Mitchell & Others v Milford Haven Port Authority
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE AIKENS |
| Judgment Date | 21 February 2003 |
| Neutral Citation | [2003] EWHC 1246 (Admlty) |
| Court | Queen's Bench Division (Admiralty) |
| Docket Number | No. 2002 Folio 162 |
| Date | 21 February 2003 |
[2003] EWHC 1246 (Admlty)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMIRALTY COURT
Royal Courts of Justice
Strand
LONDON WC2A 2LL
Mr Justice Aikens
No. 2002 Folio 162
MR S RAINEY QC and MR N CRAIG (instructed by Messrs Clifford Chance) appeared on behalf of the Claimant.
MR T BRENTON QC and MISS P MELROSE (instructed by Messrs Clyde & Co) appeared on behalf of the Defendant.
st February 2003
This is an application for permission to amend the so-called Particulars of Claim after the expiry of the limitation period. It is opposed by the defendants on a number of grounds. The claim arises out of the grounding of the oil carrier, "Sea Empress", when entering Milford Haven on 15th February 1996 with a cargo of about 130,000 tonnes of crude oil. She was navigating under a pilot provided by the Milford Haven Port Authority. She took the ground on the middle channel rocks whilst under that pilotage. As a result of the grounding the vessel spilled nearly 72,000 tonnes of crude oil. There was much pollution of the vicinity. The pollution resulted on a ban on fishing in the area being imposed. It is said that much trade, both in the local fishing industry and the tourist industry, was lost as a consequence of the pollution.
Following the casualty many claims were made against the International Oil Pollution Fund 1971 ("the 1971 Fund"), the P&I Club of the shipowners (which was the SKULD Club), and the owners themselves. The claims were for compensation for pollution damage caused by the grounding of the vessel. The owners and SKULD have obtained a decree limiting their liability to claimants under the Merchant Shipping Act 1995. Many pollution claimants have been paid compensation by the SKULD Club and the 1971 Fund. The claimants that have been paid together constitute the First Claimants in the present action. There are also a number of claimants for pollution compensation who have not been paid. Together they form the Second Claimants in the current action.
The present action is against the Milford Haven Port Authority. The Particulars of Claim were served on 14th February 2002. That was the last day of the limitation period. The Claimants, who I will describe in more detail in a moment, allege that the Port Authority owed a duty of care at common law to all the Claimants. It is also said that it owed a statutory duty under the Milford Haven Conservancy Act 1983 (as amended) and the Pilotage Act 1987.
The claim, as originally framed, is in negligence and for breach of statutory duty. It is alleged that the Defendant Port Authority acted in breach of its common law duty of care, and in breach of its statutory duties. Therefore it is implicit in the way that the claim was originally pleaded that the damages claimed by each claimant were: (1) caused by the negligence or breach of statutory duty by the defendants, and (2) were foreseeable and so not too remote in law. I note in passing that there has been no challenge by the defendants, either under CPR Part 3.4 or Part 24, to the claims made by any categories of the First Claimant on the ground that such claims are unarguable, either as being not caused by the negligence or breach of statutory duty of the defendants or for being too remote in law to be recoverable.
I must now describe the claimants in the action in a little bit more detail. The First Claimants are, in fact, a very large number of claimants who have been grouped together in the revised Schedule A to the Particulars of Claim into fourteen categories. Their claims are of varying sorts. They vary from claims for handling costs (Category 2); to clean up and preventative measure costs (Category 3); to damage to property, other than oil damage (Category 5); to claims for loss of sales from reduction in tourism (Category 8), and for claims for loss of subscription income (Category 9).
I will take two examples of claims from the witness statement of Miss Comninos, which was prepared in support of the present application for leave to amend. First of all, a claim from within Category 7, which consists of claims for loss of sales resulting from the fishing ban. There the claim that is referred to is one for losses sustained by a processor of shellfish, predominantly whelks. It is said that this loss occurred because of the unavailability of whelks in the area, and the fact that there were no, or not enough, alternative sources of supply. Secondly, I take an example from Category 6. This category covers claims for loss of bookings. The example given there in Miss Comninos' statement is of a claimant who trades as a hotel owner. That claimant alleges that there was a reduction in hotel bookings as a result of a reduction in the tourist trade from February 1996 to 30th September 1996.
