Harley and Others v Smith and another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE FOSKETT |
| Judgment Date | 20 January 2009 |
| Neutral Citation | [2009] EWHC 56 (QB) |
| Court | Queen's Bench Division |
| Date | 20 January 2009 |
| Docket Number | Case No: TLQ/08/0447 |
[2009] EWHC 56 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Foskett
Case No: TLQ/08/0447
Robert Weir (instructed by Bridge McFarland and Thompsons) for the Claimants
Stephen Cogley (instructed by Clark Ricketts) for the Defendants
Hearing dates: 15 th, 16 th and 17 th December 2008
Approved Judgment
Introduction
Until an incident that occurred on 7 May 2003 the three Claimants were all professional divers. At the time of the incident they were employed by the Second Defendant, a Saudi-based and Saudi-owned company whose business, as its name suggests, is the provision of diving and marine services. Its name is often abbreviated to 'ADAMS' and I will use that expression throughout.
The incident occurred when the Claimants were working from a vessel called the 'Aramco MV Rimthan 2' in an oil field in the territorial waters of the Kingdom of Saudi Arabia (the 'KSA'). The First Defendant, who was employed by ADAMS, was the diving supervisor for the three Claimants. The contract on which the Second Defendant was engaged at the material time was a contract with Saudi Aramco (Aramco stands for 'Arabian American Oil Company'), the state-owned national oil company of Saudi Arabia, which owned the vessel on or from which the Claimants were working.
The case they wish to advance is that on the day in question they, together with three other divers, were required to work in water into which toxic chemicals had been discharged from the Saudi Aramco vessel with the consequence that each suffered injury. They were all hospitalised for some period after the incident and each claims to have suffered long-term consequences, both physical and in some cases psychological. None has been able to return to diving as an occupation though two have found other occupations.
Each has launched a tortious claim in negligence in the UK against the First and Second Defendants within the limitation period that would apply if UK law applied to their cases. I will say more about the manner in which the claim is framed below. It is, however, accepted that Saudi law is the law by which the issue of liability falls to be determined. It is alleged by the defendants that the claims are, as a matter of Saudi law, time-barred.
It is the issue of limitation that I must determine as a preliminary issue pursuant to an order of Master Rose of 17 April 2008 as amended by an order made by Blake J on 19 November 2008.
There are two broad issues: first, are the claims time-barred by Saudi law and second, if so, should I hold, pursuant to section 2 of the Foreign Limitation Periods Act 1984, that the Saudi limitation period should not apply because to permit it to do so “would cause undue hardship” to the Claimants?
That is the background in a nutshell. I need to trace the history in a little more detail before turning to the law and the competing arguments.
More detailed background
The basis upon which the Claimants were engaged by ADAMS and the period of their respective contracts is of potential importance to one of the issues arising under the limitation question. However, in a broad sense Mr Hopley had worked for them since 1996 and Mr Iles since 2001. Only Mr Harley was, at the time of the incident, new to working for them and engaged by them for the first time.
Each Claimant had written contracts of employment with ADAMS. The phraseology of Mr Hopley's contract was slightly different from that in those of Mr Harley and Mr Iles, but the general effect would seem to have been intended to be the same. Mr Hopley's contract at the time of the incident had as the “Effective Date of Contract” 4 February 2003 with the “Last Day of Contract” being 1 March 2004 (a period of 392 days). The “Vacation Entitlement” was 28 days for 70 days work. Mr Harley and Mr Iles had contracts drawn with an “Effective Date of Contract” of 14 April 2003 and 22 April 2003 respectively. In fact Mr Harley never signed his contract, though nothing turns on it because he accepts that he was to be employed initially for a 10-week (70 day) period. Each contract contained the following provision concerning the “Period of Employment”:
“(a) The period of employment covered by this contract agreement will be at the sole discretion of ADAMS and may be terminated by ADAMS, for convenience, without notice.
(b) Notwithstanding…(a) EMPLOYEE shall be entitled to a relief following a period of 70 days (the base period), from arrival within the Kingdom of Saudi Arabia. ADAMS shall use its best endeavours to supply such relief in a timely manner.
(c) The period of engagement may be extended beyond the base period, subject to the mutual agreement of both parties.
(d) Should EMPLOYEE terminate this contract for convenience, ADAMS, at its sole discretion, retains the right to seek compensation towards the cost of relieving EMPLOYEE. Such compensation, however, shall be limited to travel and associated visa costs, or a part thereof, incurred as a result of supplying the relief.”
Each of the contracts contains the express provision that it is “subject to the Laws of Saudi Arabia only.”
It is worth recording at this stage that it is the law of the KSA that a foreign national may be employed only on the basis of a fixed term contract. Any such contract may be extended, but the contract may only stipulate for a fixed period.
