Kenvee (Nigeria) Ltd v. Promrt Shipping Corporation Ltd and Another

HCA007720/1982

12 month time-bar in Bill of Lading. Meaning of "suit is brought". Time stops running when a suit is brought, based on the Bill of Lading, by a person claiming as owner against a person sued as carrier. Joinder of 2nd defendant as carrier after 12 month permitted. Alternatively court has jurisdiction to permit joinder in its discretion after 12 months. Kalimantan Timber Co. v. Mighty Dragon 1980 HKLR 272 applied.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: The Hon. Mr. Justice Hunter.

Date: 24 January 1983

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JUDGMENT

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1. This case concerns a cargo of vacuum flasks which were shipped from Shanghai to Apapa in Nigeria under a Bill of Lading dated 30th of June 1981. The plaintiffs in this action are consignees. The goods were delivered very early in September 1981, during the first week in September. Then questions arose as to the sufficiency of such delivery. There was said to have been damage to some of the flasks and short delivery of another quantity. The plaintiffs took up the matter with the Cargo Agents in Apapa and eventually were given certificates by those agents as to the extent of the damage and the extent of the short delivery, which certificates were said to be given for insurance purposes only. One of the matters, no doubt, which will have to be investigated at the trial, is the difference between a certificate for insurance purposes; and a certificate for other purposes; and whether it is legitimate in this trade to produce certificates to insurers which are not in fact true. But that is a side issue. All these certificates were expressly given by the agents in Nigeria acting as agent for Prompt Shipping Corporation Limited, the 1st defendant. And copies of the correspondence were sent by the agent to the 1st defendant.

2. The claim not being settled, in June of 1982, the matter was taken up in Hong Kong on behalf of the plaintiffs. Hong Kong was the appropriate venue because the proper law of the bill was Hong Kong law and the Hong Kong Courts were likewise given exclusive jurisdiction. But there is a part of the bill which I think it is painfully apparent that the plaintiff's solicitors at that stage did not read. It is the demise clause which is clause 34. It says this:

"If in the performance of this contract, the ship is not owned by or chartered by demise to the company or line by whom this Bill of Lading is issued..... this Bill of Lading shall take effect only as a contract with the owner or demise charterer as the case may be as principal made through the agency of the said company or line who act as agents only and shall be under no personal liability whatsoever in respect thereof."

That has got to be read in conjunction with the definition of carrier in clause one, "the carrier means the party or whose behalf this Bill of Lading has been signed." Encouraged, I suspect by the fact that the 1st defendant were (a) the issuer of the Bill and (b) the person named as their principal by the agents in Nigeria, the plaintiff's solicitors wrote to the 1st defendant here. But the true position, as is alleged by the 1st defendant, is that they were not the owners, nor the demise charterers of this particular ship at the material time. The owners at the material time were another company called Sibuyan Maritime Carriers Inc., a Panamanian company which has been referred to throughout as S.M.C.

3. When launching this claim in Hong Kong by their initial letter of 14th of June, the plaintiff's solicitors were asking if "you", that is Prompt Shipping Corporation, would settle our client's claim, which is then set out. The answer to that was that they Prompt, the 1st defendant, could only process the claim if the claimants would clarify the position as to whether there was duplication of the claim between Nigeria and Hong Kong or whether it was the same claim. That is then done by a telex reply in which one finds these words at the end: "we cannot see any possible defence by you to our clients' claim. We have instructions to take legal action promptly against your goodself if payment is not settled promptly." I think it must have been apparent to the recipients of that letter that the plaintiffs had got their facts wrong. The plaintiffs had not asked who were the owners. It must equally have been apparent to the recipients that if the time then existing between the 29th June and early September could be successfully played out, this would be the best and simplest answer to this claim because then the time bar of 12 months from the date of delivery would have operated. I have little doubt that these are the tactics which Prompt, as from that moment, deliberately employed.