It is clear that the claims of the First Claimants in Categories 6 to 9, 11, 13 and 14 in Schedule A are for what the cases have called "pure economic loss". That is to say there is no suggestion that any of the property of the various claimants have been damaged as a result of the casualty.
The First Claimants as a group have assigned their rights to the Third and Fourth Claimants, having been paid on their claims. The First Claimants' total claims are some £36m. The Second Claimants are much fewer in number, although there are altogether 26 categories of claimant. The total amount claimed by the Second Claimants, who have not been paid out by either of the SKULD Club or the 1971 Fund, is £734,782.49. Those claimants have also made an assignment of their rights to the Third and Fourth Claimants.
The Third Claimant is the 1971 Fund itself. It makes claims in two capacities. First as an assignee of the First and Second claimants, and secondly in its own right. In relation to the third claimant, the Particulars of Claim at paragraph 14 allege that the defendants owed a duty of care to the 1971 Fund to "avoid causing pollution damage to such persons as would, by reason of having suffered such pollution damage, be entitled to payment of compensation in respect of such pollution damage from the 1971 Fund". That claim, which as I understand it, is a claim made by the Third Claimants on their own behalf is, I would have thought, plainly a claim for "pure economic loss".
The Fourth Claimants are the SKULD Club. Again, there are two bases on which it makes claims. The first as an assignee of the first and second groups of claimants, and secondly it makes the claims on its own behalf.
The proposed amendment to the pleading is at what would be paragraph 67A. It reads as follows:
"Further or in the alternative by reason of the defendant's negligence and/or breach of duty and/or breach of statutory duty and/or acts and/or omissions as set out above which constituted acts or omissions not warranted by law the defendants created and/or caused a public nuisance. The public nuisance was the widespread oil pollution at sea and along the adjacent coast and shoreline and consequent upon the grounding which interfered with the enjoyment of the rights enjoyed by the claimants at common-law, including but not limited to the common-law right of navigation and the right to fish. As a result thereof the claimants suffered such special damages further particularised below …"
The claimants have now confirmed that this application to amend is made only on behalf of some categories within the whole group of the First Claimants. To the extent that the Third and Fourth claimant sue as assignees of those categories, the Third and Fourth Claimants also wish to rely on the amendment as well. But, as I understand it, there is no suggestion that the Third and Fourth Claimants can rely on the proposed amendment suing on their own behalf. The relevant First Claimants who seek to rely on the proposed amendment are those in Categories 3 and 5 to 14. There are really three sub categories. The first sub-category consists of those who are not fishermen but depend on fishermen. Those come within categories 7, 9 and 11. The second sub-category consists of those who depend on tourism. Those are within Categories 6, 8 and 14. The third sub-category are those that are said to have suffered either damage to property or oil damage. They have incurred clean up costs, or have lost equipment. Those are in Category 3, Category 10 and Category 12.
There has been much correspondence as to whether the proposed amendment has been properly particularised. Attempts have been made by the Claimants to give further particulars as requested in correspondence. As I understand it, the lack of particularisation, which is still a complaint, is not now the basis upon which it is said that the proposed amendment should be disallowed. However it is possible that there may still be an issue as to whether there should be further particularisation if I am prepared to permit the amendment in principle.
As I have said, this is an application for permission to amend after the limitation period has expired. It is accepted therefore that CPR Part 17.4.2 applies. That states:
"The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings."
CPR Part 17 .4.2 refers to the Limitation Act 1980, section 35 of which deals with the circumstances in which the court may permit a new claim to be made after the limitation period has expired. The relevant provisions state:
"(2) In this section a new...
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Hybrid Torts and Explanatory Tort Theory.
...of Westminster Magistrates' Court, [2009] EWHC 1996 (Admin) at para 55. (171) See e.g. Mitchell v Milford Haven Port Authority, [2003] EWHC 1246 (Admlty). (172) Beever, Law of Negligence, supra note 43 at (173) Ibid at 29 [emphasis added]. Likewise, he says that "[t]he method employed [in R......