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Background
Background
Chronology of Events
As already stated above:
The First Defendant is a party to a general average bond dated 19 March 2018 pursuant to which it agreed to pay the proper proportion of any general average contribution found to be reasonably, properly and legally due from it. The bond included a law and jurisdiction clause expressly providing for (i) the guarantee to be governed by English law, (ii) the exclusive jurisdiction of the High Court of Justice London and (iii) each party to irrevocably submit to the jurisdiction of the English court.
The Second Defendant signed a general average guarantee on 20 March 2018 in respect of cargo interests’ contribution to general average. The guarantee included a law and jurisdiction clause expressly providing for (i) the guarantee to be governed by English law, (ii) for the exclusive jurisdiction of the High Court of Justice London and (iii) for each party to irrevocably submit to the jurisdiction of the English court.
the general average adjustment, which is the subject of the claim in this action was published on 05 April 2019, pursuant to which the general average adjusters determined that the Defendants’ contribution to general average was a total sum of US$892,381.46.
On 02 December 2022, Ince & Co. Piraeus (“Ince & Co.”), the solicitors then acting for the Claimants requested W.E. Cox, the claims consultants instructed on behalf of the Defendants to nominate English solicitors to accept service. The Defendants did not do so.
On 04 April 2023, Ince & Co. e-mailed W.E. Cox noting the Defendants’ continued refusal to appoint English solicitors for service and attaching a draft claim form.
On 20 June 2023, Ince & Co. sought advice on the specific requirements to effect service in Brazil from the FPS and Brazilian marine and legal consultants at Van Herp & Frumento. Later that day, the FPS gave guidance for service under the Hague Convention.
On 21 June 2023, Van Herp & Frumento confirmed that service had to be via letter rogatory or similar document under the Hague Convention.
Ms. Khan, the partner at Ince & Co. with responsibility for conduct of the claim on behalf of the Claimants made her first witness statement in support of the first application for an extension of the validity of the Claim Form on 10 August 2023. The Claim Form was issued on 11 September 2023.
Calver J. made the First Extension Order extending the validity of the Claim Form by 9 months to 15 months on 20 September 2023 and the amended Claim Form was sealed on 27 September 2023. Ms. Khan also made a second witness statement in support of the application for extension of the validity of the Claim Form on 27 September 2023. The purpose of that statement was to clarify the roles of the First and Second Claimants.
On 6 October 2023, Ince & Co. sent the documents for service on the Defendants to the FPS together with a completed Hague Convention Article 5 request form. The FPS received the documents on 16 October 2023.
On 31 October 2023, Ince & Co. followed up with the FPS to ask for an update on the status of their application. On the same day, Ince & Co. also advised W.E. Cox. by e-mail that proceedings had been issued and documents lodged with the FPS for service on the Defendants in Brazil. That e-mail refers to attempts by W.E. Cox to contact the Claimants directly and also to a request for security for costs.
By 5 February 2024, WFW had replaced Ince & Co. as the Claimant’s solicitors and Ms. Khan and Mr. Farach had moved to WFW. On that day, Mr. Farach reported to Ms. Khan that he had finally been able to get through to the FPS who had told him they were still working on cases from July 2023 but would respond to a query which he had raised with them.
On 7 February 2024, Mr. Farach had a further call with the FPS and also an exchange of e-mails. It appears that the FPS were unable to locate the documents originally lodged by WFW and requested confirmation of when they were sent. Mr. Farach confirmed that the documents were delivered on 16 October 2023 but offered to repost documents if necessary. There was also an e-mail exchange regarding the provision of new Hague Convention request forms.
On 20 February 2024, WFW spoke to the FPS and then followed up with an e-mail about ‘a potential issue with our submission’ and ‘to check whether the submission contains all the required duplicates before you process it’. It is unclear whether by this date, the FPS had been able to find the documents sent by WFW because Mr. Farach attached the DHL delivery confirmation. It is clear, that if the FPS had been able to locate the documents, they had not considered them given Mr. Farach’s wish to check that the documents were complete before the FPS processed.
On or around 27 February 2024, Mr. Farach reported to Ms. Khan about his discussions with the FPS and the fact that they had revealed certain errors in the documents, which he described as not being known to him at the time when he prepared them for submission. He also reported that the FPS had not yet reached the Claimants’ submission and so he had resent everything urgently and arranged for a clerk in the FPS to replace the original documents so that the Claimants didn’t lose its place in the queue. The FPS received the substitute documents on 01 March 2024.
However, on 19 March 2024, the FPS rejected the Claimants’ request for service (“the 1st FPS Rejection”). The Claimants submit that at least three of the reasons given by the FPS related to matters which had not been the subject of any guidance that was reasonably available to WFW:
‘N224 form… when serving two different people or company’s you need to have two separate forms submitted’. The Claimants say that they were only told about this in or around February 2024 (and tried to resolve it, but without success).
‘Please add the case number to the N510 form’. However, the CPR requires that the N510 form is filed at the same time as the Claim Form: PD 6B, para. 2.1. The Claimant says that necessarily, at that time, there is no claim number and there was no reasonably available guidance that, for the purposes of service under the Hague Convention, the claim number must be added later.
The FPS also said that there are two options for the Hague Convention request form and, if the Claimants want the form processed and sealed by the FPS before translation into Portuguese, they were required to advise the FPS of that. However, the Claimants say that translation after process by the FPS was the only “option” presented to the Claimants by the FPS in June 2023. Further, the Claimants had confirmed in correspondence with the FPS in October 2023 and again in February 2024 that they wanted to translate the form after it had been processed by the FPS.
The other reasons given by the FPS appear to have been the result of administrative errors by WFW in the process of preparing documentation required for a request for service by the FPS under Article 5 of the Hague Convention, for example omitting to mention the certificate of translation and notes for defendant in the list of documents in the Hague form.
WFW collected the documents from the FPS on 02 April 2024 and re-submitted them on 15 April 2024 with a request for service.
On 22 April 2024, WFW reported the delays with the original request for service to the Claimants. Mr. Farach put the position in the following terms:
- Heading
- Mr. Nigel Cooper KC
- “… allows a reasonable margin, while still respecting the reasons for the default validity period and the importance of speedy service.”
- The relevant legal principles
- Background
- Section 5
- The Guidance reasonably available to WFW at the time of submitting the documents to the FPS for service
- Were there good reasons for the Claimants’ failure to serve the Claim Form within its period of initial validity?
- Was there a breach of the duty of full and frank disclosure?
- Conclusions