In Petroplus Marketing AG v Shell Trading International Ltd [2009] EWHC 1024 (Comm) the Claimant, a refiner and wholesaler of petroleum products, sought summary judgment in relation to moneys held by the Defendant who alleged that the money held was owed due to the late delivery of a cargo of oil.

The cargo was delayed following a disagreement between the parties over a revised price clause. The dispute was resolved and following delivery the Claimants sought payment calculated by reference to a bill of lading issued following the late delivery. The Defendant argued that the price should have been calculated by reference to the earlier delivery dates anticipated by the contract. The Defendant rejected the application for summary judgment on the basis that on the proper construction of the contract, or on the basis of an implied term, the Claimants could not claim a price calculated by reference to the bill of lading date as this would allow the Claimant to take advantage of its own wrong (the late delivery). In the alternative, the Defendants argued that the late shipment gave rise to a cross-claim against the Claimants which provided a defence of circuity of action, or, that the court was not in a position to grant summary judgment and nor should the Claimants be able to execute it on the grounds that the cross-claim was intimately bound to the Claimants’ claim for the price. The court allowed the application, finding that it was the intention of the parties that the price be calculated by reference to the bill of lading date, regardless of whether or not delivery was late. The judge rejected the notion that allowing the price to be calculated by reference to this date would allow the Claimant to take advantage of its own wrong. He also rejected the Defendants’ argument that there was a circuity of action as it was not a case where if the Claimant recovered against the Defendants, the Defendants could in turn recover the same amount against the Claimant, nor would an award of damages in favour of the Claimant be recoverable in equal measure by the Defendants.