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IN
THE SUPREME COURT OF JUDICATURE
QBADF
97/0838/3
IN
THE COURT OF APPEAL (CIVIL DIVISION)
QBADF
97/0839/3
ON
APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S
BENCH DIVISION
Royal
Courts of Justice
ADMIRALTY
COURT
The
Strand
London
WC2
Friday
24th June, 1998
B
e f o r e:
LORD
JUSTICE EVANS
LORD
JUSTICE MUMMERY
SIR
JOHN KNOX
-
- - - - -
BOUYGUES
OFFSHORE SA
Plaintiff
-
v -
CASPIAN
SHIPPING COMPANY
First
Defendant
CASPIAN
BASIN SPECIALISED EMERGENCY SALVAGE ADMINISTRATION
Second
Defendant
THE
REPUBLIC OF AZERBAIJAN
Third
Defendant
CASPIAN
BASIN SHIPPING EMERGENCY SALVAGE
SHAREHOLDERS
COMPANY
Fourth
Defendant
UTISOL
TRANSPORT CONTRACTORS LIMITED
Fifth
Defendant
-and-
TRANSNET
LIMITED (Trading as Portnet)
First
Third Party
BUREAU
VERITAS
Second
Third Party
-
- - - - -
(Handed
down Transcript of Smith Bernal Reporting Ltd
180
Fleet Street, London EC4A 2HD
Tel:
0171 421 4040
Official
Shorthand Writers to the Court)
-
- - - - -
MR
N TEARE QC
and
MR
S GAULT
(Instructed by Messrs Clyde & Co., Guildford, Surrey GU1 4HA) appeared on
behalf of the Plaintiff (Bouygues)
MR
S TOMLINSON QC
and
MR
R SOUTHERN
(Instructed by Messrs Middleton Potts, London EC1A 7LD) appeared on behalf of
the First Third Party (Portnet)
MR
A GLENNIE QC
and
MISS
C AMBROSE
(Instructed by Messrs Thomas Cooper & Stibbard, London EC3A 2DJ) appeared
on behalf of the Fifth Defendant (Utisol)
MR
N HAMBLEN QC
(Instructed by Messrs Edwin Coe, London EC2A 3TH) appeared on behalf of the
Second & Fourth Defendants (Caspian)
-
- - - - -
J
U D G M E N T
(As
approved by the Court
)
-
- - - - -
©Crown
Copyright
LORD
JUSTICE EVANS:
1. These
are applications for leave to appeal against orders made by three judges in the
Commercial Court, Clarke J., Colman J. and Timothy Walker J. Their orders were
all concerned with questions as to the exercise of the jurisdiction of the
English Court in a case where all or most of the relevant events took place in
South Africa. There are also appeals against two final orders in the form of
limitation decrees made by Rix J. in proceedings commenced by the two
respondents, who were the owners and time charterers of the ocean going tug
´TIGR', respectively
2. We
heard submissions from leading counsel for each of the four parties, which were
directed to issues raised by the appeals for which leave is sought. Although
it was not conceded by the respondents that leave to appeal should be given, it
is clear in my view that substantial issues are raised and that leave should be
given, together with the necessary extension of time as regards the judgment of
Clarke J. in 1996. This enables us to consider the issues in the context of
appeals rather than applications for leave to appeal.
3. On
26 June 1994 the barge ´Bos 400' was under tow from Pointe Noire in the
Congo to Capetown. The tow line parted in stormy conditions as the vessels
were approaching Capetown and the barge was driven ashore onto the rocks at
Oude Schip, a little to the south. The barge became a total loss.
4. The
barge was registered in France and owned by a French company, Bouygues Offshore
S.A. ("Bouygues). The tug "Tigr" was registered in Azerbaijan. Her owners who
are Russian or Azerbaijani are known as Caspian, and she was time-chartered to
Ultisol transport Contractors Ltd. ("Ultisol"). She was managed by a Dutch
company, Marine Management Group BV ("Marine Management") based in Holland.
The towage contract was made between Ultisol and Bouygues and was dated 26 May
1994.
5. Bouygues
claims damages from Ultisol (towage contractors) and from Caspian (owners) and
also from the Cape Town harbour authority, known as Portnet. The latter is
alleged to have been negligent in permitting the tug and tow to approach the
shore in the prevailing conditions.
6. The
procedural history is complicated and the issues raised by the interlocutory
appeals are procedural and concerned with the jurisdiction of the Court. Four
years after the casualty, no appreciable progress has been made towards
resolving the substantive issues, either in South Africa or here. In order to
prevent these legal issues from acquiring a life of their own, it is helpful to
begin with a summary of what the litigation is about. I recognise that, even
though the issues are procedural and therefore ancillary, they may nevertheless
be decisive of or affect the parties' substantive rights.
7. Four
parties have emerged as the protagonists. Bouygues has suffered the loss of
its barge and associated expense which make its total claim, we are told, in
excess of £50 million. Bouygues alleges that the master and crew of the
tug were negligent in their handling of the tow and the tug and that Caspian,
the shipowners, are vicariously liable for their fault. They also allege that
Caspian through their managers in Holland misrepresented the capacity of the
tug to them, causing them to employ the tug under their towage contract with
Ultisol and thus to suffer the losses which they have suffered in consequence
of doing so. Similar misrepresentations were made to them, they allege, by
Ultisol also, and these are relied upon not only as founding a claim for
damages against Ultisol but also as grounds for rescinding the towage contract
which they say they were induced to enter into. If the contract is not
rescinded, then in general terms Ultisol is or may be exempted from liability
for the loss of the barge. Bouygues also claims that the harbour authorities
were negligent in causing or permitting the tug and tow to come so close to the
shore in the prevailing weather conditions and that Portnet is liable to them
in delict or tort.
8. Claims
by Bouygues against Ultisol are subject to the terms of the towage contract,
unless the contract is rescinded as Bouygues says that it should be. As a
general statement of procedural rights which exist in both England and South
Africa, each of the defendants to a claim in tort is entitled to recover a
contribution towards or even an indemnity against their liability from any
other defendant who likewise is liable to Bouygues in tort Finally, Caspian as
shipowner and Ultisol as time-charterers are entitled to limit their
liabilities under English and South African law, but the statutory provisions
are different in the two countries. In England which adopts the 1976
Convention the limit is higher but more difficult for Bouygues to break. In
South Africa where the 1957 Convention still applies the lower limit only
operates if the defendant shipowner or time-charterer proves that the tug was
operated without actual fault or privity on their part or for which they are
responsible. English law is regarded as more favourable for Caspian and
Ultisol in the present case, which implies that they will find the latter
difficult to prove.
