Komala Deccof & Co Sa and Others v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (Pertamina)
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1986 No. 167 IN THE COURT OF APPEAL BETWEEN
_____________________ Coram: Hon. Cons, V-P and Hunter, J.A. Dates of hearing: 31st March to 3rd April 1987 Date of delivery of judgment: 3rd April 1987 _____________________ J U D G M E N T _____________________ Hunter, J.A. 1. This is an appeal from an Order of Jones, J. of the 5th December 1986 whereby he granted the plaintiffs leave to re-re-amend their Statement of Claim. At the outset, I would like to pay tribute to the skill and the clarity of the arguments which have been presented to this Court. For my part, I found them exceedingly helpful and without them, I would not have felt remotely capable of giving judgment now, and thereby, I hope, not further extending the desperately protracted interlocutory hearings which have already taken place in this unhappy litigation. Subject to recount, I think this is the sixth hearing before this court. 2. In order to explain the matter at all, it is necessary to set out the bare bones of the history. This is that on 1st July 1971, a contract in writing was entered into between the relevant plaintiff, the 2nd plaintiff in the action, and the defendant Pertamina for the sale of two tug-boats. The contract provided for the delivery of the tug-boats on a date not earlier than six months and not later than nine months from, I take it, the date of the contract. Payment was to be made in cash not later than six months after delivery. Then there was a special clause 7 which really gives rise to much of the argument presently before the court :
3. Following that, and I am quoting here from the most recent judgment of this Court in this matter, which is the judgment of Kempster, J.A. given on the 7th February of last year:
4. That was the situation which ruled until the 26th February 1980 when the writ in this action was issued. The material part of the endorsement of the writ reads :
5. The defendants are resident outside the jurisdiction, and an application was made for leave to serve under Order 11. That having been granted, an application to set aside came before Liu, J. on 31st January 1981. He acceded to that application which did not in fact, affect this particular part of the writ. On 15th February 1981, a summons was taken out by the defendants to strike out paragraph C or the endorsement of the writ on a variety or grounds, which included that it disclosed no cause of action, it was vexatious and frivolous, an abuse of the process of the court, and as the fourth alternative, that the causes of action were time-barred. 6. Between February and December 1981, there was further direct communication between the parties, with the plaintiff still trying to persuade the defendants to take delivery or the tug-boats. There was some slight positive response but not much. Eventually on 29th December 1981, the plaintiffs said that they had had enough. They then sold the two tug-boats elsewhere for US$2,450,000, which was more than the purchase price. 7. Between the 1st and 3rd February 1982, this Court heard an appeal from Liu, J. Judgment was reserved. On the next day, the 4th February, the parties appeared before Bewley, J. which was a much delayed return date of the summons taken out on 15th February 1981. I regret to say that it does not really reflect much credit on our procedures that the unperceived mistakes on that occasion have caused such a catalogue of problems. The substance of the matter, when it came before Bewley, J. seems to me to be this. The claim for the price was, in Kempster, J.A.'s word, ''wrong''. It simply never left the ground. There had been no delivery and the price claim had never accrued. It was miles from being statute-barred As far as the claim for damages for non-acceptance was concerned, that in a word was "dead", in that two months before, the vessels had been sold for more than the contract price. 8. It was therefore perhaps not surprising that, as I suspect, the matter was dealt with very casually before Bewley J. It went through on the nod without any argument and because the plaintiff was quite happy to see the particulars in paragraph C strike out. For the reasons I have given, they contained claims, one for the price which was no good, and one for damages which could no longer be pursued in the light of the previous sale. But nobody then paid any great attention to the effect of the order in the terms of estoppel or issue estoppel, or to what the real basis of this order was (if any). Because, as presently advised, I cannot see any basis for saying at that stage, on the pleadings, that the claim for damages for non-acceptance was necessarily statute-barred. But much time has thereafter been spent in erecting some basis for this order which was not I believe for a moment in the minds of the parties at the time it was made. 9. Equally nobody then spotted that this strike out summons had been somewhat inadequately drafted. It applied only to the particulars and not the words that proceeded the particulars. The order, when made, still left in the: endorsement of the writ the important words “the 2nd plaintiff claims against the defendant for damages for failure to take delivery of two tug-boats ordered from the 2nd plaintiff by the defendant”. It is those two mistakes on this occasion in February 1982 which unhappily, as it seems to me, have led to so much trouble. They do not show our procedures in a good light at all. 10. Going on with the history, on 26th February of that year, in a judgment by chance given by me, this Court "reversed Liu, J. The action then proceeded as originally formulated with the result that on 2nd July of that year, a statement of claim was delivered. That statement of claim made no mention of any claim in respect to these two tug-boats. 