MIRUVOR LTD v. PANAMA-GLOBE STEAMER LINES S.A. AND OTHERS

cacv 225/2006 AND CACV 226/2006

CACV 225/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 225 of 2006

(on appeal from HCCL NO. 138 of 1996)

______________________

BETWEEN

  MIRUVOR LIMITED Plaintiff
  and  
   PANAMA-GLOBE STEAMER LINES S.A. 1st Defendant
  WORLD-TRACK SHIPPING LTD 2nd Defendant
  PRO LINE LTD & CO 3rd Defendant
  PACIFIC DIAMONDS MARITIME LTD 4th Defendant
NEPTUNIA S.A. 5th Defendant
M.B. EXPRESS 6th Defendant

CACV 226/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 226 of 2006

(on appeal from HCCL NO. 169 of 1996)

______________________

BETWEEN

  MIRUVOR LIMITED Plaintiff
  and  
  PANAMA-GLOBE STEAMER LINES S.A. 1st Defendant
  WISE FORWARD SHIPPING LTD 2nd Defendant
  PRO LINE LTD & CO. GmbH 3rd Defendant
  PARTENREEDEREI M.S. ‘MERKUR BAY’ 4th Defendant
SUPERMAR A.V. 5th Defendant
M.B. EXPRESS 6th Defendant

Before: Hon Rogers VP and Le Pichon JA in Court

Date of Hearing: 16 March 2007

Date of Judgment: 16 March 2007

Date of Handing Down Reasons for Judgment: 21 March 2007

___________________________

REASONS FOR JUDGMENT

___________________________

Hon Rogers VP:

1. This was a motion, brought following the judgment of this court, for the court to receive further submissions in relation to theapplication of Order 18, rule 2(3) of the Rules of the High Court to the issues raised on this appeal with a view to this court alteringits decision. At the conclusion of the hearing of this application, this court dismissed the application and indicated that it wouldnot alter its judgment, with reasons to be given in writing.

2. Reference can be made to the judgment handed down on 9 February 2007. In my judgment I came to the conclusion that the third defendantshould not be held to have submitted to the jurisdiction. Since that was the aspect of the case upon which the judge below heldagainst the third defendant the appeal was allowed.

3. In the course of argument reference had been made to Order 12 rule 8. Reference had also been made to Rule 11(9) of the CPR. Thecontrast between the two was that the CPR showed that where a defendant makes an application under the rule he need not file a defencebefore the hearing of the application. Attention was drawn during the course of the hearing to the notes in the Hong Kong CivilProcedure which state:

“The plaintiff should in no circumstances seek to enter judgment in default of defence while the application is pending; althoughthere is no express extension of time for defence, it would be inconsistent with the rules to do so and any such judgment would beset aside.”

4. What is apparent is that the editors of the Hong Kong Civil Procedure, of which I have to confess to being named as one, as wellas counsel in this case and the court overlooked the provisions of Order 18 rule 2(3). During the course of the hearing of thisappeal it had been mentioned, and indeed was confirmed during the course of this application, that the application to set aside theproceedings and the defence had been drafted by counsel in London. I had this in mind when I was considering whether it was possiblethat a mistake had been made by a legal adviser. Hence I referred in paragraph 9 to a comparison of the CPR and the Hong Kong Rules.

5. It remains my view that a careful legal adviser familiar with the CPR and having before him Order 12 of the Hong Kong Rules and,more specifically, having before him Order 12 and the notes thereto as set out in the Hong Kong Civil Procedure, might well, on lookingat the notes, consider that the notes might provide some suggestions as to a course but did not provide any safeguard should theopposing party take a strict view. In those circumstances I can see that an error would be very understandable particularly if thedrafter of the documents had before him the Hong Kong Civil Procedure.

6. I remain of the view that the matter has to be considered sensibly, realistically and fairly. Of course, if a party does intendto submit to the jurisdiction then the court will proceed upon that basis. But I do not consider that it is an appropriate mannerof administering justice to hold that a party has taken a course, namely submitting to the jurisdiction, when it had already indicatedto the court at a hearing in the previous month that it intended to challenge jurisdiction and the document relied on as constitutinga submission to the jurisdiction itself refers to “…the Third Defendant’s applications (i) to have the writ served against it set aside…”. It should not be held that the party did not intend to challenge jurisdictionsimply because out of an abundance of caution a document had been filed, which starts by referring to an application to set asidethe writ in phraseology that would be appropriate if that application had already been made, in circumstances where the Hong KongCivil Procedure is misleading; it would be insincere of this court to hold that the party should have had in mind a provision ofthe Rules which this court and those appearing before it overlooked.

Hon Le Pichon JA:

7. I agree.

(Anthony Rogers)
Vice-President
(Doreen Le Pichon)
Justice of Appeal

Mr Colin Wright, instructed by Messrs Dibb Lupton Alsop, for the Plaintiff/Respondent

Mr Robert Whitehead SC, instructed by Messrs David Y.Y. Fung & Co., for the 3rd Defendant/Appellant