FG Hawkes Ltd v Eli Shipping Company Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Gross |
| Judgment Date | 17 July 2009 |
| Neutral Citation | [2009] EWHC 1740 (Comm) |
| Docket Number | Case No: Claim No. 2008 Folio 351 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 17 July 2009 |
[2009] EWHC 1740 (Comm)
Mr Justice Gross
Case No: Claim No. 2008 Folio 351
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Yash Kulkarni (instructed by Morgan Cole) for the Claimant
Julian Kenny (instructed by Stembridge Solicitors Ltd) for the Defendant
Hearing dates: 3 July 2009
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.
Mr Justice Gross :
INTRODUCTION AND CHRONOLOGY
There is before the Court an application on the part of Beli Shipping Co. Limited (“the Defendant”) seeking an order (1) under CPR r.11 (1), declaring that the Court does not have or will not exercise its jurisdiction over the Defendant; alternatively (2) under CPR r.23(10), setting aside the order of Burton J of the 10th October, 2008 (“the Burton order”); alternatively (3) under CPR r. 3.4(2), striking out the claim.
In a nutshell, the Defendant challenges the Burton order, made on the ex parte application of FG Hawkes (Western) Limited (“the Claimant”), to extend time for service of the Claim Form. Although that application for the extension of time was made within the 6 month period during which the Claim Form was valid, the basis of the Defendant's application is that (1) the Claimant had taken no steps to try to discover the Defendant's address for service until 3 weeks before the Claim Form expired; and (2) that there was no good reason why the Claimant had allowed more than 5 months to slip by in total inactivity. Additionally, the Defendant complains that in its application to extend time, the Claimant had been less than full and frank in its disclosure to the Court. For its part, the Claimant contends that the correct course was to extend time for service of the Claim Form and that the relief sought by the Defendant would be disproportionate; further, the Claimant denies that it was less than full and frank in its application to extend time.
The underlying dispute can be shortly summarised. Pursuant to a straight—consigned bill of lading (“the bill of lading”), the Claimant was the consignee of a parcel of plywood (“the cargo”), shipped on the Defendant's vessel, the MV Katarina (“the vessel”), at Lianyungang, China, in December 2006, for carriage to and discharge at Swansea. On the 22nd February 2007, the vessel completed discharge of the cargo at Swansea. It is not in dispute that during discharge the cargo was found to be damaged by mould; there are suggestions too, of water damage. At first blush, the possible causes for damage of this nature would be inherent vice or some breach of contract or duty on the part of the Defendant as carrier. It is again not in dispute that the terms of the bill of lading provide for the familiar Hague Rules (or equivalent) one year time limit for the bringing of proceedings in respect of loss or damage to the cargo. Without more, therefore, time for the Claimant to bring proceedings against the Defendant under the bill of lading in respect of loss or damage to the cargo, would have expired on the 22nd February, 2008.
On the 29th January, 2008 (so, more than 11 months after completion of discharge), the Claimant's solicitors (“Morgan Cole”) informed the Defendant's P&I Club (“the North of England”) of a potential claim against the Defendant in respect of damage to the cargo and sought an extension of time. Morgan Cole further indicated that a claim against the Claimant's cargo insurers (“cargo insurers”) was under consideration. Curiously enough in the light of subsequent events – though not a matter relied on at the hearing by either party – the Morgan Cole letter said this of the owners of the vessel:
“…who we understand to be Beli Shipping Co. Limited of St Vincent….”
In the event, the North of England granted the Claimant two time extensions; the first up to the 10th March, 2008 and the second up to and including the 10th April, 2008.
On the 3rd April, 2008, Morgan Cole and the North of England agreed to submit the dispute to the jurisdiction of this Court, to be determined in accordance with English law.