I will return to the implications of the contractual position later, but the basis upon which each Claimant was able to move (freely or otherwise) within the KSA should also be noted. They all lived and worked onboard ship, each possessing a “Seaman's Book” issued by the UK Department of Transport. Mr Harley and Mr Iles were not permitted to work onshore within Saudi Arabia nor were they allowed onshore for any purpose (except for entry and exit purposes to and from the KSA) without temporary shore access being arranged. Permission of this nature had to be obtained from the Saudi Coast Guard. Mr Hopley was, however, entitled to go onshore without this kind of specific permission because he had a visa called an Iqama.
The restrictions affecting Mr Harley and Mr Iles meant that in order for them to obtain medical treatment onshore, the permission of the Coast Guards was necessary. Equally, if, for example, they wished to go onshore to consult a local lawyer, they would need permission from the Coast Guards to do so. Inevitably, arrangements such as these would have to be made through the intervention of ADAMS as their employer. I will return to the potential significance of this in due course.
The general geographical location of the material events was in the region of Dammam in (and the capital of) the Eastern Province of the KSA. Nearby cities are Al Khobar and Dhahran, the latter housing the headquarters for Saudi Aramco. Another location that figures in the story is Ras Tanura, a city further to the north close to which (or part of which) is Rahimah. Some way considerably further north is the Tanajib Camp, which I understand to be a residential complex for Saudi Aramco employees.
The precise location of the vessel where the incident occurred was not specified in the proceedings before me, but it is, I think, common ground that, after initial treatment on the vessel (or a nearby support vessel) by paramedics who were on hand, the Claimants were taken to the nearest hospital which was the Al Mana General Hospital in Al Khobar. I infer, therefore, that the incident occurred in waters not far from there.
As I have indicated, the incident took place on 7 May 2003. The general account of the Claimants is that it was not until the following day that arrangements were made for them to be seen at the hospital. The boat upon which they were working docked on that day in order for them to disembark. It appears that after about a day or two they were all discharged from hospital, but within a short while of that they were all readmitted for a further ten days or so. Each says that he felt generally very unwell, experienced difficulties in breathing and was essentially lethargic. They each said, and I accept, that this was an extremely worrying time for them.
Their symptoms continued whilst they awaited repatriation which eventually occurred when they left the KSA on 17 June 2003. Following their eventual discharge from hospital on or around 22 May, Mr Harley and Mr Iles were taken back to live on the boat where they had been accommodated previously. Mr Hopley had gone to a guest house in Rahimah provided by ADAMS and then, at some stage, he was taken to the Tanajib Camp which, as I have said, was some distance away. He told me that it was about two hours by car from the Dammam/Al Khobar region which, by reference to the map the parties provided to me at my request, would seem about right. At all events, for a period during which the further events I shall describe below leading up to his departure on 17 June took place, Mr Hopley was housed a good distance from where his colleagues were, from the hospital and from where ADAMS' offices were.
Each of the Claimants said, and I have no reason to doubt it at all, that they were very concerned for their own health and well-being during this period. Equally, they wanted to obtain some legal advice locally about what they should do to protect their interests in relation to a possible compensation claim. Mr Hopley, who had had the most...
To continue reading
Request your trial
-
Harley and Others v Smith and another
...sufficient – for reasons which will appear later in this judgment – to record the judge's finding, at paragraph [34] of his judgment, [2009] EWHC 56 (QB), that: “[34] I am quite satisfied that ADAMS, for whatever reason it was, found the continued presence in the KSA of these three men, wh......
-
Sharu Naraji v (1) Dr. Donald Shelbourne MD (2) Dr K Donald Shelbourne MD LLC and Others
...there and his subsequent abandonment of them, not from any undue hardship imposed by the foreign time limit itself. The case of Harley v Smith, [2010] EWCA Civ 78 is in point. In that case the trial judge disapplied a one year limitation period in the law of Saudi Arabia, relying on the fa......
-
Harry Roberts (A minor and a protected party, by his mother and litigation friend, Mrs Lauren Roberts) v Soldiers, Sailors, Airmen and Families Association
...to a person who is, or might be made, a party to the action or proceedings. 148 The claimant relies upon the judgment of Foskett J in Harley v Smith [2009] EWHC 56 (QB), [2009] 1 Lloyd's Rep. in respect of the “undue hardship” exception and in particular upon paragraph 94 encapsulating a s......
-
Hilal Abdul Razzaq Ali Al Jedda v The Secretary of State for Defence
...v Switzerland (1987) 10 EHRR 411Golder v United Kingdom (1975) 1 EHRR 524Goodwin v United Kingdom (2002) 35 EHRR 447Harley v Smith [2009] EWHC 56 (QB); [2009] 1 Lloyd’s Rep 359 Hirst v United Kingdom (No 2) (2004) 38 EHRR 825Iran (Government of the Islamic Republic of) v The Barakat Galleri......