4. By their answer they did not point out that this was nonsense: that there could be no action brought against them. Nor did they point out that they were in fact only agents in the matter. They simply ignored this threat of proceedings against them personally. They said the first thing they had to do was to enquire whether the Apapa Agents had settled the above claim. No doubt in the course of any future trial the grounds for such belief will have to be investigated. In argument, questions have been raised by the plaintiff as to whether this was a genuine assertion or not. It will be no doubt be necessary to see whether the Apapa agents had been put in funds, or had any retained funds or had been given any semblance of authority to settle.  If none of those three things had happened, then it may well be a case, as was suggested as a possibility by the plaintiff at the moment, of more than playing out time.

5. On 13th July the plaintiff telexed again asking for "your" agreement, that is Prompt's agreement, to extend our client's time to issue a writ for a period of 6 months pending the making by them of their enquiries with the Apapa agents. The answer came back on the same day in two different telexes. The first one refers to the fact that Prompt were checking with the parties concerned. The second one had a third sentence added to it "we still checking discussing with parties concerned hopefully can revert before expiry date 30th August. If owns can't, they will consider your application for T/E (time extension) before expiry." There will again no doubt at the hearing be a lot of discussion and argument as to the precise meaning of those words.  It is suggested by Prompt that they were putting the position before the plaintiff bluntly by referring to owners. That is no doubt a matter for further investigation. If the last sentence is intended to mean that the owners would consider the application for time extension before the expiry, and no doubt notify the parties as to whether or not the extension had been granted or not because unless that happened consideration was a total waste of time, one can only say that that in fact it did not happen. Concerned about the further expiry of time without any further answers from Prompt, on the 27th of August the plaintiff issued their writ in this matter simply against Prompt, the 1st defendant.

6. The Statement of Claim was specially endorsed and plainly constitutes a claim in respect of this particular shipment under this particular bill. The claim is brought against Prompt in the belief that Prompt were the carrier for the purpose of that shipment. By the expiry of the first week in September the 12 months since delivery had safely gone by. Then we find on the 14th of September solicitors writing for the 1st defendant's pointing out the plaintiff's error; pointing out that the 1st defendant was only agents and likewise pointing out that the dis-charge had been completed on the 1st, 2nd and 3rd September and accordingly the one year time limit under the Hague Rules expired on about the 5th of September. So that by the second week in September, in the vernacular, solicitors were pulling the carpet on the plaintiff on behalf of both the named defendant and the true owners.

7. This was followed up on 23rd September, by a defence which deals fully with the claim. This defence showed that by that time, and because of the promptitmde with which the claim had been advanced in Nigeria, the facts relating to the claim had been fully investigated. Indeed figures differing from those put out in the original Nigerian certificates are advanced in this defence. It follows that if the purpose of any of the time provisions I have got to consider in a moment, is to compel prompt investigation and prompt enquiry into a claim, there is no doubt at all that the clause was effective in this case.

8. When faced with that position the plaintiffs did two things. They put in a reply raising an estoppel against Prompt and alleging in substance that Prompt were owners or carriers by estoppel. They ascertained that S.M.C. were the true owners and applied to join them as co-defendants. The application came before Master Wilson on the 15th November when counsel appeared for both parties. But the matter proceeded ex-parte on this basis: that the plaintiff went ahead ex-parte but undertook to take no point about the fact that the application, if successful, would then have been made, before any application could be brought by the defendant to set it aside. The present summons is the defendant's summons asking that they should be discharged from the action inform. In substance, by reason of the agreement that was made before Master Wilson on the 15th of November, it is whether this application should ever have been granted and would ever have been granted on an inter parte summons in the first instance. The question therefore that I have to decide is whether the second defendants should remain defendants to this proceeding at all.

