Krohn and Co Import/Export v. Oak Steamship Co Ltd and Another
Read the full judgment text of HCAJ 268/1980 on BabelCite. This HCAJ judgment was delivered on 7 July 1982.
1. Once again I find myself following the White Rabbit down a hole into a Lewis Carroll world. On this occasion I am led into that unreal world by the actions of the Rules Committee in Hong Kong and the Chief Master. When I say that, I in no way intend criticism of motive: I am stating a fact.
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HCAJ000268/1980 Admiralty, Writ in personam, non service, effect of Amendment Rules. Practice direction of Chief Master 8/9/81 whether effective. Writ: Issue before Amendment Rules but not served, whether renewal permissible. Writ: Time bar whether renewal permissible after. Hague Rules: Effect on renewal of writ not served. Concurrent Writ: Form of. Concurrent Writ: New form not applicable if original writ issued on old form. Unserved old form Writ: Not nullity but incapable of being served.
BETWEEN:-
____________ Coram: The Honourable Mr. Justice Jackson-Lipkin in Court. Date: 7 July 1982 ___________ JUDGMENT ___________ 1. Once again I find myself following the White Rabbit down a hole into a Lewis Carroll world. On this occasion I am led into that unreal world by the actions of the Rules Committee in Hong Kong and the Chief Master. When I say that, I in no way intend criticism of motive: I am stating a fact. 2. Sometime, on a date I do not know and do not need to know, a contract came into existence for the consignment of a large quantity of animal feed from Durban, in what is now the Republic of South Africa, to the Federal Republic of Germany. There was a voyage charter and a time charter: I need not go into the details of those: Suffice it to say that it is alleged that, when the animal feed was discharged in Brake, there was apparently a large shortage (described by Mr. Ribeiro as a short-fall). 3. The Plaintiff, who is the consignee of the animal feed, commenced proceedings in South Africa against the time charterers on the basis or advice from South African lawyers (I do not know whether they be at the Bar or at the side-Bar-that does not matter). 4. I understand that, in addition, writs have been issued in England and Wales. 5. That is all I need to say about the background. 6. So far as this action is concerned, it was commenced by a writ in personam issued in Hong Kong on 23rd October, 1980, the writ being amended on matters that are of no significance by Order of Mr. Registrar Wilson on the 24th of August, 1981. 7. As I have said, it is a writ in personam. The important date is the date of issue, and that was 23rd October, 1980. The reason for the importance of that date is this, that, under Article III of the Schedule to the Carriage of Goods by Sea Act, which was made to apply to None Kong by Her Majesty in Council by Order of 13th October, 1980, which came into operation here on 1st February 1981, there is a provision providing a time bar in these terms:-
8. The word "suit" is used because this in effect is a series of rules emanated from the Low Countries. 9. I have mentioned the dates of the Order in Council and its coming into force. They, however, do not alter the position, because, under our old Carriage of Goods by sea Ordinance, which was the old Chapter 48, which was repealed by the Order in Council to which I have just referred, Article III, paragraph 6 (3) read:-
10. "Suit" again there does not have the English meaning, as that again is a foreign protocol. 11. But, whether the old Carriage of Goods by Sea Ordinance applies, or whether the Carriage of goods by Sea Act 1971 (in force here by virtue of the Carriage of goods by Sea (Hong Kong) Order 1980) applies, matters not for this reason: The goods were landed on 25th October 1979 and therefore the time expired at midnight on 26th October, 1980. The writ in this action was issued just in time. It was issued, as I have said, on 23rd October, 1980. That is of fundamental importance in this matter because the Plaintiff was not in a position to issue a new writ after 26th October, 1980. 12. I will return to the Hong Kong history in a few moments. 13. I must now digress and go to the legislative side of this matter. 14. In 1979, for reasons which would be unprofitable of me to canvass (notwithstanding their unhappy consequences), the Rules Committee in England, running from the Lord High Chancellor, the Lord Chief Justice, the Master of the Rolls and the President downwards, enacted The Rules of the Supreme Court(Writ and Appearance)Rules 1979. It is Statutory Instrument 1716 of 1979, made on the 19th of December, 1979, laid before Parliament the next day and coming into operation on the 3rd of June, 1980. 15. Rule 1 of those rules, which in effect are amendment rules, reads as follows:
16. In a recent judgment I had to comment in fairly strong terms, following the judgment of Mr. Justice Robert Goff in the Carmel case (1), (to which I will refer later), to the slavish adherence of our Rules Committee to changes in the rules in England. This case has caused me to regret the terminology of that criticism, because slavish adherence to the English rules in this case might have prevented what appears to me to be a gross injustice, not only to the parties before me but to others also. 17. The Rules Committee in their Wisdom on 26th June, 1981 made the Rules of the Supreme Court (Amendment) Rules 1981. Rule l reads as follows:-
The first thing to note is that there is no word there about what should happen to any cause or matter begun before that date, nor, I add parenthetically; is there anything anywhere else in those rules. 18. By those rules, (for what appears to me, and to a large number of my brethren, to be unsupportable reasons), the Royal Command was abolished, and, in addition to that, the whole system of appearance, and all that went with and flowed from it, was abolished, and there was subsituted for it the system of the old Probate, Divorce and Admiralty Division of Acknowledgments of Service, and, with those Acknowledgments of Service, there was provision for a notice of intention to defend. 19. Little, if any, thought appears to have been given to the position of writs properly issued before the 15th of September, 1981 but not served before 15th September, 1981, or to writs issued immediately prior to 15th September 1981 but to which there had not been, or had not been time for, an appearance to be entered. 20. It must have become apparent to someone in the Registry that something had gone sadly wrong, because, on 9th September, 1981, the Chief Master, (who had not followed Master Jacob in resigning in protest), wrote to the Secretary of the Law Society in these terms:-
It is singed by the chief Master. That was sent out by the Law Society in what is called "Circular to Members No. 62/81. For information", and was dated 15th September, 1981, in other words, the very day that the Hong Kong Amendment Rules came into operation. In the Circular, the Chief Master's letter is set out, and, immediately below it, reads the following:-
I apprehend that means in the High Court of Justice, because one cannot issue a writ in the Court of Appeal - then the sub-heading:-
21. The contents, which follow, read:-
It is dated the 9th of September, 1981, and again it is signed by the Chief Master. 22. Those, without the Bar addressing me, have informed me that, as far as they have been able to tell, that Practice Direction was not brought to the attention of the Bar. 23. Speaking for myself, I can say that I have never been notified of such Practice Direction, although, on taking up my appointment in September last year, I was, mirabile dictu, given a set of Practice Directions: It is dated the 1st of April, 1981, but, thanks to Master Blackwell, was in loose - leaf form. Mine, so far as civil matters are concerned, ends at page 36 with a Practice Direction relating to setting Down for trial; and so far as I am able to tell, the Practice Direction of 9th September, 1981 has neither been published nor communicated to the Judges. Of that, at this stage, I will make just one comment. It is a matter that I shall have to deal with in more detail in due course. Under Order 6 rule 6(3), there is a provision to this effect.