On the 10th April, 2008, thus the very last day for doing so, the Claim Form was issued. Two features of the Claim Form attracted comment at the hearing; I will return to these matters later but it is convenient to note them now:
i) First, the address of the Defendant was given as, in the event, care of the vessel's Croatian managers, at an address in Croatia;
ii) Secondly, the Claim Form contained this certification from Morgan Cole:
“I state that the High Court of England and Wales has power under the Civil Jurisdiction and Judgments Act 1982, the Defendant being a party to an agreement conferring jurisdiction….to which Article 17 of Schedule 1 or 3C to that Act or paragraph 12 of Schedule 4 to that Act applies, to hear the claim….. ”
As the Claim Form was to be served out of the jurisdiction, the Claimant had a period of 6 months within which to serve it: CPR r.7(5)(2). That period accordingly expired on the 10th October, 2008.
It is fair to note that on the 2nd June, 2008, Morgan Cole confirmed to the North of England that proceedings had been issued. That apart, the evidence suggests that between the 10th April, 2008 and the 19th September, 2008 (to which I shall come in a moment), the Claimant had done nothing at all either (1) to ascertain the Defendant's address; or (2) to serve the Claim Form. Mr. Manship of Morgan Cole, who had the conduct of this matter on behalf of the Claimant, offered this by way of explanation; between April and September 2008, the Claimant's efforts had been “directed primarily” to pursuing its claim against cargo insurers.
On the 19th September, 2008 – so, 21 days before the end of the period for service of the Claim Form – Morgan Cole did contact the North of England. In that e-mail, Mr. Manship said that he had not been able to obtain an address for service for the Defendant. He asked if the North of England could confirm that address or whether the Claim Form could be served on the Defendant's Croatian managers (in Croatia). He remarked that he had raised similar queries on the 9th April (the day before the issue of the Claim Form) and asked for an urgent response.
On the 30th September, 2008, Mr. Brian McGregor of the North of England responded to Mr. Manship in the following terms:
“We should make it clear that whilst we are the P&I liability insurers of ….[the vessel]….we would not be at liberty, nor would we have the capacity or authority, to disclose any of the information that you have asked for, even if the information was available to us. We must therefore leave you to make your own enquiries.
. We would have thought that since your e-mail of the 9th April, you would have had ample opportunity to ascertain the information you require, and perform a company search if necessary.”
On the 2nd October, 2008 (so, 8 days before the Claim Form expired), Mr. Manship wrote to the managers of the vessel in Croatia, seeking essentially the same information as that sought from the North of England. The managers did not reply.
On the 3rd October, 2008, with 7 days remaining before the Claim Form expired, the Claimant applied to the Court, ex parte, for an order that the period within which the Claim Form could be served be extended to the 10th February, 2009. No separate witness statement was served in support of this application. Instead, the Claimant's evidence was contained in Part C of the application notice itself, with a Statement of Truth signed by Mr. Manship. That evidence was as follows:
i) The Claimant's “primary claim” lay against its cargo insurers. However, the policy contained a provision requiring the Claimant to ensure that all its rights against carriers and others were properly preserved and exercised. The Claimant was about to commence proceedings against cargo insurers. Following service of the Claim Form and Particulars of Claim on the Defendant, the Claimant would be making an application to stay these proceedings pending the outcome of the claim against insurers.
ii) The Claimant then spoke “in addition” of having had “some difficulty” in identifying upon whom the Claim Form should be served and the address for service. The matter was put this way:
“The Defendant is registered in the British Virgin Isles, but the Claimant has had some difficulty in obtaining the registered office address of the Defendant. To date, the Claimant's solicitors have corresponded with the North of England….regarding the claim. Enquiries have been raised of the North of England ….as to whether the Claim Form should be served on the Defendant or the managers…..Initially, the North of England…ignored those enquiries, but when pressed they recently stated that they are not at liberty and do not have capacity or authority to provide the Claimant's solicitors with a service address for the Defendant or to confirm which party the Claim Form should be served on. The Claimant's solicitors have also raised enquiries with the vessel's managers (who are based in Croatia), but have yet to receive a response. The Claimant's solicitors have instructed an enquiry agent to find out the registered office address of the Defendant. If no response is received from the vessel's managers, the Claim Form and Particulars of Claim will be served on both the Defendant and the managers….. ”
As already noted, the Burton order was made on the 10th October, 2008, extending time for service of the Claim Form and the Particulars of Claim to the 10th February, 2009.
On the 12th November, 2008, the Claimant...
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