CL-2021-000431 - [2025] EWHC 1940 (Comm)

I dismiss the Claimant’s claim for summary judgment in relation to the Time Bar Issue for the following reasons.

First, I consider that it is inappropriate for the Claimant to seek now to re-open the arguability of the Time Bar Issue in relation to the Shortage Claim in light of (a) the course which it took (and urged the Court to take) at the CMC before Jacobs J and (b) the CMC Order which the Judge made, which plainly contemplated that the Time Bar Issue relating to the Shortage Claim would be determined at trial, together with all other issues of fact relating to the fate and condition of the Cargo at various stages in its transit and while at Ukraine and then Turkey.

Mr MacDonald Eggers KC argued that there is no procedural bar to the point simply being re-opened and to the Claimant changing its mind and seeking, after all, to have the application of Article III Rule 6 to the Shortage Claim determined summarily at this stage. I do not agree.

It is, with respect, artificial to contend, as the Claimant has, that there was no direction by Jacobs J that the Time Bar issue in relation to the Shortage Claim, in Mr MacDonald Eggers KC’s words, “had to be dealt with at trial”. It is clear from the face of the CMC Order that the Shortage Claim was ‘allowed in’ as an issue for trial and thereafter was subject to all of the other directions leading to a full trial, and as part and parcel of what was going to be decided at trial. It was not necessary for Jacobs J to go further and to direct that the issue could only be determined at trial, when that was the result and intention of his order (and the course urged on him by the Claimant itself).

On that basis, directions were made at the CMC for disclosure which specifically included disclosure of documents relating to the shortage and discarding question underpinning the Shortage Claim as Issue 8 in the Disclosure Review Document and those directions have been complied with. Directions for responsive pleadings on the Shortage Claim were made and have been complied with, with an extensive factual case having been developed by the Claimant explaining how, when and why cargo was discarded. Further, the factual witness evidence relating to all cargo questions has been exchanged, including a statement from the Master dealing with the discarding aspect. I note also that the parties are on the cusp of exchanging or have already exchanged expert reports on issues of the proper care of soyabean cargo, cargo-worthiness, seaworthiness, shipboard practice in respect of a carriage of a cargo of soyabeans, the cause of the damage to the cargo and remedial measures and allegations of discarding cargo.

In the words of CPR Rule 3.1(7), to allow the Claimant now to seek to revert to its original objection to the amendment on the basis time bar barring the Shortage Claim would be “to vary or revoke” the CMC Order in essential respects. As submitted by the Defendants, the court will usually only exercise its power under CPR Rule 3.1(7) if (a) there has been a material change in circumstances since the order was made or (b) where the facts on which the original decision was made were (innocently or otherwise) misstated: see Tibbles v SIG Plc [2012] 1 WLR 2591.

There is no material change in the position regarding the Shortage Claim as such which would justify or merit the re-opening of the Time Bar Issue in relation to that claim. Indeed the only changes since the CMC Order was made are such that, to permit the Claimant to change course now, would make it wholly wasteful of costs and time already spent in dealing with the Shortage Claim in accordance with the CMC directions subsuming the Claim as one to go to be dealt with as part of the timetable to trial, together with all other cargo issues. It is far too late for the Claimant now to seek to reverse course in relation to the Shortage Claim and in my view it would be quite contrary to the overriding objective and to the policy in the Commercial Court of having any issues which a party seeks to have dealt with separately from trial fully canvassed before and determined upon by the Judge at the CMC.

Secondly, the Claimant seeks to justify the reversal of course by reference to the fact that the Misrepresentation Claims were only brought after the CMC and that these claims have given rise to a “vast new factual case” requiring allegedly substantial new disclosure and witness evidence with considerable costs and an effect on trial length: see e.g. Mr Stembridge’s third witness statement at para. 22. This is relied upon as a material change in circumstances (if one were required to revoke or vary the CMC Order under CPR Rule 3.1(7)) or, in any event, a justification for summary judgment on the Time Bar Issue now being sought.

I consider that there is much force in the submission of Mr Robert Thomas KC for the Defendants that the evidence in support of the Claimant’s argument does not really bear any of this out. Significantly, Mr MacDonald Eggers KC fairly conceded that there is ample time between now and trial in March 2026 for the Claimant to be able to deal fully and properly with the Misrepresentation Claims for trial. I note that the Misrepresentation Claim has already been fully pleaded out in the Claimant’s Rejoinder and the Defendants’ Surrejoinder.

