducted; c. The Claimant served its electronic disclosure questionnaire shortly after the last CMC (on 8 February). The Defendant s solicitors have only very recently (on 7 March) responded to Claimant s proposals relating to the Claimant s electronic disclosure. The delay was, no doubt, attributable to the fact that the focus of disclosure, and the correspondence, was upon the Defendant s disclosure. It is likely that agreement can be reached in due course. d. there has been disclosure by the Defendant of some high level planning documents, although the Claimant s position is that the extent of this disclosure had been considerably more limited than envisaged in Males J s order; e. the Defendant has provided information which assists in narrowing the scope of the dispute, i.e. as to the areas listed in Annex B to the Particulars of Claim [2/32]. (By way of explanation, one of the issues that arises in relation to force majeure and frustration is whether there were other locations in which the rig could have been used. Annex B contained a lengthy list of places where the Tullow group had interests). The Defendant has explained that the majority of the areas listed are not relevant to the current dispute, because of geographical features such as water depth made them unsuitable for the rig. The Claimant accepts that locations which were on land, or where the water depth was less than 350 metres, were not alternative locations, and can therefore be excluded. This means that assuming that the geographical features advised by the Defendant are correct, and that the information provided in Annex B is complete and valid as at October 2016 there are a limited number of potential alternative locations in which the Tullow group has an interest; and that most of the Annex B areas can be excluded. The appendix to this skeleton sets out the locations, in 8 countries, which remain potentially relevant to the Claimant s case in RAPOC para 22.b [2/17], assuming that the information provided 2

3 by the Defendant is correct. Accordingly, the areas listed in Annex B can be considerably narrowed. It is possible that some further narrowing may be possible, and this is a matter currently being addressed with the Claimant s expert. f. there have been some amendments to the pleadings, although there are no new issues of fact which arise out of these or none which are of any significance as far as case management is concerned. 4. Since the trial has now been fixed to commence on 8 May 2018, the question for this restored CMC is: what directions should be given leading to that trial. It seems to be common ground between the parties that directions should be given. There are, however, issues between the parties as to what directions should now be made, and the time when the various steps should be taken. The Claimant seeks a relatively simple set of directions and a timetable which will avoid late preparation. The limited high level planning disclosure provided by the Defendant has not enabled the issues to be narrowed, but the Claimant takes the view that there is no point in arguing about the extent to which the Defendant has or has not complied; particularly because the Defendant is no longer suggesting that it should provide no further disclosure until August. Accordingly, rather than revisiting the previous order, the sensible course is now to proceed with trial preparation in the usual way, as there is no reason why the parties should be not be ready for standard disclosure within a few months in any event. 5. The parties are not too far apart as to the date for disclosure, but the Defendant contends that there should be a further CMC, which the Claimant says is unnecessary, and the Defendant s position is that witness statements should not be exchanged until November, which the Claimant submits is far too late. The parties rival positions on the key dates for pre-trial steps are set out in summary in the table below. STEP CLAIMANT S PROPOSED DATE DEFENDANT S PROPOSED DATE further information not required 17 March 2017 meeting of experts on Ghanaian VAT/ WHT 14 April 2017 not required 3

4 third CMC not required 9 June 2017 standard disclosure 9 June June 2017 further information not required 15 September 2017 exchange of 15 September November 2017 witness statements exchange of 29 September January 2018 supplemental witness statements exchange of 17 November January 2018 experts reports meeting of experts 1 December February 2018 joint memoranda of experts supplemental experts reports 15 December February January March The principal issues for the court to determine at the CMC are: (1) timing of disclosure; (2) whether it is necessary for further information to be served; (3) whether it is necessary at this stage to provide for a third CMC; (4) timing of exchange of evidence of fact; (5) the nature of the expert evidence which will be needed and the dates for its exchange. 7. Considering the size of the claim (over US$ 230m excluding VAT and interest) and the fact that it is for liquidated sums due under the Contract, it is obviously important to the Claimant that the trial date should not be jeopardised by a timetable which leaves unnecessarily long gaps between steps in pre-trial preparation and provides for important steps to be taken close to the trial date, as the Defendant proposes in Annex 1 to its CMIS [13/ ]. For example, the court will see from the table above that although there are now 14 months before this trial, the final pre-trial steps relating to expert evidence are (on the Defendant s approach) only accomplished with 6 weeks to go until trial. 8. The importance of not jeopardising the trial date is particularly significant in the present case, where the market for drilling rigs has, with the collapse in the oil price, declined greatly since the parties contract was agreed. The Claimant s case in this regard is that the termination of the contract was motivated by the Defendant s wish to rid itself of onerous rig contracts due to the drop in the oil price: see RAPOC para 20.d [2/16-17]. 4

