Robinson v Alnwick (Owners); The Alnwick
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE WINN |
| Judgment Date | 04 March 1965 |
| Judgment citation (vLex) | [1965] EWCA Civ J0304-3 |
| Court | Court of Appeal |
| Date | 04 March 1965 |
| Docket Number | Folio 285 1963 R. No. 3154 |
[1965] EWCA Civ J0304-3
In The Supreme Court of Judicature
Court of Appeal
(From: Mr. Justice Hewson — Middlesex)
Lord Justice Sellers
Lord Justice Willmer and
Lord Justice Winn
Mr. G. R. A. DARLING (instructed by Messrs. Holman Penwick & Willan, Agents for Messrs. Grunhut, Makepeace & Duffy, South Shields) appeared on behalf of the Appellant (Plaintiffj Respondent to Motion).
Mr. R. P. STONE (instructed by Messrs. Sinclair Roche & Temperley, Agents for Messrs. Botterell Roche & Temperley, Newcastle-upon-Tyne) appeared on behalf of the Respondents (Second Defendants; Applicants on Motion).
On the 28th April, 1962, the plaintiff's husband, a crane driver, was crossing the Tyne as a passenger in a foy-boat (that is a mooring vessel) when he lost his life by reason of a collision between that boat and a tug called the "Alnwick". Apparently the foy-boat was passing between the sterns of the "Alnwick" and a Norwegian packet vessel called the "Braemar". Following that, somewhere about July, 1962, the plaintiff consulted solicitors with a view to a claim for compensation under the Fatal Accidents Acts and the Law Reform Act. Having regard to the way this matter developed it is necessary I think to look at some of the dates of the various proceedings which brought about this claim and which indeed brought about this present litigation which is on appeal before us.
Unfortunately we have no very detailed knowledge of the early events because no evidence was adduced at the hearing before the learned judge about them although application was made for an adjournment to bring such evidence. But it would appear from what we do know that Legal Aid was sought after the solicitors had been consulted and that there was a certificate given for an Opinion of Counsel. That was obtained, and thereafter there was leave to proceed in the action. The action which the widow brought on advice was against the tug "Alnwick" alone. It might well have been that she could have sued not only the tug but also the owners of the foy-boat in which her husband was being transported and, if it had been thought relevant, also the "Braemar", which was the packet boat to which I have referred. If that had been done it might be said that the plaintiff could hardly fail: all the probabilities were that she would have succeeded against one or the other. But I would take the view that it was not unreasonable in the first place to proceed against the ship which it was thought was the more likely to be held to blame. It was a saving in expense because it would have saved a much bigger trial and a correspondinglybigger burden on the Legal Aid Fund. That was the course pursued. But there was long delay, which I agree has not been fully explained but is partly accounted for by what seem to be the frequent delays in obtaining Legal Aid. The writ was issued on the 3rd December, 1963, claiming redress against the "Alnwick", the tug which had actually come into collision with the foy-boat. The proceedings were in rem and in negligence against the tug.
Following that, the plaintiff filed a Preliminary Act by the end of December; and on the 14th February the "Alnwick" filed her Preliminary Act, which is not without significance. By the 20th February, 1964, the plaintiff's Statement of Claim had been delivered. That involved in the ordinary routine that the Defence of the "Alnwick" should have been produced on the 6th March, 1964. It cannot I think be said that there were difficulties having regard to the fact that the defendants' Preliminary Act had already been prepared and delivered but no doubt because of matters which did not seem of much moment at the time it was not delivered until a later date, and after the material date.