9. Now the matter gives rise to two quite separate issues. The first issue is whether a time bar has yet operated in favour of the 2nd defendants. They assert through Mr. Mumford that it has. They say that in the events that have occurred any claim against them has been dis-charged and the plaintiff no longer has any cause of action to advance against them. Not so say the plaintiffs. They wish to argue and have argued that suit was brought within 12 months within the meaning of the time clause. That is the first issue. The second issue, which arises only if time has run in favour of the 2nd defendant, is whether in such circumstances (1) the court has a discretion which it can exercise in the matter and (2) if so, whether it should exercise any discretion in favour of the plaintiff.

10. I then turn to the first issue which itself raises two questions of construction of the Bill of Lading. The first question is what is the relevant provision in the bill; the second question is what is the meaning of the phrase "suit is brought" which appears in both provisions in the Bill.

11. First question is what is the relevant clause. There are J two candidates here. The plaintiff says that it is clause 36 and 36 alone. The first sentence of this deals with notice of defects. The second sentence goes on "Any claims against the carrier, regardless of their legal nature, in respect of damage to or loss of goods carried or to be carried under this Hill of Lading-or under its condition, shall be time-barred unless suit is brought within one year after delivery of the goods or the time when the goods should have been delivered. The alternative view advanced by the defendants is that clause 36 applies as well as article III rule 6 of the Hague Rules. Article III rule 6 deals with a number of matters arising out of notification of damage and includes this: "In any event the carrier and the ship shall be dis-charged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when goods should have been delivered."

12. The outcome of the matter turns on clause 2 of the Bill which says this, (I am paraphrasing a little ) "This Bill of Lading shall have effect subject to the provisions of articles I to VII of the Hague Rules..... unless otherwise provided for in this Bill of Lading. These Hague Rules shall be deemed to be incorporated herein and nothing herein contained shall be deemed a surrender by the carrier of any of the rights and/or immunities under the said Hague Rules." The issue as I have indicated, is whether both clause 36 and rule 3(6) apply or only clause 36. Now in support of the contention that it is only clause 36, Mr. Ribeiro for the plaintiff says this: This is a case where the Bill of Lading "otherwise provides". Otherwise provides means, he says, where you find provision in the Bill identical in scope or subject matter to the relevant provision in the Hague Rules. Hague Rules 3(6) and clause 36 of the Bill of Lading are covering substantially the same ground, whether you look at them both as a whole, or perhaps more particularly when you look at the time barring clauses which appear in each. Clause 36 is thus, he argues, other provision in this Bill of Lading. This means that 3(6) is excluded from the first sentence in clause 2, and because it comes out of the first sentence, is not part of "These Hague Rules" which are picked up in the second sentence. In any event clause 36 is not a surrender of any rights or immunities under the Hague Rules, because if you compare the two clauses clause 36 is apparently designed and intended to be a more specific and broader exclusion than the appropriate rule in the Hague Rules.

13. Now in answer to that for the 2nd defendants, Mr. Mumford submits that both clauses apply. First he puts two alternative meanings on "otherwise provide". The first he suggested is that to constitute other provision, the provision must be more favourable to the ship owner not less. He says that clause 36 is less favourable to the ship owner because that contained the word time-barred" and not the words "shall be discharged". Alternatively he says that to constitute other provision in the Bill the provision must expressly exclude the Hague Rules. In one or other of those two ways, he seeks to put a special narrow construction upon the phrase "otherwise provided". From this it follows that "these rules" in the second sentence include 3(6). Alternatively and further, he says, that there is in this case a partial surrender of rights or immunities because of the difference in wording between the two rules.

14. On this I prefer to give the phrase "otherwise provided" what I regard is its natural meaning, namely: is there other provision in the Bill? I do not think it is right to treat that other provision as being ineffective for this purpose unless it is of the special nature relied upon by Mr. Mumford, e.g. that it has got to be special provision more favourable to the ship owner. Indeed I think that this Bill suggests that its draftsman wanted a term such as clause 36 in preference to the Hague Rule. In particular he did not want the potential confusion which can so readily arise if you have two different provisions in the contract covering substantially the same subject matter. I think that the words "otherwise provided" were put in to make it clear that the relevant, and the only relevant provision in this Bill of Lading was clause 36.   This was done by making sure that it was not incorporated in "these rules" in the second sentence. Further it does not seem to me that the adoption o?clause 36 constitutes any surrender of rights or immunities. In my judgment therefore the time provision in this Bill of Lading is clause 36.

