OUTER HOUSE, COURT OF SESSION [2008] CSOH 99
	OPINION OF LORD CLARKE in the causes JOHN STEPHEN and MARK TOCHER Pursuers; against SIMON MOKSTER SHIPPING AS Defenders: ________________

Pursuers: Howie Q.C.: Lefevre Litigation

Defenders: Weir; Paull & Williamsons

8 July 2008

[1] In these two actions the pursuers sue the defenders for damages for injuries they say they sustained in a collision between a vessel belonging to the defenders "The Strilmoy" and another vessel "The Harvester". The pursuers were part of a fishing crew on the vessel "The Harvester". Both pursuers have raised their claims under Chapter 43 of the Rules of Court. It is averred by them in Article 3 of condescendence, in both actions, as follows:

"The present action arises out of a collision at sea on 4 November 2005 as condescended upon below. An action arising out of the same incident is proceeding in this Court. This Court accordingly has jurisdiction." (My emphasis).

In Article 4 of condescendence the collision is said to have taken place some 130 miles north east of Peterhead at position 59º 16'N 001º 52'E.

[2] In their defences the defenders, inter alia plead, in Answer 6, as follows:

"The action, being an action having a conclusion appropriate for the enforcement of a claim to which Section 47(2) of the Administration of Justice Act 1956 applies, and therefore being an admiralty action to which the provisions of rule 46.6 of the Rules of the Court of Session 1994 also apply, is incompetent in its present form."

[3] The defenders enrolled motions in both actions, which came before the Court on 4 March 2008, to have the actions dismissed as being incompetent. These motions were continued by Lord Turnbull. In the meantime his Lordship varied the timetables issued under Chapter 43 procedure. The continued motions came before me for a hearing.

[4] Junior counsel for the defenders sought dismissal of both of the actions on the basis that they were incompetent. Senior counsel for the pursuers accepted that, standing the provisions of Chapter 43 of the Rules of Court, the appropriate means of having the defenders' averments regarding the incompetency of the actions dealt with (there being no pleas-in-law) was at a motion roll hearing.

[5] The issue which arises in these actions is this. It was common ground between the parties that, prior to the introduction of Chapter 43 procedure, in its present form, in respect of personal injury actions, actions of the character of the present proceedings would have had to have been raised as admiralty actions under Chapter 46 of the Rules of Court. The question is whether that remains the position or whether, having regard to the provisions of Chapter 43, claims like the present must be brought under Chapter 43 procedure.

[6] The provisions of Chapter 46, dealing with admiralty actions, were not made the subject of any express amendment upon the promulgation of the existing Chapter 43 rules by S.S.I. 2002 No. 570 (as subsequently amended). Chapter 43 of the Rules of Court is headed "Actions of Damages For, or Arising From, Personal Injuries". Rule 43.1 provides:

"Subject to Rule 43.1A (Actions based on clinical negligence) this Chapter applies to a personal injuries action".

Rule 43.1(2) provides, inter alia,

"In this Chapter - ....

'personal injuries' include any disease or impairment, whether physical or mental:

'personal injuries action' means an action of damages for, or arising from, personal injuries or death of a person from personal injuries; ...."

[7] Chapter 43 then proceeds to prescribe the procedure that requires to be followed in a personal injuries action. Rule 43.5(1) provides that:

"Any party to an action may, within 28 days of the lodging of defences, by motion apply to have the action withdrawn from the procedure in this Chapter and to be appointed to proceed as an ordinary action."

As has been seen special provision is made in Chapter 43 for actions based on clinical negligence. Rule 43.1A(1) provides:

"At the same time as a summons which includes a draft interlocutor in Form 43.1A is presented for signeting, a pursuer may apply by motion for authority to raise a personal injuries action which is based on alleged clinical negligence as an ordinary action."

Chapter 43 is silent as regards personal injuries actions arising from collisions at sea.

[8] Chapter 46 sets out the procedure to be followed in an "admiralty action". Rule 46.1 provides, inter alia:

"In this Chapter -

'Admiralty action' means an action having a conclusion appropriate for the enforcement of a claim to which Section 47(2) of the Administration of Justice (Scotland) Act 1956 applies or in respect of a contract of respondentia ..."

