The Almerinda
Read the full judgment text of HCAJ 222/1994 on BabelCite. This HCAJ judgment was delivered on 30 October 2000.
1. There are before the court cross applications in the following terms :-
Cites 1 case
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HCAJ000222/1994 HCAJ222/1994 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ADMIRALTY JURISDICTION NO.222 OF 1994 ---------------
--------------- Coram: Hon Stone J in Chambers Dates of Hearing: 7 and 8 September 2000 Date of Judgment: 30 October 2000 ________________________ J U D G M E N T ________________________ THE APPLICATIONS 1. There are before the court cross applications in the following terms :-
2. Neither of these applications, which arise in the context of what has become a procedurally confused case, can be understood without reference to the background facts. FACTUAL BACKGROUND 3. At bottom, the case does not appear to be unduly complex, certainly in terms of its broad shape. This is a cargo claim. This action was commenced on 18 June 1994, and relates to seawater damage allegedly sustained by part of a cargo of 14,658 metric tonnes of prime quality high tensile steel deformed bars shipped on board the defendants' Liberian vessel "ALMERINDA" at Vitoria, Brazil, for carriage to and delivery at Hong Kong in May 1993. At the time of the events in question the vessel was under time charter pursuant to a charterparty dated 3 May 1993 entered into between the defendants, Almerinda Shipping Corp. and one Compania Sud Americana de Vapores S.A. ("CSAV"). 4. After loading the steel bars in question in cargo holds 2, 4 and 6, the "ALMERINDA" left Brazil and made her way to Hong Kong via Durban and Butterworth, off Penang, and on both the Durban and Malaysian legs of the voyage the Master reported encountering rough weather. In any event, upon the vessel's arrival in Hong Kong on 16 July 1993 she commenced discharge from holds 2, 4 and 6, and upon outturn of the 5,353 bundles of steel bars, varying amounts of wet stain, rust and corrosion were found. Expert reports obtained by the plaintiffs tend to suggest that there had been ingress of sea water into the cargo holds through the corroded hatch covers, with water leakage marks indicated on the hatch coamings of each cargo hold, and that as a result the steel bars stored underneath were affected. 5. This, then, is the essence of the plaintiffs' claim, which is for the difference between the value of the steel in good condition as against the actual sale proceeds of what, apparently, were perceived as damaged goods. The claim is not, by modern commercial standards, a particularly large one, the loss on resale of 1,291 metric tonnes together with godown charges and testing and survey fees being pleaded at HK$1,194,837.66, together with interest and costs. 6. Against this background it may be wondered why this case has attained its snail-like progress, the cause of action against the carrier (on whose behalf security was furnished by its P&I Club) having accrued at the latest in July 1993. The difficulty, if difficulty it be, seems to have stemmed the fact that various bills of lading were issued at various times with regard to this cargo. As I understand the position, at least three separate sets of bills of lading were so issued. The detail is to be found in the papers, but suffice to say that charterer's agents, one Agencia Maritima Dickinson S.A., issued one set in May 1994 in Vitoria, Brazil ("the Dickinson bills"), whilst two other bills of lading concerning this cargo appear to have come into existence at the Hong Kong end : first, that which has been referred to as the "ATL bill" (as to the provenance of which, and as to the authority to sign the same, I remain unsure), and the "Jardine bill", which it is established was issued in Hong Kong on 20 May 1993 by Jardine Shipping, and which quite clearly was given to the plaintiffs in exchange for the ATL bill, which latter document the defendants apparently had refused to accept at the time of discharge of the "ALMERINDA" on the alleged basis that the ATL bill had not been issued by the vessel's authorized agents. 7. Clearly, this profusion of bills, all apparently relating to the same cargo, raised questions not normally encountered in a standard cargo claim, but regrettably this aspect appears to have posed problems in terms of the pleading - and hence the progress - of this claim. 