5 Given market conditions, there is no prospect of obtaining alternative work for the rig in the immediate future. In the meantime, the Claimant is deprived of the income it contracted for and has to meet the costs of stacking the rig (operating and overheads). These are approximately US$ 70,000 per day, and it will cost a further US$ 15 million to reactivate the rig if and when work can be found. Pre Reading 9. The Court is requested to pre-read the Agreed Case Memorandum [6]; Agreed List of Issues ( LOI ) [7]; Updated Case Management Information Sheets [11.a and 13]; Order made at the first CMC on 3 February 2017 [17]; Judge s Note dated 16 February 2017 [18]. If time permits the Court may wish to skim-read the pleadings: the Re-Amended Particulars of Claim ( RAPOC ) [2]; Amended Defence and Counterclaim ( ADCC ) [3]; Reply and Defence to Counterclaim ( RDCC ) [4]; Reply to Defence to Counterclaim [5]. What the case is about 10. This case is a claim for unpaid invoices in an amount totalling approximately US$277 million (as shown in the table at RAPOC para 31) [2/26] due to the Claimant by the Defendant under a 5 year drilling contract, as amended, ( the Contract ) entered into in November 2012 whereby the Claimant, as owners or disponent owners of the deep water drilling rig West Leo ( the rig ), agreed to carry out offshore drilling for the Defendant. The only defence to the claim is force majeure or frustration. 11. There is no dispute that the Defendant terminated the Contract by a letter dated 1 December 2016, whereas its term does not expire until 7 June The Claimant s case is that since there was no force majeure or frustration, this was a termination for convenience under the terms of the Contract. Hence the Defendant is obliged to pay a liquidated sum in the amount of approximately US$195 million plus VAT as reimbursement in the event of termination for company convenience under Section 4(B) cl of the Contract [2/10-11]. 5

6 12. The Claimant also claims sums invoiced at the daily standby rate payable under the Contract for the months of October and November 2016, which total about US$39 million plus VAT, and other smaller sums as set out in the table at RAPOC para 31 [2/26]. The claim in respect of one of the invoices ( for the comparatively small sum of $1.17m), which concerns damage to a drill pipe, as particularised in RAPOC Annex C [2/37.1], has been stayed under the Order of 3 February 2017 (para 2) [17/156] pending the resolution of the main dispute, i.e. whether there was, as the Defendant alleges, force majeure/ frustration. 13. The Defendant says that the Contract was discharged by frustration or terminated by it due to force majeure on 1 December 2016 and claims that it is therefore not indebted to the Claimant under the Contract. The grounds of its frustration and/or force majeure claim are that in a letter of 4 May 2015 the government of Ghana, where the rig was located, invited the Defendant to take appropriate steps to ensure that its activities complied with an order of the International Tribunal for the Law of the Sea ( the ITLOS Order ) dated 25 April 2015 stipulating that, pending its final decision in a maritime boundary dispute between Ghana and Ivory Coast, Ghana was required to take all necessary steps to ensure that no new drilling either by Ghana or under its control took place in the disputed boundary area ( the disputed area ). 14. The Claimant denies that the government s letter was a drilling moratorium imposed by the government within the meaning of the force majeure provision of the Contract (Section 2(A) cl. 27), but points out (among other things) that in any event the ITLOS Order did not prevent drilling outside the disputed area, and in particular did not prevent drilling in the Defendant s Jubilee Field offshore Ghana, which it describes in its website as its flagship operating asset (RAPOC para 22.a) [2/17]. Disputed Issues of Fact 15. The main disputed issues of fact which arise concern (a) whether the alleged moratorium caused the suspension of operations (Issue 4) [7/101] and (b) whether the Defendant took all reasonable steps to avoid the alleged force majeure or mitigate its results (Issues 5 and 6) [7/101]. There is also an issue as to whether the Defendant gave timely notice and particulars of the force majeure claim (Issue 7) [7/101]. The other issues depend on the 6

