Scottish Court of Session Decisions

Robertson & Ors v. Cameron & Ors [2003] ScotCS 31 (11 February 2003)

OUTER HOUSE, COURT OF SESSION
A2258/99	OPINION OF LORD REED in the cause WILLIAM ROBERTSON AND OTHERS Pursuers; against ROBERT PARKINSON CAMERON AND OTHERS Defenders:   ________________

 

 

Pursuers: Dean of Faculty, Weir; Henderson Boyd Jackson, W.S.

First, Second, Sixth, Seventh, Eleventh and Thirteenth Defenders:

Di Rollo, Q.C.; Balfour and Manson

Fourteenth Defender: Stewart, Q.C.; Drummond Miller, W.S.

11 February 2003

1. On 1 October 1997 a Peterhead fishing boat, the "Sapphire", was lost at sea about twelve miles off Peterhead. Four members of the crew lost their lives. The only survivor was the skipper, who is the third pursuer in the present action.
2. Following the accident, the wreck was found and recovered. It was searched by Grampian Police. The bodies of the crew were recovered. The vessel was inspected by marine surveyors employed by the Marine Accident Investigation Branch of the Department of the Environment, Transport and the Regions. Following the completion of their investigation, the vessel was returned to sea and was allowed to sink to the seabed.
3. On 18 January 1999 the report of the M.A.I.B. was presented to the Secretary of State. It concluded inter alia that water on the working deck had entered the hold of the vessel through the fish room hatch cover because that cover had not been properly secured and had moved on its coaming.
4. In November 1999 proceedings were brought against the owners of the vessel by a relative of one of the deceased, who is the fourteenth defender in the present proceedings. Similar actions were begun on behalf of another thirteen relatives. In these proceedings, the pursuers sought damages from the owners of the vessel on the basis that the deaths of the deceased had been caused by the fault and negligence of the owners.
5. In December 1999 the present proceedings were commenced by the owners of the vessel. In these proceedings the pursuers seek a declarator. The terms of the declarator can be summarised as being to the effect that the pursuers are entitled to limit any liability attaching to them as owners of the vessel, for any loss and damage arising from the loss of the vessel, to a specified sum. The fourteen relatives who had commenced proceedings against the owners were convened as defenders to the present action.
6. The action is based on section 185 of the Merchant Shipping Act 1995, which provides inter alia as follows:

"(1) The provisions of the Convention on Limitation of Liability for Maritime Claims 1976 as set out in Part I of Schedule 7 (in this section and Part II of that Schedule referred to as "the Convention") shall have the force of law in the United Kingdom.

...

(4) The provisions having the force of law under this section shall not apply to any liability in respect of loss of life ... caused to ... a person who is on board the ship in question or employed in connection with that ship ... if -

(a) he is so on board or employed under a contract of service governed by the law of any part of the United Kingdom..."

Part I of Schedule 7 to the Act sets out the text of the Convention. Article 1 provides:

"(1) Shipowners ... may limit their liability in accordance with the rules of this Convention for claims set out in Article 2.

(2) The term "shipowner" shall mean the owner ... of a seagoing ship."

Article 2 provides inter alia as follows:

"Subject to Articles 3 and 4 the following claims, whatever the basis of liability may be, shall be subject to limitation of liability:

(a) claims in respect of loss of life ... occurring on board or in direct connection with the operation of the ship ... and consequential loss resulting therefrom..."

Article 4 provides as follows:

"A person liable shall not be entitled to limit his liability if it is proved that the loss resulted from his personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result."

Other provisions deal with the quantification of the limit of liability. According to the pursuers' averments, the limit applicable to the vessel in question was 166,667 Units of Account.