8. The timetable of this litigation is broadly as follows. The generally endorsed writ was issued on 18 June 1994, the Statement of Claim following on 1 November 1994, the plaintiffs therein claiming under the Jardine bill. The Defence was served on 6 January 1995, and the plaintiffs served its Reply on 4 April 1995. So far, so good, but it is at this otherwise unremarkable stage in the proceedings that the seed of discord was sown, because on that same day, 4 April 1995, the plaintiffs served their list of documents which made reference therein to the ATL bill. 9. On 5 May 1995 the plaintiffs issued a Summons for Directions, and on 27 June 1995 Barnett J gave directions, and ordered that the action should be set down for trial within 35 days of his order. On 31 July 1995 the plaintiffs set the action down, the trial then being fixed for five days commencing on 11 March 1996. 10. However, prompted by the production by the plaintiffs of the ATL bill of lading, the defendants sought particulars of the Statement of Claim and also served Interrogatories, clarification being sought as to how it was that two separate bills of lading had been issued at Hong Kong, and the nature of the plaintiffs' case as to how the defendants were alleged to be bound by the terms of the Jardine bill. 11. In the event Further and Better Particulars of the Statement of Claim were served on 15 December 1995, and Answers to Interrogatories on 30 January 1996. At this stage it became clear that the plaintiffs intended to amend their Statement of Claim, and it also became apparent that the case was not going to be ready for trial in March 1996. Accordingly, on 31 January 1996 the defendants applied to vacate the trial dates, and on 6 February 1996 Waung J ordered the trial dates vacated. 12. Surprisingly, nothing thereafter seems to have happened between 6 February 1996, when the trial came off, and 22 January 1998, when the plaintiffs served a Notice of Intention to Proceed. Some three months later, on 7 May 1998, the plaintiffs issued a summons to amend the Statement of Claim. This summons had appended thereto a draft Amended Statement of Claim (referred to in these proceedings as "DAMSOC 2"), and takes as its starting point the ATL bill of lading. This particular application, however, seems to have been overtaken by events, and as far as I am aware ultimately was not pursued, in this form at least. What in fact happened was that by a Consent Summons dated 1 June 1998 this summons to amend, which had been returnable on 3 June 1998, was adjourned, to be refixed in consultation with counsel's diaries for an half-day argument. This refixed date was scheduled for 22 February 1999 before Barnett J, but by a further Consent Summons dated 15 February 1999, this summons was again adjourned, again to be refixed in consultation with counsel's diaries, and again for half a day. 13. The next step in this somewhat unfortunate train of events was that the plaintiffs (which by then had switched counsel) then issued a further summons seeking leave to amend the Statement of Claim and the Answers to Interrogatories. This summons was issued on 22 December 1999, and is the summons with which this court is presently concerned. This application asks for leave to amend the Statement of Claim in terms of the copy annexed thereto (which proposed version of the amended pleading has throughout argument been identified as "DAMSOC 3"), and again places reliance on the ATL bill of lading. Ironically this latter version is not the draft with which the court is now concerned because Mr Reyes, who appears on this application on behalf of the plaintiffs, has further revised the document, and has sought leave to file a version of the draft Amended Statement of Claim other than that annexed to the current summons. This new version introduces variations within the first five paragraphs thereof, and, perhaps more importantly, relies squarely upon the Jardine bill and abandons reliance on the ATL bill, save that reference is made to the same in its historical context in terms of pleading the background facts. It is thus this final version (which enjoys the appellation "DAMSOC 4") which is the subject of the current application for leave to amend. 14. I now turn to the two applications before the court. I take them in the order in which they were argued. (i) The defendants' summons dated 18 February 2000 to dismiss for want of prosecution 15. I am obliged to both counsel for their careful treatment, within their skeleton arguments, of the relevant legal principles in applications of this nature. I have reminded myself of these principles.