7 construction of the Contract and on facts which are to a large extent common ground, as set out in the common ground section of the LOI [7/98-100]. 16. Although the Defendant asserts (Amended Defence para 24A(c)) [3/51] that the burden is on the Claimant to prove that the Defendant failed to avoid the operation or mitigate the results of the alleged force majeure, this is obviously wrong. The party relying on the force majeure clause must prove among other things that there was a force majeure event under the contract which prevented his performance and that there were no reasonable steps that he could have taken to avoid or mitigate the event or its consequences - see Chitty (32 nd ed. vol 1) para citing (among other cases) Channel Island Ferries v. Sealink [1988] 1 Lloyd s Rep. 323 per Parker LJ at p. 327 col 1, where he said (1) it is for the party relying on a force majeure clause to bring himself squarely within that clause.(4) a party must not only bring himself within the clause but must show that he has taken all reasonable steps to avoid its operation, or mitigate its results.. There are also express contractual clauses which, on the Claimant s case, are to the same effect. 17. The steps which the Defendant relies on as regards causation and mitigation are set out at paragraph 26.4 of the ADCC [3/52]. The Defendant s case is apparently that it had been drilling in the TEN Field, which it says is in the disputed area (ADCC para 11.2) [3/43], and that in December 2015 or in 2016 the government of Ghana and its co-venturers refused permission for the Defendant to drill in the Jubilee Field, which is outside the disputed area (Common Ground para 11) [7/99]. Whether permission was in fact refused, and whether there were opportunities for drilling under the Contract of which the Defendant failed to avail itself, are issues on which the burden of proof lies with the Defendant. 18. The Claimant s case is that there was no drilling moratorium imposed by the government, or none which prevented drilling under the Contract, but in any event the Defendant did not wish drilling to continue and failed to make reasonable efforts to continue drilling. In this respect, there is some evidence already that the Defendant agreed with the Ghanaian government to put the Greater Jubilee Full Field Development plan ( GJFFDP ) on ice (RAPOC para 15.i) [2/15]. Furthermore, any difficulties experienced by the Defendant with its joint venture partners are not matters that can be relied upon by way of frustration or force majeure. 7

8 Timing of Disclosure 19. The main issues as to which disclosure is required, are those identified by Males J at the first CMC i.e. (a) what was the Defendant planning to do with the rig and (b) what they might have done with the rig after the ITLOS Order: see note of CMC para 21 and para [25/189, 193]. As the Judge pointed out at para 51, detailed operational disclosure seems unnecessary. 20. The Defendant s suggestion that it requires 16 weeks from now (i.e. until 30 June) to give disclosure is therefore unrealistic, although it is an improvement on its suggestion in its CMIS dated 27 January (para 5) [12/134] that it should not be required to give disclosure until 18 August. Given that the trial is not fixed to commence until 8 May 2018, and in order that the Defendant has every opportunity to identify and disclose the documents required for standard disclosure, the Claimant has suggested that disclosure be given by 9 June This will give the Defendant over 18 weeks from 27 January, which is more than the length of time it proposed in its CMIS of that date at para 5 [12/134], albeit it was claiming that amount of time after what it called re-pleading (which is of course and always has been unnecessary). 21. There is no need for preparations for disclosure to await the close of amendments to the pleadings. The issues are already well defined, as the agreed List of Issues shows [7]. They were crystallised in correspondence even before the proceedings commenced. The Defendant s Defence and Counterclaim was served on 15 December The Claimant s Amended Particulars of Claim were served on 12 January. The Re-Amended Particulars of Claim [2], which were filed on 8 February, make no substantial change. It is also important to note that no new facts have been introduced in the ADCC, filed on 3 March [3], except in relation to the service of notices under the Contract, which is a matter which could not conceivably require extensive disclosure or evidence. The Defendant has therefore already had 2 months or more since all of the significant factual issues were pleaded to identify the documents which are relevant to standard disclosure. 22. There has been extensive inter solicitor correspondence regarding electronic disclosure, in particular in relation to custodians, key words and date ranges. As mentioned above, 8

