Marvel Trading Co and Another v. Gold Star Line Ltd and Another

HCA004161/1982

IN THE HIGH COURT OF JUSTICE

BETWEEN

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Coram: Hon. Clough, J.

Dates of Hearing: 24th, 25th and 28th   November 1933.

Date of  Delivery of Judgment: 13 DEC 1983

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JUDGMENT

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1. This is an application by the 1st and 2nd Defendants for inter alia the discharge pursuant to O.12 r.8(1)(d) of the order of a Master made on the 13th May 1983 under O. 6.r.8(2) extending the writ in this action for the purposes of service. On the first day of the hearing I ruled that the 1st Defendant could not proceed application without the leave of the court under O.12 r.6(a) and thereupon counsel for the 1st Defendant indicated that it was content to let the action proceed against it and I cave it leave to file its Defence within 14 days.

2. The 2nd Defendant's application proceeded and on the 28th November 1983 I granted it . I now give my  reasons for the above mentioned ruling against the 1st Defendant and for granting the and Defendant's application.

Background

3. By a specially endorsed writ issued on the 19th May 1982 the Plaintiffs as shippers or consignors of certaim goods  from Hong Kong to fort Harcourt in the vessel "Gold  Oril" of which the 2nd Defendant is he owner, sue the Defendants as the carriers of the goods for breach of the contracts contained in the relevant bills of lading issued by the 1st Defendant and for conversion by the wrongful and unauthorised delivery of the goods to a third party or third parties at Port Harcourt without production of the bills of lading. The Plaintiffs claim the sums of US$61,389.50 and US$44,88O.00 against the 1st and 2nd Defendants respectively together with interest.

4. The relevant bills of lading were not produced to the court but it was common ground that the goods in question were delivered in or about June 1981 and that the relevant limitation provisions applicable to the bills of lading would have the effect of barring the Plaintiffs' claim in this action one year after the delivery of the goods. The original writ was issued on the 19th May 1982 shortly before the expiration of the limitation period.

5. By the 13th May 1983 the writ had not been served on either of the Defendants. By an affidavit sworn on that date by Mr. Peter Cheung, the solicitor having the conduct of the action on the Plaintiffs' behalf, the Plaintiffs applied for the renewal of the writ pursuant to C.6 r.8(2). Mr. Cheung exhibited the opening correspondence between the Plaintiffs' solicitors and the 1st Defendant.

6. By a letter dated the 7th May 1982 the Plaintiffs' solicitors had outlined to the 1st Defendant the basis of the Plaintiffs' claim for misdelivery of the relevant goods and concluded by stating that the plaintiff's solicitors were instructed to demand payment of US$106,269.50 within 7 days failing which the Plaintiffs would commence legal proceedings against the 1st Defendant without further notice. To this demand the 1st Defendant replied by a letter dated the 17th May 1982 headed "WITHOUT PREJUDICE" containing an acknowledgment of the Plaintiffs' solicitors' letter and advising them that all the cases referred to in that letter were then under investigation and that the 1st Defendant would not fail "to revert in due course".

7. Mr. Cheung explained in his affidavit that as the claim in question would be time barred by about June 1982 the present action was begun by the issue of the writ on the 19th May 1982 in order to protect the claim from being time barred. He deposed that e1st Defendant had issued the relevant bills of  lading and that the 2nd Defendant was the owner of the carrying vessel and that his conjecture was that the 1st Defendant was the charterer or agent of the 2nd Defendant. At the hearing before me counsel for the Defendants indicated that in fact the 1st Defendant was the agent of the 2nd Defendant.

