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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Gulf Azov Shipping Company Ltd & Ors v IDISI & Ors [2001] EWCA Civ 505 (9 March 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/505.html
Cite as: [2001] 1 LLR 727, [2001] 1 Lloyd's Rep 727, [2001] EWCA Civ 505, [2001] 2 All ER (Comm) 673
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IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
Strand London WC2 |
||
B e f o r e :
LORD JUSTICE LONGMORE
____________________
| GULF AZOV SHIPPING COMPANY LTD and Others | ||
| Respondents | ||
| - v - | ||
| IDISI and Others | ||
| Applicant |
____________________
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
MR G DUNNING and MR STEPHEN BERRY (Instructed by Stephenson Harwood of London) appeared on behalf of the Respondents
____________________
Crown Copyright ©
- LORD JUSTICE LONGMORE: We must now deal with an application forpermission to appeal from Master Miller's assessment of damages. As I said in the judgment I have given, with which there has been concurrence by my Lords, Master Miller has already assessed damages in the sum of £4,201,046 plus interest.
- Mr Bhalla has sought permission to appeal on behalf of the defendants. At the beginning of the hearing of the substantive appeal we invited the respondents to put in any submissions they might wish us to have in mind in writing. So we have considered the notice of appeal, the skeleton submissions on the question of permission to appeal from Mr Bhalla and also the skeleton put in by the owners. This morning we have given Mr Bhalla the opportunity to develop any point he wishes to develop. In the course of his oral argument he has submitted that there are four central points. The first one is that on any construction of the evidence before Master Miller there was no evidence as to the period in respect of which the claimants could have hired out their vessel. He submits therefore that that claim should have failed. As to that, Master Miller did not accept the primary case of the claimants for 642 days of detention. He accepted that it would not be possible to let out the vessel for the whole of that time and he deducted 65 days from that period in order to represent the period he thought the vessel could have obtained employment. Mr Bhalla complains that was a figure suggested by the claimants themselves as being an appropriate figure. The Master hearing the assessment of damages had evidence from the claimants. The defendants had every opportunity to put in contrary evidence in accordance with the order of Mr Justice Langley. They decided not to do so. The master had to do his best with the evidence he had. With the assistance of submissions of Mr Bhalla on that evidence he came to the conclusion that the appropriate period was 577 days.
- It is impossible to appeal on that point subject to the limited point we raised at the end of Mr Bhalla's submission, namely that in the light of our judgment it was arguable that the vessel was not wrongly arrested as at 6th August but only on 22nd August. Mr Berry, on behalf of the claimants, said that they are happy to submit to a deduction of that 14 days. We direct that that deduction be made. Any difficulty about mathematics can be ventilated in front of Master Miller.
- Mr Berry's second point was that the master had relied on the demurrage clause in the charterparty. The demurrage clause was said to have been of significance in relation to the period of hire and the amount of hire awarded by the Master whereas Mr Bhalla wishes to assert that the demurrage clause is a penalty and should have had no influence on the Master's thinking. As I observed in the course of argument, litigants have occasionally sidled up to the argument that demurrage clause is a penalty but no one has had the courage to invite the courts to make a decisive decision on that. This is a wholly inappropriate case for that exercise to be done because the Master did not as it happens, select the demurrage rate of $7,000 a day but selected a very much lower rate of $4,855 a day. The Master was alive to the requirement of the claimants to prove their case. He was not satisfied that they would have achieved $7,000 a day and made a substantial reduction in the claimant's claim in that ground. That ground of appeal is unarguable.
- Mr Bhalla's third point was that not only were the defendants not able to adduce evidence of their own but they were unable to cross-examine the evidence produced by the claimants. That again was because they had not complied with any order of the court requiring them to give notice by a certain period if they wished to cross-examine. So not unnaturally the Master, being in charge of his own court, came to the decision that the evidence could not be cross-examined. Mr Bhalla says that he should have allowed a cross-examination, and it was a denial of his human rights not to have been able to cross-examine the witnesses.
- The position on that is that the hearing before the Master took place over a period of months. If any appeal was going to be made on this point then a request for permission to appeal should have been made ages ago. It is not the correct way for matters to be ventilated to allow a hearing to go ahead on the basis that the tribunal has been case managing its case before it and then seek to attack the case management decision after the substantive hearing, which has taken some months to complete, is over and judgment given. The Master had every justification for the order he made.
- There is a sub-point of Mr Bhalla's, namely that the Master did allow the owners to put in some further evidence in order to support part of their claim which was based on payments to their agents in Nigeria. The purpose of that evidence was to elaborate on the amounts that had been supplied to the vessel. One of the main consequences of that was that the claim was substantially reduced because it became apparent that some part of the claim could not be attributable to the wrongful detention of the vessel. Mr Bhalla says that he ought to have been able to cross-examine on that because that was new material. That is entirely a matter of the Master running his own court and being master of his own procedure.
- The final point that Mr Bhalla took as a general point was that the Master should have had regard to the evidence before the judge in the substantive proceedings for summary judgment and for setting aside the judgment in default; that we most emphatically reject. The judge gave directions as to how the matter should be dealt with in evidence for the purpose of the assessment of damages. He said that, if the defendants wished to rely on any evidence, it had to be in in a certain time and it is quite wrong to suggest that the Master should have had to have regard to a plethora of affidavits and evidence that was not sorted out at least in relation to the issues before him.
- Mr Bhalla had some subsidiary points on the facts such as there was no true market and the claimant could only find comparables and part of the claim; in particular the P and I claim was not broken down and was not properly vouched. That is not the kind of thing with which this court would be concerned. They are very much a matter for the Master in the exercise of his jurisdiction. What Mr Bhalla's complaint comes down to is that the Master ought to have reduced the claim very substantially in the exercise of his duty to ensure the claimants had proved their loss. The judgment shows how alive Master Miller was to that. The claim was substantially reduced from the original claim put in.
- The only other matter that has slightly concerned me is the fact that no investigation will have taken place in this case as to the cause of the loss of the parts of the rig. We asked Mr Berry for his assistance on that point and we are satisfied he is correct about that. He said that the defendants had taken a deliberate decision not to pursue their counterclaim in the English proceedings but to pursue it elsewhere. That being so, there can be no allowance for the loss of the parts even assuming that the claimants were at fault. Moreover, that appears to be supported by the fact that the defendants did not put in any evidence before Master Miller in relation to the loss of the parts of the rig and so it does appear that there will be no judicial investigation into that aspect of the matter.
- For my part, I consider that this is an inappropriate case in which to give permission to appeal.
- LORD JUSTICE BROOKE: I agree. For the reasons given by Lord Justice Longmore I see no reasonable prospect of success. So far as Mr Bhalla's reference to the Human Rights Act is concerned, I know of no principle in the jurisprudence of the European Convention of Human Rights which prevents a court of competent jurisdiction controlling its process in a reasonable and orderly way.