7. In the present proceedings, the pursuers accordingly seek a declarator that they are entitled to limit their liability to the specified sum, on the basis that they were the owners of the vessel in question, and the claims made against them are in respect of loss of life occurring on board or in direct connection with the operation of the ship, and consequential loss arising therefrom. The action is defended on two bases. First, it is maintained by the defenders that the deceased were on board the vessel under contracts of service, and that therefore the Convention provisions do not apply, by virtue of section 185(4) of the Act. Secondly, the defenders maintain that Article 4 of the Convention is applicable, the loss in question having resulted from the pursuers' personal act or omission, committed recklessly and with knowledge that such loss would probably result.
8. According to the information I was given by counsel, the proceedings for damages were sisted on about 2 February 2000, to await the outcome of the present proceedings. Those proceedings were then at the Open Record stage.
9. In the present proceedings, the defences lodged on behalf of the third, fourth, fifth, eighth, ninth, tenth and twelfth defenders were withdrawn on 11 April 2001. On 29 August 2001 the Record closed. On 28 September 2001 parties were allowed a proof before answer. On 14 March 2002 the parties were informed by the Keeper of the Rolls that a diet of proof had been fixed for 18 February 2003 and the seven ensuing days. On 16 October 2002 the defenders were ordained to lead at the proof.
10. In order to bring the history of the proceedings up to date, I should also mention that on 6 December 2002 the court allowed a Minute of Amendment for the first, second, sixth, seventh, eleventh and thirteenth defenders to be received. Answers were lodged on behalf of the fourteenth defender on 11 December 2002, and on behalf of the pursuers on 20 December 2002. No motion has been enrolled to have the Record amended.
11. On 7 February 2003 the fourteenth defender enrolled the following motion, which came before me on Tuesday 11 February 2003:

"On behalf of the fourteenth defender, to discharge the diet of proof set down for 18-28 February 2003 and to sist the cause to join the issues in the same process, and to find the pursuers liable to the defenders in the expense of the discharge and to allow parties to join the reparation issues and the limitation of liability issues in the same process."

The motion was marked as opposed on behalf of the pursuers.

12. Addressing me on behalf of the fourteenth defender, counsel summarised the history of the proceedings. He informed me that the proceedings raised by the relatives were based upon the conclusions reached by the M.A.I.B. The same theory as to the cause of the sinking was also reflected in the averments made on behalf of the defenders in the present proceedings. There were two issues between the parties in the present proceedings. The first issue was whether the relationship between the deceased and the owners was one of employment; and the second issue concerned the quality of the lack of care which had allegedly led to the sinking of the vessel. In relation to the first of those issues, the defenders had appeared, until the middle of 2002, to have support from the decision of the High Court in England in the case of the Maragetha Maria [2001] 2 Lloyd's Rep. 443. That decision, so far as concerned with the question whether a share fisherman was an employee of the owners of the vessel, had however been reversed by the Court of Appeal in April 2002: [2002] 2 Lloyd's Rep 293. The consequence of the decision of the Court of Appeal had been to throw into prominence the second issue, which included the causation of the loss of the Sapphire and the quality of the fault involved.
13. In relation to the latter issue, counsel referred to the terms of the M.A.I.B. report, which had been lodged on behalf of the defenders as production 7/12. Put briefly, the conclusion of the M.A.I.B., counsel submitted, had been that the fish hold had flooded because the hatch had not been secured fast and had become displaced by heavy weather. The parties had been afforded an opportunity to comment on that report while it was in draft. That opportunity had been taken by the pursuers. Their comments on the draft report were included in the final report as an appendix. They had stated inter alia (at page 103):

"The main fish hold hatch cover was heavy and made of steel. It required two or three men to lift it off. The owners of Sapphire 'are unaware of any occasion when this hatch cover has been displaced unintentionally by the force of water or otherwise'."

The pursuers made averments along similar lines in the present proceedings. Those averments went to the issue of fault, not to the issue of causation. So far as causation was concerned, the pursuers had first amplified their position in adjustments to their pleadings which were intimated on 5 July 2001. Those adjustments stated, inter alia:

"The main fish hatch cover was not displaced on top its coaming at the time of the sinking".

