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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Naviera v Allied Maritime Inc [2002] EWCA Civ 1147 (16 July 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1147.html Cite as: [2003] 2 CLC 1, [2002] EWCA Civ 1147 |
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CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
(Mr Justice Andrew Smith)
The Strand London Wednesday 16 July 2002 |
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B e f o r e :
Vice President of the Court of Appeal, Civil Division
LORD JUSTICE MANCE
LORD JUSTICE LATHAM
____________________
NAGUSINA NAVIERA | Claimants/Appellants | |
and: | ||
ALLIED MARITIME INC | Defendants/Respondents |
____________________
MR S BRYAN (instructed by Mills & Co, Milburn House, Dean Street, Newcastle upon Tyne)
appeared on behalf of the Respondent
____________________
Crown Copyright ©
Wednesday 10 July 2001
"whether charterers, under a trip charter with no duration are under any obligation as to the time within which discharge of the cargo is to be effected and, if so, what the nature of that obligation is."
"This application is not in proper form. [There followed a reference to the Arbitration Practice Direction, paragraph 4.] Leave to service out is probably appropriate. The application for extension of time is not understood. Leave to serve out."
"Please find attached copies of the following:
• Part 8 Claim Form.
• Application Notice.
• Witness Statement of Graham Crane.
No doubt, you will be nominating solicitors, since this is now a court matter. Service process is now in train but to avoid unnecessary costs we suggest that you also instruct solicitors to acknowledge service within the jurisdiction. An Order granting leave to serve out of the jurisdiction was obtained today and we shall forward a copy of the sealed Order to you tomorrow."
"In the case of an appeal to the Court under section 1(2) of the Arbitration Act 1979, the application for permission to appeal, where permission is required, and the Part 8 claim form must be served and the appeal entered, within 21 days after the award has been made and published to the parties. Provided that, where reasons material to the appeal are given on a date subsequent to the publication of the award, the period of 21 days shall run from the date on which the reasons are given."
"(1) After a claim form has been issued, it must be served on the defendant.
(2) The general rule is that a claim form must be served within 4 months after the date of issue.
(3) The period for service is 6 months where the claim form is to be served out of the jurisdiction."
"18. It is convenient first to consider Mr Hancock's argument that the claim form was served on 13 February 2001. He says that it was served when it was sent by fax that day to Mr Ayliffe. As he points out, under CPR Part 6.2(1), 'a document may be served by any of the following methods ... (e) by fax or other means of electronic communication in accordance with the relevant Practice Directions'. The Practice Direction - Service provides at paragraph 3 (as far as relevant) as follows: ' ... where a document is to be served by facsimile (fax);
(1) the party who is to be served or his legal representative must previously have indicated in writing to the party serving - (a) that he is willing to accept service by fax, and (b) the fax number to which it should be sent.
(2) if the party on whom the document is to be served is acting by a legal representative, the fax must be sent to the legal representative's business address, and
(3) a fax number ... (b) set out on the writing paper of the legal representative of the party who is to be served ... shall be taken as sufficient written indication for the purposes of paragraph 3.1(1).'
Mr Hancock says that Mr Ayliffe was the Charterers' legal representative for the arbitration, and the documents were sent to the fax number which had previously appeared in communications from Mr Ayliffe in that capacity.
19. Mr Bryan does not challenge the factual basis for Mr Hancock's argument: that is to say, he does not dispute that Mr Ayliffe was the Charterer's legal representative in the arbitration reference, or that documents were sent on 13 February 2001 to a fax number on his writing paper. He advances three points in answer to Mr Hancock's argument.
20. His first submission is that under CPR 6.7(1), the fax being transmitted after 4pm on 13 February 2001, it is not to be deemed to be served until the next day. Accordingly it was served one day after the 21 days specified in the Practice Direction, and the Owners require an extension of that period by one day. This submission, as far as it goes, seems to me correct.
21. Mr Bryan's second submission is that Mr Ayliffe was not a legal representative of the Charterers in any relevant sense. He draws my attention to the definition of legal representatives in CPR 2.3(1): 'legal representative means a barrister or a solicitor, solicitor's employee or other authorised litigator ... who has been instructed to act for a party in relation to a claim'. Mr Ayliffe had not been instructed to act in relation to the application to appeal from the arbitration award. In this context, Mr Bryan submits that before the CPR it was well established that a solicitor instructed in relation to a reference did not thereby have authority to accept service of proceedings relating to an appeal from the award. With regard to arbitration applications under the 1996 Act, the Practice Direction at paragraph 7.2(3) provides that the Court may authorise service of the arbitration claim form on a solicitor or other agent within the jurisdiction who represented a party in the arbitration proceedings and was authorised to receive service of any notice or other document served for the purpose of those proceedings, and has not at the time when the arbitration application was made had his authority determined. However, there is no comparable provision with regard to applications under the 1979 Act.
22. Mr Hancock's response to this submission is that it is immaterial whether or not before the introduction of the CPR service upon a solicitor in Mr Ayliffe's position would or would not have been valid. The definition of a legal representative is one who is instructed in relation to 'a claim'. Mr Ayliffe was instructed in respect of the same claim as is the subject of these proceedings brought by the owners. It would be in accordance with the over-riding objective to recognise service upon him.