9 progress has been made towards agreeing the searches which should be conducted. The Claimant is however concerned that the Defendant s search methodology is not sufficiently focussed on producing the documents which are relevant to the issues in the case and that it is also asking the Claimant to search for documents which it are unlikely to be relevant: see H&BCDG s letters of 22 February [30/230], 24 February [32/238] and 7 March. The Defendant s approach is apparently producing an excessively large numbers of documents: see para 5.2.a of its CMIS [13/140.4]. 23. What is clear from the recent correspondence, however, is that the Defendant will be running a number of different searches on the electronic documents, and the documents thrown up by these different searches will then be reviewed. Indeed, some of this work has already been carried out. Therefore, as an alternative to all of the disclosure taking place at once on 9 June or at the end of June, as currently envisaged on the parties respective cases, it may be sensible for disclosure to take place in stages, with a first tranche in (say) mid May and a final tranche at the end of June. This would have the following advantages: (a) the parties would be able to start considering each other s disclosure earlier, which may facilitate the process of mediation which both parties have suggested should take place; (b) their witnesses and experts can start considering the documents as soon as possible so that, if the issues can be further narrowed, this can be done sooner rather than later; (c) early disclosure would be in the spirit of the order of Males J at the first CMC, and would address his concern that the case on alternative uses for the rig should if possible be narrowed. 24. The parties are working towards producing a statement of matters agreed and not agreed in relation to disclosure before the CMC and further submissions on disclosure will be made at the CMC in the light of this, if necessary. The Order for disclosure made at the CMC on 3 February As we have indicated, we do not consider it productive or necessary to examine in detail the extent to which there was compliance with the order for disclosure made at the earlier CMC. We take the view that the focus of the present CMC should be on where the case goes from here. Nevertheless, and in case any criticism is made of the Claimant in regard 9

10 to what has happened (as is foreshadowed in some of the correspondence in the CMC bundle), we briefly outline the position. 26. At the CMC on 3 February it was ordered (para 4-5) [17/156] that the Defendants were to disclose high level planning documents in response to a reasonable request by the Claimant for such documents in relation to the opportunities for the use of the rig for the following periods: (1) the decision in November/ December 2012 to conclude the Contract and extend its term, (2) the commencement of the ITLOS proceedings to the time of the making of the ITLOS Order (1 September 2014 to 25 April 2015) and (3) the period thereafter (25 April 2015 to 1 September 2015). Thereafter the Claimant was (under para 6 of the Order) to serve Further Information specifying the areas as to the potential use of the rig on which it relies under paragraph 22(b) of the Amended Particulars of Claim [2/18]. 27. The Claimant served a request under para 4 of the Order on 10 February [23/173]. The Defendant made no objection to the Claimant s request, other than claiming it was only required to disclose documents in respect of opportunities outside Ghana [23/177], with which the Claimant disagreed [23/183]. HFW therefore wrote to Males J on 16 February putting the Defendant s position to him at great length [23/167]. 28. Males J made clear in a Note dated [18/158] that he did not intend to limit the disclosure to opportunities outside Ghana. He said however that the Claimant s request for documents was more wide ranging than his order required and that the matter would need to be considered further at the restored CMC. 29. As mentioned above, the Defendant has provided some of the documents requested, but there are surprising omissions, for example there was no disclosure for the period after the ITLOS Order was made in relation to opportunities for the rig in the Jubilee Field and none at all referring to the ITLOS Order or the ITLOS proceedings: see H&BCDG s letters of para 6 [29/228] and [35/248]. In H&BCDG s letter of [35/248] the request was narrowed down to documents prepared by or for the benefit of senior management or your board identifying drilling opportunities in the period identified in the Order of Males J at the first CMC, but no further documents have been disclosed other than rig schedules and a schedule of Tullow s deep water drilling assets. The Claimant s 10

11 obligation under the Order of 3 February to serve Further Information narrowing down Annex B has therefore not come into effect. 30. However, it has become clear that the Defendant does not consider that the rig could have been used outside a limited number of areas identified by reference to the schedule it served on 3 March [37/269] and/or areas with a depth of 500m or more [23/185]. The Defendant also apparently excludes Guyana, Jamaica, Uruguay, Norway and Suriname [25/212]. The Defendant therefore clearly feels itself able to respond to APOC para 22.b [2/18] without further information. In addition, this information does enable the Claimant to narrow its case as set out in paragraph 3 (e) above. For these reasons, and because of the fact that, as mentioned above, standard disclosure will in any event take place at the latest in June, it is not considered that it would be productive for the Claimant to pursue further its criticisms of the Defendant s response to the order for advance disclosure of high level planning documents. Further Information 31. The Defendant s argument (CMIS para 13.b.2) [13/140.8] that Further Information needs to be served by the Claimant to ensure that its witness and expert evidence is focused on the Claimant s true case, is based on a misconception. As set out above, the burden of proof is squarely on the Defendant. It must know what efforts (if any) it made to avoid or mitigate the alleged force majeure. The Claimant cannot serve further information telling the Defendant what efforts it did or did not make. Further, the Defendant (although it denies that it was under any obligation to use reasonable endeavours to mitigate the alleged force majeure) (Defence para 24.4) [3/51], says that it did use such endeavours and it has particularised them at para 26.4 [3/52]. There is therefore no further information required in order to enable it to prepare and serve its witness statements. Further CMC in June? 32. There is no need to schedule a further CMC, at least not at this stage. The Defendant seeks to justify this proposal on the basis that pleadings have not yet closed (CMIS para 5.4 and 14.a.11) [13/140.5 and 13/140.10]. It is not clear what is meant by this or why it is 11