9. There
is no link with England in any of this apart from the towage contract which is
governed by English law and which requires the parties to the contract to
submit to the exclusive jurisdiction of the English Courts. That clause exerts
a powerful and all but irresistible pressure on both Bouygues and Ultisol to
bring their disputes to England. But the English Court has a discretion to
decide whether or not the litigation should proceed here, or whether the clause
should be enforced by injunction preventing one of the parties from bringing
proceedings elsewhere.
10. The
terms of the towage contract, so far as relevant, are set out in the judgment
of Clarke J. [1996] 2 Ll.R. 140, including clause 25, the exclusive
jurisdiction clause, which need not be quoted here (see p.144).
The
present situation
11. South
Africa
Jurisdiction
was founded by the arrest of the tug and her bunkers there, in respect of their
claims against Ultisol and Caspian, both by Bouygues and, for a contribution or
indemnity, by Portnet. Bouygues is unable to proceed with its claim against
Ultisol because of the anti-suit injunction ordered by Clarke J. in the first
of the English judgments now under appeal. Bouygues has commenced separate
proceedings against Portnet, and the Supreme Court of Appeal has now upheld
Portnet's right to join Ultisol and Caspian as third parties in these
proceedings (case AC 102/95 ref. 214/97). The judgment of Scott JA contains a
lucid account of the history of the ´spate of litigation' which has taken
place in the two countries.
12. The
courts of South Africa, therefore, have jurisdiction over all the issues which
arise between all four of the principal parties, and they have confirmed that
they will exercise this jurisdiction to the extent that they are called upon to
do so. Bouygues is restrained by the (English) anti-suit injunction from
proceeding with its claims against Ultisol, but the issue of Ultisol's
liabilities in tort or delict, if any, towards Bouygues will arise for decision
in the third party proceedings brought against it by Portnet, unless Bouygues'
claim against Portnet fails.
13. England
All
four parties are liable or potentially liable to the jurisdiction of the
English Courts. Bouygues, because Ultisol can insist upon compliance with
clause 25 of the towage contract, the exclusive jurisdiction clause. Caspian
and Portnet, because they can be joined as additional defendants or as third
parties to an action brought by Bouygues against Ultisol. There are limits,
however, to the power of the English Court to avoid litigation here being a
duplication of proceedings in South Africa. Bouygues can be and is restrained
from proceeding against Ultisol there, but not against the other parties ; nor
can those others be restrained from proceeding against Bouygues to the extent
that the South African Courts permit them to do so.
14. Limitation From
the commercial viewpoint, this is the central issue. England is substantially
the more attractive venue both for Ultisol and for Caspian. They issued
limitation proceedings and Rix J. has made declarations in their favour,
rejecting Bouygues' application to have the proceedings stayed (the substantive
judgments now under appeal). Whilst the decree will be effective as regards
all proceedings in this country, if his judgment is upheld, it must be for the
South African courts to decide whether the same limits of liability will be
recognised there. As regards Ultisol, Bouygues has offered an undertaking that
it will not seek to enforce any judgment which it may obtain against Ultisol in
South africa (if Clarke J's injunction is lifted) except against the limitation
fund duly established here. But no such undertaking is offered as regards
Caspian and it follows from this that Caspian remains exposed to the risk that
it will be unable to limit its liability under South African law and that the
South African courts will not recognise or enforce the English decree.
15. A
further possibility is that Bouygues will obtain judgment against Portnet for a
sum in excess of the limit, and Portnet will recover a contribution or
indemnity from Ultisol which is greater than the English limit, unless that
limit is recognised by the South African Court.
16. It
is clear, therefore, that to an extent which is bound to be speculative,
because the facts have not been established and the South African courts have
not pronounced on the limitation aspect, both Ultisol and Caspian will derive a
substantial benefit, as regards limitation of liability, if a trial on the
merits takes place in England.
Discretion
17. The
Spiliada
principles which are applied in cases where there was no prior agreement
regarding jurisdiction here overlap the corresponding principles applied where
such an agreement does exist and the agreement as to jurisdiction is sought to
be enforced.
18. Clarke
J. was correct in my view to recognise that "the risk of multiplicity of
proceedings and any consequent risk of inconsistent decisions on the same facts
is a potentially important factor" though he added, again correctly, that each
case must depend on its own facts ([1996] 2 Ll.R. at 149). He held that an
injunction should be granted for what were, as I read his judgment, essentially
three reasons. First, Bouygues could avoid the potential conflict by bringing
all its claims in England. Secondly, its claims against Ultisol and Caspian
were "intimately connected and should be tried in the same forum" (p.150) and
Caspian appeared to have "strong grounds for seeking an order either here or in
South Africa that Bouygues should proceed against it here too" (p.149). That
of course is what Caspian has wanted ever since English jurisdiction became
available to it. Thirdly, the "Portnet factor" (p.150) although of
considerable weight was "not sufficient to lead to the conclusion that Bouygues
should not be held to its contract" (I add, with Ultisol)(p.152). He reached
this conclusion "on the evidence at present before the Court" (p.152). He
noted that the Portnet factor includes both the inconvenience to Portnet of
having to contest proceedings in England, coupled with the fact that South
African is the natural and appropriate forum for determining those issues,
which arose exclusively in South African territory, and also the similar
considerations which arise in relation to the contribution and indemnity
proceedings between Ultisol, Caspian and Portnet (p.152),
19. He
envisaged therefore that the disadvantage of multiple proceedings and the risk
of conflicting decisions could be minimised, if not avoided altogether, by
Bouygues itself, which could bring Caspian (willingly) and Portnet (probably
unwillingly) to England, and if Bouygues chose not to do this, then that was
not a sufficient reason for not holding Bouygues to performance of its contract
with Ultisol.
20. Bouygues
and Ultisol were the only two parties who appeared before Clarke J. It is
unsurprising that the issue between them was presented entirely in contractual
terms, and although the interests or likely interests of Caspian and Portnet
were taken into account as fully as the evidence permitted him to do so, he did
not purport to exercise any discretion or apply
Spiliada
principles in relation to them.
Spiliada
itself was not cited to him and is not referred to in his judgment, and he
recognised that the interests of Caspian and Portnet would have to be
considered separately, if and when they arose for decision (pages 149 and 150).
