QUEEN'S BENCH DIVISION
Rolls Building ,Fetter Lane, London, EC4A 1NL
B e f o r e :
| The Owners &/Or Bailees of the Cargo of the Ship Panamax Star
|- and -
|The Owners of the Ship Auk
Michael Davey (instructed by Hill Dickinson) for the Defendant
Hearing dates: Friday 6 December 2013
Crown Copyright ©
Mr Justice Hamblen :
The history of the proceedings
The issues in the proceedings
"Having observed the "Auk about a mile away, anchored towards the centre of the river (but slightly closer towards the North bank), the "Panamax Star" proceeded downriver with the engine at slow-ahead. As the "Panamax Star" got closer to the "Auk", the Master saw that the bow of the "Auk" was pointing in a northerly direction towards Itacoatiara with her port side across the river. Because of the way the "Auk" was lying in the river, the master was not able to turn to starboard in order to pass the "Auk" on her port side as would have been his preference. Instead he ordered the vessel hard to port with a view to crossing the "Auk's" bow, the Master ordered the helm amidships and then immediately hard to starboard in order to try to swing the stern of the "Panamax Star" up and clear of the bow of the "Auk". However, the current had by then set the "Panamax Star" down onto the "Auk's" anchor cable so that, as the "Panamax Star" moved across the cable, the "Auk" was drawn towards her. Before the "Panamax Star" could obtain sufficient rate of turn to starboard to swing her stern clear, the bow of the "Auk" struck the "Panamax Star" on her starboard side in way of no.5 hold.
The "Panamax Star" was proceeding at half ahead with the rudder hard to starboard and the vessel was swinging to starboard and being set down in a South Easterly direction by the current. The bow of the "Auk" (which was leading in a Northerly direction) came into contact with the starboard side of the "Panamax Star" in the way of no.5 hold at an angle of about 30° to 40°."
"The Defendants allege that the "Panamax Star" is 100% to blame for the collision on the 21st May, due to the negligence of the Claimant(s) and/or their servants and/or their agents including (but not exclusively) the actions on both the parts of the Master of "Panamax Star" and the Pilot guiding the vessel down river (and who should have been aware of the presence of the "Auk" which had been anchored in the same position for the previous 2 days). Having completed its loading operation at Hermasa Terminal (approx 2.8 miles from the "Auk") the "Panamax Star" raised anchor and began proceeding down river under pilot control, at about 7 knots. At around 0217 hours the vessel changed direction in order to pass by the "Auk" on her starboard side, but instead made contact with the "Auk at 0221 hrs causing the damage as described below. The "Auk" is not in any way responsible for the collision as (1) the vessel had been anchored in this position since 1830 hrs on the 18th May having been anchored under pilot control; (2) No request had been made by the Port Control to move the vessel; and (3) there had been no problem with other passing vessels prior to "Panamax Star" colliding with the "Auk" on the 21st May."
(2) The court may strike out a statement of case if it appears to the court—
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c) that there has been a failure to comply with a rule, practice direction or court order.
(5) Paragraph (2) does not limit any other power of the court to strike out a statement of case."
"46. The Civil Procedure Rules are a new procedural code with an overriding objective enabling the court to deal with cases justly in accordance with considerations which include those to be found in rule 1.1(2). One element expressly included in rule 1.1(2) as guiding the court towards dealing with cases justly is that the court should ensure, so far as is practical, that cases are dealt with expeditiously and fairly. Delay is, and always has been, the enemy of justice. The court has to seek to give effect to the overriding objective when it exercises any powers given to it by the rules. This applies to applications to strike out a claim….
51. The effect of this is that, under the new procedural code of the Civil Procedure Rules, the court takes into account all relevant circumstances and, in deciding what order to make, makes a broad judgment after considering available possibilities. There are no hard and fast theoretical circumstances in which the court will strike out a claim or decline to do so. The decision depends on the justice in all the circumstances of the individual case."
"99. It is clear that the Court is now able to adopt a much more flexible approach to the question of striking out for delay or non-compliance with an order, than was possible under the somewhat rigid rules of the old law. In Biguzzi v Rank Leisure Plc  1 WLR 1926, this Court made it clear that references should no longer be made to the old cases (see per Lord Woolf MR at p1932). But some of the considerations which were relevant before are obviously relevant now. For example the length of, explanation for and responsibility for the delay; whether the Defendant has suffered prejudice as a result and if so whether it can be compensated for by some order relating to costs or interest or it is so serious that it would be unjust to the Defendant to require the case to be tried. Moreover, the delay may be such that it is no longer possible to have a fair trial."