The implication of that averment, which was now to be found at page 24E of the Closed Record, was that the displacement of the hatch cover in question could not have been the means by which water had entered the fish hold. Further averments were made in the Answers which had been lodged on 20 December 2002 and received by the fourteenth defender on 23 December 2002. Those Answers contained, inter alia, the following averments (in paragraph 2(v)):

"For the fish hatch to have been displaced by the motion of the Sapphire, the acceleration forces acting upon her would require to have been dramatic. They would have been felt acutely by the crew in the deckhouse. The third pursuer felt no such forces prior to the sinking. The sea conditions encountered by the Sapphire prior to the sinking would not have caused acceleration forces of sufficient magnitude to displace the fish hatch. Moreover, had the magnitude of the acceleration forces been such as to displace the fish hatch from its coaming, then the noise of the hatch cover striking the coaming when it became displaced would almost certainly have been heard by the third pursuer and the crew. The third pursuer heard no noise consistent with displacement of the fish hatch in this manner."

The technical background of these averments was disclosed in a report, production 6/36, which had been lodged by the pursuers on 21 January 2003, that being the last day for timeous lodging of productions. Further background was given in productions 6/37 and 6/38, which had been lodged on the same date. Counsel submitted that the fourteenth defender's position was that the earlier averments gave no notice of any factual basis for the averment that the hatch cover had not been displaced. That factual basis had first been intimated in the Answers received on 23 December 2002, and had first been made clear in the reports lodged on 21 January 2003.

14. Counsel referred me to production 6/36, which was a report by Professor Colin Macfarlane, Professor of Sub-sea Engineering at the Universities of Glasgow and Strathclyde. In paragraph 3 Professor Macfarlane stated:

"I conclude, however, that flooding through the Fish Room hatch was not and could not be the cause of the loss of the Sapphire."

In paragraph 26, Professor Macfarlane stated:

"There are two independent, primary reasons why I discount this theory.

(i) The position of the hatch as observed is entirely inconsistent with it being open when the vessel was afloat and steaming ahead.

(ii) Calculations show no significant flooding over the coaming and down through an open hatch until the vessel has sunk low in the water from some other cause."

Counsel also referred to paragraph 50 of the report:

"M.A.I.B. in their report on the sinking of the Sapphire concluded that flooding had taken place through the fish hold catch cover - this cover having been displaced by the vessel's accelerations. Their argument was that the hatch cover had not been fully secured and, hence, the hatch cover could lift and be displaced. This would only occur, however, if a (negative) acceleration in excess of the gravitational acceleration (g), occurred."

Counsel did not dispute my suggestion that this statement appeared to be unremarkable.

