AR (on her own behalf & as a dependant of MB, Deceased) & Ors v (1) Travelscope Holidays(In Administration)(2) Classic Int Cruises S.A. (3) Arcalia Shipping (4) West of England Ship Owners Mutual Insurance Assc.(Luxembourg)(5) HCC Underwriting Agencies
The second and third defendants (T) applied to strike out the claim of the claimants (R).
R had been on a cruise in a vessel of which T were the owners and operators. The claim arose out of injuries that R were said to have sustained during heavy weather on the cruise in September 2006. Proceedings were issued in September 2008. T's solicitors agreed to accept service on condition that the question of whether the first respondent was a dependant within the Fatal Accidents Act 1976 s.1 be tried as a preliminary issue. The instant application, heard in July 2012, was the first hearing in relation to R's claim before the court.
T submitted that R were responsible for periods of delay in the case totalling two years, and that as a result of that delay there could not be a fair trial, in particular because the safety officer employed at the time of the cruise (V) could not be traced.
There had been a delay of over two years in prosecuting the claim. Whilst T contributed to the delay, since the claim had been issued just within the applicable two-year limitation period it was incumbent on R to ensure that the action was prosecuted with expedition. As there had been an agreement that, in return for accepting service there would be a determination of the preliminary issue, that meant ensuring the preliminary issue was heard expeditiously. That was not ensured and the delay in dealing with that issue was beyond anything that could be considered acceptable (see para.6 of judgment). A trial on the merits was unlikely to be heard until six to seven years after the relevant events. Although a trial after such time was unsatisfactory, the prejudice likely to be suffered by T was not such as to render a fair trial impossible. T would be able to provide evidence in support of their defence of the principal allegations likely to be advanced against them, notwithstanding the passage of time. The master, with the aid of the log book and weather forecasts, would be able to give evidence with respect to criticisms of his navigation. T probably had records of their safety management system and, in particular, of the warnings given to their passengers. V, with the aid of his contemporaneous accident reports, would be able to give evidence as to the cases of three of R. If he did not attend the trial, his reports could be put in evidence under the Civil Evidence Act 1995. So far as the other passengers were concerned, they suffered injuries in their cabins and did not report their injuries on board, and it was unlikely that V, assuming he were to be present at trial, would have any relevant evidence to give about their specific cases as he did not investigate their alleged injuries. Had proper steps been taken to have the preliminary issue
An application to strike out a claim on the basis that the claimants had been responsible for a delay of over two years in progressing the claim and that as a result of the delay there could not be a fair trial was refused as the prejudice likely to be suffered by the applicants was not such as to render a fair trial impossible.