Republic of India and Another v India Steamship Company Ltd (Indian Endurance and Indian Grace)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Templeman,Lord Goff of Chieveley,Lord Jauncey of Tullichettle,Lord Mustill,Lord Slynn of Hadley |
| Judgment Date | 18 February 1993 |
| Judgment citation (vLex) | [1993] UKHL J0218-1 |
| Date | 18 February 1993 |
| Court | House of Lords |
[1993] UKHL J0218-1
Lord Templeman
Lord Goff of Chieveley
Lord Jauncey of Tullichettle
Lord Mustill
Lord Slynn of Hadley
House of Lords
My Lords,
For the reasons given by my noble and learned friend Lord Goff of Chieveley I would allow this appeal.
My Lords,
There is before your Lordships' House an appeal by the appellants, the Republic of India and the Government of India (Ministry of Defence), against the dismissal by the Court of Appeal of an appeal from a decision by Sheen J. ordering that the appellants' claim against the respondents, the India Steamship Company Limited (the owners of the vessel "Indian Endurance") be struck out.
The following account of the facts of the case is largely taken from the agreed statement of facts helpfully prepared by the parties' counsel. The appellants claim to be entitled to sue for damage suffered by a consignment of munitions carried on board the respondents' vessel ("Indian Grace") on a voyage from Uddevala in Sweden to Cochin in India between 26 June and 4 September 1987. The munitions were loaded in no. 3 hold, above wood pulp destined for other consignees. On 1 July, a fire was discovered in no. 3 hold; this was extinguished with water. The vessel put in to Cherbourg for survey, and to repack and restow the cargo in no. 3 hold. At about this time a small number of artillery shells, probably 51, were jettisoned as damaged. In addition, compression damage to some of the boxes of munitions was noted. This was caused by the swelling of the wood pulp in the hold after it had been flooded with water.
The vessel resumed her voyage to India on 6 August 1987, arriving at Cochin in early September, and the cargo was cleared by 4 September. The appellants contend that they have not only lost the shells jettisoned and those damaged by crushing in the hold, but that they have also lost the value of the remaining munitions because of the effect of radiant heat upon them. It is accordingly contended that the cargo was a total loss. The claim amounts to just over Sw.Kr. 27,000,000 — the equivalent of £2.6m. at the time of the appeal before this House.
The damage became the subject of correspondence (the record of which appears to be incomplete at present). On 9 December 1987 the Ministry of Defence in New Delhi wrote to the respondents making a claim for the total loss of the cargo in the sum of Rs. 136m. — the sterling equivalent is £2.6m. The respondents replied on 2 January 1988 asking, in effect, for further particulars of the loss. It appears that on 3 February 1988 a notice of claim in the sum of Rs. 189,508 — the equivalent of £6,000 — was lodged with the vessel's agents by the appellants "as per directions from Army headquarters". At all events, correspondence between the Ministry of Defence in New Delhi and the defendants resumed on 5 July 1988, when the Ministry of Defence repeated its demand for payment of the full claim for Rs. 136m. This was followed on 21 July 1988 by a request for an extension of the Hague Rules time limit (due to expire on 31 August 1988) and notice that the appellants' underwriters, Oriental Insurance Company Limited, were authorised to pursue the claim. Thereafter, there were telex exchanges between W.E. Cox (Recoveries) Limited, who were instructed to handle the claim for recovery of the loss, and the respondents, in which agreement was reached to extend time for commencement of proceedings for one year with effect from 1 September 1988. It was also agreed that English law and jurisdiction should apply. These agreements were concluded in early August 1988.
On 1 September 1988, the Union of India as plaintiff represented by the "Madras Commandant" issued a plaint in the Subordinate Judge's Court in Cochin, India, seeking damages for the 51 shells which were not delivered. By paragraph 4 of the plaint the plaintiff purported to confine the suit to a claim for Rs. 189,508.67 in respect of the 51 shells only. No application was made to amend the pleadings to bring forward a larger claim. This suit came on for final hearing on 7 December 1989, and judgment was given on 16 December 1989 by the Principal Sub-Judge in the Subordinate Judge's Court, Cochin. The plaintiff was awarded the full amount of its claim against the respondents. The respondents have appealed against this judgment, and the appeal is still pending in India.