11. It is apparent by that time, it seems to me, that the plaintiffs had decided that they wanted to pursue a claim for the moneys which they said they had expended in looking after these tug-boats from 1972 to 1981 and that they were going to do that in another action. Their first step towards that end was taken in the autumn of 1983. On 28th March 1984, they in fact, with leave, started Action 2117 which contains substantially that claim. That again produced the usual interlocutory tussle between these parties. Application was made to Mayo J. to set aside the writ, largely upon the basis of an estoppel created by Bewley J.'s order. He acceded to that on 29th April 1985. From that decision, of course, there was an appeal to this Court. It was heard on the 15th January 1986 initially and judgment was given, as I have already mentioned, by Kempster, J.A. on 7th February 1986. The result was that this Court struck out that claim as vexatious. That was done upon a basis that both parties had failed to spot, namely the fact that the words that I have already read out, were left in the writ in this action after the strike out order. As Kempster J.A. observed; these words "would have permitted the plaintiffs to include in the re-amended statement of claim, the damages sought to be claimed in the 2nd action". He is referring there to the re-amended statement of claim in this action. The crux of the decision is contained in these words :
In support of that, he cites Poulett v. Hill(1) and Buckland v. palmer(2) at p. 1115. 12. Poulett v. Hill was a case where the second action was an action for relief precisely similar to that which could be claimed in the first action. It is sufficient only to quote from the judgment of Kay, L.J. at p. 282:
In Buckland v. Palmer, the first action had been stayed consequent upon the acceptance by the plaintiff of a payment into court. In those circumstances, Sir John Donaldson M.R. derived two principles from the authorities: "(1) it is an abuse of the process of the court to bring two actions in respect of the same cause of action but (2) where there has been no judgment to the first action, that action can, in appropriate circumstances, be revived and amended so as to enable there to be an adjudication upon the whole of the plaintiff’s claim". Griffiths L.J. in his judgment at p. 116 refers to his expectation that the plaintiff would have "little difficulty in satisfying the judge", (that is in the first action) that the stay in the County Court proceeding should be removed. He applied the principle of multiplicity of proceedings because "there exists a procedure, namely, the application for the removal of the stay which would prevent any injustice resulting toll the second potential plaintiff. 13. I think it is implicit in the words that I quoted from Kempster, J.A. that he took the view that a similar procedure existed in this present action, namely, the ability of the plaintiffs to seek an amendment of their statement of claim to make in this action the claim which they had chosen to make in the second action and which was being dismissed as vexatious. I do not, for my part, think, that that decision could have been reached if the other division of this Court thought that the High Court would have no jurisdiction in the present action, to grant relief by way of amendment. In the light of that order of the Court of Appeal, application was duly made to re-re-amend the statement of claim in this action. That was the application that was granted, by Jones J. and from which this appeal brought. 14. On the appeal, two points are taken by the appellants. First they argued that the court had no jurisdiction to grant this application. They said in substance: look at the statement of claim as it stood before the re-re-amendment, (that is the green statement of claim). That green statement of claim contains not a word about these two tug-boats, ergo, this claim for the tug-boats is no longer part of this action. The claim sought to be introduced by way of amendment is therefore a new claim within the meaning of section 35 of the Limitation Ordinance. In the circumstances, this court has no jurisdiction to grant such leave. 15. The first issue is whether this is a new claim or not. In answer to that, the plaintiffs say that the judge was quite right to look at both the writ and the statement of claim. If you look at the writ and the statement of claim, and particularly look at the words which remain in the writ which I have already read, you can see that this claim is still in the action and that by making this amendment, the plaintiffs are not seeking to add a new claim, what they are seeking to do is to particularise or to flesh out-an existing claim. This, as I have indicated, seems to me the view already taken by this Court in the earlier case. It is a view with which I would personally and respectfully agree. It seems to me that there is no answer to that proposition unless the defendants can maintain their point that you must not for this purpose, now look at the writ at all. You must simply compare the green statement of claim with the purple statement of claim. 16. For that proposition, they rely principally on two submissions. First, they say that this was determined in their favour by the Court of Appeal in England in an unreported decision in the case of Steamship Mutual Underwriting Association Limited & Anr. V. Trollope & CoIls (City) Limited & Others, on 13th March 1986. That was a building contract case where the plaintiffs had originally named five defendants in the writ. The first were the building contractors; the second were the, architects; the fourth were the electrical and mechanical engineers; and the fifth the structural engineers. They were then claiming in the endorsement to the writ as against the professionals, i.e. the 2nd, 4th and 5th, "damages and/or other relief for negligence and/or breach of duty and/or breach of contract and/or breach of an agreement". After all those alternatives, the agreement was in fact specified. But no other facts are set out in the endorsement at all indicating what the nature of the facts were upon which they relied in support of this allegation of breach of contract. 