16. Under this head Mr Sussex SC, acting for the defendants on the instructions of underwriters, puts his case high. He asserts inordinate and inexcusable delay for a period of nearly four years, that is, from 6 February 1996 (when Waung J vacated the trial dates) to 22 December 1999 (the date of the present summons to amend). During that period, he asserted, the plaintiffs had done nothing constructive to prosecute this action, which in real terms had made no advance whatever. 17. For his part Mr Reyes, who now acts for the plaintiffs (but whom hitherto had not been responsible for this case until his recent instruction therein) accepted on behalf of his clients that indeed there had been delay for the period from "sometime after 8 August 1996 to 4 December 1997". He said this because the plaintiffs had produced a draft Amended of Statement of Claim on 25 April 1996, and had faxed this draft to the defendants' solicitors. However, although saying on 1 May 1996 that they would revert shortly, there was no substantive reply from the defendants' solicitors until 8 August 1996, at which point the plaintiffs' solicitors decided to instruct counsel to reconsider the proposed draft. Unfortunately, two different counsel who were thus instructed sat on this particular piece of work, with the result that a revision ("DAMSOC 2") was not produced until 4 December 1997. 18. As to this period, it is of course established that 'delay' in this context may mean that of the plaintiffs or of its lawyers, and in terms of an action which clearly was beginning to lag, it is not unreasonable that in the circumstances the plaintiffs' solicitors ought to have located counsel who were prepared to expedite the revised pleading. Accordingly, in my view, there is here a period of delay, both inordinate and inexcusable, of 16 months. 19. Mr Reyes suggested that for the next year or so, between 7 January 1998 and 15 February 1999, the action had proceeded in a "desultory way" (adopting the phrase used by Godfrey J (as he then was) in Kerry Foodstuffs Co. Ltd v. Phulsawat Navy Company Ltd & ors, [1999] 3 HKC 528), but suggested, in my view correctly, that in reality the defendants appeared "to have gone along" with the situation, having either acquiesced in or initiated adjournments of the plaintiffs' summons to amend in terms of the then proposed revision of the Statement of Claim. 20. The second distinct period of delay specifically accepted by Mr Reyes as having occurred is the further period of some seven months after 15 February 1999, this being the time taken to produce a further revised pleading ("DAMSOC 3"), a copy of which was sent to the defendants' solicitors on 10 September 1999, some three months prior to the issuance of the present summons seeking leave to amend - albeit during this further interim period between 10 September and 22 December 1999, when the current amendment application was in fact issued, Mr Reyes pointed out that the plaintiffs' solicitors were waiting for the defendants' solicitors' response as to whether the amendment could be dealt with by consent. In this connection the absence of the relevant defence solicitor seems to have held up any such response, until a reply was received on 11 November 1999, which did nothing to clarify the situation in that it was primarily concerned with the oddity of having concurrently extant two summonses to amend, that is the summons of 7 May 1998 in addition to the draft summons of December 1999. In any event, by a further letter of 16 November 1999 the defendants' solicitors made first mention of a strike out for want of prosecution. At the end of the day, therefore, Mr Reyes suggests that, on detailed analysis, the period of culpable delay on the part of the plaintiffs amounted to at most some 24 months, as opposed to the four years ascribed by Mr Sussex. 21. Little pleasure is to be gained by picking through the entrails of a poorly conducted piece of commercial litigation, particularly since, at bottom, the fundamental nature of this claim - did or did not this cargo sustain sea water damage during the Brazil-Hong Kong voyage? - is eminently straightforward. Clearly there has been inordinate delay in the prosecution of this case, which for certain periods of its life appears to have been designated for the "too hard" tray; equally clearly, amendments to the pleading should have been decided upon with expedition and, absent agreement, argument pressed upon the point. 22. Nevertheless, I do not consider that in the circumstances it lies in the defendants' mouth to assert, as they confidently now so do, that the period of inordinate and inexcusable delay is "almost four years" when set against the background of a case in which the carrot of possible agreement to the revised pleading was apparently dangled on at least one occasion, and when within the period now complained of the defendants' solicitors also had consented, on two different occasions, to the vacation of the hearing dates fixed for the original summons to amend dated 7 May 1998. There was also, I believe, passing reference between solicitors to the issue of possible settlement, which inevitably has the practical effect of removing a certain amount of impetus. So that, in terms of inordinate and inexcusable delay, I accept Mr Reyes' approach, and reject the alternative view propounded by Mr Sussex SC. 23. I now turn to the more difficult issue of how, if at all, the periods of delay which have been accepted to have occurred in fact enured to the defendants' prejudice.
