Scottish Court of Session Decisions

BP Exploration Operating Co Ltd & Ors v. Chevron Shipping Company & Ors [2002] ScotCS 291 (13 November 2002)

OUTER HOUSE, COURT OF SESSION
A1852/01 A1858/01 A1865/01	OPINION OF LORD HAMILTON in the causes (1) BP EXPLORATION OPERATING COMPANY LIMITED against CHEVRON SHIPPING COMPANY (2) BP EXPLORATION OPERATING COMPANY LIMITED against CHEVRON TRANSPORT CORPORATION And (3) BP EXPLORATION COMPANY against CHEVRON TANKERS (BERMUDA) LIMITED ________________

Pursuers: Dean of Faculty, Wolffe; Maclay Murray & Spens

Defenders: Glennie, Q.C.; Henderson Boyd Jackson, W.S.

13 November 2002

1. The event immediately giving rise to these three actions occurred as long ago as 1 March 1990. On the morning of that day the vessel "Chevron North America", which the previous evening had berthed at Jetty Number 4 at the Sullom Voe Oil Terminal and had made connections with loading arms at that jetty, moved under the force of weather conditions away from its berth. Certain damage resulted. These three actions concern claims for reparation for that damage.
2. It is unnecessary for present purposes to attempt to identify why these claims remain at this date unresolved. Responsibility may lie with the parties, their respective insurers and others in varying degrees. But the inescapable fact remains that an inordinate period of time has lapsed since the relevant event.
3. The more recent history of these litigations has been concerned with the relevancy of certain issues between the respective parties. Interlocutors pronounced by the Lord Ordinary on 26 January 1999, which allowed to parties a proof before answer of their (whole) averments on record, were successfully reclaimed against by the defenders; but the orders made by the Inner House were, subject to a qualification in the third action, in turn reversed on appeal to the House of Lords. Subject to an exclusion of certain averments in that third action, the order made in each action by the House was to allow the parties a proof before answer of all their averments - now reported at 2002 SC (HL) 19. As noted by Lord Hope of Craighead at page 23, although the actions have not been formally conjoined, it was envisaged that, in the event of proof before answer being allowed in more than one action, they would be heard together. That remains the position.
4. Thereafter on 11 July 2002 the Inner House in implement of the orders made in the House of Lords pronounced an interlocutor in the first and second actions (against "Shipping" and "Tankers" respectively) in the following terms:-

"The Lords having heard Counsel, Apply the Judgment of the House of Lords, No 23 of process and in respect and in terms thereof Recall the interlocutor of the Inner House dated13 April 2000; Allow to parties a proof before answer of all averments on record; appoint said proof to proceed on the day of 2002 at ten o'clock forenoon and grants diligence for citing witnesses and havers; Remit the cause back to the Lord Ordinary to proceed as accords;.....".

A like interlocutor was pronounced in the third action (against "Transport") subject to the exclusion referred to above.

5. The defenders in each action have now enrolled a motion in the following terms -

"On behalf of the Defender, in terms of Rule of Court 36.1, to order that Proof upon the issues relating to the events giving rise to the accident, the alleged damage, and the alleged losses suffered by the Pursuer, be heard (if necessary) after Proof upon all other issues in the case".

That motion was in each case marked as opposed by the pursuers. At the discussion of the motion a question arose as to its precise meaning and effect but its substantive objective, as is sufficiently clear, is to obtain a separation of proof in respect of certain issues from others.

6. Rule of Court 36.1, insofar as material, is in the following terms:-

"(1) In any cause the court may -

(a) at its own instance, or

(b) on the motion of any party,

order that proof on liability or any other specified issue be heard separately from proof on any other issue and determine the order in which the proofs shall be heard.

........"