15. Counsel also mentioned productions 6/37 and 6/38, which he described as very bulky documents. Counsel observed that production 6/37 was dated 20 November 2000. Production 6/38 was dated 30 January 2001. Production 6/36 might also be a version of a much earlier report.
16. Counsel submitted that the defenders had been entitled to rely on the M.A.I.B. report, given the limited nature of the qualifications which the pursuers had proposed to the draft report. It was quite unacceptable for the pursuers to challenge the report so close to the proof, especially if they had been in possession of the relevant information for two years or more. The fourteenth defender was not in a position to join issue on the technical matters raised by the pursuers. Nor was the fourteenth defender in a position to investigate or lead evidence as to what might otherwise have been the cause of the sinking of the vessel, if the pursuers' theory were correct. It was notable that production 6/36 did not offer any explanation of what had in fact been the cause of the sinking. The M.A.I.B. were unwilling to co-operate in the preparation of the fourteenth defender's case, beyond appearing to give evidence under citation.
17. Counsel submitted that, in these circumstances, the fourteenth defender was prejudiced. The prejudice might go beyond the present proceedings. The provisions of the 1995 Act were new law. There was very little authority as to the procedural consequences of those provisions. Counsel was not clear, in particular, as to the application of the principle of res judicata as between the two actions. It appeared that the pursuers intended to use the limitation action for the purpose of having liability decided, by having it determined that the cause alleged by the defenders could not have been the cause of the sinking of the vessel. If that were so, then it had to be borne in mind that the pleadings in the reparation action were presently at the adjustment stage. If, however, the reparation claims were not foreclosed by what happened in the limitation proceedings, then the same issues would have to be re-litigated. Counsel acknowledged that the parties to the reparation action were different from the parties to the present proceedings, in that seven of the pursuers in the reparation proceedings had withdrawn their defences in the present proceedings. If the consequence of that were that any decision on causation in the present proceedings could not be treated as res judicata in the reparation proceedings, then it would plainly be inexpedient to have the same issues litigated again. For these reasons, counsel submitted that stand-alone limitation proceedings were not appropriate. Counsel acknowledged that the issues which the court had to determine in the two proceedings were different. In the present proceedings, the court had to determine whether the pursuers were entitled to the statutory limitation of liability, and for that purpose had to determine whether there was a contract of service between the pursuers and each of the deceased, and whether the deaths had been caused by the pursuers' personal acts or omissions, committed recklessly and with knowledge that such loss would probably result. The issues in the reparation action, on the other hand, would be whether the deaths of the deceased had been caused by the fault and negligence of the pursuers and, if so, the quantification of the loss. Although the issues were different, however, counsel submitted that there would be an overlap in the evidence, particularly so far as bearing on the issue of causation. In support of his submission that stand-alone limitation proceedings were inappropriate, counsel referred me to a style for an affidavit in support of a limitation claim, taken from an unidentified English text book. In the style affidavit, the claimants admitted that they were solely to blame for the accident.
18. On being referred by the court to the averments made by the pursuers at pages 24E to 26A of the Closed Record (which are quoted below), counsel said that he could not deny that it had been clear for some time that the pursuers were disputing the correctness of the conclusions reached by the M.A.I.B. The averments in question had however been, possibly, no more than arguments on the facts in relation to matters which the M.A.I.B. had investigated. What the averments did not contain was a foreshadowing of the factual material on which the averments were based. There was no indication that a series of expert reports existed. The pursuers had found it necessary to amplify their position more recently. With hindsight, it was now possible to see what they were talking about in the averments in the Closed Record. Counsel accepted that the pursuers were not required to plead evidence, and in particular were not required to plead the terms of the reports or to refer to them in their pleadings. Counsel also accepted that the natural inference to be drawn from the averments in question was that the pursuers were in possession of an expert report, on the basis of which the averments had been made.
19. On behalf of the first, second, sixth, seventh, eleventh and thirteenth defenders, counsel consented to the motion made on behalf of the fourteenth defender. Counsel submitted that an issue arose from the fact that seven of the original defenders were not represented. In counsel's submission, it would be appropriate for the case to be put out By Order so that the attitude of those seven defenders towards the conjoining of the present proceedings with the actions of reparation could be explored.
20. Counsel adopted the submissions made on behalf of the fourteenth defender, and added that it was not apparent from the pursuers' pleadings what the basis for the averments had been. It was difficult for the defenders to instruct an expert to deal with these matters before having sight of the pursuers' report. It had not been clear from the pursuers' pleadings that there was a serious challenge being made to the terms of the M.A.I.B. report. It was plain that Professor Macfarlane's report, and the data in productions 6/37 and 6/38, had been known to the pursuers for a considerable time, and yet had been produced at the last possible moment. As a result of that, the defenders were not in a position to deal with the matter. The report did not indicate what, in the author's view, the cause of the sinking had been. Neither did the pleadings do so. If a serious question was being raised as to an official report, it was important that notice be given of that at an early stage. What had been in the pleadings was inadequate. The pleadings had contained only a hint. The fundamental difficulty was that the averments were based on material which had not been produced. Asked whether the defenders' complaint was essentially that the evidence to be led in support of the averments had not been disclosed until close to the proof, counsel replied that that was certainly one of the complaints.
21. Replying to these submissions on behalf of the pursuers, the Dean of Faculty submitted that the pursuers had a prima facie entitlement to limit their liability in respect of these claims. There was no onus resting upon them at all. Two issues arose at the proof. The first was the question whether there was a contract of service. That question was not material to the present discussion. The second issue was that arising from Article 4 of the Convention, namely the allegation that the loss had resulted from the pursuers' personal act or omission, recklessly and with knowledge that such loss would probably result. It was for the defenders to prove that. For that reason, the defenders had been ordained to lead at the proof. It was correct to say that the pursuers had not averred in their pleadings what they considered the cause of the sinking to be, but they were under no requirement to do so.
22. So far as causation was concerned, the defenders' common position was narrated in Answer 5 for the fourteenth defender. At pages 30E to 32A they narrated the findings which the M.A.I.B. had made. The critical averments as to causation were at pages 33E to 35B:

