The Varna
| Jurisdiction | England & Wales |
| Judgment Date | 21 April 1993 |
| Date | 21 April 1993 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Justice Scott and Lord Justice Rose
Shipping - issue of warrant to arrest property - whether discretionary
The issue of a warrant for the arrest of property in an Admiralty action in rem was no longer a discretionary remedy, and the general duty of full and frank disclosure which lay on a party applying for a discretionary remedy therefore did not apply in respect of the affidavit required, by Order 75, rule 5(4) of the Rules of the Supreme Court, to be filed prior to the issue of the warrant.
The Court of Appeal so held, allowing an appeal by the plaintiff, Vao Exportkhleb, the owners and/or consignees of cargo lately laden on board the motor vessel Geo Milev, from an order of Mr Justice Curtis who, in the Admiralty Court of the Queen's Bench Division on April 14, had granted an application by the first defendant, Navigation Maritime Bulgare, the owners of the Geo Milev and her sister ship, the motor vessel Varna, to set aside the warrant for the arrest of the Varna issued by the plaintiff and to release her from arrest.
The judge had granted the application on the ground that the plaintiff had failed in its affidavit under Order 75, rule 5(4) to make full and frank disclosure of material background facts and of the existence of proceedings between the parties pending in Bulgaria.
Mr Richard Siberry QC and Mr Joe Smouha for the plaintiff; Mr Bernard Eder, QC, for the first defendant.
LORD JUSTICE SCOTT said that, before the judge, both parties had argued the application on the basis that, on the authority of Lord Justice Robert Goff's decision in The Andria now renamed VassoELR ([1984] QB 477), the issue of a warrant for the arrest of property in an Admiralty action was a discretionary remedy and that the plaintiff was therefore under an obligation to make full and frank disclosure of material facts.
When the appeal had been heard on April 15 the same mutual assumption had been made, and the court had indicated that the appeal would be dismissed for reasons to be given later and had discharged the stay which his Lordship had earlier imposed on the judge's order. The ship had since sailed.
On April 16 counsel for the plaintiff had written to his Lordship indicating that the Admiralty Marshal had drawn his attention to amendments to Order 75, rule 5 made in 1986, after the decision in The Vasso, of which neither the judge nor the Court of Appeal had been made aware. The...
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