8. Mr. Cheung then exhibited a bundle of correspondence which passed between the Plaintiffs' solicitors and the 1st Defendant between the 20th May 1982 and the 18th January 1983. The attitudes adopted by the Plaintiffs' solicitors and the 1st Defendant as indicated in the correspondence were as follows

9. On the 20th May 1982, the date after the issue of the writ in the action, the Plaintiffs' solicitors informed the 1st Defendant that as the limitation period would soon expire the writ had been issued against both the 1st Defendant and the 2nd Defendant, the latter being the owner of the "Gold Orli ", and a copy of the writ was enclosed with the Plaintiffs' solicitors' letter. That letter concluded by the statement that failing payment of the Plaintiffs' claim or a satisfactory reply within 10 days the Plaintiffs' solicitors would effect service of the writ on both the Defendants. To this the 1st Defendant replied that ".......... in order to avoid legal proceedings, we agree to grant you an  extension of time on our behalf as Charterers as well as on behalf of the Owners, Haverton Shipping Limited until and including 29.12.82.". It also informed the Plaintiffs' solicitors that a telex had been sent to the Port Harcourt Agents of the 1st Defendant requesting information as soon as possible regarding the actual position of the consignments in cruestion and that the 1st Defendant would not fail to advise the Plaintiffs' solicitors in due course. The letter concluded by seeking confirmation that the Plaintiffs were holding up the legal proceedings until further notice.

10. This letter was followed on the 23rd June 1982 by a further letter from the 1st Defendant to the Plaintiffs' Solicitors quoting the contents of a telex received  from the 1st Defendant's Lagos agent indicating that the consignees had come to a settlement with the shippers of the goods. The 1st Defendant's Letter concludes  by asking the plaintiffs solicitors to contact the shippers to confirm if this information is true

11. The Plaintiffs' solicitors replied by a letter dated the 2nd July 1982 headed "WITHOUT PREJUDICE" stating that the Plaintiffs had informed them that they did not wish to have any agreement with the consignees and concluding by emphasising that if the Plaintiffs' claim was not settled within the next 14 days, "we shall effect service of the writ on you and take further legal proceedings".

12. To this the 1st Defendant replied in a letter dated the 20th July 1982 headed "WITHOUT PREJUDICE" that its Lagos agent had informed the 1st Defendant that the cargo was available at the consignee's warehouse and requesting the Plaintiffs' solicitors to notify the shippers accordingly in order to arrange the disposal or reshipment of the goods at the shippers' expense.

13. There follows an intevral in the correspondence which was broken on the 27th September 1982 by a letter addressed to the 1st Defendant by the Plaintiffs' solicitors. The letter indicates that their clients have misgivings regarding the allegations of the 1st Defendant and are extremely doubtful whether the goods are in the same quantity and condition as they were when shipped, unless evidence is produced by the 1st Defendant. The letter concludes by stating that the Plaintiffs' solicitors have instructions from their clients to inform the 1st Defendant that unless their claims are satisfied within the next 14 days, steps will be taken to effect service of the writ.

14. This letter evidently fell on stony ground and after an interval of more than three months the Plaintiffs' solicitors again wrote to the 1st Defendant on the 17th January 1983 referring to the previous correspondence and stating that if their client's demand was not complied with within the next three days they would serve the writ on both the Defendants. The reaction of the 1st Defendant to this threat took the form of a letter dated the 18th January 1983 headed "WITHOUT PREJUDICE" and asking the Plaintiffs' solicitors to note that the 1st Defendant had approached its agents in port Harcourt to clarify the actual position since according to their information an amicable settlement had been achieved. The letter concludes with the words "and shall not fail to revert upon receipt or their reply".