Section 47(2)(b) of the 1956 Act provides:

"This section applies to any claim arising out of one or more of the following, that is to say

...

(b) loss of life or personal injury sustained in consequence of any defect in the ship or in her apparel or equipment, or of the wrongful act, neglect or default of the owners, charterers or persons in possession or control of a ship or of the master or crew thereof or of any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of the ship are responsible, being an act, neglect or default in the navigation or management of the ship, in the loading, unloading or discharge of goods on, in or from the ship or in the embarkation, carriage or disembarkation of persons on, in or from the ship."

Senior counsel for the pursuers conceded that the claims made in the present actions are claims to which the wording of Section 47(2)(b) of the 1956 Act applies. Section 47, is, however, concerned with the arrestment of ships. Section 47(1) provides:

"Subject to the provisions of this section and Section 50 of this Act, no warrant issued after the commencement of this Part of this Act for the arrest of property on the dependence of an action or in rem shall have effect as authority for the detention of a ship unless the conclusion in respect of which it is issued is appropriate for the enforcement of a claim to which this section applies, and, in the case of a warrant to arrest on the dependence of an action, unless either -

(a) the ship is the ship with which the action is concerned, or

(b) all the shares in the ship are owned by the defender against whom that conclusion is directed."

At this stage it has to be recalled that jurisdiction in neither of these actions, as raised, is based on the locus delicti or on the domicile of the defenders. As previously noted, it is averred in Article 3 of condescendence in both actions that jurisdiction arises because an action arising out of the same incident is proceeding in this Court. That is a reference to Section 45(1)(c) of the 1956 Act which provides

"Subject to the provisions of this Part of this Act any court having Admiralty jurisdiction, shall have jurisdiction to entertain, as against any defender, an action to which this section applies if, but only if, -

...

an action arising out of the same incident or series of incidents is proceeding in the court or has been heard and determined by the court ..."

[9] The procedures to be adopted under Chapter 43 rules on the one hand and under Chapter 46 rules on the other hand, are significantly different. So for example, there requires, in admiralty actions, to be in the summons a condescendence and pleas-in-law. Under Chapter 46 there is prescribed the important procedure regarding preliminary acts which may or may not be dispensed with, all as set out in Rule of Court 46.6 and 46.7. Rule of Court 46.7(6) specifically provides that

"Where the court dispenses with preliminary acts, the pursuer shall lodge a condescendence with appropriate pleas-in-law within such period as the court thinks fit; and the action shall thereafter proceed in the same way as an ordinary action."

There has been no amendment of the Chapter 46 Rules to refer to Chapter 43 procedure. The rules regarding the recovery of documents under Chapter 43 on the one hand and Chapter 46 on the other hand are different. Chapter 43 procedure sets out a prescribed timetable to be followed. Chapter 46 prescribes no such timetable. "Preliminary acts" were an introduction into the law of Scotland from England. Junior counsel for the defenders went through the history of how the provisions in Chapter 46, over the years, came to be in the form that they presently are. An example of a relatively recent case in which a pursuer sued in respect of personal injuries arising from a collision between vessels, as against owners in personam, and where the preliminary acts procedure was invoked, is Renton v Riddell and another 18 April 2002 (unreported). That action, however was raised before the present form of the Chapter 43 procedure was enacted. I was reminded that Section 47 of the 1956 Act was passed to ratify international obligations in relation to the arrestment of ships. What the pursuers were doing, in the present procedure it was submitted by counsel for the defenders, was invoking the admiralty jurisdiction of the Court of Session. The possibility of injured persons arresting ships to found jurisdiction for claims in respect of such injuries can only arise if they invoke the jurisdiction conferred by the 1956 Act. If the pursuer's argument was correct a pursuer injured as a result of a collision between ships where the collision did not take place within Scottish territorial waters would be unable to sue in Scotland by founding jurisdiction by the arrestment of the vessel in question. Nor would they be able to have the security provided by arrestment of the ship in dependence. I was advised by counsel for the defenders that an action like the present action would, in England, require to be raised as an admiralty action with the possibility, at least, of preliminary acts being used. Chapter 43 could not be read as having, by a side wind as it were, changed the position in Scotland with the consequences just referred to. The claims in question required to be raised under Chapter 46 procedure and the present actions should be dismissed.

