Whampoa Terminals Ltd v. The Owners of the Ship "Safina-e-huffaj"

HCAJ000133/1973

Coram: Barker, J. in Chambers

Date of Judgment: 24th February, 1981.

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JUDGMENT

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1. The Defendants appeal against the orders of Mr. Registrar Wilson, made on the 19th January 1980 refusing to strike out Actions No. 133 of 1973 and No. 160 of 1973 for want of prosecution. The appeals have had to be adjourned twice, and it is, to say the least, unfortunate that the hearings have been so long delayed, but no point is taken by either party on this score.

2. The actions arise out of an incident which occurred on the 16th July 1973 during the passage over Hong Kong of Typhoon Dot, when the vessel Safina-E-Hujjaj, owned by the Defendants, was parted from its mooring in Hong Kong harbour and collided thereafter with part of a container terminal then in the course of construction at the east yard of Hong Kong & Whampoa Dock Co. Ltd., Hung Hom, Kowloon.

3. On the 31st August 1973 a writ in rem was issued in Action No. 132 of 1973 against the said vessel. Subsequently, negotiations took place between the solicitors for the Plaintiffs and the Defendants and certain of the ship's documents, detailed in Exhibit PJ-3, exhibited to the affidavit of Mr. Peter Jolly, were handed over to the Plaintiffs' solicitors pending the putting up of adequate security by the Defendants. However, this action was discontinued because, unbeknown to the Plaintiffs or their advisers, and without the documents set out in Exhibit PJ-3, the ship left Hong Kong. The writ in Action 133 was issued on the 4th September 1973 and that in Action 160 on the 1st October 1973. Service of the writs was effected on the 28th August 1974, very shortly after a sister ship of the Safina-E-Hujjaj had been arrested, on the instructions of the Plaintiffs, in Singapore. Until that time the Defendants solicitors had no authority to accept service of these writs. It may be that some, albeit small, blame can be attributed to the Defendants for this delay in service, though it occurred, be it noted, within the time prescribed by the Rules of the Supreme Court.

4. It was, admittedly, only after the service of the writs that the Plaintiffs' advisers began to investigate their clients' case, and the Statement of Claim in Action 133 was not served until the 26th September 1975, the service of the Statement of Claim in Action 160 being on the 29th January 1976. The main reason for this considerable delay, as deposed to by Mr. Jolly in his affidavit, was the allegedly difficult point of law involved in the question of pure pecuniary loss. But it is to be observed that each Statement of Claim asked in the prayer for damages to be assessed by the Registrar. Furthermore, there was no question of pure pecuniary loss in Action No. 160.

5. The Defences should have been filed 14 days after receipt of the Statement of Claim. They were not. In fact they were filed and served on the 23rd March 1976. The Defendants asked for an extension of time for filing the Defences on the grounds that they needed to take instructions on the allegations of negligence particularized for the first time in the Statement of Claim. The Plaintiffs solicitors somewhat reluctantly granted an extension until the 31st January 1976 and so the Defences were in fact served just under two months late.

6. The Replies were filed and served on the 26th November 1976, eight months after the Defences, and contained fresh allegations of matters of fact. Requests for further and better particulars of the Statements of Claim were made on the 7th April 1976 and were anawered 15 months and 13 months later respectively. In Action No. 133 a request for further and better particulars of the Defence was made and this is still outstanding.

7. Apart from the fact that in Action 133 the Plaintiffs served a notice of intention to proceed on the 19th June 1979, no further step had been taken in either action by the time these summonses were heard by the Registrar on the 19th January 1980.

8. In these circumstances, has there been inordinate delay in the prosecution of these two actions on the part of the Plaintiffs? In my judgment there has.

9. It is contended on behalf of the Plaintiffs that the Defendants have acquiesced in or waived the delay and were that contention to be correct these appeals would necessarily fail. (See Hatter v. Port of London Authority 1971 S.J. 950 and Kelly v. Marley Tile Co. Ltd. 1978 S.J. 17). It is, of course, true that the Defendants accepted service of the Statements of Claim and of the Replies out of time but in my judgment it is necessary to limit each such acceptance to the occasion on which it took place. Moreover, the Defendants by not objecting to the service of these pleadings out of time did not waive their rights to complain of any delay that might have occurred. I hold that there was no acquiescence or waiver on the part of the Defendants.

10. It is further argued that the Defendants contributed to the delay. So they did, but in small measure as compared with the delay attributable to the Plaintiffs. I should add for the sake of completeness that the Plaintiffs cannot rely on the Defendants' failure to answer the request for further and better particulars of the Defence, since they have not taken the trouble to obtain an order from the Court requiring the Defendants to do so.

