Booth v Phillips and Others
| Jurisdiction | England & Wales |
| Judge | Nigel Teare QC,Mr.Nigel Teare QC |
| Judgment Date | 17 June 2004 |
| Neutral Citation | [2004] EWHC 1437 (Comm) |
| Docket Number | Case No: 2003/1074 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 17 June 2004 |
[2004] EWHC 1437 (Admlty)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Nigel Teare QC
Case No: 2003/1074
Grahame Aldous (instructed by Humpheys and Co.) for the Claimant
Lawrence West QC (instructed by Eversheds) for the Defendants
Hearing dates:
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The claimant in this action is Mrs. Margaret Booth, the widow of Clifford Booth who was employed as chief engineer on the MV MAYSORA. On 2 March 2001 he died whilst working on board the vessel in Egypt.
The First Defendant was the master of the vessel at the material time and one or more of the Second to Fourth Defendants are the owners and managers of the vessel. The Defendants say that the Third Defendants are the owners and that the Fourth Defendants are the managers.
The claimant, in her own right and as executrix of the estate of her husband, claims against the First Defendant in negligence and against the Second to Fourth Defendants in negligence and for breach of the Mr.Booth's contract of employment.
The Court has jurisdiction over the First Defendant because he resides within the jurisdiction. However, he applies to the court for an order that the proceedings against him be stayed on the grounds that there is another forum, namely the court of Jordan, which is clearly or more distinctly more appropriate for the trial of the action against him. By an order dated 28 November 2003 Master Miller gave permission to serve proceedings out of the jurisdiction on the Second, Third and Fourth Defendants pursuant to CPR 6.20. They apply to set aside that order on the grounds that there no grounds for exercising jurisdiction over them and that, if there are such grounds, this is not an appropriate case for the exercise of such jurisdiction.
It is a striking feature of the Defendants' approach to the Claimant's claim that when these applications first came before the Court earlier this year counsel for the Defendants stated that he was instructed "to take every available technical point on jurisdiction to try and dissuade Mr.Booth's widow from pursuing a claim against them" I was told by counsel that this was because the Defendants believed that the claims against them would fail and that they (or the P and I Club in which the vessel was entered) did not wish to incur the costs of the litigation if they could be avoided.
I shall summarise very briefly the events which, on the evidence presently available to the Court, appear to have given rise to the claim. The vessel was converted from a container vessel to a livestock carrier by Keppel Shipyard in Singapore. However, the vessel sailed from Singapore before a problem with the loading ramp and associated winch was remedied. At Fremantle a cargo of livestock was loaded and repairs were carried out to the winch mechanism. In Egypt a problem again developed with the winch mechanism. Mr.Booth, who had joined the vessel in Fremantle, was seeking to remedy the fault when the ramp fell causing parts of the equipment to disintegrate. Mr.Booth was struck by one or more pieces of metal and died as a result.
The claim against the First Defendant is put in negligence. It is said that he ought not to have departed from either Singapore or Fremantle with a defective winch mechanism. The claim against the Second to Fourth Defendants is put in negligence and in contract. It is said that the accident was caused by a breach of an implied term of the contract of employment that Mr.Booth would be provided with a safe place and system of work.
Grounds for Jurisdiction
The Claimant can sue the First Defendant as of right because he is within the jurisdiction. But as against the Second to Fourth Defendants she must establish that there is a ground for the Court to exercise jurisdiction over them within CPR6.20.
It is submitted on behalf of the Claimant that there are 3 grounds for exercising jurisdiction against the Second to Fourth Defendants. I shall deal with each in turn.
Necessary or proper party
CPR 6.20 (3) provides for service out of the jurisdiction with the permission of the court if a claim is made against someone on whom the claim has been served and "(a) there is between the claimant and that person a real issue which it is reasonable for the court to try; and (b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim".
The Claimant said there was such an issue between her and the First Defendant. The Second to Fourth Defendants said there was not. My attention was drawn to CPR 6.21(2) which provides that the Claimant's application must be supported by written evidence stating the grounds on which the witness believes that there is between the claimant and the person on whom the claim form has been served a real issue which it is reasonable for the court to try.
The application for permission for service out of the jurisdiction was supported by a witness statement of Peter Mongomery, the solicitor who has conduct of this matter on behalf of the Claimant, which exhibited to it the notes of an inquest into the death of Mr.Booth. The notes include reference to evidence given by the First Defendant on which the Claimant relies. Mr.Montgomery states in his first witness statement dated 25 November 2003 that the Claimant relies on CPR 6.20(3) and in his second witness statement dated 23 February 2004 he states that "it is clear" that there is a real issue between the Claimant and all of the Defendants. The nature of the claim sought to be made by the Claimant against the First Defendant has been pleaded in detail in the Amended Points of Claim. The point taken on behalf of the Second-Fourth Defendants is that the notes of the First Defendant's evidence at the inquest on which the Claimant simply cannot support the pleaded case and therefore there is no real issue which it is reasonable for the Court to try.
A real issue no doubt means what it says, that is, it must be a real and not a fanciful issue. So long as such an issue exists which it is reasonable for the court to try it is no part of the court's task at this stage to consider whether the claim is likely to succeed. For this reason I do not consider it appropriate to enter into a detailed analysis of the evidence.
The pleaded claim is that the First Defendant as master of the vessel owed a duty of care to the crew to exercise reasonable care for their safety in relation to decisions made by him in respect of the navigation and management of the vessel. This was not challenged on behalf of the First Defendant.
It is then alleged that the First Defendant supervised the work of converting the vessel from a container vessel into a livestock carrier on behalf of the Second to Fourth Defendants. There is support for this allegation in the notes of the First Defendant's evidence at the inquest.
It is then said, in essence, that when the vessel sailed from Singapore the conversion work was incomplete (because the cattle loading ramp and its winching mechanism required to be repaired and redesigned), that the First Defendant knew that and nevertheless decided to sail from Singapore under commercial pressure to do so from the Second-Fourth Defendants, notwithstanding that it was reasonably foreseeable that a member of the crew might be injured by the defective ramp system. Again, there appears to be support for these allegations in the evidence on which reliance is placed. Although repairs were effected at Fremantle where a cargo of sheep and cattle were loaded the ramp and winch mechanism remained defective, as indictaed by the events in Egypt.
It is alleged that the fact that the vessel sailed from Fremantle with a defective ramp and winch mechanism which failed leading to the death of Mr.Booth was a consequence of the First Defendant's decision to sail from Singapore before the work of conversion had been completed and that that decision was in breach of his duty of care.
The notes of the First Defendant's evidence at the inquest suggest that he might challenge the allegation of negligence on the basis that arrangements were in hand for the design engineer of the conversion project to proceed to Fremantle where a local firm would carry out the required work under instruction. In those circumstances he is likely to say that his decision was not in breach of his duty of care.
Counsel for the Claimant argued that the fact that repairs might have been arranged before the vessel sailed from Singapore does not mean that the master's decision to sail was safe. It was said that the work in Singapore was not repair work but work of conversion and that the ramp had to be tailored to the particular ship. In such circumstances it was said to be intrinsically unsafe for the vessel to leave Singapore without the conversion having been completed by the yard responsible for the conversion work and to rely on the remaining work to be done satisfactorily at a place remote from that yard.
If the decision to sail was in breach of his duty of care the First Defendant is likely to say that the chain of causation was broken by the repairs which took place in Fremantle. But it is alleged on behalf of the Claimant, based upon a comment made by the...
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