21. When
those issues did arise, Caspian's attempt to have the South African proceedings
against it halted failed (Morison, J. [1997] 2 Ll.R. 485 against which there is
no appeal) and the Court's discretion as regards Portnet had to be exercised on
the basis that Bouygues was prevented by the injunction from proceeding against
Ultisol in South Africa (Colman J. [1997] 2 Ll.R 493).
All
four parties were represented at the hearing before Colman J. and in my
judgment he was right to suggest that Bouygues should seek leave to discharge
or to appeal out of time against the injunction.
22. Similarly,
all parties were represented before Timothy Walker J. when he refused to
discharge the injunction on the grounds that there had been no significant
change of circumstances since it was granted and that Caspian would be deprived
of a "legitimate advantage" (the language of
Spiliada
although the judgment itself was not cited) if it was unable to limit its
liability in accordance with the English decree.
Evidence
and witnesses
23. Under
this heading I include the convenience of factual witnesses, the need to
instruct lawyers in one jurisdiction rather than or in addition to those
instructed in another, the availability and convenience of expert witnesses,
and the general expense and inconvenience for a party of having to attend to
proceedings in a jurisdiction other than its own.
These
factors, it seems to me, are of some weight so far as Portnet is concerned, but
not for the other three parties. None of them is based either in England or
South Africa. Professional representation and expert witnesses are equally
available to them in both countries. Factual witnesses in the case of Caspian
and Ultisol include some who are situated "in Europe" rather than in England,
and it is suggested that the English venue is more convenient for them. I do
not think that this is an important factor in litigation of this sort.
Natural
and appropriate forum
24. It
has variously been observed that South Africa rather than England is the
"natural forum" (per Colman J. at 506 and King DJP) and the "centre of gravity"
of the case (per Morison J. at 491 and Comrie J. p.18), and King DJP added that
"the clear preponderance of connecting factors, constitute this court the
appropriate and convenient forum for the hearing of the pending action" (p.11).
These expressions of view are not challenged by Angus Glennie Q.C. on behalf of
Ultisol, and in my judgment they cannot be gainsaid. That is not to say that
proceedings in England are inconvenient or wholly inappropriate, and this
factor which predominates in the absence of any prior agreement as to
jurisdiction (
Spiliada)
nevertheless is of subsidiary even negligible importance when one party claims
to enforce an exclusive jurisdiction clause.
Overall
assessment
25. In
a situation where all four parties are involved in South African proceedings in
which the same issues arise, apart from Caspian's and Ultisol's right to limit
their liability under English law, it seems obvious that the disadvantages of
multiplicity and the risks of inconsistent findings are present and that
Bouygues ought not to be restrained from pursuing its claims against Ultisol
there. Those claims are more than intimately linked with the issues that arise
between Bouygues and the other parties and between those parties among
themselves ; they arise out of the same primary facts.
26.But,
on analysis, it probably remains true that the initiative rests with Bouygues,
at least so far as Ultisol and Caspian are concerned. If it was to withdraw
its claims against them in South Africa, then all matters between them could
be litigated here. But this leaves Portnet out of account. It cannot so
readily be assumed that Bouygues could disengage from its South African
proceedings against Portnet which is Portnet's preferred jurisdiction and the
natural and appropriate forum, between Bouygues and Portnet, in any event. But
if this is assumed, then the disadvantages for Portnet of being compelled to
take part in English proceedings becomes a factor of considerable weight.
27. In
my judgment, two questions arise, one a matter of principle. First, should the
Court, when deciding whether or not to enforce the exclusive jurisdiction
clause by means of an injunction which prevents Bouygues from continuing with
its proceedings against Ultisol in South Africa, take into account the effects
of such an injunction on persons who are not parties or entitled to enforce the
contract containing the jurisdiction clause, Portnet and Caspian here, but who
are both necessary and proper parties to the litigation wherever it is held?
In my judgment, the clear answer to this question is ´yes'. Clarke J. did
so in his judgment and the contrary has not been argued before us. The
relevance of the potential effects on third parties has been recognised in
other authorities, including
The
El Amria
[1981] 2 Ll.R.119 and
Citi-March
Ltd v. Neptune Orient Liners
[1996] 1 W.L.R. 1367. These are referred to in Mr Edwin Peel's comprehensive
article on Exclusive Jurisdiction Agreements [1998] LMCLQ 145 at 199, to which
I am indebted.
28. What
weight should be given to Bouygues' possibly restricted ability to withdraw
from the South African proceedings and litigate solely in England, if it
chooses to do so? It seems to me that two matters should be borne in mind.
The first is that Bouygues owes its contractual obligations to Ultisol only.
It owes none as regards choice of jurisdiction either to Caspian or Portnet.
This factor therefore is irrelevant so far as they are concerned. Secondly,
the South African Courts' jurisdiction in respect of both Caspian and Ultisol
was properly founded there on the presence and arrest of the tug and her
bunkers. If Bouygues is required to discontinue its proceedings there, it is
being forced to relinquish a right which although not contractual nevertheless
is established as a matter of law.
29. The
second question is limitation. The accidents of litigation have enabled
Caspian and Ultisol to obtain limitation decrees here (Bouygues began English
proceedings in order to safeguard itself against possible defences under the
limitation (time-bar) clause : it accepted service of the limitation
proceedings, understandably, at a time when it was subject to the injunction
not to pursue its claims against Ultisol elsewhere). They do have "established
rights" (per Timothy Walker J.) which prima facie they are entitled to retain.
Any detriment to Ultisol from losing them is limited by the undertakings
offered by Bouygues to which I have referred. Even as regards Caspian this
factor should not, in my judgment, be given undue weight. The question is not
whether its rights under English law will be questioned, rather that the South
African Courts may not give effect to them, holding that South African limits
apply. But South Africa is the natural forum for the hearing of the dispute,
England (as between Caspian and Bouygues) had no connection with it, and
Caspian's vessel was arrested in South Africa where the casualty and the
relevant events took place, apart from the alleged representations which were
made and received elsewhere. In short, Caspian has obtained rights under
English law which, if they are not recognised and enforced in South Africa, can
be regarded as having been obtained adventitiously and ´on the back of'
the injunction obtained by Ultisol with which these appeals are primarily
concerned. For these reasons, and taking account of the position of all four
parties so far as I am able to do so, notwithstanding the near-conclusive
effect of the exclusive jurisdiction clause as between Bouygues and Ultisol, I
would hold that no injunction should be granted, or if properly granted should
now be discharged, in the circumstances of the present case.