I think it is right to say that as far as the plaintiff was concerned, in the early part there was no obvious reason to hurry the action. It did not appear to be urgent, although the mischance which arose later on makes it appear to have been undesirable that that course had been taken. But delay in issuing a writ often has its advantages and is not to be too much discouraged. It gives room for thought and opportunity to compromise. As I say, we do not know precisely what steps were taken in that period and why the delay was quite as long as it was. But from the 6th March, when the Defence of the "Alnwick" became due, there were letters passing between the solicitors for the two parties, the plaintiff's solicitors seeking to hurry the "Alnwick" and get delivery of their overdue Defence. The learned judge found that they took reasonable steps to bring that about. The Defence was not delivered until the 2nd May. That was afterwhat has turned out to be a very material date. Two years had elapsed from the 28th April, 1962, by the 28th April, 1964. So it was a few days after that date that this Defence was delivered; and in the Defence the "Alnwick" made allegations of negligence against and placed blame upon the "Braemar" for the casualty which had given rise to the plaintiff's claim.
That was the position which confronted the plaintiff and her advisers. By July (I think by the 8th) leave had been given and the plaintiff had added the "Braemar" as second defendants to the claim, which would appear to be the prudent thing to do. By a letter about mid-July the plaintiff's solicitors wrote to the "Braemar's" representatives saying that they were going to take action. They amended their writ and delivered the Amended Writ on the 19th August, 1964. It was served upon the second defendants, who entered an unconditional appearance and proceeded for some little time in the conduct of the case, a summons being taken out to press them to deliver a Preliminary Act.
So the matter proceeded until the 7th December, 1964, when & motion was taken out which is the subject-matter of this appeal. It was heard only a week later than its date. The motion, which came before Mr. Justice Hewson, was to seek an order and a remedy on the basis that the action against the "Braemar" was not maintainable as proceedings had not commenced against the second defendants in two years as required by section 8 of the Maritime Conventions Act, 1911. The learned judge made an order staying the action against the second defendants. I might say in passing that I think it would have been more appropriate to strike it out, since it would be a final order. It is from that decision that the plaintiff has appealed to this court.
In the judgment below the learned judge sets out the full terms of section 8, on which the "Braemar" relied. It cannot I think be doubted that section 8 applies where actions are brought against a vessel to enforce any claim or lien in respect of the matters stated in that section, including, as it does, "loss oflife". This was so held by Mr. Justice Bargrave Deane in 1912 in the case of The Caliph. In my opinion that decision was correct and it has stood virtually unchallenged. At that time the section enlarged the period of time for commencing a claim in respect of loss of life from one year (as it then was under the Fatal Accidents Acts) to two years. But at the same time it reduced the period for claiming damages for personal injuries, in the circumstances with which it deals, from six years to two years. Under the Limitation Act of 1954 the period of limitation for claims for both loss of life and personal injuries has been fixed at three years.
In the ten years since 1954 The Caliph decision has stood still unchallenged until now. It has been submitted that the three-year period of che 1954 Limitation Act should now apply. But in my view that alteration in the general law cannot alter the construction of section 8, however much more favourable it would be to a claimant. The argument advanced before Mr. Justice Bargrave Deane was renewed here, as it was before Mr. Justice Hewson. The argument is fully set out, as it is reported in the Probate Reports, in the judgment of the learned judge. It was mainly based on the omission of the words "damages for loss of life" in the clause reading "unless proceedings therein are commenced within two years from the date when the damage or loss or injury was caused". In my view the words "damage or loss or injury" are sufficient and apt words to cover damages for loss of life and personal injury, previously mentioned. If they do not include those words then the section would stipulate, as I would read it, that no action should be maintainable to enforce any claim in respect of damages for loss of life or personal injury, without any qualification at all, which is an untenable construction. Reference may be made also to sections 8 and 5 of the same Act in further support of the construction put upon section 8 in this case.
The limitation, therefore, for enforcing this claim for loss of life against the "Braemar" was two years under that section.
But, unlike the Limitation Acts, until that of 1963, the period is not rigidly fixed; it is qualified in two ways. The first is discretionary and the second compulsory. The compulsory qualification cannot be invoked here on the evidence put in by affidavit, which shows that the "Braemar" had been available for arrest during the two years following the loss of the plaintiff's husband. The plaintiff relies on the first part of the proviso, which is as follows: "Provided that any court having jurisdiction to deal with an action to which this section relates may, in accordance with the rules of court, extend any such period, to such extent and on such conditions as it thinks fit". Those are wide words, "to such expert and on...
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