The Claimant has argued that if the Misrepresentation Claims “are susceptible to strike out/summary judgment that is by far the most efficient way of dealing with them. If the Hague Time Bar needs to be considered in that context, there is no reason to leave the Shortage Claim to one side” (Skeleton, para. 20(2)).

In my view, this is to get things the wrong way around. If the Time Bar Issue has already been addressed at the CMC and has been agreed by the parties to be and ordered by the Court to be an issue for the trial (with an implicit recognition by all concerned that the point is properly arguable and hence a suitable issue for trial), then, in so far as the Claimant’s case in relation to the Misrepresentation Claims rests on the same argument in relation to Article III Rule 6 as its case in relation to the Shortage Claim, then the appropriate course is to allow the amendment in the same way (subject to any separate or free-standing issues, viz. the Claimant’s case as to arguable case as to the Reliance Issue) and have them all dealt with at the same time at trial.

I bear in mind additionally a point which weighed with Jacobs J. at the CMC, namely that any separate decision at this late stage on the Time Bar Issue would almost inevitably give rise to an appeal, given the importance of the ruling (whichever way it went) on Article III Rule 6 and the approach to subsequent amendments to claims made in time. This would equally inevitably lead to the disruption of the trial which has been fixed since the summer of 2024. The Claimant contends that there would be potential routes to have the Misrepresentation Claims hived off for a separate trial, but these are unworkable and impracticable and do not address the impact of any appeal on the Shortage Claim. The lateness of the application for summary judgment, not made until four months after the amendments in question, militates very strongly for the matters now to go to trial. It would be contrary to good case management and the overriding objective now to throw the carefully worked out trial timetable ordered and agreed to at the CMC into disarray.

Thirdly, even absent these considerations, I consider that the question of law underlying the Time Bar Issue is arguable and not one which is appropriate to be dealt with finally on a summary judgment (or, for that matter, strike out) application and for that reason alone there is a compelling reason for the Article III Rule 6 question to be decided at trial and in the light of the relevant facts as found in relation to the various claims in issue. Although Mr MacDonald Eggers KC attractively submitted that the point is a short one and one suitable for grasping at this stage, I do not agree.

The phrase “unless suit is brought” is one which has given rise to much uncertainty and much case law has been devoted to working out how it is to be applied in other contexts, such as who is to be the subject of proceedings, where and before whom are the proceedings to be brought, who the claimant must be etc.: see the discussion in Voyage Charters, 5th Edn., at paras. 66.183 to 66.194. See also Carver on Bills of Lading, 5th Edn, para. 9-194, p. 697 and the general view of Professors Rose and Reynolds that “Plainly difficulties will arise as to the meaning of these words.”

In the context of the present Time Bar Issue, the point is undecided and there are sufficient statements in the cases and in the commentaries to support a wide approach to the words, or, at least, not to support an approach which focusses rigorously and strictly upon the precise factual formulation and cause of action invoked and loss claimed for, for which approach the Claimant contends.

I cite by way of example:

That, at this stage, is enough to give the Defendants a sufficiently arguable case on an important question of law, bearing on the interpretation of a key provision in an international convention, which has given rise to extensive litigation in its other aspects, e.g. as to the scope of what liability it covers and what temporal application it has, see The Giant Ace [2024] UKSC 38; [2025] 2 All ER 661.

Mr MacDonald Eggers KC nevertheless relied on four matters to seek to make good his submission that the point was short and admitted of only one answer.

First, it was submitted that the result contended for by the Claimant was consonant with the object and purpose of the Article III Rule 6 time bar, as most recently considered by the Supreme Court in The Giant Ace, supra. There, Lord Hamblen at [63] explained the object and purpose of the time bar in these terms:

“As with any time bar, the main object and purpose of the article III, rule 6 time bar is finality. It ensures that the need for factual investigation is identified reasonably close in time to the events which have to be investigated. It also ensures that once the deadline has passed accounts or books can be closed.”

While it is clear that the purpose of the time bar was to bring finality and closure, that does not in my view address the different question of what a claimant cargo owner must do to stop time running. If the purpose is to ensure that “the need for factual investigation is identified reasonably close in time to the events which have to be investigated”, then it might be thought sufficient (or at least, at this stage, arguably sufficient) for the claimant to put the particular cargo and the carrier’s breach of duty in relation to it in issue in broad terms and that fine distinctions would not have been in the mind of the drafters. To take the example of the Shortage Claim: in the context of a claim for deterioration of cargo due to want of cargo care and unseaworthiness, is there a sensible purpose in distinguishing between the main claim for cargo still on board and cargo discarded by the crew because it was surface wet damaged and deteriorated? See the broad approach commended by Aikens and Bools, cited above.