15. That is all the correspondence which was before the Master at the time of the application. Two additional letters were produced at the hearing before me. One was a letter dated the 14th December 1982 written to the 1st Plaintiff by the Plaintiffs' solicitors enclosing a copy of their letter dated the 27th September 1982 (in which the Plaintiffs' solicitors had informed the 1st Defendant that they had instructions to inform the 1st Defendant that unless the Plaintiffs' claims were satisfied within the next 14 days steps will be taken to effect service of the writ) confirming that no reply had been received to this letter and asking whether the Plaintiffs' solicitors had the 1st Defendant's instructions to serve the writ on the Defendants. The other additional letter was dated the 20th January 1983. It was addressed by the Plaintiffs' solicitors to the 1st Plaintiff and enclosed copies of the letter dated the 17th January 1983 from the Plaintiffs' solicitors to the 1st Defendant (threatening to serve the writ on both the Defendants within 3 days if the Plaintiffs' demand was not complied with) and the reply to that letter dated the 18th January 1983 from the 1st Defendant. The letter dated the 20th January 1983 concludes by requesting the 1st Plaintiff to let the Plaintiffs' solicitors have its instructions "...... especially in connection with whether you have reached a settlement with the carrier".

16. In his affidavit supporting the application for renewal of the writ Mr. Cheung asserted that the correspondence exhibited by him showed that the ist Defendant was aware of the action and had carried out investigations at the port of discharge after the claim was presented to him. He also asserted that the correspondence showed that the 1st Defendant was even willing to give the Plaintiff an extension of time to lodge the present claim although this was not necessary as the action had commenced, and that the 1st Defendant alleged that it wanted to avoid legal proceedings. The correspondence showed, he deposed, that the 1st Defendant had never denied liability in relation to the present claim.

17. Mr. Cheung went on in his affidavit to state that he verily believed that the Plaintiffs were made to believe that the 1st Defendant had a genuine desire to consider the Plaintiffs' claim and that service of the writ could be withheld. In this connection he referred to the 1st Defendant's letter dated the 18th January 1983 in which it had stated that the 1st Defendant was making investigations at the port of discharge and would revert on receipt of a reply from its agents.

18. After stating that he had not heard from the 1st Defendant as promised by it Mr. Cheung deposed that he had "Recently" received instructions from the Plaintiffs to serve the writ as it would expire on the 18th May 1983. At the hearing before me counsel for the Plaintiffs informed me, and I accepted, that the Plaintiffs' solicitors in fact received oral instructions from their clients to serve the writ very shortly before the application for renewal was made on the 13th May 1983.

19. Mr. Cheung further deposed that as the 2nd Defendant was a company registered in the United Kingdom an  order for service out of the jurisdiction had to be obtained and there would not be enough time to effect service before the writ expired.

20. Accordingly he applied for an extension of the validity of the writ for one year from the date of its expiration for the reasons given in his affidavit and also because he asserted that there would not be any hardship to the Defendants if this course were taken. He pointed out that investigations had been made by the Defendants at the port of discharge and that all evidence and information relating to the present matters should now be in the possession of the 1st Defendant. On the other hand , if the order were not made, the Plaintiffs would, he deposed, be left without any remedy because any fresh action would be time barred.

21. I was informed at the hearing by counsel for the Plaintiffs that on the 17th May 1983 the Plaintiffs' solicitors received the renewed writ appropriately endorsed by the Master for renewal for twelve months from the 19th May 1983. On the 19th May 1983 the renewed writ was served on the ist Defendant under cover of a letter of that date from the Plaintiffs' solicitors. On the 3rd June 1983 the Plaintiffs' solicitors acknowledged service of the writ and gave notice of intention to defend on behalf o` both the Defendants. In the case of the 2nd Defendant they took this course in reliance on the opening words of O.10 r.1(5) and on O.12  r.7 and 8(6). They were also giving notice of intention to defend in order to comply with the requirements of O.12 r.8 before applying for relief under that provision.

22. On the 8th June 1983 the plaintiffs' solicitors informed the Defendants' solicitors by letter that they would shortly be applying to the court for service out of the jurisdiction and on the same day the Defendants' solicitors replied that this was unnecessary since they had already acknowledged service for both Defendants.

23. On the 17th June, within 14 days of giving notice of intention to defend, the Defendants issued their summons under O.12 r.8 applying for the discharge of the Master's order extending the life of the writ and for other related relief.