and I pause there; and then it continues-
It appears to me, (and I earnestly hope that I am wrong, because, at the conclusion of this judgment, I shall urge upon counsel that this matter be taken to appeal as soon as possible to prove me wrong), that no concurrent writ in the new form could possibly even be issued. And as I say, that is something to which I will return. 24. On 5th October, 1981 the solicitors for the plaintiff purported to serve the 1st and 2nd Defendants with a true copy of the writ of summons, that is the one that was issued on 23rd October, 1980, by sending the same by pre-paid ordinary post addressed to the 1st and 2nd Defendants. I am not in this matter concerned with the address, and, if that had been proper service on the 1st Defendant, it would have constituted proper service on the 2nd, and both counsel have invited me to disregard all questions arising out of the address of the 2nd Defendant, and I do so. 25. In the following week there was a telephone conversation between Mr. Gray of Holman, Fenwick &Willan and Mr. Biggs of Richard Butler. The affidavits disclose a slight difference in recollection of those two gentlemen, but it is of little importance. What is of importance is that time was being sought by the Defendants' solicitors, the Plaintiffs solicitors wishing to enter a default judgment, and, very properly under the Law Society arrangements, they were warning the solicitors for the Defendants. I add at this point that the Defendants' solicitors had no instructions to accent service, but did need time to take instructions from their clients. As I say, the difference in recollection of the exact nature of the request is of no importance in relation to this judgment. 26. The plaintiffs' solicitors, consequent upon that conversation, took no further steps. They did not seek to enter judgment, but, eight days later, they clearly became concerned. On 20th October they sent a telex, the original of which is Exhibit A, to the affidavit of Mr. Biggs of Richard Butler sworn on 5th July 1982, and it reads as follows:-
27. I will return to that later in this judgment, because it is a matter of considerable significance when it comes to the question of the exercise of discretion. 28. On the same day Mr. Biggs of Richard Butler relied in these terms:-
- Justina the vessel which carried the cargo from Durban to Brake-
29. Nothing happened. And, on 23rd October, 1981, by effluxion of time, the writ expired. 30. On 10th November, that is eighteen days later, Mr. Gray consulted the Registry and had a telephone conversation with a Mr. Yiu. Apparently Mr. Yiu told him that writ issued prior to 15th September had to be served in the new form by issuing a Concurrent writ, to which Mr. Gray wrote, on 11th November, 1981, that he had said on the telephone (on 10th November, 1981) that he was not aware of such a Direction and that he had served writs in the old form but that no appearance has been entered. It is apparent from that letter that Mr. Yiu had advised that an affidavit should be loaded seeking leave to renew the writ in order that it might be served in the new form, together with an acknowledgment of service and also seeking leave to issue a concurrent writ. 31. Mr. Yip apparently placed that letter, together with an affidavit, before Master Blackwell, saying that it seemed that he had made a mistake in the advice that he had given to Mr. Gray and that, as it was an Admiralty action, there was a real need to serve the writ in the new form, but that he had misunderstood the telephone conversation and had thought that it was ordinary High Court action. That letter and affidavit went before Master Blackwell, who noted on the letter that there was no need to serve the writ in the new form if it were an Admiralty writ. 32. And on 13th November, Mr. Yiu wrote to Holman, Fenwick & Willan in the following terms - first of all, he thanked them for their letter of the 11th of November, and continued:
And then he dealt with an administrative matter. 33. On 17th November a concurrent writ was issued. When I say "concurrent writ", I mean what purported to be a concurrent writ. It is a writ in the new form. At the head of it there is recorded the Order of Mr. Registrar Wilson. The concurrent writ, of course, bears the date 23rd October, 1980, and records that had been "served" or 19th November, 1981. 34. On 5th December, 1981, Messrs. Richard Butler, on behalf of each Defendant, lodged an Acknowledgment of Service in the new form. In each there was a statement that the Defendant intended to contest the proceedings. 35. Messrs. Richard Butler were quite safe in taking that course because of the provision of the new Order 12 rule 7 which reads:-
36. In accordance with the new rules (O. l.2 r. 4), the Registry has recorded that a copy of each acknowledgment was served on Messrs. Holman, Fenwick & Willan on 9th December, 1981. The procedure is to be found in O. 12 r. 4(b). 37. On 17th December, 1981, a summons was issued by Messrs. Richard Butler on behalf of both Defendants for the following three orders: One, that Master Blackwell's order of the 13th of November extending the validity of the writ for a further twelve months be set aside together with all subsequent proceedings; secondly, that the order of Master Blackwell, giving leave to issue a concurrent writ and service thereof on the Defendants, be set aside; and thirdly a request for an order for costs.. The ground was as follows - "there was no sufficient or good reason shown by the Plaintiffs to justify the exercise of a discretion to extend the validity of the writ beyond the period of twelve months allowed for its service.". 38. That Summons, which has taken two and a half days, and has involved esoteric questions and questions of fundamental importance regarding the practice of the Court, and the doing of justice, in which 1 have been referred to over twenty authorities, was marked" estimated time not exceeding three minutes". 39. It came before. Master Betts - it had been set down before Master Barrington-Jones, (as he then was), on 31st December, 1981. In fact it came before Master Betts on 11th May, 1982, and, by consent, the matter was adjourned to the Judge of the Commercial List in Chambers on a date to be fixed in consultation "with counsel's diaries" (I apprehend that means, "in consultation with counsel") "Estimated time: one day", and the costs in an agreed sum were to be paid by the plaintiff to the Defendant in any event. 