Monford Management Ltd (The Owners of the Kiveli) v Afina Navigation Ltd (The Owners of the Afina I)

Hearing date: 16 May 2025

Approved Consequentials Judgment

A. INTRODUCTION

The parties appear before the Court today on the handing down of judgment, and hearing of consequential matters, in this collision action (neutral citation [2025] EWHC 1185 (Admiralty) – the “Judgment”)) whereby I considered, based on the findings that I made, that KIVELI's fault was 4 times as great as that of AFINA I in relation to the collision between KIVELI and AFINA I and accordingly my apportionment of liability is 80% to KIVELI and 20% to AFINA I.

Following circulation of the judgment in draft, the parties have been able to reach a very large measure of agreement on the matters which arise as a consequence of the Judgment, including an agreed draft Order addressing consequential matters including the incidence of costs and a payment on account of costs on the part of KIVELI. I am satisfied that it is appropriate to make an Order in the terms proposed in the draft Order, and I do so.

The only outstanding matter for determination today is KIVELI's application for permission to appeal against the Judgment on the grounds set out in its draft amended Grounds of Appeal (the “Grounds”) and supporting KIVELI Skeleton Argument, which is opposed in AFINA I's Skeleton Argument and Supplemental Skeleton (the later served after exchange of skeleton arguments and when AFINA I saw the Grounds for the first time). I have also received extensive oral submissions today from each of Christopher Smith KC (on behalf of KIVELI) and Nigel Cooper KC (on behalf of AFINA I).

I address the Grounds on their merits in due course below. It suffices to foreshadow at the outset that I consider that the Grounds have no prospect of success, still less any real prospect of success, and there is no other compelling reason for the appeal to be heard, in circumstances where there is, and can be, no appeal against the Court's findings of fact as to the egregious faults of, and inadequacy of the navigation of, KIVELI's Chief Officer, and there is no basis on which it can be said that the Court failed to apportion liability in a way which was open to it on the facts (80:20 KIVELI:AFINA I), in circumstances where KIVELI's Chief Officer was in breach of the Collision Regulations (whether it was a head-on or crossing situation) from C-22 to the moment of Collision in not turning to starboard at any material time, and instead, disastrously, and causatively, turning to port, whereby KIVELI's bow rammed into the port side of AFINA I, whereas (as is common ground) there would have been no collision at all if KIVELI had turned to starboard (as she should have done if it was a head-on situation) or maintained her course ahead or turned to starboard (as she should have done if, contrary to my findings and the views of the Nautical Assessor, it was a crossing situation).

B. THE GROUNDS

There are 4 grounds of appeal in respect of which permission to appeal is sought:-

(1) The Judge erred in concluding (at §238) that at C-22 a head-on situation existed so as to engage Rule 14. He should instead have concluded (in so far as there was a risk of collision at C-22) that a Crossing Situation existed.

(2) In so far as a Head On Situation existed at C-22, the Judge erred in concluding that it still existed at all times thereafter (§§152 – 155, 240, 247, 248 and 327). The Judge should, instead, have concluded that it no longer existed at C-7:45.

(3) The Judge erred in concluding that (in so far as there was a risk of collision) a crossing situation did not exist. The Judge should, instead, have concluded that a crossing situation existed, that AFINA I was the give way vessel, and that she was obliged to keep clear of KIVELI (which she failed to do) and to avoid crossing ahead (which she did do).

(4) In so far as there was a Head On Situation the Judge erred in concluding that KIVELI was four times more at fault than AFINA I and in apportioning liability 80%/20%.

C. APPLICABLE PRINCIPLES

The applicable principles on permission to appeal are well-established, and well-known, and were common ground between the parties. Permission to appeal should only be granted if “the court considers that the appeal would have a real prospect of success” or if “there is some other compelling reason for the appeal to be heard” (see CPR52.6(1)(a), (b)). This is the same test as applies in cases of summary judgment under CPR Pt 24; i.e., that there is a realistic as opposed to a fanciful prospect of success. “Likewise if an appeal has no real prospect of success, the court will prevent the litigant from pursuing it. The main practical difference is that (for obvious reasons) more appeals are weeded out by this process, than first instance claims or defences” (White Book paragraph 52.6.2).