The
appeals
30. I
agree entirely with the judgment of Sir John Knox and that, for the reasons he
gives, the judgment of Clarke J. was undermined by later events and Colman J.'s
judgment depended on the premise that the injunction ordered by Clarke J. would
remain in place. This also has the effect of making it unnecessary to decide
the merits of the appeal against Timothy Walker J.'s judgment even though he
also held that, if he did have jurisdiction to consider the matter afresh, he
would not have discharged the injunction. The reasons I have given above for
holding that no injunction should be ordered suffice to show why I would differ
from Timothy Walker J.'s analysis ([1997] 2 Ll.R at 538) and from his view that
Bouygues' offer of an indemnity against the consequences of its breach of
clause 25, if the proceedings against Ultisol are continued in South Africa,
was not relevant to the grant of an injunction against them.
Limitation
Decrees
31. Here
too I agree entirely with Sir John Knox's judgment. With regard to the
construction of Art. 2(1)(a), it seems clear to me that the words "or in direct
connection with the operation of the ship or with salvage operations" were
added to "occurring on board" in order to take account of factual situations
such as arose in
The
Tojo Maru
[1972] A.C. 242 and that they refer to loss of life etc. rather than to "claims".
Conclusion
32. I
therefore would extend the time for appealing against the order made by Clarke
J., grant leave to appeal against his orders and those of Colman J. and Timothy
Walker J. and allow the appeals for the reasons given above. The appeals
against the orders of Rix J. in the limitation actions should be dismissed.
LORD
JUSTICE MUMMERY: I agree with both judgments and with the orders proposed by
Evans L.J.
SIR
JOHN KNOX:
I
propose to refer to the parties represented before us as
“Bouygues”, “Ultisol”, “Caspian” and
“Portnet” respectively. It will be convenient to deal with the
five applications for leave to appeal against the Orders made by Clarke J.,
Timothy Walker J. and Colman J. before dealing with the appeals against the
Orders made by Rix J. which raise somewhat different issues.
The
applications for leave to appeal
Two
broad issues emerged in the course of the complex but admirably succinct
arguments addressed to us upon the five applications for leave to appeal and
the appeals, if leave was granted. Those issues were as follows:-
(1) Is
an appellate court, in dealing with appeals from consecutive interlocutory
decisions at first instance which have cumulatively resulted in four separate
parties of differing domiciles being involved in complex litigation in two
jurisdictions, entitled to take a global approach to those appeals or is it
bound to treat each appeal on its own separate merits?
(2) What
is the effect (if any) of the involvement in the litigation of a third party,
itself quite unaffected by an exclusive jurisdiction clause, upon the rights of
other parties which are contractually bound by the exclusive jurisdiction
clause? In particular should the court’s usual attitude of looking to
see whether there is any good reason or strong cause why a party thus
contractually bound should not be held to its bargain, be modified through the
involvement in the litigation of a party not so bound?
I
would answer the first issue by saying that the appellate court can and should
look at the global situation in dealing with the several appeals, principally
because that is by far the preferable method of solving what are essentially
interlocutory and procedural problems. The piece-meal approach, which Mr
Glennie for Ultisol invited us to adopt, however much it may lead to a decision
which, taken in isolation, can be justified, cannot be allowed to produce a
result which departs from what the court perceives to be the overall preferable
result. It is not necessary to pursue this aspect in greater detail because,
for reasons which will appear, I have reached a conclusion which seems to me to
be preferable both on the piece-meal and the global approach.
The
appeal against Clarke J’s order of 1st March 1996
It
will be convenient to start with the application for leave to appeal and appeal
from Clarke J’s order dated 1st March 1996 granting an injunction
restraining Bouygues from continuing its proceedings against Ultisol in South
Africa. I see no problem in granting leave to appeal notwithstanding the
facts, first, that at the time when Clarke J. made his decision Bouygues had no
material upon which to appeal and decided therefore not to appeal and, secondly
that there was a lapse of over a year before leave to appeal was sought as a
result of what Colman J. said, admittedly obiter, in the course of his judgment
on 26th March 1997. My reasons are, first, that the appeal is clearly
arguable, secondly, the delay is largely explicable on the ground that the
basis for the appeal arose gradually and progressively after Clarke J’s
decision and, thirdly, a closely similar issue arises in the application for
leave to appeal from Timothy Walker J’s decision not to lift the
injunction granted by Clarke J. and there is no doubt but that that latter
application for leave was in time. No useful purpose would be served by
stifling an appeal through refusing leave to appeal out of time when the same
basic question is to be raised in another appeal which is itself not out of
time and where both are argued at the same time by all parties concerned before
this court.
An
important feature of Clarke J’s order is that it was in all essentials of
an interlocutory nature. I say this for the following reasons. First, the
Order itself gave liberty to apply and I interpret that as liberty to apply to
vary or discharge the order should circumstances arise justifying such an
application. It is not in my view a liberty to apply to work out the
consequences of the order made, such for instance as may be given in an
administration action or an order for specific performance of a contract for
the sale of land.
Secondly,
Clarke J. in giving judgment made it clear that his decision was based on the
evidence then available, the clear inference being that there was a possibility
of matters thereafter occurring which would have a material bearing on the
continuation of the injunction he granted. Thus he qualified his basic
conclusion that Bouygues should be held to its contract in the exclusive
jurisdiction clause by the words “(at least on the present
evidence)”.
Similarly,
Clarke J. said in relation to the possibility of Bouygues joining Portnet as a
defendant to English liability proceedings and Portnet applying to set aside
leave to join it to such proceedings “That situation would have to be
faced if it arose”. That in my view was a reference to what would need
to be done in relation to the issue which Clarke J. was then addressing, should
there be an anti-suit injunction, and not the rather jejune observation that Mr
Glennie attributed to Clarke J., namely, that the court, to which an
application to set aside leave to serve Portnet out of the jurisdiction was
made, would have to deal with that application.