40. I am not the Judge of the Commercial List, but nonetheless it was brought before me by Order of the officer in charge of the Lists dated 5th June. The estimate of one day stood. 41. On the face of it, it is a very simple matter. Was there any sufficient or good reason for Master Blackwell to extend the validity of the original writ and was he justified in ordering that a concurrent writ issue? Very little argument indeed on the Order relating to the concurrent writ has been addressed to me, because that order would stand or fall with the Order extending the validity of the writ. There has, of course, been addressed to me arguments in relation to Order 12, rule 10. 42. To conclude the history of the proceedings, there was issued by Messrs. Holman Fenwick, on 5th July 1982, a summons, returnable before me on 5th July, asking for an abridgement of time for the service of the summons and for an order that the Plaintiffs (I think. that mean 'the plaintiff') have leave to amend the writ of summons served herein on 5th October 1981 in accordance with the form prescribed for the commencement of an action as from 15th September 1981. So far as paragraph 1 of that summons is concerned, a consent order in turn was made on 5th July, abridging time so that I could hear the summons on that day, or at a suitable time during the course of the hearing. 43. I reached a decision on that summons, which, again, I hope will be tested in the Court of Appeal and be shewn to be wrong - and I say "tested", notwithstanding the very proper concession in the circumstances by Mr. Allman-Brown that - to use his own words - "I cannot see any way to overcome the hurdle in the path of amendment". I do not consider that binding on him if he wishes to take it further. All he was saying by that was, in view of the point that I had put to him, he could not then see any way around it. 44. The point - and I deal with it at this stage to get it out of the way so that I may get on to the substance of this application - the point is quite simply this. It is trite law that, when an amendment is made, it takes effect, not from the date of the making of the amendment, but from the date of the original document which it amends. And, to quote from the notes in the White Book – 20/5-8/2:-
In Support of that matter, Mr. Allman-Brown and I looked at Sneade v. Wotherton Barytes and Lead Mining Company, Limited (2),and in particular the judgment of the Master of the Rolls on page 297, and at Gawthrop v. Boultop & Ors. (3), and in particular at pages 274-5 in the judgment Mr. Justice Walton. 45. At this point, I should emphasize that the amendment sought, as is apparent from the terms of paragraph 2 of the summons which I have read, relates to the writ and when I say the Writ I mean the writ; and that means a writ as ptrscribed by Order 6, rule 1, which reads as follows:-
46. I am not referring, nor was counsel referring, to what may be put on to, or into, the writ, because that is governed by Order 6, rule 2, which provides that, where you have a writ, you can either indorse it with a statement of claim, or with a statement of the nature of the claim or, to use an old-fashioned phrase, it can be either a generally indorsed writ or a specially indorsed writ. The indorsement was something that neither counsel was concerned with: Nor was I - We were concerned with the Writ. 47. What was sought to he done by paragraph 2 of the summons, was to take a Royal Command under the Arms of the United Kingdom (as used in England and Wales) with the Teste of the Chief Justice and Directions for entering appearance, and, by amendment, convert it into a simple notification of commencement of proceedings under the Arms of the Colony of Hong Kong, with a warning to the proposed defendants that they must either satisfy the claim or return an Acknowledgment of Service and that if they do not do that, coupled with the Notice of Intention to Defend, judgment may be entered against them. 48. Apart from the words "Note: this writ may not be served more than 12 calendar months after the above date unless renewed by order of the Court" and the identification of the party who issued the writ, there is no other similarity between the two. The new Form of Writ, after a 3-month gestation period, was born on 15th September 1961. To accede to Mr. Allman-Brown's Summons - or, rather, to paragraph 2 of it - therefore would be to create in October 1980 something which did not then exist, and which only came into existence in September 1981. That was the hurdle to which counsel referred, and which he felt at that time he could not overcome. 49. The general principle relating to amendments and the effect of amendments, is enshrined in our law and is of very great practical importance. The fact that it relates back to the beginning is fundamental to practice, and is in fact the reason why the practice Masters have prescribed that amendments, re-amendments, further re-amendments, etc., should be in colours ranging from red to brown, yellow and orange, because what the Judge has to try is the last colour, which is deemed to be the original claim, the others remaining there only to shew him, from a point of view of credibility, how the party has shifted its ground. 50. If I could get around that long-established practice, I would most certainly have tried to exercise my discretion in favour of the Plaintiff. The facts relating to the mistakes made by his solicitor, the circumstances of the practice Direction and the apparent stupidity of that practice in the context of this case, might have persuaded me to call on Mr. Ribeiro to address me against the exercise of my discretion. In fact, that never occurred. I did not need to call upon him in view of the concession by counsel. 51. In this respect, I wish to refer to a speech of Lord Diplock, which has weighed with me not only on that matter but which has weighed heavily with me and, I may add, heavily on my conscience, in the substantive matter to which I will turn in a moment in this action. 52. In re Energy Conversion Devices Incorporated(4), Lord Diplock is reported as saying this: that the House