7. An issue immediately arises as to whether it is within my powers as Lord Ordinary to make at this stage of these cases, and in particular against the orders made in the House of Lords as subsequently implemented by interlocutors of the Inner House, an order under Rule of Court 36.1. The Dean of Faculty, who appeared for the pursuers in each case, while not putting the issue of competency at the forefront of his submissions, opposed the motions on that as well as on other grounds. He cited in that connection Grant v Sun Shipping Co 1949 SC 19. Mr Glennie, who appeared for the defenders in all three actions, submitted that the granting of the motions would not add to or vary the orders made in the House of Lords. All the House had done in reversing the interlocutors of the Inner House was in effect to hold that the pursuers' averments were relevant for proof. An order separating issues in the actions into separate proofs would be a mode of implementing the House's order, not an addition to or variation of it.
8. In my view these motions must be refused as incompetent. It is plain from Grant v Sun Shipping Co and earlier authority there referred to that, following the disposal by the House of Lords of an appeal to it from the Court of Session, the interlocutor of the Inner House implementing that disposal is essentially administrative in character. The Inner House cannot vary or add to the House's disposal. E fortiori a Lord Ordinary cannot do so. In Grant v Sun Shipping Co the matter at issue concerned expenses, the first defenders there seeking an award of expenses in their favour against the second defenders in circumstances where the House of Lords had dealt with expenses but only to the extent of making an award in favour of the pursuer and allocating responsibility for that award between the defenders. The Inner House rejected an argument that in these circumstances the House of Lords had not exhausted the matter of expenses and that it was open to the Court of Session to make the award sought.
9. In the present case, while no question of separate proofs was apparently raised before the House of Lords, their Lordships' disposal dealt with future procedure including the making of an order allowing the parties, subject to the exception mentioned, a proof before answer of all their averments. That order cannot, in my view, be regarded simply as a finding that the pursuers' averments are, subject to the exception, habile for inquiry. It determined the form of that inquiry, namely, by a proof before answer of all these averments. That on a fair reading, in my view, imports a single inquiry by way of proof before answer. The form of inquiry cannot be said to have been outwith the scope of their Lordships' order, even though any question of separate proofs was not expressly addressed before them. If the defenders had wished to keep open the possibility of separate proofs, it was incumbent on them, in my view, to raise that matter in the House of Lords. Even if their Lordships had thought it inappropriate for their determination, they could in their order expressly have reserved power to the Court of Session to deal with any such application. That not having been done, the Court of Session has, in my view, no power to make an order under Rule of Court 36.1, at least in circumstances where it is not suggested that there has been any material change of circumstances since the matter was before the House of Lords.
10. That is sufficient for disposal of the motions. It is, however, appropriate that I deal, albeit briefly, also with the motions on their merits. In the first place, these applications come, in my view, unduly late. The appropriate stage at which to apply for an order under Rule of Court 36.1 and to have that application determined is when a order for proof is first made. Mr Glennie informed me that the matter of separation of any proof had been raised with the Lord Ordinary at the procedure roll hearing which preceded his interlocutor of 22 January 1999. But it appears that that matter was not pressed (or in any event dealt with) at the By Order hearing on 26 January 1999. The interlocutor of that latter date in each action ran simply "Allows to parties a proof before answer of their respective averments on record and appoints said proof to proceed on the day of at 10am...". The matter of any separation of proofs was not, I was told, raised at the hearing of the reclaiming motion nor, as earlier noted, in the House of Lords. It was first revived when the House of Lords judgment was presented to the Inner House for implementation, no determination of it being made at that time.
11. In the second place and more importantly, I am not satisfied that it would be convenient for the efficient disposal of these actions to make order under section 36.1. It is acknowledged by the defenders that any first part for inquiry could not usefully be restricted to the issues of prescription and the related issue of personal bar. It would be necessary also to include in that part the pursuers' cases on the merits in the action against Shipping based on the proposition that the latter were "operators and managers" in respect of both the vessel and its master. These cases include contentions founded on an alleged breach of contract by Shipping and alleged breaches of delictual duties for which it is contended that Shipping is directly and also vicariously liable. These last matters involve factual issues as to the state of the vessel's winches, both their design capacity and their state of maintenance, as well as the responsibility, if any, of Shipping for these matters or either of them. The state of the winches in both respects is equally pertinent to the cases directed against Tankers and Transport, though it is proposed that inquiry on these matters should in these actions be reserved for the second part of the proof (should such be required). The result is that potentially these matters will either have to be investigated at two separate inquiries or, as Mr Glennie proposed, factual assumptions as to the state of the winches, and perhaps others matters, will have to be made for the purposes of the first inquiry. Neither course is, in my view, satisfactory. There is here a real risk of duplication of inquiry or of a need to make for the purposes of the action against Shipping, assumptions about disputed matters of fact. Where issues are remitted for proof, it is highly undesirable (even if competent, which I doubt) for the Court to have to proceed on assumptions about disputed matters of fact which are germane to the issues to be determined. Practical difficulties would also arise for an appeal court in the event of the disposal of the first inquiry being brought under review. The prospect of further intermediate appeals in these actions is also itself unattractive.
12. In any event I am not satisfied that a separation of proofs is likely to give rise potentially to a significant saving in time or expense. Mr Glennie suggested that the first part as proposed would occupy only about one half of the time of a proof of the whole issues (3 - 4 weeks for the first part and 6 - 8 weeks for the whole issues). But, at least on the face of the pleadings, the issues concerning prescription, personal bar and Shipping's alleged responsibilities as "operators and managers" are more elaborate than the circumstances of the incident itself, the causation of damage and the quantification of the damages claimed. The pursuer's averments on these latter elements are relatively simple (and are in the main met by the defenders only by simple denials) while the parties have joined issue elaborately on matters which would on any view fall to be dealt with at a first proof.
13. These actions, which were raised in 1995, have, as the Dean submitted, already been subject to substantial delay. While it is possible to figure circumstances in which expense might be saved by a separation of proof, on balance the interests of justice would not, in my view, be served by such a course. In the circumstances, even had I power to do so, I would not have made the orders sought. The motions in each case are accordingly refused.