Client Background: Client Profile: Our Client, a Dutch Shipbuilder and his companies, owns and manages a shipyard as the second generation of the family that started the shipyard. The shipyard is one of the oldest shipyards in the Netherlands. The business, situated in Sliedrecht in the southwest of Holland, began as a small shipyard offering general repairs and maintenance services to various shipping companies and has expanded to a large shipyard over 90 years with two floating docks and offering in addition to repairs and maintenance, conversion, construction, and design of new parts for ships. Challenges Faced: In mid-2009, 12 barges, a pontoon and two halves of floating dock that the Dutch Shipbuilder and his companies had ordered the construction of in China, were stranded at JacobsBaai on the West Coast of South Africa and were lost. This loss arose from the tugboat operator and owner’s negligence in towing these items from China to Rotterdam. The Dutch Shipbuilder had arranged financing from his bank for the purchase of these items. His bank assisted him with the negotiation of the contracts for the construction, the arrangement of insurance, as well as the final arrangements for the towing of the constructed items from China to Rotterdam, representing themselves as experts in doing so. The Dutch Shipbuilder completely trusted his bank with whom he had a relationship for numerous years. Given the bank’s failure to inter alia put proper insurance in place, a settlement agreement was then concluded between the Dutch Shipbuilder and his companies, and his bank, following the calamity, in which the bank agreed to assist him in pursuing an action in South Africa against the tug-boat operator and owner to recover the loss. The key component of the items constructed was the two halves of a floating dock, which was destined to be moored and operated in Sliedrecht Holland to expand the operations of the shipyard, which was fully supported by the local, regional and state authorities. Action was instituted against the tugboat operator and owner for damages in an amount of €42 million, which included a claim for loss of profits suffered from the loss of the two halves of the floating dock. By the beginning of 2015, some 6 years later, the attorneys who had been appointed by the Dutch Shipbuilder had not progressed the action to a point where it was ready to go to trial. ASG was approached by the Dutch Shipbuilder to take over the case from the existing attorneys. ASG took over the case in May 2015, and the action was settled in September 2016. The Problem: Legal Issues: What did not form part of the settlement was the loss of profit claim in respect of the two halves of the floating dock as the bank refused to assist the Dutch Shipbuilder in providing evidence that he had applied for finance to order a replacement of the two halves of the floating dock to mitigate his loss. However, the Dutch Shipbuilder had indeed done so and, as such, the bank’s refusal to assist him breached its obligation to do so in terms of the settlement agreement and its duty of care as banker to its customer in terms of the Dutch laws. In 2017, on advice from ASG the Dutch Shipbuilder agreed to pursue his bank for damages arising from their breach of the settlement agreement in the Dutch Courts. ASG was instructed to formulate the claim and work with Dutch advocates to do so. The amount claimed from the bankers was €10,609,527 alternatively, €6,293,046. The Dutch Shipbuilder’s bankers raised a counterclaim of €2.75 million plus interest and costs claiming that it was entitled to be paid this amount in terms of the settlement agreement it had concluded with the Dutch Shipbuilder and his companies. In 2018, the Dutch Shipbuilder and his companies were ordered to pay €2.75 million plus interest and costs in terms of judgments of the Central Netherland District Court Utrecht. Impact: The many years of legal proceedings in South Africa, without support from the bank who had undertaken to provide the financial support for the proceedings, had taken a major toll on the Dutch Shipbuilder both financially and personally. The Dutch Shipbuilder, now diagnosed with cancer, and his wife who had supported much of his legal costs financially, were determined that ASG should appeal the judgment to preserve what little relief to their financial loss the settlement in the tugboat operator case in South Africa had brought. Our Approach: Strategic Analysis: ASG knew that to win an appeal, they would need one of the senior employees of the bank to confirm that there was an agreement by the bank to fund the litigation in South Africa to recover the cost and loss of income incurred by the shipyard from the tugboat owner. Solution: Through thorough investigation and unearthing vital correspondence, it was discovered that a former senior employee of the bank that had been approached previously to provide a witness statement, was willing to do so, as the Dutch shipbuilder had in fact approached him to seek financing to procure a replacement floating dock. He had been prepared to provide a witness statement previously, but had been forbidden by the bank to do so. Execution: Legal Actions Taken: Subsequently in 2018 notification was given of an appeal being raised. This was followed by witness hearings in November 2019 and in January 2020. The evidence given by witnesses at the witness hearings provided vital evidence to establish that the bank had indeed prevented evidence being provided with regard to the assistance for the Dutch shipbuilder in the South African proceedings, and that the bank had also lied to the court in Utrecht.  Pleadings were then filed in the appeal to deal with the merits of the appeal and not the quantum of the claim. Results Achieved: At the hearing, the judges of appeal expressed their disapproval of the way in which the bank had conducted itself and suggested the parties attempt to reach a settlement. A settlement agreement was concluded in terms of which the bank agreed to waive its claim against the Dutch Shipbuilder and his companies in full and final settlement. Sadly, the Dutch Shipbuilder had passed away before the outcome of the appeal. May he rest in peace as he was much loved by all who came across him.