15. I suspect that an identical result can be arrival at by different route if I was in Mr. Mumford's favour because I would then be faced with two conflicting provisions; one which simply referred to the phrase "time-barred" and the other which said "Shall be discharged", I would then have conflicting provisions in conflicting exclusion clauses. I think it may well be that in those circumstances I would have had to have applied the contra proferentem rule to the clauses and taken the least hostile to the cargo owners as being the governing clause.

16. So that in my judgment clause 36 is the governing clause and what I have to consider next under the second part of the first issue, to which I now turn, is the phrase "unless suit is brought" in that clause. Now the hallmarks of the necessary suit seem to me to be spelt out in the clause itself. First it has to make a claim against the carrier regardless of its legal nature; that is the first pro-position. Secondly the claim has to arise or to be made in respect of damage to or loss of goods carried under this Bill of Lading, or under its conditions; that is the second hallmark. The third hallmark necessarily follows from the second; it has to be made by someone who is interested in the goods more probably by someone who is the holder or endorsee of the Bill of Larding. Those are the three basic require-ments.

17. As far as the second requirement is concerned, the plaintiff here says look at the amended Statement of Claim.  This shows that both the original Statement of Claim and the amended Statement of Claim relate expressly and exclusively to this particular cargo, to this particular voyage and to this particular Bill. The only addition in the amended Statement of Claim is a series of "and/or" throughout the document in red, to bring in the second defendant in the alternative.  So that there is no question here but that the second requirement is fulfilled as against both defendants.  Given that constant, I emphasise that, what the plaintiffs say is, that an action brought, for example, by Mr. A claiming as owner, against Mr. X sued as the carrier, constitutes suit brought for the purposes of clause 36 and stops time running against B who claims some interest or ownership of the goods additional to or alternative to that A, or in favour of Y who is alleged in the alternative to be the carrier for the purposes of the Bill of Lading. The plaintiff's submission is that claims additional to or alternative to the initial claim can be made in such circumstances after the expiration of the 12 month period. Not so, said Mr. Mumford for the 2nd defendant. I think he would like to say in these circumstances, suit means a properly constituted suit; but in deference to Hong Kong authority to which I shall refer in a moment, he says particularly that in the hypothesis I have put action is only brought against Y, and time only stops running in favour of Y when he is in fact joined in proceedings. If that step is not taken within the 12 month period, the claim is time-barred within clause 36 or discharged under the appro-priate Hague Rule, and should not be permitted to be advanced at all.

18. Now one of the problems under this Bill of Lading, in respect of parties, is that things are not necessarily what they appear to be on the face of the Bill. I have already read the Demise Clause. This shows, as I see it, that you can have 4 possible candidates as the carrier: first you can have the owner: the second is a demise charterer (if any): the third is the issuer of the Bill of Lading, Prompt in this case, but only if he falls into category 1 or 2: and fourthly you may have the issuer of the Bill of Lading or possibly somebody else who is said to constitute an owner, or possibly even a demise charterer, by estoppel. Now those possibilities being open, it is quite obvious that the only person who will know all the facts is the ship owner himself. The cargo owner can discover the name of the ship owner. There is probably no way at all in which he can discover the name of a demise charterer, if any. Now all sorts of possibilities were canvassed in argument arising out of that situation. The two extremes may be said to be these. At one extreme is the case where an owner successfully plays out time until 12 months have expired knowing the existence of a demise charterer and reveals that demise charterer's name deliberately after the expiration of that 12 months; perhaps because he wishes to protect him against the claim. That sort of situation, where an owner may be said to have been guilty of sharp practice but falling short of fraud; that is the worst end of the spectrum. The other and least heinous end of the spectrum might be said to be this: where the plaintiff in launching his proceedings makes a simple, silly but fundamental mistake as to the name of the ship owner. A typical example of that is where he forgets to add the word "limited", or its equivalent in the ship owner's country of origin, and sues a firm which exists under that name instead of the limited company itself.