17. Those facts were later supplied as against the first two of those professionals, the 2nd and the 4th defendants in the statement of claim. No allegation at all in the statement of claim was made against the fifth defendant. The facts as supplied in the statement of claim showed that the complaint was limited to complaints about the air-conditioning system. Later, and more than six years after the completion of the building, they discovered other failures in the building connected with the brick work. An amendment was then sought to be made to the statement of claim adding brick work complaints to air-conditioning complaints. That amendment was rejected by the Official Referee. It was from that decision that the plaintiffs appealed to the Court of Appeal. Their appeal failed. What the plaintiffs were there seeking to say was that the writ was paramount and that that the general endorsement, which I have already, read, covered any claim that they wanted to make thereafter under that contract and on any facts. Therefore, this endorsement was wide enough to cover brick work as well as air-conditioning. 18. Not so, said the Court of Appeal, particularly in the leading judgment given by May, L.J.: the writ is not paramount. As I read the judgment, what they were saying is that you have to read the writ and the statements of claim together. You consider first of all the writ and the first statement of claim, and that reveals that the sole complaint is air-conditioning. You then read the writ and the second statement of claim, and that shows the major addition of complaints about the brickwork. This shows that that complaint about the brickwork was in fact a new claim and not something covered by the writ. I cannot extract anything from that judgment in support of the plaintiff's submission that the statement of claim is paramount. I believe that all the Court was saying was that you have to read both documents together. That is the first point. 19. The second point is that the cause of action is no more than a statement of a factual situation sufficient to identify the material upon which you basically rely. In that case, there was no identification of material at all in that writ. This decision seems to me to support the plaintiffs' argument and the judges' approach, because the judge said that the two documents "should be looked at together". If you look at those together in this case, what you find in the residue or this writ is sufficient statement of fact showing that this was a claim for damages for non-delivery of two tug-boats in contract. I do not accept the appellants' submission upon the basis of that authority. 20. The second submission is a subtler one. It is put in various ways, but basically it can, be described as abandonment. It has to be accepted that this writ stopped time running on the claim in respect of these two tug-boats. But they say look at 1982. First the particulars were struck out in February; and then in July, a statement of claim was delivered which contains no mention of the tug-boats at all. That they say, constitutes a voluntary amendment, i.e. abandonment of that part of the claim. The effect of this, they contend is, that the time which was stopped running by the issue of the writ, starts to run again as from the 2nd of July. Time continues to run in their favour from the omission of the claim in the statement of claim. Therefore they have got an accrued limitation right, and the Court has no jurisdiction to allow leave to amend. 21. I cannot accept that, because I cannot accept that that is the effect of a failure to include in a statement of claim, a claim which is already in the writ. I am unable to equate such failure with a strike out of the whole of the writ which is what this argument amounts to. I do not believe that that is good law on the authorities. I think that if a pleader omits a claim from a statement of claim all he is saying is that he is not pursuing that claim for the moment. That omission has no more permanent or irrevocable or irretrievable effect than any other pleading. 22. We were referred to Warner v. Sampson(3) which is a decision which gives nightmares to young pleaders. This was the case where someone was unwise enough to include a general traverse in his defence which gave rise to the complaint that he was then challenging his landlord's title; had brought about a forfeiture; and had deprived himself of any right to claim relief. What was being said in the Court of Appeal there really was this:
The matter was dealt with quite simply at the last page of the judgment p. 326 by Ormerod L.J.:
That is very similar, I think, to the proposition here that when these plaintiffs delivered this statement of claim without reference to the tug-boats, these defendants then re-acquired the benefit of a limitation defence running in their favour. Ormerod. L.J. goes on:
23. By leaving the claim cut, it is then not part of the action for the time being. It does not prevent further application being made for that document to be amended or re-amended. Its omission from the original pleading, in my belief, goes only to discretion if and when an application is thereafter made to restore the claim to the pleading. That seems to me to be the true effect (identified not least by May, L.J. in the Mutual Steamship case) of a collection of cases starting from Cargill v. Bower(4) and Lewis v. Durnford(5), all of which were considered and, in my respectful view, accurately analysised by the trial judge in his judgment. That seems to be the position in England. Here, the position is to my mind, even clearer. The decision of Woomera v. Provident Centre Development(6) makes it clear that an omission of this nature, in that case it went a good deal further as it was a positive statement by counsel, goes only to discretion and no more. 24. In my judgment, therefore, it is quite impossible here to ignore this writ. That writ contains a sufficient statement of the basic ingredients of the cause of action sought to be relied upon and fleshed out or particularised by this amendment. In the same way as this rump in this endorsement was fatal to these plaintiffs in the other application before this Court, I think it entitles them in this Court to say that it has jurisdiction to do what the judge did. Therefore it is not a new claim. One need not consider section 35 of the Limitation Act at all. One need not consider the vexed question as to whether that section is wholly or party retrospective. 