23. I reject Mr Hancock's submission. I consider that the word 'claim' in the definition of legal representative refers to the proceedings which are brought in the Court other than the underlying cause of action of the complaint. If the CPR were allowing proceedings to be served upon a party's lawyer although the lawyer had not been instructed in relation to them, more explicit words would have been used.
24. Mr Bryan's third argument is that the Owners, when they sent the fax to the Club for the attention of Mr Ayliffe, were not purporting or intending to effect service. The fax was in fact addressed to the Charterers, and it was only copied to Mr Ayliffe. Moreover, the fax itself referred to the application for leave to serve out of the jurisdiction and invited the nomination of solicitors. Mr Hancock does not suggest that subjectively Constant & Constant were intending to serve the Charterers by sending this fax to the Club, but says that that does not affect the position. Moreover, he acknowledges that if the Owners had expressly stated that they were sending the document otherwise than by way of service, he could not advance this argument. It seems to me that the position cannot be different if that is the implication of their message under cover of which they sent the documents, and I consider that it was."
"Where the Court is satisfied on an application made without notice that .... the respondent to the arbitration application (not being an individual residing or carrying on business within the jurisdiction or a body corporate having a registered office or a place of business within the jurisdiction)
(a) is or was represented in the arbitral proceedings by a solicitor or other agent within the jurisdiction who was authorised to receive service of any notice or other document served for the purposes of those proceedings; and
(b) has not (at the time when the arbitration application is made) determined the authority of that solicitor or agent,
the Court may authorise service of the arbitration claim form to be effected on the solicitor or agent instead of the respondent."
"These Rules shall apply to the proceedings listed in paragraph (2) subject to the provisions of the relevant Practice Direction which applies to those proceedings."
"39. Even if I did have power, in view of the unexplained delay between 13 February and 31 May 2001 and in making an application for an extension of time for service, I would not exercise it.
40. Mr Hancock criticised the Charterers for insisting that proceedings be served upon them in Athens. Indeed, he submitted that they should not benefit from adopting such an uncooperative attitude, and indeed that such behaviour is contrary to the obligations of a party to an arbitration agreement. I have sympathy with these submissions. However, it remains the case that as far as the CPR and Practice Direction - Arbitrations are concerned, the Charterers could take the stance that they did. More importantly, this cannot excuse the delay on the part of the Owners. I must consider that delay not only in the context of the private interests of the parties but what Steyn LJ referred to as 'the wider interests at stake, notably the proper functioning of our arbitration system'.
41. The Owners also argue that the Charterers have not shown that they suffered prejudice as a result of the delay. The authorities are clear that it is not necessary for them to do so."
"45. For similar reasons I reject the invitation to extend the 21 day limit so as to allow the Owners to issue and serve new proceedings. Although I have concluded that I would have power to make such an order, I consider that it would be inconsistent with the purpose of the time limit and contrary to the objective of the 1979 Act described by Steyn LJ in the Euston Central case."
"The objective of the Act of 1979 was to reduce the scope of the supervisory jurisdiction of the English courts. Contrary to the initial submission of Mr Gaunt [counsel for the appellant] it is not only the private interests of the parties that are relevant. There are wider interests at stake, notably the proper functioning of our arbitration system .... One of the aims of the Act of 1979 was to promote speedy finality in the enforcement of arbitration awards: The Antaios, per Lord Diplock at p 199 and per Lord Roskill at pp 208-209. Since nobody can prevent the losing party in an arbitration from applying for leave to appeal even in the most unmeritorious cases, it is of supreme importance to the proper working of our arbitration system that there must be an effective procedure to ensure that applications for leave are promptly made. That is the policy of the Act of 1979.
Having discussed the philosophy of the Act of 1979, and the impact of The Nema and The Antaios, Mustill & Boyd, Commercial Arbitration, 2nd ed (1989) comments, at page 611:
'It is the duty of the appellant to prosecute his application for leave to appeal and, if leave is granted, the appeal itself with proper dispatch. Failure to do so may lead to the application or the appeal being struck out.'"
"Under the post-1979 dispensation a party who failed to issue an originating motion within 21 days would be at risk of being struck out for want of prosecution."
"... perhaps the requirement, taken from a more elevated context, that action must be taken 'with all deliberate speed' sums up neatly what is required: see Brown v Board of Education of Topeka (1955) 349 US 294, 301. And a failure to act accordingly founds the court's discretion to strike out."
"Accordingly, although each case turns on its own facts, the following considerations are, in my judgment, likely to be material:
(i) the length of the delay;
(ii) whether, in permitting the time limit to expire and the subsequent delay to occur, the party was acting reasonably in all the circumstances;
(iii) whether the respondent to the application or arbitrator caused or contributed to the delay;
(iv)whether the respondent to the application would by reason of the delay suffer irremediable prejudice in addition to the mere loss of time if the application were permitted to proceed;
(v) whether the arbitration has continued during the period of delay and, if so, what impact on the progress of the arbitration or the costs incurred in respect of the determination of the application by the Court might now have;
(vi) the strength of the application;
(vii)whether in the broadest sense it would be unfair to the applicant for him to be denied the opportunity of having the application determined."