19. Now what is to be the result in those sort of situations? Mr. Mumford for the 2nd defendant says: This is a limitation period. Limitation periods are almost by definition rigid  in that the period is running on one day and ends on the next.  The court here should construe these clauses strictly and there is no room for any palm tree justice. A plaintiff who is suing under this Bill of Lading has got to get it right. The defendant carrier or potential defendant carrier is under no obligation at all to help. It is up to a plaintiff to ask all the right questions and he fails to ask the right questions at his peril. The plaintiff's answer if he is in any doubt or getting no co-operation from the potential carrier is to arrest the ship. It is pointed out that in practice this may or may not be an effective remedy, or effective to provide the right information. That is the defendant's submission strict construction, strict application of the rules.

20. For the plaintiff, Mr. Ribeiro, I think would say that he is not resorting to any palm tree justice. All he is inviting the court to do is to construe this clause contra proferentem, because it is an exclusion clause, but give a proper meaning to the phrase suit is brought". What he is really urging is that clause 36 should be construed so it fulfils its main and proper purpose and only, and perhaps only is the operative word, such purpose. It should be construed so as to force the early making, and the early pursuit of claims, so as to protect a ship owner against claims which are not timeously advanced. Both parties in this contest really rely upon a dictum of Mr. Justice Roskill, as he then was, in Compania Colombiana de Seguros v. Pacific Steam Navigation Co. which is reported in 1965 1 Q.B. 101. The dictum is at page 123 where Mr. Justice Roskill says: "the crucial paragraph in the rule (he is referring there to the sentence in article III rule 6) is to protect shipowners from being subjected to claims for loss of or damage to cargo which have not been promptly made and promptly pursued." What Mr. Riberio is urging is that if you apply that test to the facts here, this claim has been promptly made and promptly pursued, and was, as is demonstrated by the defence, promptly investigated. Therefore to give the clause the meaning for which he contends in no way detracts from its substantial purpose. But what it would do is to prevent the clause being used for an additional purpose, from being used as an instrument for evasion, from being used beyond a clause which gives legitimate protection to someone after the lapse of 12 months. It prevents some of the possible matters, which were considered in argument, such as the deliberate withholding of a name until after the 12 month period has expired. It prevents what I have called in this judgment, playing out time for the purposes of playing out time.

21. Of those two views, one has a slightly invidious choice because nothing, I think, more readily divides judges than limitation questions. They tend to fall into two categories: those who put the strict application of the law above the merits, and those who like to temper the law with some element of merit.. This difference of the view explains many of the conflicting dicta in decisions in the Court of Appeal in England on this subject matter over the last 20 or 30 years. Of the two views, I would myself, prefer Mr. Ribeiro's. It seems to me to give sensible meaning to the phrase "suit is brought"; and at the same time, to confine that meaning to what I would regard as the proper purpose of this clause. But my views on this subject matter I think are quite immaterial, because it seems to me that that is the view which has already been adopted in Hong Kong in a case called Kalimantan Timber Co. v. Mighty Dragon Shipping Co. S.A. 1980 Hong Kong Law Reports 272. What happened in that case was that Kalimantan as cargo owners, within the 12 month period, commenced an action against the defendant as carrier. But after that action had been started and after the expiration of the 12 months, doubt entered into the mind of Kalimantan as to whether it was the proper plaintiff, it having at some date which is not made clear in the report, sold its interest in the cargo to a firm called Cosmos. Kalimantan accordingly made application to join Cosmos as co-plaintiff. The only possible basis for that, they being claimants in the alternative, was that the action as already constituted by Kalimantan was ill-founded and could fail because it was not an effective owner. That joinder was allowed by the Court of Appeal. Mr. Justice Huggins said: ''In respect of a claim for loss of this cargo I think time stopped running under the rules when suit was brought by Kalimantan in the same capacity i.e. as owner." I was quoting there from page 279 of the judgment.