24. The grounds stated pursuant to O.12.r.8(3) for the application, so far as material to the 2nd Defendant, and bearing in mind that counsel for the Defendants informed the court that the 1st Defendant was the agent of the 2nd Defendant, were in substance that the Plaintiffs had not shown good or sufficient cause justifying the renewal of the writ by the Master's order. The grounds were stated in the following terms:-

25. The Defendants' application was supported by an affirmation of Mr. Quinan, their solicitor. He deposed that the bills of lading in question had been signed by the 1st Defendant for and on behalf of the 2nd Defendant. He attributed the misdelivery to the fact that the notify parties, who were buyers from the Plaintiffs, had used what were suspected to be forged documents to obtain the goods in question from the 2nd Defendant's agents at Port Harcourt without paying for them. The 1st Defendant had, he said, been anxious to ensure settlement of the matter between the Plaintiffs and their buyers in Nigeria and this was, he contended, obvious from the correspondence exhibited to Mr. Cheung's affidavit.

26. The remainder of Mr. Quinan's affidavit was expressed in forensic terms, contending that the correspondence did not show that the 1st Defendant was considering its personal liability in respect of this claim and that there was no express or implied request to the Plaintiffs' solicitors to withhold service of the writ.

27. Mr. Quinan contended that the correspondence between the solicitors had been desultory and it did not amount to settlement negotiations. On several occasions the Plaintiffs' solicitors threatened to serve the writ but did not do so within 12 months from its issue. He asserted that no attempt had been made by the Plaintiffs or their solicitors to ascertain the relationship between the 1st and 2nd Defendants and they had not corresponded with the 2nd Defendant about the claim or attempted to serve the writ on the 2nd Defendant. He contended therefore that the Plaintiffs' solicitors had failed to show good or sufficient reason to justify the granting of the extension of the validity of the writ.

28. A further affidavit of Mr. Cheung was filed on the day before the hearing on behalf of the Plaintiffs. He exhibited correspondence to which I have already referred and then referred to his evidence in his first affidavit to the effect that there would not be enough time to serve the 2nd Defendant before the writ expired. He deposed that his previous evidence on this aspect of the matter was based on his own estimate of the time needed to obtain leave to serve out of the jurisdiction and instruct an agent in London to effect service.

29. After obtaining counsel's advice, Mr. Cheung deposed, he had been advised that in case of urgency the Master might be persuaded to hear an urgent application for service out of the jurisdiction on short notice without prior appointment. If such an order had been granted on the 13th May 1983 it would have been just possible to serve the writ on the 2nd Defendant in England by at once flying a process server there for that purpose.

30. Mr. Cheung deposed that no attempt had been made to serve the 2nd Defendant between the 13th and 19th May 1983 because he thought that as the Master had already granted the order for the extension there was no great urgency to embark on the costly exercise.

31. At the hearing of the Defendants' summons under O.12 r.8 counsel for the Defendants was aware that counsel  for the Plaintiffs intended to contend that the original writ was still valid for sevice when served on the 1st Defendant on the 19th May 1983 by reason of the wordings of  O.6 8(1) which is not in the same terms as the corresponding English corresponding English rule. Counsel for the 1st Defendant therefore advanced arguments to the contrary but the application for discharge of the  Master's order of renewal was abandoned or behalf of the 1st Defendant  before counsel for the Plaintiffs could raise the point and the  court was not required to deal with it.

The Ruling under O.12 r.6(2)

32. The acknowledgment of service on behalf of the 1st Defendant on the 3rd June 1983  was made outside the 14 days period prescribed  by O. 12 r. 5(a). If the acknowledgment, including the Statement of intention to defend, had been made not later than the last day of the 14 day period after service of the writ (including the day of service which was the 19th May 1983) i. e. on the 1st June 1983 then the Summons under O.12 r.8 should have been issued within 14 days thereafter i. e. not later than the 15th June 1983.