and he went on - and I will quote from that speech only the relevant wording:-
53. Reading that into the matter of Mr. Allman-Brown's summons, negation of the rule of law applies to negation of a very long, well-established principle of practice, supported by a multitude of authorities, References to "the Secretary of State" here relate to "the Rules Committee" in Hong Kong and "parliament" to "the Legislative Council". 54. For all those reasons, I felt obliged to dismiss paragraph 2 of the summons with costs. 55. I now pass to the principal matter that I had to consider, and 'I shall have to deal with it in two ways: One, in the light of the Practice Direction being of binding authority and being intelligible and in accordance and not in conflict with the Rules of the Supreme Court; and, two, as if it did not exist. 56. I say at the outset that Mr. Ribeiro made it quite clear that it was no part of his case that this writ was in any way a nullity on or after 15th September 1981. That most be clearly borne in mind. I have borne it in mind throughout these proceedings, I say “at the outset", lest there be any misapprehension when the Court of Appeal Comes to consider this judgment. 57. Mr. Ribeiro's submission was this. Although the writ was not a nullity, it was not to be treated as an irregular writ, which could be the subject of an application under Order 2, rule 2, but fell to be considered within what he would describe as the "codification of this procedure" under Order 6, rule 8. 58. He added this in relation to discretion: That the extension of an expired writ would not be granted as a matter of course, even if the old writ had not yet expired, and that it was for the applicant to show sufficient and good reason for the grant of an extension in every case. I consider that to be trite law. 59. He then added a more forceful point: Where a time bar is involved, a writ should only be extended in really exceptional cases. 60. In defence of Master Blackwell, I must observe that there was no hearing before the learned Master and, therefore, the significance of the Hague Rules was not brought home to him or, rather, I should say this: There was no evidence or suggestion put or made before me, that he was so informed; if he was, nobody has told me. It is not the function of this Court to criticize the Master, but merely to decide whether he was right or wrong, and, if he was right and I would reach the same conclusion, I should uphold him, and, if he was wrong, I should in no way be bound by what he did or said, because it is my discretion and I must exercise it as I think right. 61. Mr. Ribeiro mentioned the time bar for the reason I have mentioned, namely, that after 25th October 1990, it was not open to the Plaintiff to issue a fresh writ and, therefore, when this confused state arose on 15th September 1981, the Plaintiff could not issue a new writ. Extension of validity of the old writ therefore touched directly upon a defence by each of these defendants, namely, the time bar prescribed in Article III. 62. Mr. Ribeiro invited my attention to the decision of Mr. Justice Megaw (as he then was) in Heaven v. Road and Rail wagons Ltd.(5). This is a case of some importance is to be gauged by a glance at page 355 whereon there are no less than twenty red and blue stickeks all reading "Dicta applied", "Approved" and "Considered" (with two exceptions which do not assist me). 63. My attention was invited to names 361 and 364/5. 64. At page 361, the learned Judge, after quoting Sheldon's case (6) (in which there was a reference to Battersby's case (7)), where Lord Denning said, at p. 401,
the learned Judge went on:-
65. Putting that in its context, Mr. Ribeiro says: "Look at the Amendment Rules made on 26th June and you will see that after 15th September 1981 Writs in the old form are no longer capable of being served." "Therefore," he says, "there was no service on 5th October 1981, because the writ was incapable of being served." and "If the Master extends the validity of that writ, he is thereby depriving me of my defence of saying, there having been no service, you cannot serve, you cannot issue a new writ, because of the time bar; and, to extend the validity would be to deprive me of the protection of that time bar." 66. He also invited my attention to page 364 where the learned Judge held himself bound by Battersby's case (7) and Sheldon's case(6), but added this:-
67. Then, he went forward to deal with failure to serve within twelve months on the basis of a mere technical slip - and, in fact, In this particular case, a misunderstanding. There was - and I quote from the headnote of Heaven's case (5) "inadvertence", and the learned Judge's, comment, at p. 365, was:-
68. He went on, also at page 365 at letters B to F:-
69. And then he continued:-
To those words, I shall have to return later. 70. My attention has also been invited to Chappell v. Cooper: Player v. Bruguiere (8), a decision of the Court of Appeal consisting of Lord Justices Roskill and Ormrod and Sir David Cairns. The reason why my attention was invited to that was it was a more recent decision of the Court of Appeal, and Lord Justice Roskill, at page 965 from letter 'E' to 'C' on 966, expressly approves Heaven's case (5), and the learned Lord Justice deals there with the possibility of Heaven's case (5) being not binding by reason of the Limitation Act 1975 and he rejected that argument. 71. Lastly, my attention was invited to Bernstein & Anor. v. Jackson & Anor. (9). Due to the researches of Mr. Allman-Brown, I have been supplied with an official transcript revised by the Lord Justices of the actual judgment, which, as appears from. The Times and the transcript, was delivered on 19th March 1982. There has been some discussion as to the accuracy of The Times report, the first paragraph of which roads as follows:
What in fact happened was this. Lord Justice Dunn set out in extenso the arguments of Mr. Lumley for the appellants and said this at page R of the transcript:-
72. Lord Justice Slade, dealing with both aspects of that matter, but more particularly with order 2, rule 1, said this, at p.9 of the transcript:-