The
principles regarding an appellate court’s functions regarding
interlocutory injunctions were stated by Lord Diplock in
Hadmor
Productions v Hamilton
[1983] 1 AC 191 at 220 as follows:
“An
interlocutory injunction is a discretionary relief and the discretion whether
or not to grant it is vested in the High Court judge by whom the application
for it is heard. Upon an appeal from the judge’s grant or refusal of an
interlocutory injunction the function of an appellate court, whether it be the
Court of Appeal or your Lordships’ House, is not to exercise an
independent discretion of its own. It must defer to the judge’s exercise
of his discretion and must not interfere with it merely upon the ground that
the members of the appellate court would have exercised the discretion
differently. The function of the appellate court is initially one of review
only. It may set aside the judge’s exercise of his discretion on the
ground that it was based upon a misunderstanding of the law or of the evidence
before him or upon an inference that particular facts existed or did not exist,
which, although it was one that might legitimately have been drawn upon the
evidence that was before the judge, can be demonstrated to be wrong by further
evidence that has become available by the time of the appeal; or upon the
ground that there has been a change of circumstances after the judge made his
order that would have justified his acceding to an application to vary it.”
......
“The
right approach by an appellate court is to examine the fresh evidence in order
to see to what extent, if any, the facts disclosed by it invalidate the reasons
given by the judge for his decision.”
This
passage establishes what might at first sight seem rather surprising, namely
that events occurring after the grant of an interlocutory injunction are
capable of leading to the injunction being set aside on appeal. What has to be
shown is that the events, which are necessarily contained in additional
evidence not before the judge at first instance, have invalidated the reasons
given by that judge for the exercise of his discretion. One method of testing
this is to see whether the judge would or might probably have made a different
order had he been able to predict accurately that which lay in the future when
he made his order. What makes the appeal from Clarke J’s order somewhat
complex is that he foresaw the possibility of the relevant future events. They
were the possibility of Bouygues effectively prosecuting an action against
Caspian in England for the loss of its barge BOS 400 and the possibility of
Portnet becoming involved as an important party to the litigation regarding the
liability for that loss. It is one thing to foresee a future possibility when
making an interlocutory order and leave it to be dealt with if and when it
happens and quite another thing to make such an interlocutory order on the
basis that it is the correct order whether or not the future uncertain event
occurs. One highly significant issue on the appeal from Clarke J’s order
was which of the two approaches was the one adopted by Clarke J. regarding the
two possibilities mentioned above.
Mr
Teare for Bouygues submitted that Clarke J. regarded it as probable that
Bouygues would for one reason or another bring liability proceedings against
Caspian in England in respect of the loss its barge BOS 400 and that this
affected his approach to Ultisol’s application for an anti-suit
injunction. Secondly, he submitted that Clarke J. regarded it as uncertain
whether claims by and against Portnet would proceed in England or South Africa
or perhaps in both jurisdictions. In effect Mr Teare submitted Clarke J.
side-stepped that possibility and did not deal with it because it was an
uncertain future event. Mr Glennie on the other hand, whose argument Mr
Hamblen adopted on this issue, submitted that Clarke J. not only contemplated
the possibility of Caspian being sued by Bouygues in South Africa and that
Portnet would be involved in such proceedings but exercised his discretion,
whether to grant the anti-suit injunction to Ultisol, notwithstanding and in
the light of these possibilities. In effect therefore on Mr Glennie’s
view of the matter there was no change of circumstance in the rejection shortly
after Clarke J’s decision by Morison J. of Caspian’s application
for an anti-suit injunction against Bouygues nor in Portnet’s involvement
in South African proceedings against Bouygues, Ultisol and Caspian. For my
part I have no doubt that Mr Teare’s analysis of Clarke J’s
judgment is to be preferred. Clarke J’s decision was made before Morison
J. refused Caspian’s application for an anti-suit injunction against
Bouygues parallel to that granted by Clarke J. to Ultisol and, to put it at its
lowest, this decision by Morison J., from which leave to appeal was sought and
refused, upset the prospect which Clarke J. contemplated of Bouygues being held
to its bargain in clause 25 of Towcon, the English exclusive jurisdiction
clause. It also undermined the anticipation that Bouygues would take what
Clarke J. described as the “sensible” course of asserting its
claims to damages against Caspian in England. Had Bouygues had an injunction
granted against it by Morison J. at Caspian’s suit it would have been
sensible to prosecute both liability actions against Ultisol and Caspian in the
same jurisdiction to avoid the risk of inconsistent decisions in different
jurisdictions and the field of choice left open to Bouygues would have been so
narrow as virtually to dictate such a step. But once the injunction was
refused to Caspian in my view it ceased to be appropriate to regard the
prosecution of Bouygues’ liability claim against Caspian in England as
sensible. Bouygues had a very strong commercial interest in seeking to obtain
a judgment on liability against Caspian liable to limitation (if at all) under
the South African regime on the lines of the 1957 Convention on limitation of
liability of ship owners rather than under the 1976 Convention which England
applies because of the much lower test for avoiding the limit altogether under
the 1957 Convention. It would be unrealistic to expect Bouygues not to pursue
such a strong commercial interest if at all possible, although there might be
obstacles in its path in the shape of its contractual obligations to Ultisol
under clause 25 of Towcon. It is for the court to assess in all the relevant
circumstances what jurisdictional solution is appropriate rather than to rely
upon one or other of the contending parties to do what appears to be sensible.
That
raises the other major issue mentioned above, the effect of Portnet’s
clear involvement in proceedings in South Africa on important issues of
liability and contribution, with the result that the puzzle which the court is
required to solve is no longer, as it was before Clarke J., a dispute between
Bouygues and Ultisol with repercussions upon Caspian and possible but doubtful
repercussions on Portnet but a dispute involving all four parties with clear
repercussions upon all four of them. In these latter circumstances I consider
that the involvement of the third party Portnet which is not affected by the
choice of English law in Towcon, even through the Himalaya clause, as Caspian
claims to be, clearly is a factor which has to be set in the scales. Clarke J.
did indeed expressly say that what he called the Portnet factor gave him the
greatest cause for concern.
In
my view the combination of two factors since Clarke J. gave his decision to
grant Ultisol the injunction against Bouygues proceeding with its action in
South Africa have invalidated Clarke J’s reasons for so doing. Those
factors are as follows:
(1) The
refusal by Morison J. of an anti-suit injunction to Caspian against Bouygues
has radically altered the possibilities of avoiding multiplicity of proceedings
with its attendant risk of conflicting decisions. Whereas when Clarke J. gave
his decision the possibility which he discerned of a sensible course of conduct
by Bouygues was one of all liability issues being decided in England, now the
only jurisdiction in which that can be achieved is in South Africa. That is a
highly significant change which cuts across Clarke J’s reasoning.