"Accordingly, the Sapphire sunk because a substantial quantity of water had entered the fish hold... It did so because the fish hatch cover had been able to move due to the motion of the vessel on the sea as it sailed... In weather such as was being experienced on the said journey, a substantial amount of water would wash over the main deck of the Sapphire. Some of this would hit the fish hatch coaming. This would cause the water [sic: it appears that 'cover' may be intended] to rise, and some of the water would then fall into the fish hold. The more water which flooded into the hold, the lower the Sapphire sat in the water. The lower she sat in the water, the easier it was for water to wash across her deck. As the fish hold filled with water, progressively smaller rolls brought the starboard edge of the deck below the surface of the sea. This resulted in the starboard passage flooding through the open doors at each end of it. The rolling of the vessel caused water in the starboard passage to spill over the engine room door sill. Once there was water in the fish hold, the starboard passage and the engine room the vessel started to list to starboard... The fish hatch cover would not have moved had it been secured closed prior to the voyage home... Had the fish hatch cover not moved the said accident would not have happened..."

23. The Dean of Faculty observed that the pursuers' response was to be found in the Closed Record at pages 24E to 26A:

"The main fish hatch cover was not displaced on top of its coaming at the time of the sinking. To displace the fish hatch to that extent would require the strength of two crew men. Had it been so displaced, the effect of gravity would have caused the fish hatch cover to slide off its coaming when the Sapphire lay on her beam ends to starboard immediately before sinking. In those circumstances it is inherently improbable that the fish hatch cover could have recovered itself to a position on top of the hatch coaming when, as she sank, the Sapphire returned to a near upright state. It is more probable that the fish hatch cover became displaced as a result of either air escaping from the fish hold when the Sapphire returned to her near upright state as she sank, or water motion occurring during the operation to recover the Sapphire from the seabed. Immediately after sinking the Sapphire settled on the seabed on her starboard side. The pursuers are unaware of any occasion prior to the sinking of the Sapphire when the fish hatch cover was displaced by force of water or any other means. The weather conditions on the day of the sinking, while fresh, were by no means unusual. Further explained and averred that esto the fish hatch cover moved due to the motion of the Sapphire (which is denied) it is improbable that in the prevailing conditions sea water accumulating on the working deck would have been excited to such extent as to cause a run up and splashing over in any quantity at the fish hatch coaming, and certainly not in a quantity sufficient to undermine the integrity of the vessel."