On 25 August 1989 (i.e. before judgment was given in the action in Cochin), the writ in rem in the present action was issued. It was served on 4 May 1990 upon the "Indian Endurance" at Tees Dock, Middlesborough. Exchanges then ensued between the appellants' solicitors, Clyde & Co., the respondents' P&I Club, Steamship Mutual Underwriting Association Limited, and the respondents' solicitors, Ince & Co. On 8 May, these resulted in a (repeated) agreement to the application of English law and jurisdiction, and in the provision of a letter of undertaking by Steamship Mutual to pay the claim (if proved).
The statement of claim was served on 25 May 1990. In its original form, it makes claim for the total loss of the munitions cargo, including the 51 shells and 10 charges which had been the subject of the action in Cochin. The defence was served on 16 August 1990 and, in its original form, it pleaded issue estoppel as a defence to the claim, upon the ground that the appellants were capable of bringing the whole claim in Cochin but decided not to do so. The respondents issued a summons on 16 August 1990 seeking to strike out the appellants' claim upon the grounds that it was frivolous, vexatious or abusive, pursuant to R.S.C., Ord. 18, r. 19.
At the hearing of this summons before Sheen J. the respondents amended their defence (and therefore the grounds for their application by the summons) to allege that the appellants' claim was barred by res judicata and to rely upon section 34 of the Civil Jurisdiction and Judgments Act 1982. By order dated 12 December 1990, Sheen J. acceded to the respondents' application, and struck out the appellants' claim on that ground. The appellants' appeal to the Court of Appeal against this order was dismissed.
There is no doubt that the effect, in financial terms, of the decision of the courts below is most striking. The successful claim of the appellants in Cochin in respect of part of the consignment yielded only £6,000. The remainder of their claim, pursued in the English courts, is for over £2.5m. Yet the effect of invocation by the respondents of the principle of res judicata, as embodied in section 34 of the Act of 1982 is, if the courts below are correct, to exclude any adjudication on the merits of this very substantial claim in the courts of this country. This result was regarded with dismay by Sheen J., who reached his decision only because he felt that he was compelled to do so on the basis of section 34. Similar sentiments were expressed by Glidewell L.J. in the Court of Appeal [1992] 1 Lloyd's Rep. 124, 133, but he, together with Leggatt L.J. (who delivered the principal judgment) and McCowan L.J., reached the same conclusion. Indeed, it has to be recognised that consequences of this kind may result from the application of the principle, which is founded upon the public interest in finality of litigation rather than the achievement of justice as between the individual litigants. What is startling about the present case is the extreme disparity between the very small size of the appellants' recovery in the courts of Cochin and the very large size of their claim in the English courts which has been held to be excluded by reason of the judgment obtained by them in Cochin.
Apart from one argument not raised in the courts below which the appellants sought to raise before your Lordships (to which I will refer later), the appellants challenged the correctness of the decision below on three grounds. First, they submitted that there was no identity between the cause of action which was the subject matter of the Cochin judgment, and that which is the subject matter of the proceedings in this country. Second, they submitted that the issue in the present case fell to be decided not under section 34, but on the principle of issue estoppel; and that on that basis it was not appropriate to strike out the appellants' claim at the present stage, since there were matters which required examination before any conclusion could be reached on that issue. Third, in any event, the appellants had raised the issue that the respondents' plea of res judicata was not open to them, since arguably they had waived their right to rely upon it or were estopped from doing so, and the resolution of this issue too depended upon a full investigation of the relevant facts.
Central to the consideration of these issues is the impact of section 34 of the 1982 Act, upon which Sheen J. and the Court of Appeal based their conclusion that the appellants' claim should be struck out. Indeed Sheen J. expressed the view that, if section 34 did not apply, and the case was to be decided upon the basis of the common law principle of issue estoppel, further investigation of the facts would be necessary. I propose therefore to turn first to consider the legislative purpose underlying section 34, and the effect of the section in the light of that legislative purpose; and in order to carry out that task it will, in my opinion, be necessary to set the section against the background of the common law principle of res judicata.
In Thoday v. Thoday [1964] P. 181, 197–198, Diplock L.J. (as he then was) explained that estoppel per rem judicatam is a generic term which in modern law includes two species. He continued:
"The first species, which I will call 'cause of...