"48. It is no longer appropriate for defendants to let sleeping dogs lie: cf. Allen v McAlpine (Sir Alfred) & Sons  2 QB 229. Thus a defendant cannot let time go by without taking action and then later rely upon the subsequent delay as amounting to prejudice and say that the prejudice caused by the delay is entirely the fault of the claimant. Such an approach would in my judgment be contrary to the ethos underlying the CPR, quite apart from being contrary to paragraph 2.7 of the Part 23 Practice Direction. One of the principles underlying the CPR is co-operation between the parties.
49. However that may be, I recognise that in this case the CPR did not come into force until 26th April 1999, some three months after the claimants should have set the action down for trial pursuant to the order of 1st December 1998. The essential question in every case is: what is the just order to make, having regard to all the circumstances of the case? As May LJ put it, it is necessary to concentrate on the intrinsic justice of a particular case in the light of the overriding objective. The cases to which I have referred emphasise the flexible nature of the CPR and the fact that they provide a number of sanctions short of the draconian remedy of striking out the action. It is to my mind important that the master or judge exercising his discretion should consider alternative possibilities short of striking out."
(1) There are no hard and fast rules. The court has to make a broad judgment having regard to all relevant circumstances and the justice of the case.
(2) The relevant circumstances may include the length of, explanation for and responsibility for the delay; whether the Defendant has suffered prejudice as a result and if so how it can be compensated for, and whether the delay is such that it is no longer possible to have a fair trial.
(3) A defendant cannot let time go by without taking action so where delay does cause prejudice to him he cannot say that it is entirely the fault of the claimant.
(4) In considering what is the just and proportionate order to make the court should have regard to the alternative sanctions to that of striking out provided by the CPR.
Abuse of process
"Whereas hitherto it may have been arguable that for a party on its own initiative to in effect 'warehouse' proceedings until it is convenient to pursue them does not constitute an abuse of process, when hereafter this happens this will no longer be the practice. It leads to stale proceedings which bring the litigation process into disrespect. As case flow management is introduced, it will involve the courts becoming involved in order to find out why the action is not being progressed. If the Claimant has for the time being no intention to pursue the action this will be a wasted effort. Finding out the reasons for the lack of activity in proceedings will unnecessarily take up the time of the court. If, subject to any directions of the court, proceedings are not intended to be pursued in accordance with the rules they should not be brought. If they are brought and they are not to be advanced, consideration should be given to their discontinuance or authority of the court obtained for their being adjourned generally. The courts exist to assist parties to resolve disputes and they should not be used by litigants for other purposes."
Fixing a CMC in a collision action
After a claim form is issued the Registrar will issue a direction in writing stating—
(1) whether the claim will remain in the Admiralty Court or be transferred to another court; and
(2) if the claim remains in the Admiralty Court–
(a) whether it will be dealt with by–
(i) the Admiralty judge; or
(ii) the Registrar; and
(b) whether the trial will be in London or elsewhere.
Where the Registrar directs that the claim will be dealt with by the Admiralty judge, case management directions will be given and any case management conference or pre-trial review will be heard by the Admiralty judge."
Breach of the rules and delay
1) Master's statement dated 8 August 99 (stamped 25 October 2001)
2) Statement of the Master, Capt Martinez, undated (faxed 15 June 1999)
3) Affidavit of Master of "Panamax Star" dated 17 June 2003 (sworn 27 June 2003 and 8 July 2003)
4) Deposition from Mr Nina ("Panamax Star") 10 December1999
5) Deposition from Second Office Fernandez ("Panamax Star")
6) Depositions from Pilot Da Silva ("Panamax Star") on 28 September 1999 and 4 July 2000
7) Depositions from Pilot Filho ("Panama Star") on 6 October 1999 and 4 July 2000
8) Deposition from Pilot Rebelo ("Auk") dated 28 Depositions from AB Duterte ("Auk")
9) September 1999 and further deposition dated 14 January 2003
10) Deposition from Port Captain Bueno dated 21 December 1999
11) Deposition by Georgios Lergos (Master of "Auk") undated (faxed 15 June 1999)
Conclusion on delay
Abuse of process