Secondly, while it was accepted that there was no direct authority, it was submitted that the result followed sufficiently clearly from three decisions.

The first was The Kapetan Markos [1986] 1 Ll Rep 211. That decision did not have to address the point presently in issue. However it is possible to read this decision as being against a narrow approach focussing on the precise articulation of the facts and claim made: see how it is read by Aikens and Bools and also by Philips J in The Pionier, supra. For this reason, the same decision is relied upon by the Defendants as establishing just such an approach.

The second was a dictum of Hobhouse J. in The Nordglimt [1987] 2 Lloyd’s Rep 470, at 477 where in a very different context (that of who had to bring suit and the concept of “a competent plaintiff”) he stated: “The plaintiff must accordingly be a competent plaintiff in respect of the cause of action which the plaintiff is seeking to assert in the subsequent proceedings …”. The point in issue was not being considered at all and it was not necessary for Hobhouse J. to focus on what had to be the subject matter of the suit.

The high-water mark of the Claimant’s case is a London arbitration award, reported as London Arbitration 10/93 (1993) 355 LMLN 4(1).

The very short note records that the tribunal (composition unknown) decided that “It was not sufficient to advance a cause of action in proceedings (“suit”) within the one year limit. Rather, the relevant claim itself, be it for shortage, damage or whatever, had to be the subject of suit.”

However, it seems to me that the actual decision is rather more equivocal and considered that, in certain factual circumstances, the shortage could have been claimed for. The LMLN note also records the arbitrator’s / arbitrators’ view that: “A shortage claim could properly be considered in the arbitration to the extent that any cargo was lost as a result of “reconditioning” the cargo following on the contamination” (contamination was the main claim advanced in time). That would suggest that a factual enquiry was required as to the cause of the shortage. It might be said that the award endorses a similar approach where the shortage results from the crew dealing with the cargo deterioration and is so bound up with it, that it is within the scope of the suit so far brought.

Thirdly, reliance was placed upon what was said to be the prevailing view in the textbooks, which were said to “speak with one voice”. I do not agree. There are pointers in both directions, as Aikens and Bools demonstrates and the specific issue of what amendment to the original claim can be made after time has expired is not specifically addressed either at all or in sufficiently clear terms by the various authors and editors.

If anything, the matters relied upon by the Claimant demonstrate that the point is not straightforward and is one which is open to considerable debate. I bear in mind the special considerations at the summary judgment stage of dealing with novel points of law: see e.g. Equitable Life Assurance v Ernst & Young [2003] EWCA Civ 1114 per Brooke LJ at [38]: “As for issues of law, it has been said by this court that it is not appropriate to strike out a claim in an area of developing jurisprudence since decisions as to novel points of law should be based on actual findings of fact”.

While it is clear that this is not a case of developing law, the Time Bar Issue is a novel and undecided point with far-ranging consequences for the effect of Article III Rule 6. As the London Award relied on by the Claimant suggests, the interrelationship on the facts between the original claim and facts relied upon and the subject of the amendment may be highly relevant. That is pre-eminently a matter for trial.

Thus far, I have approached the Time Bar Issue on the basis that the “suit” which must be “brought” is suit by the cargo-owner, here the Defendants, against the carrier, here the Claimant, and that, therefore, one is concerned with the nature, subject-matter and formulation of the Defendants’ Counterclaim in this case.

I should record that the Defendants contended, in addition, that in the situation where the Claimant had commenced a claim for a negative declaration, the making of that claim constituted the bringing of suit for all purposes under Article III Rule 6. I have some difficulty with that argument on the language of the time bar in Article III Rule 6 in the context of the preceding paragraphs in Rule 6, all of which must be read together (as the Supreme Court emphasised in the different context in issue in The Giant Ace, supra, see per Lord Hamblen at [45] to [47]). But given my refusal of summary judgment on the grounds above and that the Time Bar Issue will be decided as a whole at trial, it is not necessary for me to express any concluded view and I do not do so.

Similarly, the Defendants advanced a separate argument to the effect that Article III Rule 6 does not apply to a claim in deceit or for a party’s own fraud and therefore ipso facto could have no application at all to the Misrepresentation Claims. I have great difficulty with that argument as a matter of settled English law given the decisions in The Captain Gregos [1990] 1 Ll. Rep 310, The Alhani [2018] 2 Ll. Rep 563 and The Giant Ace, op. cit.. But, for the same reasons, I again express no concluded view upon it.