25. I then turn to the question of discretion. On an appeal against discretion, the function of the Court is considerably circumscribed. The principles were stated by Lord Diplock in Hadmor Productions v. Hamilton(7). They were alluded to again recently by Lord Goff in The Spilida(8). For my part, I find the most convenient practitioner's guide to be the statement of Lord Brandon in the Abidin Daver(9) at page 420 where he says this:
Mr Clarke has made it clear that he is relying here on propostions (1) and (3). 26. The only arguable point on misdirection which seems to be available to the appellants here, is the suggestion that the judge below failed to appreciate that this was not a simple application for leave to amend; it was an application for leave to amend against foreign defendants to which the principles of Order 11 were also relevant. Two points are taken there. The first is that he should have been considering this matter in 1986 and not at the time the original writ was issued in 1980. For my part, I find that proposition very difficult to understand and I believe it is really "abandonment" coming in again through the back door. Because leave was granted in 1980, in fact without any opposition, to issue the writ in this form. It is because the writ is still substantially or sufficiently in that form, that this application is made at all. With respect to Mr Clarke, I cannot see any justification for saying that the judge should have looked at it in 1986 with, of course, the obvious, result, attractive to the defendants, that the matter was then hopelessly time-barred. 27. As to the question which is whether the judge should have asked himself whether a good arguable case has been shown: I would agree. The relevant authority, to my mind, is UBAF Ltd. v. European American Banking Corporation(10) where this very point arose on an application to set aside a writ on the basis that no good arguable case was shown in law. That is substantially the point taken here by these defendants. They say that there are two fatal obstacles to the maintenance of this claim by these plaintiffs : one is limitation, the other is mitigation. Having formulated the proposition which was that by reason of two matters in that case, the plaintiffs did not have a good arguable case. Ackner, L.J. goes on at p. 229G:
The question here on a proper consideration is this : Is the plaintiff bound to fail? That is how the judge should have directed himself. But if you turn in fact to his judgment, you find that the judge states almost verbatim that principle, I suspect, from this judgment, and goes on:
Therefore, it seems to me that there was a direction which is totally correct. There is no misdirection at all. 28. The other matters of which complaint is made in relation to discretion seem to me to go substantially to questions or weight. The issue in each case is whether the error in weighing was so bad that in anyone respect, the judge can be shown to have gone wholly wrong. Complaint is made about the significance of delay; the omission from the statement of claim; and of prejudice. Also complaint is made about the conclusion that I have just read out; that the judge was wrong to say that the plaintiff was not bound to fail. 29. For my part, I cannot see that in any respect, this judge went wholly wrong. I decline to be seduced into further discussion of the very interesting points which may well arise at the hearing, on limitation, mitigation and those sort of things. I do not think it would be right for this Court to suggest any view on the fascinating points which, it seems to me, are likely to arise. It is sufficient for me to say that I cannot regard this statement of claim as demurrable, and that I totally agree with the trial judge in that respect. Therefore, in my judgment, this appeal fails. 30. May I be allowed to add a sort of personal postscript. It so happened, as I have already indicated, that I opened the batting for the Court of Appeal in this particular case way back in 1982, and by pure chance, it was in fact, my first appearance in open court in this jurisdiction. Therefore, what now seems many years later, I hope that I am declaring this Court's interlocutory innings finally closed and that this case may now eventually go to trial. But I fear that that hope is really asking too much in the context of this litigation.
Cons, V.-P. 31. I have come to the same conclusions as my Lord and for substantially the same reasons. I do not think I can add anything usefully in that respect, but I would also like to express my gratitude for the charming and skilful way in which counsel have led us through the unholy labylinthe of this litigation. I, too, think that perhaps the sooner it comes to full trial at first instance, the better it will be. The appeal, therefore, is dismissed.
Mr Christopher Clarke, Q.C. with Mr Andrew Li (M/s Denton, Hall, Burgin & Warrens) for Defendant/Appellant Mr G. Newman, Q.C. with Mr Y.C. Mok (M/s Coward & Chance) for Plaintiffs/Respondents (1) [1983] 1 Ch. 277 (2) [1984] 1 WLR 1109 (3) [1959] 1 Q.B. 297 (4) [1878] 10 Ch.D. 502 (5) [1907] 24 TLR 64 (6) [1985] HKLR 263 (7) [1983] 1 App. Cases 181 (8) [1986] 3 W.L.R. 971, p.995 (9) [1984] 1 A.C. 398 (10) [1984] 2 AER 226 |
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