33. In fact the Summons was issued on the 17th June 1983. The question therefore arose whether the 1st Defendant was in the position where it could not proceed without the leave of the court under O.12 r.6(2) because that rule stipulates that a party who makes his acknowledgment of service after the time limited for so doing "shall not, unless the Court otherwise orders, be entitled to serve a defence or do any other act later than if he had acknowledged service within that time". Accordingly I dealt with this question as a preliminary issue before going into the substance of the Defendants' Summons.

34. Counsel for the 1st Defendant emphasised that the time for applying under O.12 r.8 was not expressed to be referable to acknowledgment of service but was a 14 day period referable to the giving of notice of intention to defend. Time was expressly stipulated to run from the giving of that notice whereas O.12 r. 6(2) only related to the doing of acts which were governed as to time by the giving of acknowledgment of service. Some examples of such acts were, he said, the service of a defence under O.18 r.2 and the filing of a preliminary act under O.75 r. 18(1). One should not therefore, he submitted, read the reference to notice of intention to defend in O.12 r.8 as including acknowledgment of service.

35. As to the definition in O.1 r. 4(1) of "notice of intention to defend" as a form of acknowledgment of service, he stressed that an acknowledgment of service containing a statement of intention to contest the proceedings was not the only form of acknowledgment of service. He also relied on the fact that the form of an acknowledgment of service could be amended to include a notice of intention to defend for the first time without leave under O.20 r.2(2) and a fresh amended acknowledgment could be filed under O.20 r.2(3).

36. In the circumstances of this case I accepted counsel for the Plaintiffs' contention that the attempt made by counsel for the 1st Defendant to isolate and segregate a notice of intention to defend from an acknowledgment of service was not sustainable. In my judgment a notice of intention to depend can only exist when contained 1n an acknowledgment of service and every  reference in the Rules of the supreme Court to such a notice is necessarily a reference to an acknowledgment of service containing such a notice.

37. The definition of "notice of intention to defend" in O.1 r. 4(1) speaks for itself and there is nothing in any subsequent rule to permit the existence of a notice of intention to defend other than as part of an acknowledgment of service. O.12 r. 1(3) provides that service of a writ may be acknowledged by completing an acknowledgment of service as defined by rule 3. Rule 3(1) provides that an acknowledgment of service in a writ action must be in Form 14 in Appendix A. That form requires the Defendant to state, by ticking the appropriate box, whether the Defendant intends to contest the proceedings. The form warns the Defendant that if any information required is omitted or given wrongly, the form may have to be returned.

38. Clearly the Defendant is obliged to state in his acknowledgment of service whether or not he intends to contest the proceedings. He is not permitted to state "may be". He must state "Yes" or "No". If he does neither (and the Registry does not return the form to him for proper completion) or he states that he does not intend to contest the proceedings when acknowledging service within the 14 days permitted under O.12 r. 5(a), he may amend the acknowledgment later under O.20 r.2 and insert notice of intention to defend but he may find himself out of time for service of his defence under O.18 r.2. However, if he once allows himself to be out of time for acknowledging service there is no way in which he can give a  notice of intention to defend except in an acknowledgment of service which is out of time. That is what happened in the present casa and  I do not have to consider here a situation in which notice of intention to defend has been introduced by way of amendment of an acknowledgment of service which had been originally made due tire.

39. Because a notice of intention to defend is only capable of existence in an acknowledgment   of service, I conclude that the reference in O.12 r.8(2) to acknowledgment of service out of time  necessarily includes such acknowledgment when it contains a notice of intention to defend. This interpretation is reinforced by the fact that at r. 6(2)  begins with the words 'Except as provided by paragraph (1)" and paragraph (1) is concerned with the limitation of the giving of notice of intention to defend after judgment. Furtheremore r. 6(2) refers to the service of a defence later than if service had been acknowledged in due time and this again contemplates an acknowledgement containing a notice of intention to defend.

40. It follows, in my judgment, that having given acknowledgment of service out of time the 1st Defendant was precluded by O.12 r. 6(2) from making its application under O.12 r. 8 after the 15th June 1983 without the leave of the court. I so held.