He said that in the context of an application to renew, but, if the learned Judge below (Mr. Justice Lawson, I think it was) had had power under Order 2, rule l, neither of the Lords Justices could have reached the decision that they did. 73. Lastly, my attention was invited to two recent cases: Jones v. Jones & Anor.(10) a court of Appeal decision, and in particular to passages at p. 579 in the judgment of Lord Justice Salmon (as he then was) and at p. 582, where the learned Lord Justice was dealing with Heaven's case(5) and the judgment of Lord Justice Sachs at page 586, particularly at Letter 'H’ and running to letter 'C' on page 587: And also to Easy v. Universal Anchorage Co. Ltd. (11) in the judgment of Lord Denning and particularly in the judgment of Lord Justice Roskill from 'H' on page 902 to 'G' on 903. I do not think it necessary for me to read out what the learned Lord Justice said. 74. Mr. Allman-Brown very properly took me through the four affidavits out of the five which have been lodged: Mr. Gray's of 11th November, Mr. Biggs in answer on 17th December, Mr. Gray in reply on 10th May and Mr. Biggs in rejoinder on 11th May; and, with meticulous care, he drew my attention to all the facts set out there. 75. Mr. Allman-grown started off by explaining to me that, in his view, what was served was an unexpired writ in the old form, and he said that it ought to have been a concurrent writ in the new form. He said that it was merely an irregular service, but that it did not achieve nothing - it set the Rules Working. He pointed out to me that it was open to the Defendants under the Amendment Rules to lodge an Acknowledgment of Service instead of an Appearance. That, I accept. 76. He pointed out, with some force, that the old form writ was a Perfectly valid writ, and that its life extended beyond the 15th of September, and he said that, after 15th September, it could be treated as a new form writ. He invited my attention to the provisions, among other things, of the new Order 1 rule 4(3) and Order 12 rule 10, which, he averred, pointed to an irregularity only, in that the new Order 10 rule 1(6) was not complied with, but that there was nothing to stop an acknowledgment of service being sent separately, or the solicitors using an acknowledgment of service form instead of an appearance form. There followed considerable discussion concerning the Practice Direction to which, as I have said, I will have to return. 77. He invited my attention, particularly in this context, to M. V. Popi (Owners) v. S.S. Gniezno (Owners), The Gniezno (12). He then took me back in time to Stumm v. Dixon & Co and Knight (13) and said, "Look at the judgment of Lord Esher at page 531.". He took me to the judgment of Mr. Justice Charles in Hume v. Somerton (14), and in particular he asked me to look at page 243 of that judgment in relation to Practice Directions. 78. He then conceded that there was something wrong with the service on the 5th of October, but said, "It is but an irregular service.". "Look at the new rules," said Mr. Allman- Brown, "there is no statutory power in these rules, nor in the Chief Master, to extinguish the serviceability of a writ; and what happened on 5th October, 1981 was not non-service but was bad service.". If it were merely had service, and, consequently, an irregularity, then he invoked all the powers that I have, and fortunately have and am happy to have, under Order 2 rule 1. This is the rule to which I referred when I had to deal with the unhappy consequences of Order 12 rule 8(2) in a recent judgment Which I hope is going to be appealed and upset). That rule reads as follows, and I will read only the necessary parts:-
And he says, "There, You have an almost unfettered power to do what is right.". 79. Mr. Allman-Brown based his submissions on two pillars. The first pillar was that it was a mere irregularity. The second was this that the circumstances of this case were quite exceptional; that his solicitors had been lulled into a false sense of security - I hasten to add, not deliberately - by the Defendants' solicitors; they were mistaken; they were unaware of the new procedure and, by the time they found out, it was too late to do anything other than to make the application, which they did before Master Blackwell. But, because of those circumstances, which were quite exceptional, Master Blackwell should have exercised his discretion, and that I should exercise my discretion, in favour of the Plaintiffs, and should uphold or, alternatively, order, the extension of the validity of the writ for a further period of twelve months, and allow the issue of a concurrent writ. 80. He analysed carefully, but I do not intend to go through them in detail, the contents of the affidavits, the significance of the telephone conversation, the effect of Mr. Biggs asking for time and the effect of the telex. He explained that, on 21st October, no mistake was apparent to his solicitors, principally because of the conversations with Mr. Biggs, although, as I say, no blame was being attached to Mr. Biggs. It is not suggested that he was deliberatly entrapping Mr. Gray. And, said Mr. Allman-Brown, in the two days which followed, it was necessary for him, that is Mr. Gray, to get in touch with the clients for their instructions as to what should be done; and, because he still thought that there had been a good and valid service and did not understand there had been no proper service, he did not take steps within those two days to apply to extend the validity of the writ. 81. Mr. Allman-brown says that, either under Order 2, or under Order 6, I ought to act in the same way as the learned Master did, and, in this respect, he invited my attention to a number of authorities. The first is Carmel Exporters (Sales) Ltd. v. Sea-Land Services Inc. (15) and he invited my attention to passages in the judgment of Mr. Justice Robert Goff on page 1074 at letter F, and from the Bottom of page 1074 to the middle of page 1075, where the learned Judge said:-
