England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE COTRAN)

		Royal Courts of Justice Strand London WC2 Wednesday, 31st January 2001

1. LORD JUSTICE TUCKEY: This is an application by Mr Elassall Riad Ghobrial for permission to appeal from the decision of His Honour Judge Cotran given in the Central London County Court on 11th September 2000 who dismissed his counterclaim with costs.
2. The claimants operate a liner shipping service. The defendant trades under the name of Pandora and imports fruit and vegetables into this country. The claim arose out of the carriage by the claimants of four refrigerated containers of grapefruit from Mersin in Turkey to Felixtowe under the terms of the bills of lading in which Pandora were the consignees. After the containers arrived in England on 15th May 1999, the defendant rejected the grapefruit on the grounds that the fruit had been damaged in transit. His cheques in payment of the freight were dishonoured.
3. The claimants sued on the dishonoured cheques. It was their case that the grapefruit were infected by disease before carriage and that this caused mould to develop in transit. They obtained summary judgment on their claim on the cheques, but the defendant mounted a counterclaim for over £54,000 alleging that the mould was caused because the claimants had not kept the containers refrigerated at a constant temperature of ten degrees centigrade which they were required to do.
4. For much of the time in the proceedings the defendant acted in person, as he does now. In the file of papers which I have read many orders were made by the county court which required him to do certain things in order for his counterclaim to come to trial. He did not comply with those orders. The last one was made in June 2000 as the date which had been fixed for the hearing of the trial of the counterclaim approached. The Court ordered that the time within which the defendant might serve witness statements of fact was extended to 14th June 2000 and that in default of compliance with that order the defendant was to be debarred from relying on the evidence of the witness and/or witnesses in respect of whom default had been made. The order went on to say that for the avoidance of doubt the defence and counterclaim was not regarded a witness statement and that any statement should comply with the rules of Court. Time was also extended for service of a marine surveyor's report and in default the defendant was to be debarred from relying on such evidence.
5. At the time this order was made the defendant had solicitors, Messrs Bentleys Stokes & Lowless. The orders were not complied with and the solicitors came off the record on 31st August.
6. On 11th September the defendant appeared in person. He gave no explanation for the failure to comply with the earlier orders but asked for an adjournment to deal with the case which the claimants were making against him. The judge rejected this application saying:

"It seems to me that he has had every opportunity to do that. His requests for extension of time were granted but enough is enough and District Judge Lightman's orders remain and he is debarred. He knew full well that the hearing was on today, his solicitors abandoned him, I expect because he did not pay them as he did not pay the judgment debt nor the costs of the summary judgment proceedings."

7. The judge then proceeded to hear the case and the defendant was allowed to make some submissions to the judge about the evidence which the claimants had put before him. Their case however was formidably unanswered, as it was, by any evidence on behalf of the defendant. They had a report from a cargo surveyor which strongly supported their case that the damage was not caused in transit. They also had a report from a mycologist which said that the mould which had damaged the grapefruit had originated in Turkey before the grapefruit were loaded into the containers for shipment.
8. In his application for permission the defendant has filed a very helpful skeleton argument in which he makes points about some of the documents which were produced by the claimants. He relies on the bills of lading for these containers which were clean, that is to say, they record that the grapefruit were received into the containers for shipment in apparent good condition. But as I pointed out this does not help him in a case where the cargo damage is said to have been caused by inherent vice and the bills only made the claimants liable for damage caused whilst the goods were in transit. If, as the claimants said, the damage was caused by the disease which infected the grapefruit before shipment then it was not caused in transit.
9. This morning the defendant pointed to documents relating to another shipment where the claimants had expressly disclaimed liability on the bill of lading because in that case the boxes of oranges which had been delivered to them were not at a temperature which would have ensured that after carriage in a refrigerated container they would be in good condition. That is an entirely different situation to the one with which this case is concerned. It would have been apparent to those receiving the goods on behalf of the claimant in that case that the oranges had not been cooled to the necessary temperature to ensure their safe shipment and so the bills were claused. In this case the inherent vice in the grapefruit would not have been apparent to anyone receiving the grapefruit into the containers.
10. Mr Ghobrial also relies in his written submissions on a Phyto sanitary certificate provided by the shippers of the grapefruit which said that they were free from quarantine pests. But this does not help the defendant either. The mycologist instructed by the claimants said that the fungal organisms with which he considered the grapefruit were infected before shipment were not quarantine pests.
11. In short, it was for the defendant to make out his counterclaim before the judge on admissible evidence. He lost his chance of doing so by his repeated failure to comply with court orders. The judge was right to proceed in the way he did. I consider that he reached the right decision on the evidence before him. But, more importantly, there is no real prospect of the defendant upsetting the judge's orders on appeal to this Court. Accordingly, his application for permission to appeal must be dismissed.
(Application for permission to appeal dismissed) (Order does not form part of approved Judgment)