Fukuyo Industries Corporation, Okura and Co G M B H, Feinstahl Ag, Schweiz Lokomotivund Maschinenfabrik, Huettenprodukte a. G. Metallwerke a. G., v. The Owners of the Ship or Vessel "Griesheim" (West German Flag) Now Renamed "Vivacity" and Others

CACV000070A/1983

[Extension of time where delay due to error of solicitor.]

BETWEEN:

Coram: Roberts, C. J. & Kempster, J.

Date: 23rd November, 1983.

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JUDGMENT

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Roberts, C. J. -

1. On 4th May, this year, Power, J. dismissed the first defendant's motion for an order that the main action " should be stayed. The judgment was perfected on 27th May and on 30th May a notice of appeal was duly entered within time and in accordance with the requirements of 0.59 r.4 of the Rules of the Supreme Court.

2. There, unfortunately, the matter rested and the defendant, who has been the appellant before us, failed to comply with the requirements of 0.59 r.5 which obliges an appellant, within 7 days' after service of the notice of appeal, which in this instance was served on the same day as it was entered, i.e. 30th May, to formally set down the appeal.

3. On 7th October, the solicitor for the appellant got in touch with the solicitor for the plaintiff respondent, in order to inform him that the appellant intended to pursue the appeal.

4. The respondent's solicitors, on the same day, sent to the appellant's solicitors a telex in which they pointed out that the requirements of 0.59 r.5 had not been complied with.

5. In consequence of this, the appellant's solicitors, on 17th October, applied for an extension of time in which to set down the appeal.

6. On the same day the respondent's solicitors gave notice of a motion to apply for the discharge of the notice of appeal which had been entered by the appellant on 30th May. By agreement with the parties, the Registrar ordered that the motion, which had been set down for hearing before him on 14th November, should be adjourned and be dealt with by this Court at the same time as the appellant's application.

7. The explanation for the delay in setting down the appeal, which can be said to have lasted from 7th June, the last date on which it should properly have been set down, until 17th October, when the application for an extension of time was made, is dealt with in an affidavit sworn by Mr. Peter Biggs, a partner in the appellant's firm of solicitors.

8. I hope that I am not unfairly summarizing his explanation of what occurred if I say that he admits honestly that the failure to set down the appeal within the proper time was entirely his fault, due to a misreading of the Rules of the Supreme Court which apply. He says that having served the notice of appeal within the time limited, he believed that the position of the appellant had been preserved. He therefore took the view that there was no urgency in pursuing the appeal; and that all that remained for him to do, in due course on behalf of the appellant, was to apply for dates for hearing.

9. In telexes, which were exchanged between him and the London branch of his firm during the month of July, the phrase "setting down" appears. Mr. Biggs explains that he meant this to be a reference to the process by which a date for hearing was fixed. He adds that in his view, the slowness with which his clients reacted to the questions put to them, and the time taken to secure from them firm instructions to proceed with the appeal, were a consequence of the relaxed manner in which he himself had approached these matters, based on his belief that his clients' position was safeguarded by his entry of a notice of appeal.

10. The general principles which govern failure to observe the time limits imposed by various rules of the Supreme Court were referred to by Sir Alan Huggins, V. P., giving the judgment of this Court in the recent, but unreported, case of Chan Mo Ching⁽¹⁾ -

"In my view it is important that the time limits imposed by statute or by rules of court should be observed and we should not lightly grant extensions of time even where it can be said-and I do not say that it can be said in the present case - that no injustice would result from an extension. I take the view that the delays have not been sufficiently explained and for this reason, without, going into the merits, I think that the application should be dismissed."

11. We were also referred to Gatti v. Shoosmith⁽²⁾, in which an omission to appeal in due time was found to have been due to a mistake on the part of a legal adviser. The English Court of Appeal held that there was nothing in the nature of such a mistake as to exclude it from being a proper ground for allowing the appeal to be effective although out of time, but whether the matter should be so treated has to depend on the facts of each case.

12. Sir Wilfrid Greene, M.R., commented -

"The discretion of the court be being, as I conceive it, a perfectly free one, the only question whether, upon the facts of this case, that discretion should be exercised. If ever there was a case in which it should be exercised, I should have thought it was this one. We are not, I think, concerned here with any question at all as to the merits of this case or the probability of successor otherwise. The reason for the appellant's failure to institute his appeal in due time, was a mere misunderstanding, deposed to on affidavit by the managing clerk of the appellant's solicitors - a misunderstanding which, to anyone who was reading the rule without having the authorities in mind, might very well have arisen."

13. It is clear, therefore, on the authorities that whether or not an extension of time should be granted is a matter of discretion, but that it is a discretion which should not be lightly exercised. Nor should it be exercised if, on the evidence before the court asked to exercise such a discretion, it is suggested that substantial prejudice might be caused to the other party to the proceedings. No such suggestion of prejudice was advanced before us.

14. It is also established that the court will not exercise its discretion to extend time in matters of this kind unless there is an explanation put before it such as would justify it in exercising the discretion.

15. I have referred in some detail to the explanation which has been put forward on behalf of the appellant. I regard this as sufficient to persuade us that the discretion should be exercised in this instance and that, consequently, the application of the appellant for an extension of time. Within which to set down the appeal should be granted, such extension to run until to-day.

16. The motion of the respondent plaintiff to discharge the notice of appeal must consequently fail.

Kempster, J. -

17. I agree with the orders indicated by my Lord the Chief Justice and with his reasons, and only venture to mention the background to the application and motion before us.

18. On 1st May, 1978, a writ claiming some £350,000 sterling, together with interest, was issued in the Hong Kong Court; this sum being claimed by way of damages for the faulty carriage of a shipment of roll steel plates from Japan to Europe on the ship now called "VIVACITY" during March 1977. It is alleged that rust damage occurred, for which the shipowners together with the other defendants are responsible.

19. It was a hybrid writ and the plaintiffs elected to proceed in rem. It was extended or renewed some four times and service was not effected until June 1982 when the "VIVACITY" entered the jurisdiction by mooring in the harbour of Hong Kong.

20. The bill of lading issued by sub-charterers contained an exclusive jurisdiction clause, choosing the District Court of Tokyo as the forum for the trial of any dispute between the parties to that bill.

21. The owners, the first defendants, moved to stay the proceedings on the basis of this clause and the issue tried by Mr. Justice Power was whether or not the owner was a party to the bill of lading. He held that the owner was not a party and refused to stay.

22. We are in no position to comment on the merits as between the parties but if the appeal is pursued and succeeds, and if in consequence the parties are held bound by the bill of lading and consequentially by the exclusive jurisdiction clause, the first defendants will be able to plead in Japan the equivalent of our Limitation Ordinance.

23. Accordingly, the decision of the Court of Appeal in relation to this matter will probably be decisive as to the outcome of the dispute between the parties.

(1) [1983] No.856.

(2) [1939] 3 All E. R. 916.

Representation:

R Ribeir.  (Richards Butler) for 1st Defendant.

G. Ma (Clyde & Co.) for Plaintiff.