The Queen (on the application of David Knight) v Secretary of State for Transport Edward Huzzey and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Teare |
| Judgment Date | 10 July 2017 |
| Neutral Citation | [2017] EWHC 1722 (Admin) |
| Docket Number | Case No: CO/4482/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 July 2017 |
[2017] EWHC 1722 (Admin)
Mr. Justice Teare
Case No: CO/4482/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jamas Hodivala (instructed by Clarke Kiernan LLP) for the Claimant
Robert Palmer (instructed by the Government Legal Department) for the Defendant
Hearing date: 20 June 2017
Approved Judgment
Introduction
This application for judicial review concerns a rare claim for salvage in respect of wreck (jetsam, flotsam, lagan and derelict).
The salvage claim concerns, in particular, 8 bronze cannon which are said to be worth between £96,000 and £1.2m. and are thought to be from an East India company vessel about 200 years old. The claim also concerns wreck from several other vessels, in particular, the Toward, the Latona and the Harlingen, said to be 96, 150 and 130 years old respectively. The recovered wreck from these vessels includes such items as tin ingots which are thought to be worth some £110,000 but also a mass of less valuable items (such as saucers, mugs, cups and chamber pots together with portholes and navigational lamps).
The salvor of such wreck is Mr. David Knight who has been diving on wrecks off the English coast for some 30 years. He has given evidence that it did not seem to him that there was any urgency in reporting recovered items to the Receiver of Wreck. That was unfortunate because section 236 of the MSA 1995 requires a person who finds or takes possession of wreck in United Kingdom waters (or finds or takes possession of wreck outside United Kingdom waters and brings it within those waters) to give notice to the Receiver that he has found or taken possession of it. He must then, as directed by the Receiver, hold it to the Receiver's order or deliver it to the Receiver. If a person fails to comply with his obligation under section 236 without reasonable excuse he is liable on summary conviction to a fine.
In April 2011 Mr. Knight gave notice of items which he had recovered between 2007 and March 2011; see the "droit" forms 35/11 – 48/11. Mr. Knight claimed salvage in respect of some of that wreck. The droit forms on which he purported to comply with section 236 stated that he wished "to claim salvage in respect of expenses incurred during the performance of these services" but in some cases he said he did not wish to claim salvage and in one case neither box was ticked.
In 2013 Mr. Knight was prosecuted for offences contrary to section 236 (and section 237 which requires cargo or other articles to be delivered to the Receiver) in respect of wreck taken from the Harlingen, three German submarines and the East India company vessel. It was alleged that the items in question had been taken into his possession in 2001, 2006 and 2007 but that he failed to give notice thereof to the Receiver without reasonable excuse.
In May 2014, on the second day of his trial, Mr. Knight pleaded guilty to certain of those offences and asked for 8 other offences to be taken into consideration. The District Judge described the scale of Mr. Knight's operation as "industrial" and said that his dive logs revealed "considerable skill and planning". He had also deployed "valuable and substantial lifting equipment". The District Judge fined Mr. Knight and his co-defendant, Mr. Huzzey, £7000 and £6500 respectively and ordered each to pay £25,000 in costs together with the victim surcharge of £120. Section 236 provides that on conviction a person shall forfeit any claim to salvage. There is no such provision in section 237. It is to be noted that the offence concerning the cannon from the East India company vessel to which he pleaded guilty was an offence contrary to section 237, not section 236.
On 21 November 2014 Mr. Knight and the Receiver met at the Dover Coastguard station. He suggested that he might be entitled to a salvage reward with regard in particular to the cannon and ingots. The Receiver replied that no salvage award would be paid and Mr. Knight said that he would consider his legal options.
On 4 December 2015 Mr. Knight emailed the Receiver stating that he would like to resolve the outstanding claims. On 21 December 2015 the Receiver said she would send a formal response shortly. On 26 February 2016 Mr. Knight sent a chasing email. On 29 February 2016 the Receiver said that her position had not changed. By letter dated 3 May 2016 Mr. Knight accepted that he was not entitled to a salvage reward in respect of the items included in the section 236 offences to which he had pleaded guilty. But he maintained his claim to salvage in respect of all other items and in particular the 8 bronze cannon and 56 ingots. He stated that he did not understand the legal basis for the Receiver's position.