24. The Dean of Faculty informed me that those averments had been on Record since the middle of 2001. They admitted of no real ambiguity or uncertainty as to the pursuers' position on this issue. The basic points made - that the cover was too heavy to have been moved, and that even if it had been moved, gravity would have caused it to slide away from the coaming, rather than coming back to rest on top of it - were not exactly rocket science. These were simple points, and fairly obvious. The M.A.I.B. had found the cover to be slightly displaced on the coaming. The pursuers' position was that it was unlikely that the cover would have found its way to that position if it had been displaced prior to the sinking of the vessel. The pursuers had, in the averments quoted, set out an alternative explanation for the displacement of the cover, in terms of air escaping from the fish hold as the vessel sank, or water motion during the operation to recover the vessel from the seabed.
25. In The Dean of Faculty's submission, it was clear that these averments did not deal solely with the question of fault, but went to the heart of the issue of the causation of the sinking of the vessel. In particular, they plainly put in issue the question whether the M.A.I.B. theory was correct. That had therefore been an issue between the parties for more than one and a half years. It was hard to understand how the defenders could have been ignorant of that.
26. The Dean of Faculty accepted that some further elaboration of the pursuers' position was given in paragraph 2(v) of the Answers. Even if one assumed that those averments would find their way into the Record, they raised no material new issues which would justify a discharge of the diet of proof. If the thrust of the complaint concerned the date when the reports had been disclosed, that disclosure had taken place in compliance with the court's procedural rules, and in the context of a proof where no onus lay upon the pursuers.
27. In relation to the issue of res judicata, the Dean of Faculty submitted that there could be no question of any finding in the present proceedings binding parties in any subsequent proof in different proceedings. All that would happen in the present proceedings was the granting of a declarator of entitlement to limitation. There would be no determination of the questions of causation or liability which would be binding in any subsequent proof. Nor was there any requirement that owners must admit liability before they could seek a declarator of limitation.
28. Generally, the Dean of Faculty submitted that the whole procedure to date had been conducted on the basis that the forthcoming proof was to deal with a preliminary issue. That way of dealing with matters had been instigated by the pursuers in the reparation actions, and those actions had been sisted at their instance to await the outcome of the present proceedings. The present proof had been allowed in September 2001. The diet had been fixed for almost a year. The present application was being made one week before the start of the proof. The pursuers had lodged expert reports. The defenders had not done so, although one of their experts, Mr Napier, was a naval architect. The defenders had lodged the M.A.I.B. report, and the author of the report was on their list of witnesses. Any sist of the proceedings would involve further delay in the resolution of these matters. Memories would further fade over time. The issue would continue to hang over the skipper of the vessel. The Dean of Faculty acknowledged that if the defenders were not prepared for the proof, that was a weighty matter. But it would be a distortion to blame their lack of preparedness on the pursuers, who had timeously carried out their own investigations and had lodged their reports and other productions timeously. Even if the court were minded to grant the present application, that should be limited to the discharge of the proof, in the expectation that a new proof would be fixed as soon as possible. The Dean of Faculty however made it clear that he was opposing any discharge.
29. As to the question of conjunction of processes, the Dean of Faculty submitted that the limitation action raised discrete and separate issues of fact and law from those which would arise in the actions of reparation. To mix the issues would be unsatisfactory and potentially productive of confusion. The only issue on the merits which was presently relevant was whether there had been reckless misconduct in the knowledge that the loss would probably result. In relation to the suggestion that the case should be put out By Order to enable other parties to be consulted, the Dean of Faculty submitted that since those defenders had withdrawn their defences, that suggestion should be given no weight.
30. Considering first the question whether the diet of proof should be discharged to allow the defenders further time to prepare their case in relation to the cause of the sinking of the vessel, it appeared to me that the critical issue was whether such a discharge was appropriate in the interests of justice. I accepted the submissions made by the Dean of Faculty. It appeared to me that it had been apparent from the pursuers' averments in the Closed Record that the correctness of the conclusion reached by the M.A.I.B. was disputed. The pursuers' averments put forward a number of specific grounds for challenging the theory that the sinking of the vessel was due to the displacement of the fish hatch cover. The pursuers were not obliged to plead the evidence on which the averments were based, nor to disclose the terms of any expert report which they had received. They had been under no obligation to lodge those