24. Whilst Mr Sussex SC expressly reserved the point to the appellate court, he accepted, for the purpose of this application at least, that it must be demonstrated that such inordinate and inexcusable delay as had been established will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause serious prejudice to the defendants. He pointed out that although there has to be a causal link between the delay and the prejudice, if there had been several periods of delay, it is not strictly necessary to ascribe prejudice to a particular period of that delay (citing here Lord Browne-Wilkinson in Roebuck v. Mungovin, [1994] 2 AC 224 at 234). These propositions are not in dispute. 25. It is fair to say that the main thrust of Mr Sussex's submission on prejudice focused upon the impairment of the memories of prospective witnesses. In this connection it seems now to be the case, as the result of inquiries made, that the Master and Chief Officer of the "ALMERINDA" have been located (albeit they are said to recall little or anything about the particular voyage and the events preceding it, in particular the content of the Mate's Receipts), as apparently also has the Brazilian surveyor, Mr Nelson Gomez de Oliveira, whose pre-shipment survey of this cargo represents an important document in the context of the defendants' case that such rust damage on these steel bars existed prior to loading on board the "ALMERINDA". 26. Mr Sussex maintained that in an appropriate case, which this case was, the court was entitled to draw an inference that by reason of the delay complained of serious prejudice would be caused to the defendants as the result of the impairment of witnesses' recollections : see Shtun v. Zalejska, [1996] 1 WLR 1270. 27. To this submission Mr Reyes was disarmingly frank. It would be peculiar, he said, if, for example, the Chief Officer, who had signed the Mate's Receipts, possessed immediate recall of the pre-shipment condition of this cargo. However, the point was, he submitted, that in the present circumstances there could not reasonably be said to be any causative link between the admitted periods of delay and the dimming of memory of various witnesses. He pointed out that, although this trial had originally been set down for 11 March 1996, the defendants had not at any time attempted to obtain statements from any of the prospective witnesses since the inception of this action, an aspect which was admitted in the affidavit evidence leading the application. In fact, it was clear that in March 2000 the defendants seemingly did not even know the name of the Chief Officer, an aspect of the case which caused Waung J, on 30 March 2000, specifically to make an order with regard to the disclosure of the Chief Officer's identity. 28. Equally, argued Mr Reyes, although Captain Lin had been contacted in February 2000, the defendants had not said when they had first tried to contact the Master or why no statement had been taken from him in the period 1994 to 1996. The same observation applied to the lack of any statement taken from the Brazilian surveyor in that period, whilst so far as Jardine Shipping was concerned, said Mr Reyes, the defendants had clearly known of the involvement of Jardine Shipping Agencies from the outset of this action, not least because reference to the Jardine bill of lading, under which this cargo was delivered to the plaintiffs, appeared in the defendants' list of documents and is pleaded in the Defence. So that, again, if there had been thought to be any problem with the Jardine bill of lading, the relevant staff could have been contacted and statements obtained within the like period. 29. In the circumstances of this case in my judgment there is a good deal in these submissions. I further note, for example, that on 5 May 1996 Barnett J had ordered that signed witness statements be exchanged not later than eight weeks before trial (which was then, of course, fixed for 11 March 1996), and I find it difficult to understand why the singular omission to take any statements whatever (which in cargo claims of this nature ought in principle to be obtained, in draft at least, relatively soon after the occurrence of the particular incident) should now be prayed in aid by the defendants as a positive factor in the application to dismiss this case for want of prosecution. This seems to me to represent a curious inversion. Had the March 1996 trial dates not come off by Order dated 8 December 1995 - upon, I notice, the defendants' application - some fairly rapid preparation clearly would have been necessary, and I am disinclined to think that the state of various witnesses' memories would have been materially better in early 1996 than is the case now. Memories would clearly need to be refreshed by contemporaneous documentation, all of which remains in existence, and I fail to see that the 'memory card', if I may so term it, should now be played and permitted to assume a prominence which on the facts it does not otherwise deserve simply by virtue of the action having taken a somewhat unusual (and dilatory) course, with neither party having complied with the original order of Barnett J as to witness statements. In the recent case of Lee Pui Kuen v. Asia Television Ltd, CACV 135 of 2000, judgment dated 5 July 2000, Rogers JA noted :-