(2) The
removal of uncertainties, which existed when Clarke J. granted the injunction,
regarding the serious involvement of Portnet in South African proceedings
greatly strengthens the Portnet factor as an argument against enforcing the
exclusive jurisdiction clause against Bouygues at the suit of Ultisol. It
constitutes a special countervailing factor to use Steyn L.J’s phrase in
Continental
Bank N.A. v Aeakos Compania Naviera S.A.
[1994] 1 WLR 588 at 598 and makes it possible to reach the conclusion that
there is indeed a good reason for not holding Bouygues to its contractual
obligations towards Ultisol.
For
these reasons I am of the view that, since Clarke J’s reasoning has been
undermined, this court can and should exercise its discretion on the question
whether the liability proceedings between Bouygues and Ultisol should be
allowed to proceed in South Africa. I believe they should for the following
reasons. First and foremost, South Africa is the natural forum for the
resolution of the factual disputes regarding liability. Secondly, this is the
only way in which to minimise, if not avoid altogether, the risk of
inconsistent decisions in different jurisdictions. Thirdly, the argument,
which, if taken in isolation is a strong one, that Bouygues should be held to
its contractual bargain with Ultisol, is counter-balanced by the fact that
Portnet is not subject to any such contractual obligation and cannot therefore
be affected by the argument successfully advanced before Clarke J. against
Bouygues that it would not be just for it to rely upon arguments regarding
multiplicity of proceedings when it could if it chose to do so avoid that
multiplicity by suing Caspian and Portnet as well as Ultisol in England.
The
principal argument in favour of retaining the injunction restraining
Bouygues’ South African proceedings against Ultisol resides in its
contractual right to the English limitation regime which it has indeed
successfully established before Rix J. This argument largely loses its force
in the face of the contractual right to sue in South Africa for breach of the
exclusive jurisdiction clause 25 in the Towcon agreement between Bouygues and
Ultisol coupled with the undertaking proffered by Bouygues to this court and
which should in my view be accepted that if all its claims are subject to
limitation Bouygues will enforce any judgment which it obtains against Ultisol
in South Africa only against the limitation fund which has been constituted by
Ultisol in England. In these circumstances it does not seem to me that
Ultisol’s limitation rights, important though they are, can possibly
outweigh the other considerations in favour of not continuing the injunction
granted by Clarke J. against Bouygues.
I
would therefore allow the appeal from Clarke J’s order.
This
makes it unnecessary to deal in detail with Timothy Walker J’s refusal to
discharge the injunction granted by Clarke J. It also makes it possible to
deal quite shortly with the applications for leave to appeal against Colman
J’s refusal to set aside the leaves given to Ultisol and Caspian to serve
third party notices on Portnet in the English liability proceedings and the
applications for leave to appeal against Timothy Walker J’s refusal to
stay the English liability proceedings which were originally brought by
Bouygues against Ultisol and Caspian as a precautionary measure to avoid being
out of time in bringing proceedings should the South African proceedings
against those parties not be continued.
So
far as Colman J’s refusals to set aside the joinder of Portnet as a third
party are concerned, it suffices in my view to say that his decision was
founded upon the existence of Clarke J’s injunction against
Bouygues’ South African action against Ultisol. Once that is removed, it
is to my mind clear that the arguments against exercising discretion to allow
the foreigner to be joined as a third party in proceedings in this country
become very strong and would have prevailed before Colman J. The multiplicity
of proceedings which it was hoped by Colman J. to avoid, would be made far more
likely to occur if Portnet were kept as a third party to Bouygues’
English action against Ultisol and Caspian.
The
stay of Bouygues’ English action against Ultisol is not resisted if the
appeal against Clarke J’s injunction against Bouygues proceeding with its
South African action is successful. In the circumstances it is not necessary
to consider that further. The stay of Bouygues’ English action against
Caspian was still resisted before us even if the appeal against the injunction
against prosecuting Bouygues’ South African action succeeds. However the
reality is that it is foreseeably the South African proceedings brought by
Bouygues that will continue and this court is not in a position to prevent
there being substantial proceedings in South Africa, notably those involving
Portnet and Caspian, even were it minded to do so. The stay which Bouygues
seeks will therefore reduce rather than increase the multiplicity of
proceedings. In any event the whole substratum of Caspian’s attempt to
ensure that proceedings against it are confined so far as possible to England
was undermined when Morison J. refused to grant Caspian an injunction against
Bouygues continuing its South African action against Caspian. The differences
between the English and South African rules regarding contribution are not in
my view of significant weight compared with the great disadvantages in having
both an English and a South African action being actively prosecuted regarding
Caspian’s liability to Bouygues. So far as Caspian’s entitlement
to limitation of liability is concerned it has Rix J’s order and the
issue whether that can and should have effect in South Africa is something
which should properly be decided by the South African court.
I
would therefore allow the appeals against the orders of Colman J. and Timothy
Walker J.
Limitation
Decrees
I
turn now to the appeals from the orders made by Rix J. on 30th April 1997 when
he refused to stay Ultisol’s and Caspian’s actions to limit their
liability (if any) and granted declarations that their maximum liability (if
any) was limited to £521,538.72 plus interest. Bouygues appeals from
these orders. Three issues were helpfully identified as arising on the appeal
as they did before Rix J. They are as follows:
(1) Whether
there is a jurisdictional bar to the grant of a limitation decree unless
liability has been established or admitted.
(2) Whether
the claim for misrepresentation pleaded by Bouygues in its action against
Ultisol and Caspian is a claim subject to limitation.
(3) Whether
there should have been granted a stay of Ultisol’s and Caspian’s
limitation actions in favour of limitation actions in South Africa.
The
jurisdiction point
It
was submitted that a limitation decree assumes that there is a liability to be
limited both as a matter of language and logic. The appeal to logic suggests
that it would be illogical to grant a limitation decree unless and until
liability was established. That would be to confuse hypothesis with fallacy.
I can see no logical obstacle to the making of an order on a hypothetical
basis. Of course if the hypothesis turns out to be falsified by the event the
hypothetical order will have been of no ultimate relevance but that does not
mean that it may not be of practical utility. There are many examples to be
found in the settled practice of the court of interlocutory orders being made
upon a hypothetical and provisional basis. Points of law under R.S.C. O.14A,
issues as to limitation in the wide sense of a defence based on lapse of time
under Limitation Acts, applications to strike out pleadings or parts of
pleadings all are conducted on assumed facts. I see no possible logical
objection to the court having a discretion to decide an issue of maximum
liability before deciding whether there is any liability. Just as there are
well-recognised dangers in embarking upon an examination of the law on the
basis of assumed and unproven facts, there may well be dangers in some cases in
embarking upon an examination of limitation of liability before the existence
of the liability is conclusively proved but that merely goes to how such a
discretion should be exercised.
