Asia Pacific Uk Ltd v Hanjin Shipping Company Ltd
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CHRISTOPHER CLARKE |
| Judgment Date | 07 November 2005 |
| Neutral Citation | [2005] EWHC 2443 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: 2005/100 |
| Date | 07 November 2005 |
[2005] EWHC 2443 (Comm)
Mr Justice Christopher Clarke
Case No: 2005/100
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Mr Julian Flaux, Q.C. and Miss Jo Cunningham (instructed by Mays Brown) for the Claimants
Mr Steven Berry, Q.C. (instructed by Hill Taylor Dickinson) for the Defendants
Hearing date: 3 rd November 2005
Approved Judgment
The claimants were the owners of cargo contained in containers laden on the vessel "Hanjin Pennsylvania". On 11 th November 2002 an explosion occurred on board the vessel and a fire broke out when she was en route between Singapore and Northern Europe. Many of the containers were either lost or they and their contents were damaged. In the case of the claimants two of their containers were a total loss and others may have been damaged.
The first defendant – Hanjin Shipping Co Ltd ("Hanjin")—is the owner of the vessel. On 15 th June 2004 it began a limitation action and a general limitation decree was granted on 6 th December of that year.
A number of different groups of cargo owners, represented by different solicitors, have commenced proceedings in the Commercial Court against Hanjin, which is represented by Hill Taylor Dickinson ("HTD"). One of the sets of cargo interests is represented by Mays Brown.
The cargo claims were subject to the 12 month time limit under the Hague or Hague Visby rules. In 2004 and early 2005 there was correspondence between HTD and the solicitors for various cargo interests including Mays Brown. Agreements were made as to English law and jurisdiction and extensions of time were given. In November 2004 two sets of claimants, represented by Waltons & Morse and Clyde & Co respectively, issued claim forms; but they did not then serve them. On 12 th January HTD gave notice to Mays Brown and five other solicitors or claims agents acting for cargo interests that they would not extend time for issuing any claim beyond 11 th February 2005. Their letter also suggested that the clients of those to whom it was addressed should join in the action (sic) begun by the claimants represented by Waltons & Morse and Clydes.
On 8 th February 2005 Mays Brown received instructions by e-mail from the Hong Kong solicitors instructing them to proceed with the filing and service of a claim against Hanjin. Mr van der Reyden of Mays Brown acknowledged those instructions the same day and said that Mays Brown would proceed accordingly.
On 10 th February 2005 Mays Brown issued a claim form. By virtue of CPR 7.5 (2) that claim form had to be served within 4 months of its issue i.e. by no later than 11 th June 2005.
On 8 th March 2005 Waltons & Morse and Clyde & Co served on HTD a claim form and response pack (and in the case of Waltons & Morse, Particulars of Claim). In each case the letter that came with the documents said in terms that they were being sent "by way of service".
On 15 th March 2005 Mr Hoyes of HTD wrote to 6 solicitors or recovery agents, including Mays Brown, asking for confirmation that they had issued English proceedings against Hanjin. He also asked whether the addressees had any objection to claims against Hanjin being consolidated into one action, or proceeding under a Group Litigation Order, and confirmed that HTD had instructions to accept service of proceedings on behalf of Hanjin.
One of the addressees of the fax of 15 th March was Pysdens. On 18 th March they confirmed that a claim form had been issued against Hanjin on 11 th February 2005 "a copy of which is attached for your information, which our clients do not wish us to serve formally, if cargo are not proceedings (sic) against their insured".
On 21 st March 2005 Mays Brown faxed to HTD a letter which read as follows:
"We refer to your fax of 15th March 2005
Attached please find a copy of the Claim Form issued by the Claimants represented by us
We are awaiting instructions as regards the proposed consolidation of actions"
The letter was accompanied by a copy of the claim form.
On 22 nd March 2005 a telephone conversation took place between Mr Hoyes of HTD and Mr van der Reyden of Mays Brown in the course of which Mr van der Reyden said that he was awaiting instructions about consolidation. His notes record the following:
"Confirmed Waltons Morse served Claim Subs.