12 said to be relevant. As submitted above, the Re-Amended Particulars of Claim [2], which were filed on 6 February, make no substantial change to the Claimant s case and no new facts affecting the shape of the case have been introduced in the Defendant s Amended Defence and Counterclaim [3], filed on 3 March. These had already been served in draft by the time of the previous CMC. Witness Statements 33. The Defendant s proposal (CMIS para 13.b.5) [13/140.8] that witness statements should be exchanged on 10 November, i.e. more than 4 months after disclosure, will unnecessarily delay the progress of preparation for trial. In a case where, as here, the burden of proof is upon the Defendant to show that it can rely upon the force majeure clause, it is essential that the case to be advanced by the Defendant s factual witnesses is put on the table as soon as possible. Again, this will also assist with the mediation process which both parties contemplate. 34. The Claimant proposes that witness statements be served on 15 September. Given that, even on the Defendant s proposed timetable, standard disclosure will be complete by 30 June, the parties will have at least 10 weeks following disclosure for the preparation of witness statements. This will be more than sufficient. The issues which require factual evidence are relatively narrowly confined, i.e. mainly the Defendants mitigation efforts (if any) and the notification which it gave. It is not realistic to claim that more time is needed because of unspecified alleged logistical issues, travel and limited availability (Defendant s CMIS 13.b.4) [13/140.8]. Expert Evidence 35. Since the Claimant was not involved in planning and obtaining permission for drilling under the Contract and does not have its own expertise in obtaining such permission, it seeks leave to adduce expert evidence on whether the alleged efforts which the Defendant says it made to obtain such permission were reasonable in the circumstances, and what other efforts could and should have been made. A reasonable time to allow for such evidence to be produced is about 8 weeks after the exchange of witness statements. 12

13 The Claimant therefore proposes the exchange of expert evidence on 17 November [11.a/131.4]. 36. There is no need for further consideration to be given as to whether permission should be given for such an expert. Even if the Claimant had not advanced a positive case, it would be reasonable for it to adduce expert evidence as to whether the steps which the Defendant says that it took to mitigate the alleged force majeure were reasonable. In this connection, the Claimant s expert will also need to evaluate the Defendant s case advanced in correspondence since the last CMC as to the alleged geographical unsuitability of some of the areas identified in Annex B of the Particulars of Claim. 37. The Defendant wishes to adduce expert evidence on Ghanaian VAT law. The Claimant does not oppose an order allowing expert evidence on VAT law, but as the Defendant s case on tax relating to the invoices appears to depend on narrow legal issues as to whether VAT is applicable under Ghanaian law to standby invoices and termination invoices (see CMIS para 14.a.12) [13/140.10], and as to whether withholding tax is deductible, it would be sensible for the experts to meet in order to see whether this matter can be agreed as a pre-condition to the grant of permission for such experts. The draft directions provides for this. In this respect, nothing has changed since the previous CMC where, at that time, Males J. declined to order expert evidence in this respect. Dates for service of further statements of case 38. The Defendant suggests that the Claimant s time to respond to its Amended Defence and Counterclaim be extended to 24 March and that it has until 14 April to serve its Amended Reply to Defence to Counterclaim: see Defendant s CMIS at para 10.6 and 10.7 [13/140.6]. The Claimant does not object to these proposals provided that they are not used as a reason to delay the exchange of disclosure and evidence. Such delay is unnecessary as all of the material facts have already been pleaded and all of the issues are already well defined, as explained above. 13