And Mr. Allman-Brown said that there is an analogy here with the mandatory provisions as to the new form of writ. (Discussion between court and counsel re adjournment of judgment until the morning of the next day.) COURT: This is adjourned to not before nine-forty-five. 4.35 p.m. Court adjourns. 7th July, 1982 8th July, 1982 9.47 a.m. Court resumes. Appearances as before. COURT: Mr. Allman-Brown had invited my attention to the decision of Mr. Justice Ungoed-Thomas in the case of In re Chittenden, decd. Chittenden v. Doe and Another (16) and in particular to the passages from page 1622, at letter G to page 1624, and to page 1626 from letter F running into page 1627. In fact, what Mr. Allman-Brown was doing was inviting me to make a critical reading of question (2) posed to himself by Mr. Justice Ungoed-Thomas, because we are not concerned with his Question (1) or with his Question (3) in this particular case. 82. I have given careful consideration to that particular case and I have also taken an opportunity to read, and to attempt to analyse some of the earlier cases: In re Kerly, Son and Verden (17), Holman v. George Elliot and Company, Limited (18), the extremely helpful analysis by Lord Goddard in Battersby and others v. Anglo-American Oil Company, Limited (7) -Lord Goddard there gave the judgment of the court, but it is to be noticed that he was sitting with Lord Greene and Lord Justice du Parcq. And I also looked at Sheldon v. Brown Bayley's Steel Works Ld. and Dawnays Ld. (6) 83. In the course of the hearing my attention was also invited to Harkness v. Bell Asbestos and Engineering Ltd. (19) and in particular to the headnote at page 730. That is a case of considerable importance in that there is an analysis by Lord Penning of the effect of the new Order 2 rule I doing away, not entirely but very nearly entirely, with the old distinction between nullities and irregularities, and explaining that it should be construed widely and generously to give effect to its manifest intention. That appears in the second paragraph on page 735. The comments: of the learned Master of the Rolls there are particularly apt in Hong Kong, where there is an exhortation to similar effect contained in our Interpretation and General Clauses Ordinance. 84. I did make reference yesterday to Jones' case (10), I think it is only right that I should mention it again today because it formed part of the arguments of Mr. Allman-Brown. That is Jones v. Jones & Anor. (10) and in particular the passages at pages 586 to 587. 85. There was a number of other cases to which I was referred. I do not consider it necessary to go into them in this judgment. 86. So much for the background, so much for the arguments od counsel: My task is really twofold: First of all I have to decide whether what happened on the 5th of October, 1981 was a mere irregularity, and an irregularity within the terms of Order 2 rule 1, because, if it were such an irregularity, that would be a guidance to me in the exercise of my discretion on the matter of the extension of the validity of the writ. Secondly, if it were not an iregularity, but something more fundamental, then I should have to disregard it when coming to decide whether or not the writ ought to have been extended, and I should then have to make that decision on general principles. 87. In reaching such decision, I must not overlook the dicta in the cases I have just referred to, where it is stressed over and over again that, in considering whether or not to renew a writ, a very heavy factor to be put in the scales on one side is the possible deprivation of one of the parties of his, her, or its ability to rely on some form of time bar. That feature runs through the whole of the authorities to which I have recently made reference from 1901 to 1967. 88. If it were open to the plaintiff to issue a new writ, that certainly would be a factor that would weigh with me in exercising my discretion. It is not open to the Plaintiff to do that. Therefore, I have to weigh the hardship of the Plaintiff on one side against the deprivation of the Defendant on the other side of its right to invoke Article III of the Hague Rules. 89. Dealing with the first point first. That itself has to be subdivided, and I think in this case there is no room for me to look at Order 2. 90. First, I do not consider that this is such an irregularity as it is contemplated by order 2 rule 1. The old writs were swept away, so far as actions in personam are concerned, on the 15th of September 1981. (I say merely that all writs were swept away, but, by a singular act of inadvertence, the Rules Committee completely omitted to sweep away the old form writ for Admiralty actions in rem, and left in existence the old Writ containing tie Royal Command to enter an appearance, yet at the same time they swept away appearances, and provided in the new rules that appearances to Writs in Rem should be in certain prescribed forms in Appendix B, which were numbered. Unhappily they did not prescribe any such forms in Appendix B at all.) That is another aspect of the "confusion" - and I say "confusion" in inverted commas, because that is the word used by the Chief Master in his practice Direction. One year later, that ridiculous situation was to be put right, because, in the Gazette of 18th June of this year, there came into existence the Rules of Supreme Court (Amendment) Rules 1982: But they do not come into operation till 13th September of this year, so the ludicrous situation I have just described continues to this date. Rule 7, which is a rather ridiculous tinkering with Vacations, will come into operation on a date to be appointed: I do not need to say any more about that. But it is clear that the intention of the Rules Committee, and therefore of the Legislature in whose name they were acting, because they are acting under a power contained in the Supreme Court Ordinance in section 54, was that the old form writs would be gone for ever. 91. Gone for ever means gone for ever, and, in the absence of transitional-provisions, there was no room for an old form writ to be served on 5th October, 1981. It did not cease to be a writ. It did not cease to be an originating process. But it was deprived of its ability, or right, to be served, and, in fact, it constitutes one of the exceptions to what was said by Lord Denning in the Harkness' case (19), and it is in fact an example of a continuing distinction between a nullity and an irregularity. Although not null and void qua writ, it is null and void qua service of writ. Therefore, I cannot fall back on order 2 rule 1 to treat that as an irregularity. 92. I must, therefore, approach Master Blackwell's two Orders of the 13th of November, 1981 in the light of the general principles in Sheldon's case (6), Harkniss' case, (19) Chittenden's case (16), Heaven's case (5) Battersby's case (7) and E. Ltd. v. C. and Another (20). 93. I will deal with the second point first - the issue of a concurrent writ. I touched on this yesterday. I will deal with it briefly today. Order 6 rule 6 is in very specific terms:-