Re Consolidation – they have asked WM for general stay in proceedings until confirmation from other parties that actions can be consolidated
As to consolid – do not know when this will happen –everything is stayed until then
Advised we are awaiting instructions re consolid.."
Both Mr Hoyes and Mr van der Reyden had limited recollection of that conversation although Mr Hoyes was sure that he did not agree any stay of the present action, about which I have little doubt that he is correct. On 4 th April Mr van der Reyden wrote in these terms:
"We confirm that the Claimants represented by us and who appear on the Claim Form forwarded to you on 21st March 2005 have no objection to their claims being consolidated into one Action"
On 13 th June HTD wrote to the representatives of a number of parties including Mays Brown advising that a Case Management Conference ("CMC") was to take place in the limitation action and asking whether any of the recipients who were not parties on the record in the limitation action wanted a copy of the CMC bundle or to attend the hearing.
On 14 th June Mr van der Reyden telephoned Mr Hoyes' secretary and asked her to forward to him a copy of the CMC bundle which she agreed to do. On 22 nd June he telephoned HTD to ensure that the CMC bundle would be provided to him so that he could give it to Counsel whom he had instructed to attend the CMC. During the course of the latter conversation Mr Hoyes expressed the view that the claimants had failed to serve the claim form.
There is a conflict of evidence between Mr van der Reyden and Mr Hoyes, which it is not necessary to resolve, as to whether Mr van der Reyden said that he had no instructions to serve the form either in March or then. Whether or not he said that, it is apparent that Mays Brown did have such instructions. It is accepted that he referred, mistakenly, to the period for service of the form as being 12 months.
The fax of 21 st March 2005 did not state that the claim form attached was faxed by way of service. The claim form attached was stamped "Claimants Copy". It was not accompanied by a response pack. Thereafter no certificate of service was filed by the claimant as required by CPR 6.14 (2) (a). Nor were any steps were taken after 21 st March to press for an acknowledgement of service. According to Mr van der Reyden this was because he understood from his telephone conversations with Mr Hoyes that no action by the parties would be taken pending the consolidation of the claims.
It did not occur to Mr Hoyes that by their fax of 21 st March Mays Brown were serving the claim form rather than confirming, in response to his query of 15 th March, that it had been issued. It was for that reason that he took no steps to acknowledge service.
The claimant seeks a declaration that the claim form was served on Hanjin within the time prescribed by CPR 7.5. In the alternative it seeks an order extending time for service under CPR 7.6, or that the Court should dispense with service under CPR 6.9.
What amounts to service?
The first question, therefore, is whether what happened on 21 st March amounts to service. That question must – as is common ground—be judged objectively, that is to say by looking at what was done and said by and as between the parties in order to determine whether it amounts to service. If it does so, an unexpressed intention that it should not do so cannot alter the position. If it does not do so, the fact that the person who did the acts in question intended or thought that what he did constituted service does not make it so. Whether service has been effected cannot depend upon the views, possibly idiosyncratic or even bizarre, of individual litigants or their advisors.
The Civil Procedure Rules do not define what is meant by service other than by prescribing how it may be done. Personal service involves leaving the document with the relevant person: CPR 6.4. (3), (4) and (5). Service other than personal service may consist of leaving the document at an address for service within the jurisdiction, or serving it through a document exchange, or sending it by post or fax. The common thread is that the party serving the documents delivers it into the possession or control of the recipient or takes steps to cause it to be so delivered. But, as the authorities recognise, a party delivering the claim form may say that he is not delivering it by way of service, but for information only. If he does so he is to be taken at his word.
The defendant's submissions
Mr Steven Berry, QC, for the defendant, submits that that which can be done expressly can be done impliedly and that the true principle is that "service" is the delivery of a document in circumstances which convey to the objective but knowledgeable observer that delivery is intended by way of service, and not for information only. That has to be conveyed to the recipient in order that he may realise (i) that it is incumbent upon him to file an acknowledgment of service and (ii) that what has been described as the treadmill of procedural steps that have to be taken thereafter has begun to operate.
The circumstances surrounding the fax of the claim form in the present case manifested, in his submission, an intention not to serve or, to put it another way, did not manifest an...
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