Premier Marinas Ltd v The Owner(s) of M/Y “Double Venus” also known as “Llamedos”
| Jurisdiction | England & Wales |
| Judge | Davison |
| Judgment Date | 18 September 2020 |
| Neutral Citation | [2020] EWHC 2462 (Admlty) |
| Docket Number | Claim No. AD-2020-000015 and Claim No. AD-2020-000027 |
| Court | Queen's Bench Division (Admiralty) |
| Date | 18 September 2020 |
[2020] EWHC 2462 (Admlty)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMIRALTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
ADMIRALTY REGISTRAR Mr Davison
Claim No. AD-2020-000015 and Claim No. AD-2020-000027
Mr Robert Ward (instructed by Shoosmiths LLP) for the Claimant
No appearance for the Defendants
Hearing date: 10 September 2020
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.
These are in rem claims which I heard on 10 September 2020. There was no appearance for or on behalf of the defendants. I found the claims proved and said that I would give my reasons in writing. These follow.
The claims are against two thirty-foot vessels, “Double Venus”, which is a Dutch barge, and “Santorini”, which is a motor cruiser. The claimant operates marinas on the south coast of England. The vessels are berthed at the claimant's Brighton marina and the marina dues have not been paid. The claims are Admiralty claims because they fall within the wording of section 20(2)(n) of the Senior Courts Act 1981, namely “any claim in respect of the construction, repair or equipment of a ship or dock charges or dues”.
The claims have a somewhat complicated and unfortunate procedural history. However, the basic factual background can be very shortly stated.
“ Double Venus”
Both vessels are owned by Ms Robyn Rainbow-Love. In respect of “Double Venus” (also called “Llamedos”), Ms Rainbow-Love entered into a berthing agreement with the claimant which became effective on 1 April 2018 and was to last until 31 March 2019. The berthing fees were calculated according to the length of the boat, which was stated to be 9.3 metres. The agreed monthly payment was £324.94 and so the annual amount (described in the berthing agreement as the “total premium”) was £3,899.28. The agreed interest rate for unpaid amounts was 2% over HSBC base rate. For periods of time beyond 31 March 2019, clause 11.4 provided as follows:
“We reserve the right to charge You berthing fees at the Visitor Berthing Rate for any periods during which You leave the Boat at the Marina when there is no current berthing licence in relation to that Boat between You and Us.”
Ms Rainbow-Love received invoices for the monthly fees. But invoices since 3 December 2018 have not been paid. Although, since the beginning of April 2019, the claimant has been entitled to render invoices at the Visitor Berthing Rate, it has not in fact done so. It has continued to charge at the lower rate set out in the berthing agreement. As at February 2020, the berthing fees were £6,466.85 in arrears and by letter dated 3 February 2020 the claimant made formal demand for that amount plus interest and costs. The figure currently due is £9,430.75. That figure comprises the original amount plus an extra £2,963.90 for the period since 1 March 2020, which the claimant has elected to charge at the “Monthly Berthing Rate” rather than the “Visitor Berthing Rate”. For a vessel of “Double Venus's” length, the Monthly Berthing Rate is £15.36 per day.
“ Santorini”
“Santorini” (also called “Karma”) was acquired by Ms Rainbow-Love from its previous owner, Mr Philip Maxwell-Stuart. Mr Maxwell-Stuart informed the claimant of the sale by an email dated 5 February 2020. The boat was already the subject of a berthing agreement with a start date of 1 September 2019 and an end date of 31 August 2020. The agreed monthly payment was £322.47 and the “total premium” was £3,869.04. When Ms Rainbow-Love acquired the vessel, she was well aware of the claimant's standard terms for berthing, she did not remove the boat and she and must be taken to have agreed to those standard terms. As at 2 April 2020, she was £644.94 in arrears. The figure has since risen to £2,391.03 comprising the original amount plus the balance of the monthly payments to 1 September (£1,612.35) and a further £133.74 to date of trial, calculated at the “Monthly Berthing Rate”, which, for a vessel of “Santorini's” length, is £14.86 per day.