It
was common ground that neither
Merchant Shipping Act 1995 s. 185 nor the 1976
Convention which is scheduled to that Act and is thereby introduced into
English law in terms provides a solution to this issue. Equally no authority
was cited in this century which decides the point. Rix J. examined the 19th
century cases notably
Hill
v Audus
(1855) 1 K.&J. 263 and
James
v London and South Western Railway Co
(1872) L.R. 7 Ex. 187 and in particular the dictum of Kelly C.B. in the latter
case, upon which Mr Teare relied before us, that the function of the Court of
Chancery under the Merchant Shipping Act, 1854, s. 514 was “merely to
determine and distribute the amount of liability; and unless such liability is
placed beyond dispute in some irrevocable way before decree no jurisdiction is
conferred at all”. Rix J. concluded that this dictum of Kelly C.B., and
a similar one by the Chief Baron regarding the jurisdiction of the Court of
Admiralty in relation to limitation decrees, was rooted in the detail of the
statutory jurisdictions granted variously to the courts of Chancery and
Admiralty under the Merchant Shipping Act, 1854, and the Court of Admiralty
Act, 1861. Mr Teare joined issue with this view and submitted that what Kelly
C.B. said, which Mr Teare accepted was indeed obiter and not binding upon us,
was a statement of the proposition, which is still valid today, that issues of
limitation and of liability are separate. In my view both those views are
correct and I see no inconsistency between them. Kelly C.B. was dealing with
the limited jurisdictions conferred upon the courts of Chancery and Admiralty
and whether his dictum was strictly correct in relation to those jurisdictions
is no longer of significance. There are, as Rix J. mentioned in his detailed
examination of the subject, dicta which point the opposite way to Kelly
C.B’s view. In any event the older cases were not what Mr Teare
principally relied upon in support of his argument that the court has no
jurisdiction to grant a limitation decree before liability is established by
admission or finding. His principal argument was founded upon the 1976
Convention itself and in particular Art. 13 thereof, which by the first two
paragraphs provides for two things. First, there is a bar against any person,
who has made a claim against a limitation fund constituted under Art. 11,
exercising any right in respect of such a claim against any other assets of a
person by or on behalf of whom the fund has been constituted. Secondly, there
is provision made for the release of any arrested ship or other property
belonging to such a last mentioned person, after a limitation fund has been
constituted. Both those provisions in favour of persons by whom or on whose
behalf a limitation fund has been constituted, are qualified by Art. 13.3 which
reads:
“The
rules of paragraphs 1 and 2 shall apply only if the claimant may bring a claim
against the limitation fund before the Court administering that fund and the
fund is actually available and freely transferable in respect of that
claim.”
Much
reliance was placed by Mr Teare upon an argument, not advanced before Rix J.
and therefore not dealt with by him, based upon the decision of this court in
Polish
Steam Ship Co. v Atlantic Maritime Co.
[1985] 1 Q.B. 41 and in particular the judgment of Eveleigh L.J. The issue
there was whether a shipowner, who had constituted a limitation fund well in
advance of the making of a limitation decree and had included in the payment in
which constituted the fund, not only the capital limitation figure, but also
simple interest upon that figure, was entitled to the interest which the
interest element of the payment in had earned. It was common ground that the
claimants to the fund were entitled to the capital and to simple interest upon
it down to the date of the limitation decree and it was common ground that all
interest as well as the original capital after the limitation decree belonged
to the claimants. What was in issue was the considerable amount, given the
large sum of interest originally paid in and the period which elapsed between
the payment in and the limitation decree, of compound, as opposed to simple,
interest. In relation to that issue an argument was advanced that a shipowner
who constituted a limitation fund parted with it once and for all and had no
further claim in respect of interest, whether simple or compound, which it
later earned. The Convention in question was the 1957 Convention and not the
1976 Convention now in force in the United Kingdom but Art. 5 of the 1957
Convention contained a similar turn of phrase to Art. 13.3 of the 1976
Convention set out above in making the provision for release of arrested ships
operate when “a shipowner is entitled to limit his liability ... and ...
if it is established that the shipowner has already given satisfactory bail or
security in a sum equal to the full limit of his liability under this
Convention and that the bail ... so given is actually available for the benefit
of the claimant in accordance with his rights”. Eveleigh L.J. at p. 53
said “There may be many claimants. It could be that a limitation action
has begun in this country, and there has been a payment into court but the
defendants (who may not include the arresting party) dispute the right to
limit. It could not in such a case be said that the money in court was
“available” for the benefit of the arresting party”.
The
argument of Mr Teare, if I understood it rightly, was that the
Polish
SS
decision shows that a limitation fund when constituted is not “actually
available” within the meaning of Art. 13.3 until the limitation decree is
granted. It is the clear intention of the 1976 Convention that a shipowner who
has constituted a limitation fund should be entitled to obtain the release of
any vessel that has been arrested and the bar on other actions against him.
But, if it were open to a shipowner to obtain a limitation decree before
liability was admitted or established, the bars contained in Art. 13.3 and the
release of the shipowner’s arrested vessel would not be available even
though a limitation decree had been obtained. Therefore the scheme of the 1976
Convention requires liability to be admitted or established before a limitation
decree is granted. It does not seem to me that this conclusion follows from
the earlier steps in the argument. What does appear from the
Polish
SS case
,
if authority is needed for the proposition, is that until both liability is
established and a limitation decree granted, the mechanism in the 1976
Convention for protecting shipowners entitled to limit their liability
thereunder does not become operational. There is nothing extraordinary in
this. No one suggests that a shipowner gets the benefit of the bar on other
actions and the release of arrested ships provided for by Article 13.1 and 13.2
until a limitation decree has been granted but it is common practice to
constitute the limitation fund well before that decree. So there is, so to
speak, a hold-up in the availability of the remedies to shipowners pending the
grant of the limitation decree. I am unable to see that there is any fatal
infringement of the scheme of the 1976 Convention if there is a further hold-up
of the availability of those remedies during such period (if any) as elapses
between the grant of the limitation decree and the establishment by admission
or determination of the shipowner’s liability. That further delay would
be the price the shipowner paid for continuing to contest liability. I
therefore see no basis upon which this argument, which was not put to Rix J.,
should be treated as undermining his decision on this first point.