11. Have the Defendants been prejudiced by the Plaintiffs' inordinate delay? Prejudice can arise in at least three ways namely (a) witnesses may disappear or not be available; (b) witnesses' memories may fade with the passage of time; and (c) a defendant may be prejudiced in having an action hanging over his head indefinitely. (See Biss v. Lambeth Health Authority 1978 1 W.L.R. 382). I am not satisfied that the Defendants suffered any prejudice under this last head.

12. It was argued on behalf of the Plaintiffs that there was no evidence of any prejudice to the Defendants especially as there must be much documentary evidence forthcoming on discovery. This argument fails. Clearly these are cases where much will turn on the recollections of the master, officers and crew and their recollections, even if they could be aided by contemporary documents, must inevitably have been dimmed over the years. It was further argued that it has not been shown that any prejudice has been caused by the Plaintiffs' delay. It was said that the Master's failure to answer letters raised the inference that in all probability he would not attend Court, since he knew he had committed a criminal offence by leaving Hong Kong harbour without official permission. There is evidence that he caused his ship to leave harbour without the knowledge of the Plaintiffs, but there is no evidence before me that he did so without the requisite permission from the harbour authorities and I decline to conclude that he had committed any such offence. Then it is said that the Defendants could get most of the evidence they required from other sources. That may be so. Nevertheless, they will in my view be gravely prejudiced if they cannot call the captain, the relevant officers, and the relevant members of the crew, and apart from the chief officer who has already been located and interviewed it is by no means certain that the Defendants will be in the position to call such witnesses.

13. Viewing the cases in their totality I am satisfied that the Plaintiffs' delay has prejudiced the Defendants.

14. Were these straightforward cases of actions governed by a three or even a six years limitation period, I would have no hesitation in dismissing them both for want of prosecution. It is, however, common ground between the parties that there is no limitation period prescribed by law for these actions. Does this make any difference? Mr. Charles Ching for the Plaintiffs argues first that, where the legislature has not imposed a fixed time limit for the bringing of actions, it is wrong for the court to impose one and secondly that the present action should not be struck out because, if they were, there would be nothing to prevent the Plaintiffs starting fresh actions which the Defendants could not strike out.

15. I cannot think that his first argument is correct. Were it to be so, there would be nothing to prevent a situation arising like that in Jarndyce v. Jarndyce of which Dickens wrote in Bleak House. In my judgment, it is necessary to apply the doctrine of laches, which I define as consisting of inexcusable delay in instituting or prosecuting a suit coupled with prejudice to the party against whom the claim is asserted.

16. Has there been laches in these cases? In deciding this I have regard to the fact that had these cases involved (a) a collision between two ships, the statutory limitation period would have been two years by virtue of the Maritime Convention Act 1911 (b) damage to cargo the period would have been one year by virtue of the Carriage by Sea Act 1924 or (c) personal injuries on land the period would have been three years. Bearing in mind my findings I am of the view there has been laches.

17. As to Mr. Charles Ching's second point it is true that in the case of Birkett v. James⁽¹⁾the House of Lords held that it is futile to order proceedings to be dismissed for want of prosecution when the limitation period has not expired since save in exceptional cases there would be nothing to prevent the Plaintiffs from issuing a fresh writ, thereby adding to the delay and Mr. Ching argues that all the more is this the case where as here there is no limitation period. This problem was considered by Megarry V-C in the case of Joyce v. Joyce⁽²⁾. In that case, two writs had been issued. On one view the first action was governed by no limintation period and on any view the second action was not subject to limitation. The judge held that it was for the Plaintiff to establish that it was futile to strike out the first action, that where the second action was subject not to any fixed period of limitation but to the doctrine of laches the Plaintiff must at least establish that there was a prima facie case of his being able to overcome that doctrine and that as he had not done so and there had been inordinate delay in prosecuting the first action, that action should be dismissed for want of prosecution.

18. I have already held that there has been inordinate delay in the prosecution of these actions. Were they to be struck out and the Plaintiffs then started fresh actions, the Plaintiffs have not in my judgment established that there is a prima facie case of their being able to overcome the doctrine of laches. I would go further and hold that they probably could not do so.

19. In the result, in my judgment these actions should be dismissed for want of prosecution.

20. Interesting arguments were advanced before me as to whether maritime liens may be lost by laches or otherwise and what the consequences of such loss would be on the bringing of subsequent actions, but in view of my findings it is unnecessary for me to express any opinion on them.

21. The appeals are accordingly allowed.

Representation:

A.R. Dicks (Johnson Stokes & Master) for Appellants/Defendants

C. Ching, Q.C. & W. Waung (Deacons) for Respondents/Plaintiffs

(1) (1978) A.C. 297

(2) (1978) 1 W.L.R. 1170