Panamax Star Owners &/or Bailees of the Cargo of the Ship) v Auk (Owners of the Ship), Court of Appeal - Admiralty Division, December 18, 2013, [2013] EWHC 4076 (Admlty)

Resolution Date:December 18, 2013
Issuing Organization:Admiralty Division
Actores:Panamax Star Owners &/or Bailees of the Cargo of the Ship) v Auk (Owners of the Ship)
 
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Case No: 2000-567

Neutral Citation Number: [2013] EWHC 4076 (Admlty)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMIRALTY COURT

Royal Courts of Justice

Rolls Building ,Fetter Lane, London, EC4A 1NL

Date: 18/12/2013

Before:

MR JUSTICE HAMBLEN

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Between :

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John Passmore (instructed by Davies Johnson & Co) for the Claimant

Michael Davey (instructed by Hill Dickinson) for the Defendant

Hearing dates: Friday 6 December 2013

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JudgmentMr Justice Hamblen :

Introduction

1. This is an application by the Defendant to strike out the claim on the grounds of want of prosecution and/or abuse of process

2. This is a collision action. On the 21st May 1999 the ``Panamax Star'' struck the anchored vessel ``Auk'' in the Amazon River. The ``Auk'' had anchored with the assistance of a pilot who had informed the Master that this was the customary safe anchorage. The vessel had been anchored there for two days before the ``Panamax Star'' collided with her. It is alleged that the anchorage position was unsafe and that ``Auk'' was yawing excessively. This is denied.

3. The claim form was issued in May 2000 and served in May 2001. The parties then agreed to a suspension of the procedural timetable up to May 2004. Thereafter the only step taken was the filing of collision statements of case in 2005. There followed sporadic without prejudice discussions but no steps in the action were taken between 2005 and the Claimant's application in March 2013 to list a CMC.

4. The Defendant contends that this extraordinarily long period of delay is an abuse of process, has caused it serious prejudice, means that a fair trial will no longer be possible and that the claim should accordingly be struck out.

5. The evidence at the hearing consisted of two witness statements from each of the solicitor acting for the Claimant, Mr Johnson of Davies Johnson & Co, and the solicitor acting for the Defendant, Mr Wallis of Hill Dickinson LLP, together with various exhibits.

The history of the proceedings

6. The claim form was issued on the 19th May 2000. It was served on the 11th May 2001. On 14th May 2001 the Claimant's then solicitors, Ince & Co, informed Hill Dickinson that the claim form was only issued to protect time and that there was no great desire on the part of the Claimant to press on with the proceedings.

7. On 25th May 2001 Ince wrote to the court stating that the parties were at present content to continue dealing with the matter outside the strict confines of the court procedure and that it was agreed that the procedural timetable be suspended.

8. On the 1st February 2002 Ince wrote to the court stating that the parties remained content that the timetable remain suspended. On 1st May 2002, in response to a request by the court, Ince wrote stating that the parties remained content for the timetable to remain suspended. On 30th July 2002, following a further request by the court, Ince wrote stating that the parties remained content that the timetable remain suspended and letters to a similar effect were written on the 11th December 2002 and on 2nd July 2003, the latter following a further request from the court.

9. On 2nd February 2004 Ince wrote to the court explaining that the parties remained content that the timetable was to remain suspended but that there had been recent developments in Brazil which might impact on the progression of the claim.

10. On 23rd April 2004 there was a telephone discussion between Ince and Hill Dickinson. In that conversation, Hill Dickinson pointed out that it was now nearly five years after the collision and that the issues ought to be clear and it was unacceptable to the Defendant that the matter be kept open simply to see if an opportunity for Panamax Star to bring proceedings in the UK might arise as a result of the outcome of the maritime enquiry in Brazil.

11. This was a reference to the proceedings which had been taking place in Brazil. These consisted of an initial Port Captaincy Inquiry followed by Admiralty Court proceedings by the Navy Prosecutor. Judgment in the proceedings was given on 30 October 2003; the Master of ``Panamax Star'' was fined R$1,000 and the pilot of ``Auk'' was fined R$500. Appeals followed, in which the penalty payable by the Master of ``Panamax Star'' was reduced to R$500 and the conviction of the pilot of ``Auk'' was overturned. These proceedings had run their course by 2005.

12. On 16th September 2004 the court noted that no steps had been taken and enquired as to the position. On the 30th September 2004 Hill Dickinson responded to a request by Ince to agree to continue a stay by stating that the Defendant was no longer willing to do so.

13. On 1st October 2004 Ince informed the court that parties no longer agreed to suspend the timetable and that the Claimant was considering the future conduct of the matter. On 8th October 2004 Ince gave formal notice to proceed.

14. On 11th February 2005 the Claimant served its collision statement of case. Thereafter Ince chased Hill Dickinson for the Defendant's collision statement of case. Hill Dickinson's position was that they would rather discuss the merits of the case than proceed to service of the Defendant's collision statement of case.

15. On 22nd June 2005 the court chased for an update. On 23rd June 2005 Ince informed the court that the Defendant was expected to file its collision statement of case shortly, following which it was proposed to have a without prejudice meeting which it was hoped would lead to the settlement of liability without troubling the court.

16. On 29th June 2005 the Defendant served its collision statement of case.

17. On 21st July 2005 the court asked Ince to fix a date for a CMC. Ince replied that it was not aware that the Defendant had filed its collision statement of case but that Ince did not consider a CMC to be necessary and that they would revert in three months.

18. On 16th August 2005 collision statements of case were exchanged.

19. On 7th November 2005 the court chased Ince for an update. On 10th November 2005 Ince wrote to the court stating that the parties had recently filed collision statements of case, that steps were being taken to explore whether the matter could be disposed of without progressing it in court and that it was not necessary to fix a CMC.

20. On 28th February 2006 Ince responded to a chasing fax from the court stating that the parties had held a without prejudice discussion and that a further meeting was scheduled.

21. On 4th May 2006 the court asked for an update. On 10th May 2006 Ince informed the court that they had formulated a draft claim which had been forwarded to the other side and that it was anticipated that a further meeting would be held.

22. On 11th August 2006 Ince informed the court, in response to a request, that a meeting was recently held and that at present there was no need to trouble the court. This was the last communication with the court until the application to fix a CMC was issued on 1st March 2013.

23. Between August 2006 and May 2008 there were no exchanges between the parties. In May 2008 Ince provided some experts reports in relation to the movements of ``Auk'' and the topography of the river.

24. In the following two years there were sporadic discussions and attempts to settle the case. On 2nd June 2009 the Claimant...

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