I
need not rehearse in detail the other arguments which Rix J., rightly in my
view, relied upon in support of his conclusion. They included the specific
provision in Art. 1.7 that “the act of invoking limitation of liability
shall not constitute an admission of liability” which shows that a
limitation action can properly be started before liability is established and
the scheme of the Rules of Court which make it mandatory for a limitation
decree to be granted within a very short time frame if there appears to be no
defence to the limitation claim. In my view Rix J. was plainly right in his
conclusion on this issue and the new argument to the contrary is no more
persuasive than were the ones which he rejected.
Is
the misrepresentation claim within the 1976 Convention?
The
argument advanced to the contrary was in my view based upon a misconstruction
of Art. 2.1.(a) of the Convention. That reads so far as relevant as follows:
“...
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 or personal injury or loss of or damage to property
... occurring on board or in direct connection with the operation of the ship
or with salvage operations and consequential loss resulting therefrom.”
It
was submitted that for limitation to be available two elements had to be present:
(a) the
claims must be in respect of loss of life or personal injury or loss of or
damage to property and
(b) the
claims must be in direct connection with the operation of the ship.
The
second of these seems to me to involve a disregard of the clear grammatical
structure of the sentence which in my view requires the phrase “in direct
connection with the operation of the ship “to govern the words
“loss of life or personal injury or loss of or damage to property”
and not the word “claims”. Were it otherwise the word
“claims” would also govern “occurring on board” and a
claim occurring on board ship would be an eccentricity that should not lightly
be ascribed to the authors of and subscribers to the 1976 Convention. The loss
or damage that is relied upon in the action by Bouygues against Caspian and
Ultisol is particularised in nine sub-paragraphs of para. 52 of the Statement
of Claim. It is the same loss which is claimed in the various negligence
claims made against Caspian. It is also the same loss that is claimed in
misrepresentation, negligence and breach of contract claims against Ultisol.
The loss thus pleaded is in each case one which, if established as pleaded, in
my view clearly occurred in direct connection with the operation of the tug
TIGR and so far as the claims in negligence is concerned the contrary is not
contended.
Finally
on this issue the parenthesis in the opening phrase in Art 2.1 “Whatever
the basis of liability may be” points to the irrelevance of the
particular cause of action pleaded and supports the grammatical analysis which
I have sought to make above to the effect that it is the loss or damage, and
not the claim, that has to be found to occur in direct connection with the
operation of the ship. This makes irrelevant the distinction which Mr Teare
sought to draw between the way the ship was operated and the way in which the
various defendants conducted their several businesses. Here again my
conclusion is that Rix J’s decision on this issue was plainly correct.
Should
the limitation actions be stayed?
This
question has to be approached from a different standpoint to that which faced
Rix J. because of the reversal of the grant by Clarke J. of the injunction
against Bouygues continuing its South African action against Ultisol and the
striking out of the third party notices against Portnet. It is now clear, as
it was not before Rix J., that the liability issues will be decided in South
African proceedings. On that basis Mr Teare submitted in relation to Caspian
that the
Spiliada
principles of forum non conveniens indicated that the limitation proceedings
should also more suitably be tried in South Africa in the interests of all
parties and in the ends of justice. So far as Ultisol was concerned Mr Teare
accepted that since Ultisol can assert in South Africa its claim to damages for
breach of the exclusive jurisdiction clause 25 in Towcon and so it can in that
way give effect to its contractual right to limit its liability in accordance
with English law under the 1976 Convention if it has such a right, no useful
purpose would be served by staying the limitation action against Ultisol.
However that concession is not made in relation to Caspian which was not a
party to Towcon and has no contractual claim under cl. 25 of Towcon.
As
matters stand it is not clear what the South African court’s attitude
will be to a claim by Caspian to limit its liability by reference to English
law and the 1976 Convention. It is therefore doubtful whether the decree which
Caspian obtained from Rix J. will be of any practical significance to Caspian.
Mr Teare submitted that that was a reason for not allowing such a decree to
stand and that the claim to it should have been stayed. That is a two edged
argument for if it is right that the decree which Caspian obtained will be of
no significance in South Africa it is not easy to see why the decree should be
undone. Secondly, it was contended by Mr Hamblen on behalf of Caspian that the
English limitation decree was one which Caspian had valid reasons for wanting
to obtain, notably that there was a pleaded reliance by Caspian through the
Himalaya clause in Towcon on English limitation rules and that if Ultisol was a
claimant the English limitation decree might be highly relevant.
I
would accept that neither of the two authorities primarily relied upon against
Bouygues on this issue, the
Volvox
Hollandia
[1988] 2 Ll.L.R. 360 or the
Falstria
[1988] 1 Ll.L.R. 495, is conclusive because neither involved a contest between
two jurisdictions which were governed effectively by different limitation
conventions. In the
Volvox
Hollandia
,
the two jurisdictions involved, England and the Netherlands, both were subject
at the time to the 1957 Convention. Whereas in the
Falstria
although different conventions applied in England and Denmark, the limitation
under the relevant convention in Denmark was in excess of the claim so that
Danish limitation limits were irrelevant. Neither case is therefore conclusive
on this issue but the
Volvox
Hollandia
in particular serves to emphasise, what Mr Teare did not dispute, that the
right to limit is a quite separate issue from the issue of liability and that
it is the shipowner who has the right to apply to limit. This right is one
which he can not be compelled to exercise nor can he properly be prevented from
exercising his right by the device of claimants seeking a negative declaration
of non-entitlement to limit. Putting those important features, plus the fact
that there never was any issue to be decided on limitation, into the scales, I
am persuaded that Rix J. reached a conclusion which remains correct although
the background against which he made his decision was different from that which
now obtains.
For
these reasons I would dismiss the appeals against Rix J’s orders.
ORDER:
Appeals against the orders of Rix J dismissed. Costs of the appeal: the
plaintiffs to have their costs as asked, and Portnet to have their costs as
asked as regards the costs below. Bouygues to have their costs of the
proceedings before Coleman J and Timothy Walker J as asked, but the order of
Clarke J to remain undisturbed. Liberty to apply. Leave to appeal to the House
of Lords refused.
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