30. In short, in all the circumstances of the case I do not consider that the defendants have demonstrated significant prejudice arising from the periods of delay which are accepted to have occurred in the context of the four issues which have been isolated in this case - namely, the pre-shipment condition of the cargo, the authority under which Jardine Shipping issued the Jardine bill of lading, the plaintiffs' title to sue and the condition of the cargo on outturn - of which it seems to me that the condition of the cargo at either end represents the crux of this case. 31. In this latter regard there is in existence documentary evidence of the pre-shipment condition of the cargo in terms of the Vitoria survey itself, and the endorsement upon the Mates' Receipts. I also take Mr Reyes' ancillary point that while there is evidence that to some extent the cargo may have been rusty or wet at the time of loading at Vitoria, rust per se does not prevent steel deformed bars from being used in construction. What does cause difficulties, however, from a construction-use standpoint, is salt water rust and corrosion, and that the function of the expert evidence at trial will be to focus upon damage to the steel bars in the context of the survey reports made at the time of discharge in Hong Kong to the effect that sea water had entered the vessel's holds. As to this primary claim in this case, both the plaintiffs and the defendants have obtained contemporaneous experts' reports, albeit so far as I am aware only the plaintiffs' reports have found their way into the papers presently before the court, and I have not had sight of the report by Captain Edmundson of J.D. Wort & Co. Ltd. As to this gentleman's evidence, Mr Gobindpuri notes in his affidavit (at paragraph 63) that :-
32. It seems to me likely that all the expert surveyors will be in a similar position - indeed the nature of this occupation often means that such will be the case - and as a matter of practical politics I doubt whether the delays now accepted to have taken place will have made any significant difference in this regard. This, of course, is one of the reasons for the compilation of detailed contemporaneous reports. 33. As to the remaining two issues - Jardines' authority to sign the Jardines' bill and the plaintiffs' title to sue - I am presently disinclined to think that these will loom large at the trial. As to the authority point, Mr Reyes points out that Jardine Shipping had authority from CSAV to sign the Jardine bill of lading and bind the defendants, as is evidenced by the content of the charterparty together with CSAV's voyage instructions dated 12 May 1993, and in so far as the defendants' case is that CSAV's authority, under clause 8 of the NYPE form charterparty, to sign the bills in relation to the cargo had become exhausted once the Dickinson bill of lading had been issued in Brazil, this necessarily is a question of the proper construction of that clause and was not dependent upon oral evidence. And in any event, he said, if there had been a serious issue as to Jardines' authority, the defendants should have contacted and proofed the particular Jardines' staff in the period of 1994 to 1996. 34. As to the issue of title to sue, Mr Reyes asserted that in the circumstances in which the defendants (through the Master) delivered the cargo to the plaintiffs under the Jardine bill of lading, it thereby attorned to the plaintiffs, and thus whether or not the plaintiffs (or some other party) were the true owners, the defendants are and were estopped from denying the plaintiffs' possessory title. On their own case the defendants apparently had made no attempt whatever to contact personnel from Linkful Material (the latter being the vendor of the steel bars in question), and the fact that personnel identified in Mr Gobindpuri's affidavit appeared to have left Linkful in 1993 and as a result may have become unreachable was not something which could now be laid at the plaintiffs' door. 35. Lastly in terms