Glenluce Fishing Company Ltd v Watermota Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Roger ter Haar |
| Judgment Date | 21 July 2016 |
| Neutral Citation | [2016] EWHC 1807 (TCC) |
| Docket Number | Case No: HT-2016-00038 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 21 July 2016 |
Claimant
Defendant
[2016] EWHC 1807 (TCC)
Mr Roger ter Haar QC
(Sitting as a Deputy High Court Judge)
Case No: HT-2016-00038
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Jack Macaulay (instructed by Myton Law Limited) for the Claimant
Mr Jay Jagasia (instructed by Kitsons LLP) for the Defendant
Hearing date: 8 th July 2016
Mr Roger ter Haar QC:
Introduction
There is before the Court an application by the Claimant to amend the Claim Form to reflect the sums now claimed in the Particulars of Claim. This application is resisted upon the basis that with due diligence the claim now put forward could and should have been recognised in the Claim Form. It is said that that not having happened, an inappropriate fee was paid when the proceedings were commenced, with the consequence that the amendment to introduce a new head of claim outside the limitation period should not be allowed.
The Facts
At all material times, the Claimant owned and operated a fleet of fishing vessels, based principally in Kilkeel, Northern Ireland. One of the Claimant's boats was the "Stardust N227".
At all material times, the Defendant was a company specialising in the supply of marine and industrial engines, gearboxes and marine spares parts.
In late 2008 the Claimant decided to install a new engine in the Stardust.
On the 23 rd December 2008 the Claimant placed an order with the Defendant for a new engine and gearbox. Pursuant to that order the Defendant supplied and installed a Doosan V158TiM engine.
It is the Claimant's case that following the installation of that engine, the Stardust suffered significant mechanical problems, particularly it suffered from vibration when the propeller shaft was turning, caused by a tortional damper which was incompatible with the engine installation. This required extensive investigation, preventing the Stardust from being out at sea for about 10 weeks during 2009.
The Claimant's case is that this engine suffered a catastrophic failure whilst at sea on the 1 st February 2010, which the Claimant suggests was due to "hosing" of the fuel injectors.
Thereafter, on the 9 th March 2010 a contract was formed between the parties whereby the Defendant agreed to supply, install and commission a new engine for the Stardust ("the Second Engine"). There is a dispute as to the terms of this contract.
In or around March 2010 the Second Engine was installed in the Stardust.
The Claimant contends that there were repeated problems with the fuel injectors in the Second Engine.
On the 14 th August 2013, Mr. Orr of the Claimant wrote to the Defendant as follows:
The injectors have been changed 12 times in 8820 hours since this second engine was installed in 2010.
As for time lost it has varied from 2–3 days to 2 weeks depending on availability of Injectors and engineers.
The boat has been tied up since 5/8/2013 at a loss of £2000 to £3000 per day as this is our lucrative fishing season June to Sept.
The financial loss to Glenluce Fishing Co has been considerable ranging from re-engining in 2010 for 10 weeks to the boat being tied up at present, the loss of fishing time and the cost of repairs. Also we have devaluation of Stardust in her present condition.
Taking everything into consideration this could be several hundred thousand pounds.
A more detailed costing will follow after consideration with our auditors, KPMG.
The Claimant pleads at paragraphs 26 to 28 of the Particulars of Claim:
26. By September 2013:
26.1 The reason for the repeated premature failures of the fuel injectors had still not been identified or corrected.
26.2 The Claimant was no longer confident that it was safe to go to sea in Stardust.
26.3 Stardust's mechanical problems had become well-known within the fishing community. It was no longer realistically possible to secure crew for the vessel. Stardust had no sale value as a reliable and functioning vessel.
27. Consequently Stardust was sold for scrap.
28. It is likely that the repeated premature failure of the fuel injectors was caused by excess pressure in the fuel return line when the engine was working at sea.
After September 2013 there was a certain amount of correspondence between the parties, with the Claimant engaging solicitors at a relatively early stage. In a second witness statement dated the 6 th July 2016, the Claimant's solicitor, Mr. Minall explains what happened between September 2013 and February 2016 as follows:
16. Finally, we note that the Defendant has complained of delays in progressing this matter and also of breaches of the pre-action protocol. The relevance of this to the present application is unclear but we thought it prudent to briefly refer to the chronology in this matter by reference to the correspondence usefully included in exhibit KS2.
17. As the court will note from the correspondence at KS 2 the majority of the delays in progressing this matter are attributable to the Defendant's delay in disclosing key technical documentation which it was necessary for the Claimant's expert to review before advising on the cause of the failures.