To continue reading
Request your trial
-
GH Ltd v Bould
...v. HendersonENR(1843), 3 Hare 100; 67 E.R. 313; [1843–60] All E.R. Rep. 378, considered. (6) India (Republic) v. India S.S. Co. Ltd., [1993] A.C. 410; [1993] 1 All E.R. 998, distinguished. (7) Kendall v. HamiltonELR(1879), 4 App. Cas. 504; [1874–80] All E.R. Rep. 932. (8) King v. HoareENR(1......
-
Limerick Vocational Educational Committee v Carr
...UNREP CARROLL 18.5.1983 1983/7/2057 LITTONDALE LTD V WICKLOW CO COUNCIL 1996 2 ILRM 519 REPUBLIC OF INDIA V INDIA STEAMSHIP COMPANY LTD 1993 AC 410 SHOWLAG V MANSOUR (PC) 1995 1 AC 431 SPENCER THE DOCTRINE OF RES JUDICATA 2ED 1969 MCDERMOTT RES JUDICATA & DOUBLE JEOPARDY 163 TAXES CONSOLI......
-
Bank ST Petersburg and Another (Applicants/Claimants) v Vitaly Arkhangelsky and Another (Respondents/Defendants)
...(2) those proceedings abroad duplicate the English claim and are contrary to the principle of res judicata: see Republic of India v India Steamship Co. Ltd [1993] AC 410; (3) the need and power to prevent oppressive multiplicity of foreign proceedings is fundamental to the Court's jurisdict......
-
The Indian Endurance (No 2); Republic of India and Another v India Steamship Company Ltd
...mischief which the section was intended to remedy was explained by Lord Goff of Chieveley in earlier proceedings in the present action, (1993) A.C. 410 at p. 417: The distinction between cause of action estoppel and issue estoppel on the one hand, and the principle of merger in judgment on......
-
Contractual Clauses To Include To Manage A Dispute Before One Actually Arises
...raised again in the English High Court. In the Republic of India -v- India Steamship Co. Ltd. (The Indian Grace) (No 1) [1993] AC 410[1993] 2WLR 461, it was held that a previous judgement in an Indian court created cause of action estoppels even though the claimant sought a different relief......
-
Contractual Clauses To Include To Manage A Dispute Before One Actually Arises
...raised again in the English High Court. In the Republic of India -v- India Steamship Co. Ltd. (The Indian Grace) (No 1) [1993] AC 410[1993] 2WLR 461, it was held that a previous judgement in an Indian court created cause of action estoppels even though the claimant sought a different relief......
-
Appeals - When You Can And When You Can't Have Another Bite Of The Cherry
...raising the same issue again in the English High Court. In The Republic of India -v- India Steamship Co. Ltd. (The Indian Grace) (No 1) [1993] AC 410, [1993]2 WLR 461, it was held that a previous judgement in an Indian court created cause of action estoppel even though the claimant sought a......
-
Appeals - When You Can And When You Can't Have Another Bite Of The Cherry
...raising the same issue again in the English High Court. In The Republic of India -v- India Steamship Co. Ltd. (The Indian Grace) (No 1) [1993] AC 410, [1993]2 WLR 461, it was held that a previous judgement in an Indian court created cause of action estoppel even though the claimant sought a......
-
Litigation
...has been described as “draconian”: Purser & Co (Hillingdon) Ltd v Jackson [1976] 3 WLR 700 at 707, per Forbes J. See also he Indian Grace [1993] AC 410. 2300 LITIGATION 26.328 Accordingly, where a contractor has failed to carry out its works in a good and workmanlike manner, there will not ......
-
PROBLEMS IN THE RECOGNITION AND ENFORCEMENT OF US CLASS ACTION JUDGMENTS IN SINGAPORE
...Spencer Bower and Handley: Res Judicata (LexisNexis, 4th Ed, 2009) at para 19.01. 40 Republic of India v India Steamship Co Ltd [1993] 1 Lloyd's Rep 387 at 417–418. 41 Malaysia Credit Finance Bhd v Chen Huat Lai [1991] 2 SLR(R) 300 at [17]. 42 Malaysia Credit Finance Bhd v Chen Huat Lai [19......
-
DAMAGES FOR BREACH OF JURISDICTION CLAUSES
...the foreign court, cannot be recovered as damages in separate proceedings in England.” 42 See Republic of India v India Steamship Co Ltd[1993] AC 410 at 423 to 424. In England, the doctrine of merger in judgment does not apply to foreign judgments. It was also held by the House of Lords in ......