of prejudice, the defendants relied upon two additional matters. First, the defendants' arbitration proceedings commenced in London in June 1995 for an indemnity against CSAV (which proceedings have been dormant pending the outcome of this action) are, says the defendants, in danger themselves of being struck out, praying in aid a letter from CSAV's solicitors, Messrs Holman, Fenwick & Willan, dated 18 February 2000. Putting to one side the obviously self-serving nature of this Holman's letter (both to the defendants and to Holman's clients), Mr Reyes suggested that in any event it had been open to the defendants to have pursued these proceedings for declaratory relief independent of the present action, which was not, of course, binding upon CSAV. Alternatively, Mr Reyes drew the court's attention to the case of The "Caroline P", [1984] 2 Ll.LR 466, wherein Neill J (as he then was) held that an implied indemnity in favour of owners against the consequences of a master signing bills of lading did not become enforceable by action until at the earliest the liability of the owners to the receivers had been ascertained. Mr Sussex noted that this case had not been the subject of appeal, and questioned its authority, but in terms of the crystallization of a cause of action under an indemnity, in my view this decision is correct in principle. 36. The second matter related to the alleged prejudice arising from the anticipated dissolution of Almerinda Shipping Corp. on 2 February 2001 pursuant to an order under the Liberian Business Corporation Act to wind up that company for non-payment of annual registration fees, and the corresponding necessity for Skuld (the P&I Club presently defending this action on behalf of the defendants) to intervene in this action in order to protect the Club's interests in terms of the security which had been provided for the plaintiffs' claim. This seems to me to be a slim argument indeed. Such intervention in such circumstances is not uncommon, and I am unable to see that this presents a problem. 37. Looked at in the round, therefore, on the conceded basis that there is indeed actionable delay on the part of the plaintiffs in this case, I decline to hold that such periods of delay have been causative of the prejudice now relied upon by the defendant in moving this application. Order 38. It follows from the foregoing that in the exercise of my discretion I decline to dismiss this case for want of prosecution. The defendants' application, which in the circumstances had a distinctly opportunistic flavour, is therefore dismissed. 39. I am presently disinclined to make an order nisi as to costs, and absent agreement thereon I will hear the parties on this issue at a 9.30 am hearing on an early date to be appointed. (ii) The plaintiffs' application to amend dated 22 December 1999 40. As earlier noted, in moving the plaintiffs' application to amend the Statement of Claim, Mr Reyes focused on the document which came to be known as "DAMSOC 4", which represented his refinement of the proposed amended pleading originally attached to the amendment summons of 22 December 1999. 41. To this application Mr Sussex SC now objected, if and in so far, of course, as the court were not to be with him on the striking out. The point at issue may be shortly stated. Mr Sussex submitted that by the amendments proposed, the plaintiffs were alleging that the defendants were bound by a contract which was other than that which had been originally sued upon, and that as a consequence the plaintiffs were plainly seeking to add a time-barred cause of action. This was, said Mr Sussex, an attempt to substitute what was originally a standard bill of lading claim with what was a claim based on the decision in Brandt v. Liverpool Steam Navigation Co. Ltd, [1924] 1 KB 575, wherein in the circumstances a contract was to be inferred between the parties to deliver and accept the goods according to the terms of the bill of lading. A Brandt v. Liverpool claim was a quite different contract from the situation wherein the bill was the operative contract of carriage, he said. As such, this 'new' claim was plainly time-barred, whether the relevant time-bar was contained within either the Hague or the Hague-Visby Rules, Article III, rule 6 barring not only the remedy, but destroying the claim itself. As such, the claim itself simply ceased to exist if suit was not brought within one year (The "Aries", [1977] 1 WLR 185), and the power conferred upon the courts by RHC Order 20, rule 5 could not and did not permit the removal of substantive rights, in this case an accrued time bar (see The "Jay Bola", [1992] 1 QB 907). Accordingly, the court had no power, said Mr Sussex, to permit an amendment which would have the effect of resuscitating a claim barred by the operation of Article III, rule 6 (see also The "Leni", [1992] 2 Lloyd's Rep.48; Win's Marine Trading Co. v. Wan Hai Lines (HK) Ltd, [1999] 3 HKC 701). 