22. This is authority binding upon me to the effect that an alternative claimant as cargo owner can be added to a suit after the expiration of 12 months. It seems to me that this necessarily involved the adoption by the Court of Appeal of a construction of the phrase '?"suit is brought" which is indistinguishable from that contended for by the plaintiff before me. I can certainly see no difference between that case and this; no any real difference. Because the claim there, as I have said, may well have been a bad claim to which Mighty Dragon had originally been joined, and I can see no difference between joinder to a bad claim and no joinder at all which is the difference relied upon by Mr. Mumford here. In these circumstances I think that I am effectively bound, and even if I was not bound I would myself have preferred the same result to conclude that suit is brought for the purposes of clause 36, if in respect of a particular cargo, that is the constant basic requirement two, it is brought by somebody claiming as owner against someone said to be the carrier. Any errors in the names of either party or in the entitlements of either party can be corrected by amendment. It follows in my judgment that the Master's order of the 15th of November was in fact correctly made.

23. It equally follows that strictly speaking the second issue in this case, namely discretion, does not arise. But the same position arose in Kalimantan, and it was considered by the Court of Appeal in Kalimantan in terms which in my judgment still leave it as part of the ratio decidendi. In case this matter should go further and the Court of Appeal are interested in my views on this, I will express them.

24. Question No. 1 is have I got a discretion?  Mr. Mumford says no on two grounds. First of all he says that this is a contractual limitation of liability and he relies particularly upon the statements in the opinion of Lord Wilberforce in The "Aries" 1977 1 Lloyd's Law Reports 334 at page 336. These Statements were to the effect that in a Hague Rules case, after the 12 months had expired the claim had ceased to exist. Likewise he says here this claim had ceased to exist. Secondly he relies upon Liff v. Peasley and Another 1980 1 W.L.R. 781 and particularly on the judgment of Lord Justice Brandon who expresses in clear and very strict terms what he describes as an established rule of practice which entitles a defendant who is joined after the expiry of a limitation period to come to the court and be taken out of the action. In the words of Lord Justice Brandon, he is entitled to this result "as of right". The only exceptions which Lord Justice Brandon recognised as existing to his general rule of practice were those cases falling within order 20 rule 5 to which he recognised that the doctrine of relation back probably applied. It does not really matter upon which of those pegs Mr. Mumfords hangs his case because they are both expressed in a very strict almost absolute terms.

25. Now let me deal first of all with the contractual one. My problem here is this: if the submission is right then every member of the Court of Appeal, as well as Mr. Justice Donaldson as he then was at first instance, missed the point only 12 months after the decision is the Aries case, when it. might be said to be very much in the minds of persons in this particular field. The case that I am referring to is the case normally known as The "Puerto Acevedo" which is reported in 1978 1 Lloyd's Law Reports at page 38. That was a case which arose under Article III rule 6 of the Hague Rules, and where the existence of a demise charterer emerged after the expiry of the 12 month period. All the judges who considered the case thought they had jurisdiction to grant the extension. The difference was the circumstances in which that jurisdiction should be exercised. Mr. Justice Donaldson said it had to be near fraud and declined to exercise it. The Court of Appeal reversed him. Lord Denning did so quite expressly and openly upon the basis that in doing so the proposed fresh defendant would be deprived of the time bar under the Hague Rules. Lord Justice Bridge and Lord Justice Shaw were much less explicit, but Lord Justice Bridge made it clear that he thought he had jurisdiction and he thought that point was "beyond argument".