14 Designated Judge 39. The Defendant wrote to the Court applying for the assignment of a designated judge on 30 January 2017 [20/160]. The application was opposed by the Claimant [21/162]. The Court did not assign a designated judge and the matter was not revisited by the Defendant at the first CMC. This is not a suitable case for a designated judge. It is not particularly complex. It involves only two parties. There are no similar issues arising in other cases. The main issue in dispute is essentially a simple one, i.e. whether there was a drilling moratorium imposed by the government of Ghana and, if so, whether the Defendant was thereby prevented from carrying out its contractual obligations. There are no special or unusual case management considerations. Alternative Dispute Resolution 40. The Claimant is willing to engage in mediation after disclosure has taken place, provided the procedural steps leading up to the trial are not delayed or disrupted. It does not make any sense for mediation to be attempted prior to disclosure. This is because, disclosure of the Defendant s documents in particular as to opportunities for the rig in Ghana and elsewhere, and why those opportunities were allegedly not available or taken is crucial to the central issues in the case. Conclusion 41. An Order should be made in the terms of the draft attached. RICHARD JACOBS QC JOHN SNIDER Essex Court Chambers 24 Lincoln s Inn Fields London WC2A 3EG 9 March

15 IN THE HIGH COURT OF JUSTICE QUEEN S BENCH DIVISION COMMERCIAL COURT CLAIM No. CL THE HONOURABLE [ ] [DATE] B E T W E E N: SEADRILL GHANA OPERATIONS LIMITED Claimant - and - TULLOW GHANA LIMITED Defendant DRAFT ORDER ON RESTORED CASE MANAGEMENT CONFERENCE 1. The time for the service of the Claimant s Amended Reply and Defence to Counterclaim is extended to 24 March The time for service of the Respondent s Amended Reply to Defence to Counterclaim is extended to 14 April Standard disclosure is to be completed [by no later than 9 June 2017] [by no later than 30 June 2017, provided that, to the extent that the parties have identified the documents to be disclosed by 19 May, they shall by that date give disclosure of such documents]. In the case of any documents disclosed but not provided in electronic or other copy, inspection is to be given 7 days after notice. 4. The parties are to take such steps as they may be advised to resolve their dispute by mediation by 28 July 2017, but such mediation is not to cause the postponement of any steps provided for herein. 5. Signed statements of witnesses of fact and hearsay notices where required by rule 33.2 are to be exchanged not later than 15 September Short supplemental witness statements (if any) are to be exchanged by 29 September

16 7. Unless otherwise ordered, witness statements are to stand as the evidence in chief of the witness at trial. 8. The parties, together with any experts on Ghanaian VAT law, are to meet and confer by 14 April 2017 in order to identify whether there is any dispute in relation to Ghanaian VAT and/or WHT, and if so to specify in writing the issue(s) in dispute. If and in so far as there remains a dispute between the parties as to Ghanaian VAT or WHT law, the directions below in relation to expert evidence concerning Ghanaian law shall apply. 9. Signed reports of experts (i) are to be confined to one expert from each of the following fields of expertise: a. offshore operations in the oil and gas industry; b. VAT and/or WHT in Ghana; (ii) are to be confined to the following issues: a. endeavours which could and/or should have been used by the Defendant to enable operations to continue under the contract entered into on 22 November 2012 between the Claimant and the Defendant in respect of the rig West Leo ; b. whether VAT is chargeable by the Claimant on the invoices on which the Claimant claims in these proceedings and, if so, in what amount; c. whether WHT must be retained by the Defendant, and if so in what amount. (iii) are to be exchanged simultaneously not later than 17 November Meeting of Experts: (i) The meetings of experts of like disciplines is to be by 1 December 2017; (ii) The join memoranda of experts of like disciplines is to be completed by 15 December 2017; (iii) Any short supplemental experts reports are to be completed by 12 January If the experts reports cannot be agreed, the parties are to be at liberty to call expert witnesses at trial, limited to those experts whose reports have been exchanged pursuant to this order. 12. The progress monitoring date is 17 January Each party is to lodge a completed progress monitoring information sheet with the Clerk to the Commercial Court at least 3 days before the progress monitoring date with a copy to the other party. 13. There is to be a pre-trial review not earlier than 19 January and not later than 9 March

17 14. Preparation of trial bundles to be completed in accordance with Appendix 10 to the Commercial Court Guide not later than 9 March Each party is to lodge a completed pre-trial checklist not later than 16 April Save as varied by this order or further order, the practice and procedures set out in the Admiralty & Commercial Court Guide are to be followed. 17. Costs in the case. 18. Liberty to restore the Case Management Conference. 17