18. These delays can clearly be seen from the correspondence exhibited to Ms. Sandel's statement:
a) Between 2010, when the defective engine was installed, and toward the end of 2013 the parties had been in ongoing discussions and co-operated in multiple attempts to identify the causes of the failures and remedy the same.
b) It became clear towards the end of 2013 that these attempts to resolve the ongoing issues had failed and the Claimant instructed solicitors to pursue the Defendant in respect of losses they had suffered.
c) In light of the potential jurisdiction issues (the Claimant being based in Northern Ireland, the Defendant in England and the engine having been installed in Scotland) the Claimant received advice from solicitors in Northern Ireland, Scotland and England.
d) On 6 November 2013 the Claimant requested copies of "all reports records findings communications with all third parties (including Doosan) pertaining to the complete engine installation process and all remedial steps taken to date".
e) On 9 December 2013 the Defendant's solicitors confirmed they would provide the documents requested.
f) A number of chasers were sent for these documents in January 2014, August 2014, September 2014 and I reasserted this request when I assumed conduct of the matter in October 2015.
g) There was a period between September 2014 and October 2015 where this firm were not sending repeated requests to the Defendant for disclosure (as appears to be the Defendant's complaint) as the lawyer with conduct of the matter was dealing with a similar matter involving failures of another Doosan engine which was thought to have been connected (albeit no connection is now thought likely).
h) A number of technical documents which had been requested (and which had been promised in December 2013) were finally provided in November 2015, almost 2 years after they had been promised.
19. Once the above documents were provided, which included test results and technical reports, our client instructed an engineering expert to advise on the cause of the failures, which is clearly crucial to liability in this matter.
20. Our client instructed an expert and that expert provided their initial comments in early 2016. The expert took some time to provide their comments due to the extensive history of the matter which meant our client had to take some time to consolidate and organise the documents they had in relation to the matter. That expert report is not yet in a disclosable format but the Claimant continues to liaise with their expert with a view to disclosing a copy of that report as soon as possible.
21. Once the documents were disclosed our client had only 4 months to finalise their liability investigations before preparations had to be made to issue proceedings, in order to ensure their claim did not become time barred.
On 15 th February 2016 a Claim Form was issued. Mr. Minall said in his first witness statement dated the 17 th June 2016 that this was done to protect the Claimant's position on limitation while the analysis of the claim continued and the Particulars of Claim were drafted.
The Claim Form was in the following terms:
Brief details of claim
The Claimant's claim is for damages for breach of a vessel repair contract made in writing between the parties in March 2010 arising out of or in connection with the replacement of a marine engine in the MFV "STARDUST", together with interest to be assessed pursuant to Section 35A of the Senior Courts Act 1981.
Value
The value of the claimant's claim (including interest in the sum of £17,694.06 calculated at 5% annually accrued) is approximately £69,694.06 but is likely to increase once the claimant has finally quantified their loss of use claim.
In his first witness statement, Mr. Minall says the figure of £69,694.06 was calculated as follows:
(1) The value of the engines: £37,000.
(2) The cost of repeatedly replacing the fuel injectors: £15,000.
(3) Interest at 5%: £17,694.06.
At the time of issue of the Claim Form, a Court fee of £3,484.70 was paid.
On the 8 th June 2016, Particulars of Claim were served. Under the heading "Loss and damage" the pleading set out the following:
30. As a result of the Defendant's breach of contract the Claimant has suffered loss and damage as follows.
31. The value of the Second Engine: the Second Engine was installed as a replacement for the First Engine; as such the Claimant adopts the cost of the First Engine as the measure of this loss.
£22,409.13 claimed.
32. The cost of installation of the Second Engine: this was in fact paid by the Claimant, but...
To continue reading
Request your trial
-
Dr James Charles Dixon and Another v Radley House Partnership (A Firm)and Others
...to which I have referred were cited to Mr Ter Haar QC, sitting as a Deputy Judge of the Queen's Bench Division in Glenluce Fishing Company Ltd v Watermota Ltd. [2016] EWHC 1807 (TCC) on a Claimant's application to amend to increase the value of its claim outside the limitation period. With ......
-
Martin Glenn v Craig Kline
...application by exercising its discretion in accordance with the overriding objective: Glenluce Fishing Company Ltd v Watermota Ltd [2016] EWHC 1807 (TCC) at [59]. In particular, the court should balance any injustice to the applicant if the amendment is refused against any injustice to the......
- Hayes v Butters and another (No 2)
-
Atha & Company Solicitors v Zoe Liddle
...cited to Mr ter Haar QC, sitting as a deputy judge of the Queen's Bench Division in Glenluce Fishing Company Ltd v Watermota Ltd [2016] EWHC 1807 (TCC) on a claimant's application to amend to increase the value of its claim outside the limitation period. With suitable restraint and courtes......
-
Litigation
...abusive conduct: see Dixon v Radley House Partnership [2016] EWHC 2511 (TCC). See also Glenluce Fishing Co Ltd v Watermota Ltd [2016] EWHC 1807 (TCC). 132 Which includes arbitration proceedings: Arbitration Act 1996 (UK) section 13(1); Limitation Act 1969 (NSW) section 70 (in other Australi......
-
Table of cases
...Construction Ltd v he Guinness Trust (1987) 39 BLR 89 I.3.34, I.3.143, II.11.10, II.11.57 Glenluce Fishing Co Ltd v Watermota Ltd [2016] EWHC 1807 (TCC) III.26.38 Glenmont Investments Pty Ltd v O’Loughlin (2000) 79 SASR 185 II.13.238 Glenorchy City Council v Tacon Pty Ltd [2000] TASSC 51 II......