42. In any event, submitted Mr Sussex, even where the requirements of RHC Order 20, rule 5 were satisfied (and here they were not, he said, because the new causes of action relied upon did not arise out of the same or substantially the same facts as the cause of action already pleaded), the court had a discretion whether to permit the amendments, and in disallowing an application for amendment the court was entitled to take into account the prejudice which would be occasioned to the party against whom the new claim was directed, if the new claim was allowed to be introduced by such amendment : see Hancock Shipping Co. Ltd v. Kawasaki Heavy Industries Ltd (The "Casper Trader"), [1992] 1 WLR 1025. In this regard the defendants relied upon the prejudice which was prayed in aid in the striking out application. Accordingly, submitted Mr Sussex, if the court was unwilling to go so far as to dismiss this action, at the least the plaintiffs' present application to amend the Statement of Claim should be refused. 43. In response, Mr Reyes formally confirmed that there was no longer any intention on the part of the plaintiffs to pursue any claim based upon the ATL bill of lading, conceding that since there had been no mention of this bill in the writ, any claim based on this bill of lading would clearly be time-barred. So that Mr Sussex would have been correct if an attempt had been made to resuscitate the ATL bill. 44. He submitted, however, that his version of the amended pleading, that is "DAMSOC 4", restored the Jardine bill as basis of this claim. And with regard to the plaintiffs' criticism as to the contract contained in or evidenced by the Jardine bill arising from the surrender of the ATL bill and the issue of a delivery order, this pleading clearly fell within the terms of the writ as drawn, the indorsement specifically pleading damages "for breach of a written contract contained in or evidenced by Bill of Lading No.1 dated Hong Kong 20 May 1993". There could be no possibility of confusion. The parties had previously treated the bill of lading referred to therein as the Jardines' bill, and no new cause of action or claim had been introduced. Whilst in terms of prejudice to the defendants, Mr Reyes repeated his submissions on the point in the strike out application. 45. After reviewing the progression of this case, I am unconvinced by the contention that the plaintiffs are attempting to steal a march on the defendants by insertion of an otherwise time-barred cause of action. The Indorsement of Claim reads, in part :-
Paragraph 1 of the Statement of Claim, filed on 1 November 1994, recites :-
46. To this plea the defendants specifically responded, in the Defence :-
47. Clearly therefore, in their own document the defendants immediately identified the bill of lading, the subject of this claim, as being the Jardine bill. 48. However, the part of the proposed pleading to which specific exception is now taken is not paragraph 1 of "DAMSOC 4", which abandons reference to the ATL bill save as part of the matrix of facts, but paragraph 5C, which reads :-
49. This is the Brandt v. Liverpool implied contract argument to which Mr Sussex now takes exception. Nevertheless, I find it difficult to see how this argument, based upon the objective reality of the Jardine bill of lading, can be said to fall outside the particular wording of the general endorsement on the writ, and in this connection I decline the invitation to speculate upon what must have been in the pleader's mind at the time of drafting such endorsement. Notwithstanding the confusion which the ATL bill appears to have generated at various times, the Jardine bill clearly has remained a central feature of this case throughout, and I am against Mr Sussex in his submission that this claim does not fall within the endorsement as drawn, and that the date therein is referable to the contract and not to that on the face of the bill of lading itself. 