Tyne Improvement Commissioners v Armement Anversois S/A (The Brabo)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Porter,Lord Simonds,Lord du Parcq,Lord Normand,Lord MacDermott |
| Judgment Date | 19 January 1949 |
| Judgment citation (vLex) | [1949] UKHL J0119-2 |
| Date | 19 January 1949 |
| Court | House of Lords |
[1949] UKHL J0119-2
Lord Porter
Lord Simonds
Lord du Parcq
Lord Normand
Lord MacDermott
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Tyne Improvement Commissioners against Armement Anversois Société Anonyme, that the Committee had heard Counsel as well on Wednesday the 3d, as on Thursday the 4th and Monday the 8th, days of November last, upon the Petition and Appeal of The Tyne Improvement Commissioners, of Bewick Street, Newcastle-upon-Tyne, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 16th of July 1947, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Armement Anversois Société Anonyme, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal of the 16th day of July 1947, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
This is an appeal from a judgment of the Court of Appeal which reversed a judgment of Pilcher J. who had given leave to the Appellants under Order XI, Rule 1 ( g) of the Rules of the Supreme Court, to issue a concurrent writ for service out of the jurisdiction upon the Respondents as necessary and proper parties to an action properly brought against the Minister of Supply in this country and the British Iron and Steel Corporation Ltd., which is an English company and is hereafter referred to as the company.
The Court of Appeal withdrew that leave but granted leave to the Appellants to appeal to your Lordships' House.
The argument upon which the Appellants claimed that leave should be granted turns upon the true application of Order XI, R. 1 ( g), to the facts of this case.
That rule is contained in the following terms:
"Service out of the jurisdiction of a writ of summons or notice of a writ of summons may be allowed by the Court or a Judge whenever … any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within the jurisdiction."
The questions for your Lordships are:
(1) Whether the action was properly brought against the other two Defendants and
(2) Whether the Respondents are necessary or proper parties to an action brought against either of the two other Defendants.
These questions arise in the following circumstances:
(1) The Appellants are the Conservancy Authority for the River Tyne and the port of Newcastle-upon-Tyne and the Respondents were in March, 1942, owners of the Belgian ship "Brabo."
(2) On the 14th March that ship was in collision off the entry to the Tyne and in respect to that collision its owners were held 70 per cent. to blame.
(3) After the collision she was towed into the River Tyne, but sank and became an obstruction.
She was loaded with a cargo of wood pulp and steel billets and slabs consigned to the Minister of Supply and to the British Iron and Steel Corporation Ltd., and as she constituted an obstruction in the Appellants' undertaking they took steps under their statutory powers to salve such portions of the wreck and cargo as were salvable and to disperse the rest. It is difficult to compute what the cost of dispersion may amount to but it is already a very large sum and may ultimately reach a figure of £250,000.
I need not state the exact nature of the proceedings taken below which led up to the judgment of the Court of Appeal. No complaint is made of them but only of the result arrived at in the present decision.
It is enough to say that on the 20th March, 1946, the Appellants issued a writ against the Respondents, the Minister and the Corporation claiming against each judgment for the charges incurred and to be incurred in raising and removing the "Brabo" and the cargo. After failing in an attempt to serve these Respondents personally, the Appellants obtained leave ex parte to serve a concurrent writ out of the jurisdiction and have now had that leave withdrawn.
The facts so far as they are known are to be found in an affidavit by Mr. Fenwick, the solicitor to the Respondents, and so far as they are relevant to the present appeal are contained in paragraphs 7 and 8 of that document and read as follows:
"7. In so far as the second named Defendant is concerned I submit that the writ and the said Affidavit disclose no good cause of action in that the Minister of Supply was dealing with the said cargo on behalf of the Crown under his powers conferred by the Ministry of Supply Act, 1939, and that the Minister of Supply was not at any material time owner of the said or any part of the said cargo. Alternatively I submit that any remedy which the Plaintiffs may have must be by way of Petition of Right.
8. In so far as the third named Defendants are concerned I am informed and verily believe that the Bill of Lading for the part cargo of steel on board this vessel at the material time shows the British Purchasing Commission as the Shippers and the said third named Defendants as the Consignees and that the said third named Defendants were merely the Agents of the Ministry of Supply and were at no material time the Owners of such cargo, and that accordingly the Plaintiffs have no good cause of action against the third named Defendants."
This affidavit is, it is true, technically defective in that it does not state the sources of information relied upon and it is in very condensed form, but no objection was taken on either ground at the original hearing and therefore in my view full effect must be given to its contents.
In these circumstances it is said on behalf of the Respondents that they are not necessary or proper parties to an action properly brought in England because the action against the two parties domiciled in England must fail: it is therefore not properly brought against those two parties within the meaning of the rule.
For the Appellants it is urged that no facts are established such as to show that the action must fail and in any case an action may be properly brought though its success is uncertain, whether that uncertainty is due to a doubt as to the law or to the facts in dispute. Indeed they go further and maintain that if the claim was brought bona fide, that is enough; and its chances of success or failure are irrelevant. As a further contention they submitted that if the possibility of success or failure was material at all it was not the objective possibility which had to be determined. The chances, they asserted, must be judged solely from a consideration of the Plaintiffs' knowledge of the facts at the date of the issue of the summons to serve the concurrent writ and not at some later date such as the date of Mr. Fenwick's affidavit or the hearing of the summons.
My Lords, the earlier contentions raise questions of some difficulty which will have to be considered later, but I cannot accept the last two suggestions.
If the bona fides of the applicant were the only test then the less competent the advice he received and the less his capacity of judging accurately for himself, the greater would be his opportunity of obtaining leave to serve a writ out of the jurisdiction, and if his knowledge at the date of the issue of a summons for leave is the vital question, then the greater his ignorance, the better his chances of success.
Both these considerations in my view point to the fact that neither bona fides nor personal knowledge are the true criteria. Some chance of success at least seems to be necessary and a knowledge of the true facts so far as ascertainable must, I think, be required: the tribunal should not be confined to a consideration of the facts as known to one party only, whether at the date of the issue of the summons or at the time when it was heard. The criterion must be objective, not subjective.
But this view still leaves open the difficult question, what cases can be said to be properly brought within the jurisdiction? Is it enough that there is a reasonable doubt either in law or in fact as to what the result of the case against the Defendants within the jurisdiction may be, or must the Court decide on the hearing of the summons whether the Plaintiffs will succeed against them or not?
My Lords, where all the facts necessary for a decision are set out by one side or the other and not contradicted, I think that the tribunal must make up its mind on the hearing of the summons, at any rate where the law is plain.
Primarily the jurisdiction of the Courts in this country is territorial in the sense that the contract or tort sued upon must have some connection with this country or the Defendant must be served here. To this principle Order XI, Rule 1 ( g) is an exception and enables foreigners domiciled abroad to be impleaded in this country provided an action is properly brought against someone duly served within the jurisdiction and the party outside the jurisdiction is a necessary or proper party to that action. The rule is not only an exception to but also an enlargement of...
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