94. It was suggested to me in argument that a purpose for which the writ is issued - and it is agreed by both counsel and I accept it, that "writ" in that context means the concurrent writ - could include overcoming the provisions of the Rules of the Supreme Court (Amendment) Rules 1981 and that was one of the reasons why that rule was made. 95. I cannot accept that, because its invocation is not merely to insert a difference necessary for the purpose for the issue of the writ. Practically nothing of the old writ would remain, and I cannot see how it can he described as a "true copy" of the original. The difference contemplated by that rule are, in my judgment, such as may be necessary for a proper purpose, for example, service without the jurisdiction, where one of the differences would be the time for entering appearance on an old writ, or the time for entering an acknowledgment of service on a new writ. 96. It is to be observed that that provision in identical terms preceded our 1981 rules. 97. I shall not go back to the beginning, to the 1883 rules in England, or to the rules that form part of our original Supreme Court Ordinances in Hong Kong: Suffice it for me to go back to 1908, which is one of the 1875 rules. The old Order VI rule 1 provided for the issue of concurrent writs in these terms:-
And it is to be noted that the learned editors who produced that particular edition, dedicated to the memory of Sir George Jessel, added this footnote:-
98. It seems to me, therefore, that it is wholly inappropriate to use order 6 rule 6(3) in the context of this case, because, in no way could a concurrent writ issued after the 15th of September, 1981 be a "true copy" of the original writ. It could be a true copy of the renewed writ, but the renewed writ would be totally different from the old writ. 99. Finally, therefore, I pass to the first of Master Blackwell's Orders, that is the extension of the validity of the writ. 100. The Plaintiffs chose, for reasons best known to themselves, to let the autumn of 1980 go by without service, to let the spring and summer of 1981 go by without service, to let a summer go by without reading Legal Supplement No. 2 issued on the 26th of June, 1981: (And every prudent solicitor, barrister, and law clerk makes sure that, each Friday, or, if the post is bad, each Saturday, he reads Legal Supplement No. 1 and Legal Supplement No. 2. And every prudent solicitor and barrister subscribes to the Noters-up issued by the Government Printer, which he gives to a little girl with a pair of scissors and some paste to put into the laws of Hong Kong, as often as those noters-up are published). 101. The Plaintiffs' legal advisers chose neither to real Legal Supplement No. 2 of the 26th of June, nor if they did, to heed the significance of it. When I say "chose", I do not mean deliberately ignored "chose" is a term of art in Judgments. They chose to ignore the significance of the date, 15th September. But what is more cogent even than all that is that they did nothing between 20th October and 23rd October to renew the old writ. 102. I do not in this judgment have to consider what would have happened if they had applied within the twelve months, because different considerations may, and I say "may" have applied if they had done that. They did not, and the old writ died. I do not need, therefore, to consider what my exercise of discretion would have been if they had applied in time. They did not, and my view of the facts is that it would not be right to infer that they were led, as in Chittenden's case .(16), to delay doing what they should have done, and thereby put themselves in such a position that the Court, in its mercy, felt that it should go behind the general principle and grant an extension of the original writ. Chittenden's case (16) was decided on its own peculiar facts, which are apparent from a reading of it, and I do not need here to go through it in detail. Suffice it to say that Service had been withheld by the Plaintiff by agreement with the Defendants. The Master exercised his discretion to grant an extension, and Mr. Justice Ungoed-Thomas held that that was a justifiable extension, and he upheld the Master's decision. 103. It not falling within that exception, I have to exercise what is undoubtedly, on the authorities, an unlimited discretion, but I have to exercise it judicially and having regard to long-established principles; and, while there are exceptions to all rules, exceptions to all principles, there is a long line of authorities exhorting the judge not, in circumstances such as these, to exercise his discretion to extend the validity of the writ. 104. I have weighed up carefully all the factors so carefully advanced by Mr. Allman Brown, cogently put and thoroughly analysed, and I have also weighed up the support that he gained in one or two respects from some of the arguments of Mr. Ribeiro; but, finally, I have decided, in the exercise of my discretion, not the Master's, but mine, that this writ ought not to be extended. 105. I have done that on general principles, and I have done that on the facts of this particular case, both jointly and severally. I have looted anxiously both at the general principles and the guidance given in earlier matters, and at the facts of this case to see if I could find some way round this matter, because it reflects no credit on this Court that I should be driven to this conclusion. It is, as I have said before, my earnest hope that this will be taken to the Court of Appeal, and that will be reversed. 106. If I did not say it before, I will also say that an influence, and no more than an influence, in my decision, was the wording of the speech of Lord Diplock in the case of In re Energy Conversion Devices Inc. (4) to which I referred yesterday. I do not consider myself in any way bound by it, but I found the dicta of assistance. 