50. This brings me to his second point, which is that if the writ is regarded as being sufficient to bring a Brandt v. Liverpool claim, the pleading that followed did not include such a claim, and that as a consequence such claim is deemed abandoned and cannot be brought in now. 51. To this Mr Reyes maintained that his cause of action is not new, and continued to be based on a contract "contained in or evidenced by a bill of lading dated 20 May 1993". That there is a contract evidenced by such bill is clear, he said, and how it came into existence is simply to be found in the facts leading up to it, which factual background had been fully set out in the pleading. And in any event, argued Mr Reyes, absent the Brandt v. Liverpool argument, the Jardine bill of lading would remain very much in play in this case as a term of the bailment upon which the plaintiffs alternatively relied. 52. The point is a narrow one, and perhaps less than straightforward, but after reflecting upon all the circumstances, in the exercise of my discretion I am inclined to permit the amendments now moved, and to reject the accrued time-bar argument. The Jardine bill undoubtedly has always represented an essential element of this case, as is clear on the face of the pleadings. In this connection I note that in the Further and Better Particulars of the Statement of Claim dated 15 December 1995 the plaintiffs specifically rely, in Answer 2(e), upon "the fact that upon presentation of this bill of lading by the plaintiffs the cargo was delivered to the plaintiffs at the discharge port" as one of the matters relied upon in support of paragraph 1 of the Statement of Claim as then drawn. So that whilst admittedly the thrust of the pleading as now put forward has been considerably clarified, I decline to accept the 'deemed abandonment' point, persuasively though it was broached; indeed, in the circumstances I consider that it would be artificial to do so. In terms of pleadings the Commercial Court generally takes a robust stance, and unless the pleading in question is obviously unsupportable or unsustainable, which in my judgment is not the present case, amendments are permitted in order to ensure that the true issues are ventilated at trial. As Saville LJ (as he then was) observed in British Airways Pension Trustees Ltd v. Sir Robert McAlpine & Sons Ltd, (1994) 45 Con LR 1 at 5, cited with approval by Morritt LJ in Morris & Others v. Bank of America National Trusts & Others, [2000] 1 All ER 954 at 970 :-
53. Having reached the conclusion that the amendment in question is not to be knocked out on the basis propounded, I do not consider that the application is outwith the requirements laid down in RHC Order 20, rule 5, nor do I consider in all the circumstances that this amendment should be refused, in the exercise of my discretion, on the basis of prejudice. In this context I adopt the like approach to that outlined in the earlier part of this judgment upon the defendants' application to dismiss for want of prosecution. 54. Accordingly, I grant leave to the plaintiffs to amend the Statement of Claim in terms of "DAMSOC 4", which (I trust) is the final version of the pleading to be put forward on the plaintiffs' behalf. 55. Consequent upon such leave to amend, I make the following immediate directions :-
56. I will deal with the issue of costs of this amendment application at the same time as I deal with the costs of the striking out application. At such hearing, I will also deal with such further urgent directions as may now require to be made prior to trial. I have in mind particularly here the issue of residual discovery, if any, and the timetable to be set for the exchange of witness statements. Given the tardy progress of this litigation to-date, it will occasion no surprise to either party if the court takes an unsympathetic view to any further slippage in the interlocutory timetable. INTERROGATORIES 57. I give leave to the plaintiffs to amend the Answers to the Interrogatories in the manner shown in the draft annexed to the summons. Mr Sussex did not oppose this part of the application, and Mr Reyes is clearly correct in submitting that the nature of these responses on oath require that they be corrected or clarified if the deponent so desires, and that it would be wrong in principle to hold the deponent, Mr Stanley Pong, to statements which upon reflection he does not believe to be accurate or correct. OTHER MATTERS 58. Finally, I give leave to the plaintiffs to withdraw the summons dated 7 May 1998, which summons was clearly overtaken by the issue of the subsequent amendment summons dated 22 December 1999. There can be no question but that the costs of and occasioned by such summons, as now withdrawn, must be to the defendants in any event, to be taxed if not agreed.
Representation: Mr Anselmo Reyes, instructed by Messrs Clyde & Co, for the plaintiffs Mr Charles Sussex SC, instructed by Messrs Dibb Lupton Alsop, for the defendants
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Cases cited in this judgment
Further hearings and rulings under HCAJ 222/1994