The 2nd Defendant's Application Under O.12 r.8 to Discharge the Master's Order Extending the validity of the Writ

41. No difficulties stood in the way of the 2nd Defendant regarding late acknowledgment because it had never been served. The special circumstances under which it made its acknowledgment of service have been explained above.

42. Although O.6 r. 8(2) does not contain words requiring a plaintiff who applies for the extension of the validity of an unserved writ to satisfy the court that reasonable efforts have been made to serve the defendant or other good reason for extending the validity of the writ, the extension is not obtainable as a matter of course but only in the discretion of the court.

43. Moreover, in practice the discretion of the court is still exercised with caution and an application for extension of the validity of a writ should only be granted when the court is satisfied that there is good and sufficient reason. In particular, as Lord Denning said in Baker v. Bowkett's Castes Ltd. (1966) 1 W. L. R. 861 (C. A.) at p. 866, when a limitation period has run or is running the plaintiff who desires a further extension must show sufficient reason for it.

44. Counsel for the Plaintiffs sought to persuade me to consider the limitation factor in the light of authorities cited on applications for a stay to enforce foreign clauses. I declined to be led along a errant authorities for the application of the above mentioned principles, beginning with  the dictum of Lord Goddard in Battersby v. Anglo-American Cil Co. Ltd.(1945) K. 2  23 (C. A.) at p. 32 relating to applications made before the expiration of the writ, were reviewed recently by the English Court of Appeal in The Angelina The Great (1983) 1 Lloyd's Rep. 591 (C. A.) cited by counsel for the Defendants.

45. In that case the two members of the Court of Appeal accepted, and I follow them in doing likewise, that there is a distinction between the situation on the one hand where (as in that case and in the present case) the application to extend the validity of the writ is made before time has expired and, on the other hand, the situation where the application is made after time has expired. As Oliver L. J. said in that case at pages 595-6, where the limitation period and the time for service of the writ have expired by the time of the application the defendant has already acquired an accrued right to a limitation defence and the burden resting on the plaintiff to displace that right by the extension of the validity of the writ must be heavier that that which rests upon a plaintiff who applies in time whilst the period for service of the writ is still current because there is then no accrued or vested right which is sought to be displaced.

46. Oliver L.J. regarded it as immaterial whether the additional or extra burden is described, as in some of the cases cited to him, by reference to exceptional circumstances or any other phrase. Ackner L.J. regarded much of the argument concerning the degree of stringency of the test to be applied in each of the two situations as one of semantics and at page 594 he stated that in his judgment -

"The greater the alleged deficiency by the lawyers or whoever is said to be at fault in not serving either in time or placing themselves in a situation in which an application is necessary, the greater must be the strength of the mitigation if it is going to satisfy the Court that it is a proper case to grant the extension."

47. Clearly, as Ackner L.J. pointed out, an applicant is in a more serious situation if he applies after the time for the service of the writ has expired than if he applies before the expiry of that time. In the latter situation if the application is refused there must be some prospect of effecting service if the extension is refused and the degree of mitigation which the applicant must show is likely to be less than if he fails to apply until after the 12th hour.

48. For my part I have approached this application on the footing that the authorities provide a well trodden path leading to the conclusion that the court should approach this application with caution, enquire into the reasons for failure to serve the writ and grant the application if the applicant has shown good and sufficient reason for doing so. A less stringent test is applicable where, as here, the application is made before the validity of the writ for service has expired and in exercising the discretion of the court standards of reasonableness and not perfection are appropriate. However in considering the conduct of lawyers I adopt the test of reasonableness in relation to a trained lawyer as Salmon L. J. did in Jones v. Jones (1970) 2 Q. B. 576 at O.583. F-G.