reports any earlier than they had done. Nor were they obliged to put forward an alternative explanation for the sinking of the vessel. The additional averments made in the Answers lodged in December 2002 might or might not become part of the Closed Record in due course. In any event, they did not appear to me to raise any matter of critical significance in the present context. The averment that the sea conditions prior to the sinking would not have caused acceleration forces of sufficient magnitude to displace the fish hatch appeared to amplify what was said in the Closed Record about the force required to displace the hatch (at pages 24E to 25A) and about the weather conditions on the day of the sinking (at page 25D); but it did not raise any radically new issue. The remaining averments were concerned with what would have been experienced by the third pursuer and other persons on board. I therefore concluded that this was not a case in which the defenders had been placed in difficulty through blameworthy conduct on the part of the pursuers. On the contrary, they had had notice of the pursuers' position, and had had a proper opportunity to prepare their own case.
31. Although I accepted that the defenders were not as well prepared for the proof as they might have been, the submission that they were not in a position to join issue with the pursuers appeared to me to be over-stated. In that regard, I noted that the defenders had lodged the M.A.I.B. report. As one would expect, that is a detailed document which discusses the technical issues involved at considerable length. It is supported by mathematical graphs and calculations. The defenders had also lodged a report prepared by the Meteorological Office (production 7/2); plans of the vessel (productions 7/6 and 7/7); a video tape of the search and survey of the wreck of the vessel, made by the M.A.I.B (production 7/15); photographs taken of the vessel, following her recovery, by the M.A.I.B. (production 7/16); and a video tape made by the M.A.I.B. following the recovery of the vessel to the surface and her later arrival at Peterhead (production 7/17). I also noted that the defenders have on their list of witnesses a number of persons whose evidence could be expected to be relevant to the issues in question. Most importantly, these include Mr Jim Lee, the Inspector of Marine Accidents who carried out the investigation into the loss of the Sapphire and was responsible for the preparation of the report. They also include Mr Graham McCombie and Mr Morris Napier of the McCombie Napier Company Limited. I was informed that this is a firm of naval architects. Another relevant witness is a meteorological consultant from the Meteorological Office. Accordingly, notwithstanding the unwillingness of the M.A.I.B. to assist in the preparation of the defenders' case, the defenders can nevertheless rely on the M.A.I.B. report - which is plainly a substantial piece of work - in support of their position, and can lead the person whom I was informed was the author of the report in order to substantiate its conclusions.
32. It also appeared to me to be material to take into account the time which had already elapsed since the sinking of the vessel in October 1997, and the effect of that delay upon the persons most directly involved. I attached some weight, in particular, to the consideration that the skipper of the vessel had had an extremely serious allegation hanging over him for a considerable time. It also appeared to me to be necessary to bear in mind that the forthcoming proof is dealing with what, in effect, is a preliminary issue: there will inevitably be a further lapse of time before the reparation proceedings are completed.
33. I can deal more briefly with the issues arising insofar as the application was based upon the alleged desirability of conjoining the present action with the reparation action. In that connection also I found the submissions made by the Dean of Faculty persuasive. The course of the proceedings to date has been predicated upon an acceptance by the defenders that it was desirable to deal with limitation as a preliminary issue. I acknowledge that some of the matters discussed at the proof in the present action may also require to be discussed at the proof in the reparation action: in particular, the cause of the sinking of the vessel. That was always the position; but, notwithstanding that overlap in the evidence, the view was taken that it was preferable for the matter of limitation to be determined as a preliminary issue. I was not persuaded that, insofar as any view might be taken about causation at the forthcoming proof, that would be res judicata at any subsequent proof in a different action with a different subject matter and involving additional parties.
34. Weighing the various considerations, and trying to judge where the interests of justice lay, I came to the conclusion that justice would best be served by refusing the motion and allowing the proof to proceed.
35. Having given my decision to refuse the motion on behalf of the fourteenth defender, counsel for the fourteenth defender sought leave to reclaim. It appeared to me that leave was not required, since my interlocutor was one which inter alia refused a sist of proceedings: Rule of Court 38.3(4)(g). Counsel nevertheless insisted in his motion, in case leave was necessary insofar as the interlocutor refused to discharge the diet of proof. If leave had been necessary in that regard, I would have refused leave: my decision on that matter was taken in the exercise of a discretion, and nothing was said to indicate that there was a colourable basis for a reclaiming motion. In the circumstances, I refused leave to reclaim.