107. A number of other interesting arguments were advanced to me which I do not consider it profitable to analyse in this judgment, or to deal with and, in overlooking them, no disrespect is intended to counsel who advanced them. 108. I believe that I have covered all the matters that I am asked to cover, and my decision is that I most accede to paragraphs 1 and 2 of the Summons of the 17th of December. COURT: Now, gentlemen, do you wish me to deal with costs in open Court or go back into Chambers to deal with costs? (A pause) Because, if we are going to deal with it in open Court, it can go down on the transcript and form part of the record for the Court of Appeal. Mr. Ribeiro, what do you feel about it? Do you want me to go back into Chambers? MR RIBEIRO: No. I will be quite happy if your Lordship deals with it immediately in open Court. COURT: Mr. Allman-Brown? MR. ALLMAN-BROWN: I will be quite happy if your Lordship deals with it in open Court. COURT: Very well. Mr. Ribeiro? MR. RIBEIRO: My Lord, I ask for the costs of this application. COURT: Can you resist that, Mr. Allman-Brown? MR. ALLMAN-BROWN: As I indicated yesterday, my Lord, when your Lordship raised the question with me before rising last evening, as a consequence of your Lordship's intended judgment, which is now being set out this morning, I feel that I have no grounds at all to make any objection to anything about a final order for costs at this stage, by reason of the grounds that your Lordship has set out, and, therefore, I will not object to what -my learned friend asked for in respect of costs. COURT: Yes, thank you. May I take it that you will take this further? MR. ALLMAN BROWN: My Lord, after being defeated on grounds which were not contemplated at the beginning of this case - neither contemplated by my learned friend nor by myself, I think, in some part it will take time to consider the ramification of Your Lordship's decision, but it may well be that this matter will be taken to a higher Court. COURT: I do hope so, Mr. Allman-Brown. I do hope so. MR. ALLMAN-BROWN: My Lord, if there is any query on the subject, I take it that your Lordship will grant leave to appeal against your Lordship's decision. COURT: If it is necessary. But, in Hong Kong, unless something has drastically changed, you do not need my leave I remember when Mr. Justice Briggs, as he then was, was inventing our new Rules and our then Supreme Court Ordinance - he quite deliberately cut out the provisions for leave to appeal from Decisions given in Chambers: Indeed, in all interlocutory matters: He made it an appeal as of right and, as far as I know, it still is. MR. ALLMAN-BROWN: I am much obliged, my Lord. COURT: If you find you need leave, yon can take it that you can get such leave administratively by getting your solicitors to write in to my Clerk. Mr. ALLMAN-BROWN: Yes, my Lord. COURT: But, as I understand it, you do not need leave. MR. ALLMAN-BROWN: Thank you. COURT: This is by way of an appeal; isn't it? MR. RIBEIRO: No, my Lord. This is an application. COURT: It is not under Order 58. This is a direct application. MR. RIBEIRO: To your Lordship. COURT: To me. MR. RIBEIRO: No. It's under Order 32, rule 6 and it was transferred - it wes adjourned from ... COURT: ... Oh, yes. Master Betts transferred it to me. MR. RIBEIRO: Yes. COURT: Yes. I am much obliged. Very well (A Pause). COURT: Order: One, both Orders of Master Blackwell... MR. RIBEIRO: ... My Lord, before your Lordship completes that Order- I would have thought, my Lord, that it Would be no use to make order 2 because order 1 says... COURT: ... Yes, but I do not want to leave orders lying around in the Registry. I do appreciate the point you are making. You are perfectly correct. But I do not want to leave an extant order in the Registry. It only causes trouble. If it is set aside, it is marked ‘Set aside'. Then, administratively, that makes life easier. MR. RIBEIRO: As your Lordship pleases. COURT: But I will word it slightly differently. Order 1. (a) Order of master Blackwell of 13/11/81 extending the validity of writ issued on 23/10/80 set aside and, consequently, (b) order of Master Blackwell of 13/11/81 giving leave for the issue of a concurrent writ also set aside. Order 2. - Plaintiff to pay Defendants' costs of and incidental to Defendants' summons, to be taxed if not agreed. Paragraph 2 of Plaintiff's summons of 5th July dismissed with costs. (When that Order comes to be drawn, it is to be dated 7th July 1982, that is, when it was made.) MR. ALLMAN-BROWN: My Lord, there is one matter that I would like to touch upon with your Lordship. It is simply one of removing a possible confusion. If your Lordship recollects, the matter was referred to your Lordship from Mr. Registrar Betts. There was an agreed consent order as to costs on that, which your Lordship indicated and referred to in this judgment. Do I apprehend that your Lordship's Order on my friend's Summons is not to interfere with that particular consent order as to costs. COURT: Oh, certainly. MR. ALLMAN-BROWN: I think my friend will confirm that's our intention. COURT: Just so that there is no trouble with the Taxing Master, in Order 2, after the word “summons", I will add "other than those already provided in the order of Master Betts made on 11th May 1982”. MR. ALLMAN-BROWN: Yes, my Lord. COURT: I am obliged to you for inviting my attention to that. (Mr. Allman-Brown applies to Court for a copy of this judgment. Court Reports undertake to supply it as soon as possible.) COURT: Gentlemen, I want to thank both of you for interesting and entertaining arguments, not ones that commended themselves to me morally, but ones that were interesting legally. Mr. ALLMAN-BROWN: Thank you, my Lord.
(1) [1981] 1 W.L.R. 1068 (2) [1904] 1. K.B. 285, 297 (3) [1979] 1 W.L.R. 268, 274-5 (4) The Times Newspaper 2/7/82 (5) [1965] 2 Q.B. 355 (6) [1953] 2 Q.B. 393 (7) [1945] K.B. 23 (8) [1980] 1 W.L.R. 1958 (9) The Times Newspaper 29/3/82 (10) [1970] 2 Q.B. 576 (11) [1974] 1 W.L.R 899 (12) 1968 p. 418 (13) (1889) 22 Q.B.D. 529 (14) (1890) 25 Q.B.D. 239 (15) [1981] 1 W.L.R. 1068 (16) [1970] 1 W.L.R. 1618 (17) [1901] 1 Chancery 467 (18) [1944] K.B. 591 (19) [1967] 2 Q.B. 729 (20) [1959] l. W.L.R. 692 Representation: Solicitors: Holman, Fenwick & Willan for the Plaintiff. Richards Butler for the Defendants. |