The procedural history
In respect of “Double-Venus”, the claimant elected first to proceed by way of an in personam claim against Ms Rainbow-Love in the county court. The judgment that was entered against her proved difficult to enforce and those proceedings have effectively been abandoned. Proceedings in rem were issued against “Double Venus” on 19 February 2020 and against “Santorini” on 5 March 2020. The vessels were arrested on 6 and 5 March 2020 respectively. No acknowledgements of service were received within the 14 days permitted by CPR rule 61.3(4) and on 23 March 2020 the claimant applied for judgment in default pursuant to CPR rule 61.9. Those applications came before me on 28 April 2020. In the meantime, on 8 April 2020, Ms Rainbow-Love, acting in person, filed acknowledgements of service stating an intention to defend the claims. On 21 April 2020, though no particulars of claim had been served upon her (and were not due), she filed a document described as a defence and counterclaim in respect of both claims; (see further below).
Ms Rainbow-Love did not attend the hearing, which was conducted remotely. (I mention that considerable efforts were made by the court staff to enable her to attend. But her stated position was that she was “temporarily isolated in a remote place” and that she had “not been able to supply a suitable telephone number”.) Notwithstanding her non-attendance, her late-filed documents presented me with a dilemma.
CPR rule 61.9(1) is in these terms:
61.9(1) In a claim in rem other than a collision claim the claimant may obtain judgment in default of –
(a) an acknowledgement of service only if –
(i) the defendant has not filed an acknowledgement of service; and
(ii) the time for doing so set out in rule 61.3(4) has expired; and
(b) a defence only if –
(i) a defence has not been filed; and
(ii) the relevant time limit for doing so has expired.
This wording is in substantially the same form as CPR rule 12.3(1). But, as from 6 April 2020, that rule (but not rule 61.9(1)) was amended to include a qualifying condition which was that in order for judgment to be given it was necessary that no acknowledgement of service had been filed “at the date on which judgment is entered”. This amendment had been introduced by the Civil Procedure Rules Committee in order to resolve a longstanding debate as to the proper construction and application of the rule if an acknowledgement of service was filed after the time permitted by the rules but before judgment was entered. This had been the subject of conflicting judgments.
I took the view that I should follow the decision of Andrew Baker J in Cunico Resources NV v Daskalakis [2019] EWHC 3382 (Comm) (in turn followed by Master McCloud in Clements Smith v Berrymans Lace Mawer Service Co. & Anor [2019] EWHC 1904 (QB)), which held that the court should only enter judgment in default where, at the time of judgment, there was no acknowledgement of service and the time for acknowledging service had expired. In coming to that conclusion, I was influenced by the fact that the failure to amend rule 61.9(1) at the same time as rule 12.3(1) was simply an oversight. It is true that there is a difference between practice in the Admiralty Court and the Queen's Bench Division in that, in the Admiralty Court, default judgment cannot be entered administratively but requires an application notice and a hearing at which the claimant must file evidence “proving the claim to the satisfaction of the court”. However, that difference in procedure did not (and does not) appear to me to be a good reason to have a different approach regarding the effect of a late-filed acknowledgement of service or defence.
For these reasons, I refused the applications for judgment in default and gave directions for the further conduct of the claim including provision for the filing and service of Particulars of Claim and Defences.
Particulars of Claim were filed and served on 13 May 2020. On 22 May 2020, Ms Rainbow-Love filed and served (by email) what purported to be a counterclaim. This was for “sabotaging sale of vessels, preventing sale of vessels, preventing removal of vessels from Marina”. This document had to be considered together with the defence and counterclaim she had filed on 21 April. This put in issue the amount owing and raised a number of what I might call “service complaints” and other matters. I will not recite the full content of the document. This appears sufficiently from the findings that I have made and which are set out in...
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