49. Applying the above test to the evidence before the court it seemed to me that, contrary to the contention of Mr. Cheung in his affidavit in support of the application to the Master, there was no reasonable ground for the Plaintiffs or their solicitors to believe that the Defendants or either of them had agreed, expressly or impliedly, to waive their rights if the service of writ was withheld at any time after the 29th December 1982.

50. Moreover the last letter from the 1st Defendant dated the 18th January 1983, although headed "WITHOUT PREJUDICE" and promising to revert upon receipt of the reply of the 1st Defendant's Port Harcourt agents, was completely non-committal an referred to an amicable settlement having been reached there. This letter was written in reply to a  letter from the Plaintiffs' solicitors dated the 17th January 1983 threatening that if  the Plaintiffs' demands Were not met within the next 3 days the writ would be served or the Defendants. Service had previously been threatened by the Plaintiffs on the 2nd July and the 27th September 1982.

51. The tenor of the correspondence did not, in my  judgment, give grounds to any trained solicitor to conclude, unless he was deluding himself, that the Defendants or either of them was admitting liability or negotiating a settlement otherwise than on the footing that the consignors and consignees were to come to terms. The use of the "WITHOUT PREJUDICE" headings to letters was haphazard and the Plaintiffs' solicitors did not hesitate to threaten service in no uncertain terms on the 20th May 1982 and on the 3 subsequent occasions mentioned  above. This was not a situation as in the Prins Bernhard (1964) P 117 where delicate negotiations were being concluded that could be prejudiced by service of the writ. The threats of service made in unvarnished terms make this clear and, in any event, the mere conduct of negotiations for a settlement is not by itself a good ground for failure to effect service: Easy v. Universal Anchorage Co. Ltd. (1974) 1 W.L.R.899.

52. Whilst the 1st Defendant's letter dated the 31st May 1982 manifested the Defendants' wish to hold up proceedings and delay service until the 29th December 1982 and to extend time accordingly, that letter did not, in my judgment, give rise to any reasonable inference that the Defendants intended to waive their rights as regards service of the writ or limitation after the 29th December 1982. It may be that if the Plaintiffs had issued a fresh writ on the 28th December 1982 they could have contended that the Defendants could not rely on a limitation defence by reason of the extension in the Defendants' letter but this never happened and by the 17th January 1983 the Plaintiffs' solicitors were threatening service of the writ within 3 days if the Plaintiffs' demands were not met.

53. What then was the explanation to the Master for the apparent inactivity of the Plaintiffs and their solicitors between the 18th January and the 13th May 1983 when the application was made to the Master to extend the validity of the writ? Mr. Cheung deposed to the Master that "as late as 18th January 1983" the 1st Defendant had sent the letter of that date and he had heard nothing thereafter. No other explanation was given for the delay.

54. Once the court has rejected as unreasonable the alleged belief of the Plaintiffs and their solicitors that the correspondence evinces a representation by the Defendants that service could safely be withheld, the failure of the Plaintiffs to effect service during the 4 months following the 1st Defendant's letter dated the 18th January 1983 seems to me to be unexplained except on the footing that either the Plaintiffs or their solicitors or both deluded themselves without reasonable cause into believing that service could be withheld.

55. At the hearing before me the Plaintiffs' solicitors' letter dated the 14th December 1982 and 20th January 1983 were produced. The former letter asks for instructions from the 1st Plaintiff whether to serve the writ on the Defendants. The letter dated the 20th January 1983 exhibits the last 2 letters passing between the Plaintiffs' solicitors and the 1st Defendant, namely the letter dated the 17th January 1983 in which the Plaintiffs' solicitors threatened service in 3 days and the Defendants' reply thereto dated the 18th January 1983. It concludes by simply asking for instructions "....... especially in connection with whether you have reached a settlement with the carrier."

