The Owners of Cargo Lately Laden on Board of the Ship or Vessel "Adhiguna Maranti" v. The Owners of the Ships or Vessels "Adhiguna Harapan" and Others

IN THE COURT OF APPEAL

1986 No. 66
(Civil)

BETWEEN

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Coram: Hon. Cons, V.-P., Silke, V.-P. & Barker, J.A.

Date of hearing: 2^nd December, 1987

Date of delivery of judgment: 2^nd December, 1987

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JUDGMENT

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Cons, V.-P. delivered the judgment of the Court:

1. On the 24^th April this year this court refused to stay admiralty proceedings in rem which had been instituted against the Defendants in 1982 and 1983. The Defendants to those proceedings wish to appeal the decision to Her Majesty in Council.

2. The rules allow only 14 days in which to apply for leave to appeal. In this instance the Defendants either were not ready by that time or they had not then made up their minds. They applied for leave to extend the time for applying, which is possible now by reason of amendment to the earlier rule. However, they needed to make not just one application to that end, but four. It was not until the 30^th June that their application for leave to appeal was actually heard. Leave was then given, upon two conditions. The first was with regard to security, with which the Defendants have complied. The second was with regard to the preparation and dispatch of the record, with which the Defendants have not complied. They were given three months for the purpose. The period therefore expired on the 30^th September.

3. On the 13^th October the Defendants appeared before Yang, V.-P. and asked for one month’s extension, that is, until the 30^th October.

4. The reasons given in support of the application, we think, may not be unfairly summarized as (1) the solicitor in charge of the appeal was busy with other matters; (2) the firm of solicitors to which he belonged had moved office; and (3) the printer with whom he had been negotiating for the printing of the record, and who had promised a quotation as to price, did not revert as she had said she would. The solicitor then forgot about it until it was too late.

5. Yang, V.-P. refused to extend the time for dispatch of the record.

6. We are asked, under section 35 subsection (3) of the Supreme Court Ordinance, to vary that decision. Proceedings under that subsection are not in our view by way of appeal, although the present notice is drafted as such. Were that truly the case, we would have had no hesitation in dismissing it. There is nothing to indicate that Yang, V.-P. in any way erred in principle. He merely felt that the material offered in support of the application did not warrant an extension of time. The sole question for us today is whether in our view it does.

7. Mr. Smith for the Defendants has urged four reasons why we should extend the time. Firstly he says that, unlike the position in Ratnam v. Cumarasamy⁽¹⁾, the solicitor in this case had not done absolutely nothing. With every respect, we have just outlined the reasons that were given in support of the application and we feel that so far as promoting this appeal is concerned the solicitor did very little more than nothing. Secondly, Mr. Smith observes that it is only one month more which is requested; this is a very short period in relation to the litigation as a whole and would probably make little, if any, difference to the actual date of hearing. That is possibly so, but we must observe that in fact it is now 3 months’ extension that is requested, and we have to repeat that there is no acceptable explanation of the delay. Thirdly, it is said that it is difficult to see what prejudice would be suffered by the other side were an extension granted. Mr. Ribeiro, for the other side, observes that delay of any kind prevents the Plaintiffs from getting on with their case, and that alone must be some prejudice. But with respect to him, we cannot help feeling that such prejudice can only be very small. Nevertheless we respectfully agree with the comments of Sir John Donaldson in A. Co. v. K. Ltd.⁽²⁾ that,  with regard to appeals, as opposed to first instance litigation, absence of prejudice to the other side is no ground for extending time. The fourth matter urged upon us is that this appeal involves matters of great general or public importance. This is an aspect which has given us some cause for concern, for that is the sole reason why leave was granted in the first instance, and should we refuse this application, the appeal so far as we have power to deal with it, would not be heard at all. Those important points of law would not be decided. On the other hand, should we grant the application, we would be giving, not only to these Appellants, but by precedent to any other party who obtains leave on a similar ground, precisely what Lord Guest said in Ratnam v. Cumarasamy⁽¹⁾ they should not be given, namely –

“an unqualified right to an extension of time which would defeat the purpose of the rules, which is to provide a time table for the conduct of litigation.”

In our view a time table provided by the court, as it was in this particular instance, is equally important.

8. In the circumstances we are not prepared to extend time and the application is therefore dismissed.

Robert Ribeiro (M/s Clyde & Co.) for Plaintiffs/Respondents

Clifford Smith (M/s Holman, Fenick & Willan) for Defendants/Appellants

(1) [1965] 1 W.L.R. 8 at 12

(2) [1987] 3 All E.R. 377