The claim for judicial review
By letter dated 8 June 2016 the Receiver replied to the letter dated 3 May 2016 and referred to a subsequent letter regarding a proposed claim for Judicial Review. She referred to Article 18 of the 1989 Salvage Convention and said that in cases of salvor misconduct a salvor will be deprived of the whole or part of any payment due. She said that since "all of the items listed in your email formed part of the prosecution against you, it would be wholly inappropriate for any salvage award to be paid and would be contrary to public policy." She said that following the conclusion of the prosecution and sentencing in July 2014 the MCA (the Maritime and Coastguard Agency in which is to be found the Receiver of Wreck) considered the matter to be closed.
By letter dated 26 July 2016 Mr. Knight pointed out that it was only in respect of section 236 offences that the Act provided for the forfeiture of salvage claims. No such provision was made in respect of s.237 offences. Apart from the forfeiture provision in s.236 the only other basis for refusing a salvage reward was article 18 of the Convention which required fraud or other dishonest conduct during the salvage operations. There had been no such conduct and as a result the Receiver's conduct was unlawful. Further, the Receiver had failed to adopt a fair procedure. Mr. Knight had never been given an opportunity to respond to the suggestion that he had been guilty of fraud or other dishonest conduct. Finally, it was said that the Receiver, in saying that it was contrary to public policy to make a salvage reward in respect of items which formed part of the prosecution, was following a formulated but unpublished policy which was contrary not only to the Salvage Convention but also to Article 1 of the First Protocol of the European Convention on Human Rights.
By letter dated 12 August 2016 the Government Legal Department responded on behalf of the Secretary of State for Transport. It was noted that a salvage claim was sought in respect of the cannon and ingots which were the subject of a conviction under s. 237, not s.236. In response to the claim for salvage it was denied that the fraud or other dishonest conduct referred to in Article 18 had to be in the salvage operations. It was said that the Receiver had power to determine that there had been fraud or other dishonesty and that Mr. Knight had clearly acted in bad faith. Finally, it was said that Mr. Knight was out of time to bring Judicial Review proceedings. Such proceedings must be brought within 3 months after the grounds to make the claim first arose. The Receiver had communicated her decision in December 2014 and in February 2016. This last point has not been pursued.
Mr. Knight issued his claim for Judicial Review on 2 September 2016. In that claim he sought the quashing of the decision not to make a salvage reward, a declaration that he was entitled to salvage and an order that "damages" be assessed by the Admiralty Court. A detailed statement of facts and grounds accompanied the claim form. In a statement dated 30 August 2016 he denied that he had been guilty of any fraud or dishonesty.
The Secretary of State provided summary grounds of defence on 27 September 2016.
Permission to claim judicial review was granted by the court on 31 October 2016.
On 8 December 2016 the Secretary of State submitted detailed grounds of defence which, for the first time, alleged that Mr. Knight's claim for salvage was time-barred by reason of article 23(1) of the Salvage Convention which states that any action shall be time-barred "if judicial or arbitral proceedings have not been instituted within a period of two years. The limitation period commences on the day on which the salvage operations are terminated."
In response to this new defence Mr. Knight submitted a further statement dated 23 December 2016. He said that salvage operations on an old shipwreck on the sea-bed may take decades to complete. He provided information as to his salvage operations.
i) With regard to the cannon from the East India Company vessel the cannon were recovered and taken ashore in 2008. He said there are limited opportunities to dive on the wreck because it lies in deep water. He said that the salvage operations are still ongoing, that he has been endeavouring to find a bell and that in 2013 began a fully detailed survey of the site. Since 2010 he has required a licence to use an air-lift. He expects to be in a position to apply for a licence in late 2017. In September 2016 he recovered a brass barrel hoop. He submitted that the time limit in Article 23 has not yet started, let alone expired.
ii) With regard to the Toward he said that his operations will "continue indefinitely until I either sell that shipwreck or die".
iii) With regard to the Latona his salvage operations began in 2000...
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