56. The next event in the chronology as related to the Master by Mr. Cheung in his affidavit sworn on the 13th May 1983 is that "Recently" Mr. Cheung received  instructions from tie Plaintiffs to serve the writ. At the hearing the Plaintiffs' counsel informed me that these instructions were oral instructions received very shortly before the 13th May 1983. The additional letters referred to above seem to me to confirm he 20th January 1983 and the date when oral instructions for service were given no action was taken in this matter by the Plaintiffs or their solicitors and there is nothing to indicate that the Plaintiffs' solicitors warned the Plaintiffs during the interval between the 20th January 1983 and the date shortly before the 13th May 1983 when instructions of service were giver,   of the consequence of failure to the writ  before it expired on the 8th or 19th May 1988.

57. It follows, in my judgment, that if the Plaintiffs' solicitors were right in representing to the Master on the 13th May 1983 that there was then insufficient time to serve the 2nd Defendant in England they were in a very grave situation brought about by the failure to effect service at an earlier date. This failure is attributable, on the evidence before the Master and on the evidence before me, either to the failure of the Plaintiffs to instruct their solicitors to effect service in time after being advised of the importance of timely service or to the failure of the Plaintiffs' solicitors to advise their clients of the importance of timely service when they received no reply to their letters dated the 14th December 1982 and the 20th January 1983 addressed to their clients.

58. In such circumstances the Plaintiffs have not, in my judgment, shown good and sufficient cause to justify any extension of the validity of the writ, let alone a 12 months extension.

59. I arrived at this conclusion after given careful consideration to the question of prejudice and bearing in mind the importance attached to that factor in Jones v. Jones (supra ) where the Plaintiff's solicitors had acted on an erroneous view of the law which the court of Appeal held any trained lawyer could reasonably have taken under the circumstances of the case. In the present case if the Plaintiffs' solicitors failed to advise the Plaintiffs of the importance of timely service either through inadvertence or by reason of  the belief that the Defendants had waived  their right to contest an extension of the validity of  the writ their conduct was not, in my judgment, reasonable.

60. Accordingly if tae Plaintiffs' solicitors have been negligent the Plaintiffs are not hut shut out from further remedy. Furthermore, although (as the decision of Cons J. in Yuen Fung Metal  Works Ltd v. Kuehne & Nagel (H. K.) Ltd. (1978) H. K. L. R. 588 shows) such relief may not be a fully adequate substitute for the relief sought in this action, it is still open to the Plaintiffs to sue the consignees for payment.

61. Finally there re remains counsel for the Plaintiffs' argument based on the evidence that on the 13th May 1983 it was still  in fact possible to make an emergency application for service out of the jurisdiction and serve the writ on the 2nd Defendant in England. In  these circumstances, counsel contended, where the Master, who knew the practice, had made the order for the extension before the  validity of the writ had expired and the Plaintiffs had acted on it and relied on it, that in itself was a good reason or cause which the Plaintiffs were entitled to relied on afterwards on the hearing of the application for the discharge of the Master's order.

62. Counsel for the Defendants replied that this argument ignored the fact that every order for extension was assailable and to that extent could not be safely relied upon. He contended that if counsel for the Plaintiffs' argument was sound it would provide the complete answer in every case where a successful application was made to the Master without showing good cause but before the expiration of the time for service and when it was still possible in fact to effect service.

63. I agree and therefore rejected the argument of counsel for the Plaintiffs because I regarded the central question as being whether, on the evidence before me, good and sufficient reason had been shown for the extension of the validity of the writ. Having concluded in the negative I discharged the Master's order. I add that when I prepared these reasons, I read Stevens v. Services Window & General Cleaning Co. Ltd. (1967) 1 Q. B. 359 (cited in the Angelina The Great (supra) and was fortified regarding my conclusion on the last question argued, in this case, by the rejection by Chapman J. at pp. 366-7 of a very similar argument in that case which was also one in which the application was made before the expiration of time.

Representation:

Mr. Edward Chan instructed by M/s Woo, Kwan, Lee & Lo for the Plaintiffs.

Mr. Sussex instructed by M/s Sinclair Roche for the Defendants.