Mr Cooper KC, on behalf of AFINA I, also draws my attention to the following further principles that emerge from the authorities, as noted at paragraph 52.21.5 of the White Book, which Mr Smith KC, on behalf of KIVELI, does not dispute:-

“Where a judge's evaluation of facts is challenged, it is properly understood to be very difficult for an appellate court to place itself in the position of the trial judge who would have had to take account of both written and oral evidence. As Lord Hoffmann explained it in Biogen Inc v Medeva Plc [1997] R.P.C. 1 at 45, an appellate court must be cautious in reversing a trial judge's evaluation of facts, just as it must be in reversing a primary finding of fact. In essence, the finding of fact challenged must be plainly wrong if it is to be overturned on appeal: Clin v Walter Lilly and Co Ltd [2021] EWCA Civ 136; [2021] W.L.R. 2753 at [83]–[87]. The reasons for this approach, and authorities, are summarised in Lewison LJ's judgment in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] E.T.M.R. 26 at [114]–[115] and again in Volpi v Volpi [2022] EWCA Civ 464; [2022] 4 W.L.R. 48 at [2]–[4] and [52]. Authoritative guidance on the approach that appellate courts should take when called upon to assess a trial judge's evaluation of facts was given by the Supreme Court in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 W.L.R. 1911, McGraddie v McGraddie [2013] UKSC 58; [2013] 1 W.L.R. 2477; Henderson v Foxworth Investments Ltd [2014] UKSC 41; [2014] 1 W.L.R. 2600; R. (R) v Chief Constable of Greater Manchester [2018] UKSC 47; [2018] 1 W.L.R. 4079 and Perry v Raleys Solicitors [2019] UKSC 5; [2020] A.C. 352…

…

A judge's reasons should be read on the assumption that the judge knew (unless they have demonstrated to the contrary) how they should perform their functions and which matters they should take into account ( Re C (A Child) (Adoption: Placement order) (Practice Note) [2013] EWCA Civ 431; [2013] 1 W.L.R. 3720, CA, at [39] per Sir James Munby P; Piglowska v Piglowski [1999] 1 W.L.R. 1360, HL, at 1372 per Lord Hoffmann). An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that they misdirected themselves.”

D. PRELIMINARY POINTS

Before turning to the issues raised by the Grounds there are a number of preliminary points that need to be borne in mind when considering the Grounds (both overall, and in the context of the individual grounds):-

(1) None of KIVELI's Grounds of appeal assist her, unless KIVELI can establish that the consequence of what it says were errors made by the Court is that the Court failed to apportion liability in a way which was open to it on the facts (given that KIVELI accepts that the Court correctly stated the law in relation to apportionment). KIVELI is not in a position to do that. Even were KIVELI correct that the situation prior to the Collision was properly to be treated as a crossing situation (contrary to the findings of the Court and the views of the very experienced Nautical Assessor), the egregious faults on the part of KIVELI's Chief Officer mean that KIVELI bears principal responsibility for the Collision and it was her failures which carried the overwhelming majority of the causative potency for the Collision.

(2) KIVELI does not have any realistic prospect of overturning the Court's conclusion that responsibility for the Collision rests 80% with KIVELI and 20% with AFINA I. As already noted, KIVELI cannot, and does not challenge the Court's findings of fact as to the inadequacy of the navigation of the Chief Officer of KIVELI (see paragraph 7 of KIVELI's Skeleton Argument). I have concluded that KIVELI's Chief Officer was knowingly sailing in breach of the Collision Regulations from C-22 and had both nibbled to port whilst manoeuvring towards AFINA I and then made a last-minute disastrous turn to port which was the immediate cause of the Collision. In such circumstances I do not consider there is any realistic prospect of the Court of Appeal interfering with the Court's apportionment, given the preceding full analysis of the factual...