26. It seems to me that if strict effect is given to what Lord Wilberforce says and if Mr. Mumford is right then the judges simply did not have jurisdiction. The answer in my belief is this. The question when suit is brought depends upon the procedural rules of the relevant proper law or place of jurisdiction under the contract. Some procedural rules including those in the U.K. and Hong Kong apply an element of back-dating. We have the doctrine of relation back, the result of which is that an amendment made on day 101 may relate back to day 1. The Courts in applying their own procedural rules are not directly varying a contract. They are not directly altering contractual rights. What they are doing is to alter the impact of such contractual rights by applying their own procedures. That is why I believe that the Court of Appeal took the view in The "Puerto Acevedo" that they had jurisdiction to do what they were doing.

27. The second point based upon the dicta of Lord Justice Brandon in Life v. Peasley and Abother is I think more difficult because I there are no doubt conflicting dicta upon this matter in the Court of Appeal in England. But I find it very difficult to accept that in The "Puerto Acevedo" the Court of Appeal was simply acting in vain and in the knowledge that all this charterer had to do was to come back to the court and he was entitled then "as a right" to be taken out of that suit. This is the effect of Mr. Mumford's submission because he emphasised that this was the ex parte application only. It is perfectly obvious that Lord Denning did not think anything of the sort, and I beg leave to doubt whether Lord Justice Bridge and Lord Justice Shaw thought so either. But again it seems to me that I am relieved of the obligation of deter mining this question because the matter came before the court in Kalimantan and the court there took the view that this jurisdiction existed and that they were prepared to exercise in that case. It seem to me as a matter of precedent that where the Court of Appeal in Hong Kong has considered an English authority, it is not for me to go behind the Court of Appeal's decision in Hong Kong. I am less ready to do so in this case because it seems to me that their approach was, with the greatest respect, right.

28. That then leaves the question only whether in the circumstances of this case, I should exercise any discretion. The relevant factors there seems to me to be these. First of all there was no sort of delay in this case at all. The claim was speedily and timeously formulated presented and pursued; possibly pursued incompetently in one respect but certain pursued. Secondly the plaintiff's failure was not being dilatory about the claim, but failing to ask fairly and openly the right questions of the defendant, and I think also being perhaps persuaded that they need not issue the writ as early as they might otherwise have done because there was a prospect of settlement. Because if they had issued their writ as soon as they cane on the scene in June, it is almost certain that Prompt would have been compelled to have revealed their true position before September. But if the plaintiff's solicitors were negligent in failing to ask the right question, there was (if I can borrow the description recognising that it has no proper application at all) there was what might otherwise be called a substantial "contributory" on the part of Prompt in the sense that they did not reveal that they were acting as agent openly and they seemed to me at least to have been taking steps which suggest that they were playing out time, and which suggest that apart from time there may well be very little defence to this claim at all. It is perhaps not unin-structive but the claim presently made against Prompt reveals a direct conflict between the 1st defendant, Prompt and the 2nd defendants because the claim based upon estoppel only runs if the 2nd defendants are not parties to the action. We know that the 2nd defendants operate from Prompt office and the fact that they are operating by the same legal advisers and that nothing appears to have been done in relation to this apparent conflict may also speak for itself. If I refuse to exercise discretion it is plain that the claim will go subject only to the argument on estoppel. If I exercise it the 2nd defendant will become an effective defendant. It will not enjoy any time protection but that is protection which it does not seem to me that it ever deserved to enjoy. In those circumstances, if I had to, I would exercise discretion in the plaintiff's favour. It follows in my judgment that the 2nd defendant's application before me fails and must be dismissed with I take it costs.

Representation:

Mr. Robert Ribeiro (Stevenson & Co.) for Plaintiff.

Mr. E.C. Mumford (Johnson, Stokes & Master) for Defendants.