[10] In reply senior counsel for the pursuers accepted that dismissal would be appropriate if the defenders' arguments were accepted. Senior counsel accepted that the passing of the 1956 Act was required to enable this country to comply with international obligations in relation to jurisdiction in shipping cases. There was no separate admiralty jurisdiction in Scotland in the sense of a separate Court dealing with such matters. The admiralty jurisdiction in Scotland was the jurisdiction of the Court of Session. Therefore the Court of Session was free to regulate its procedures while exercising its admiralty jurisdiction. Senior counsel for the pursuers did, however, concede that the position adopted on their behalf, namely that the pursuers' claims had to be brought under Chapter 43 procedure had "unusual consequences". It meant that if a person suffered injury in a maritime collision and the owners of the ships were foreign such a person would no longer be able to arrest to found jurisdiction for the purpose of pursuing his claim for damages in Scotland. Nevertheless, he submitted, that appeared to be the consequence of the clear wording of the Chapter 43 Rules. The present claims were clearly claims for personal injuries falling within the definition provided in Rule of Court 43.1(2).

[11] It was accepted by senior counsel that Chapter 43 would still be applicable where pursuers were able to raise their action on the basis that Scotland was the locus delicti. He accepted that there was an apparent clear clash between the provisions of Chapter 43 and Chapter 46. They could not be read together. Senior counsel faced up to the significance of the preliminary acts procedure as recognised for example in the case of "The Barbara Robb", (1940) 67 LL.L. Rep 407 per LP Normand at p. 411 Col. 1. He also, very fairly, recognised that the position he was advancing might result in an exception to the rule in Stevenson v Pontifex & Wood (1887) 15 R 125 being one of its consequences. That rule is that the single act amounting either to a delict or breach of contract cannot be made the ground of two or more actions for the purpose of recovering damages arising within different periods but caused by the same act. That rule, it was said, had been applied in relation to maritime claims to the effect that a pursuer who has both a claim as an owner for damage to his vessel arising out of a collision, and for personal injuries arising out of the same collision, may be required to bring his claims in one action. Nevertheless, senior counsel for the pursuers, maintained that the policy imperative contained in Chapter 43 procedure, namely that personal injuries claims should be subject to an expedited process was so great that the role of Chapter 46 in personal injuries claims had been impliedly revoked. There was but one possible exception to the application of Chapter 43 procedure and that was in relation to clinical negligence cases. The absence in Chapter 43 of any express exception from its provisions, in respect of any other kind of personal injuries, had been commented upon by Temporary Judge

T. G. Coutts Q.C. in Broadfoot v Forth Valley Acute Hospitals NHS Trust 3 July 2003 (unreported).

[12] Lastly, senior counsel for the pursuers accepted that as the Rules of Court presently stand, Chapter 43 expressly excludes the application of Rule 36.6 regarding lodging of productions whereas Chapter 46.8 expressly reserves its application in admiralty actions. Notwithstanding the non-existence of an express dis-application of the provisions of Chapter 46, senior counsel reiterated that that must, in the circumstances, have been the intention of those promulgating the Chapter 43 procedure, insofar as Chapter 46 previously had a role to play in respect of personal injuries claims.

[13] As has been noted senior counsel for the pursuers was forced to recognise that the argument advanced by him meant that, albeit by silence, Chapter 43 had brought about a very significant change in our law regarding admiralty actions. It would no doubt have been preferable if the position had been specifically addressed in Chapter 43. It may well be that those responsible for the promulgation of the Chapter 43 rules simply overlooked the tension between the wording of those rules and the established procedures under Chapter 46. Be that as it may, I do not consider that it can be correct that the intention was to effect such a change in Chapter 46 by implication. In any event the issue seems to me ultimately to be one of categorisation in relation to the jurisdiction of the Court. In the present proceedings the pursuers have, in my judgment, raised what can properly be described as admiralty actions. They do not invoke the jurisdiction of the Court on the basis of the locus delicti being Scotland or on the basis of the domicile of the defenders. They invoke the admiralty jurisdiction of this Court, under Section 45(1) of the Administration of Justice Act 1956. Actions which invoke that jurisdiction, in my

judgment attract the provisions of Chapter 46 of the Rules of Court. The provisions of Section 47(2)(b) of the 1956 Act have been set out in full above. They continue to define the kind of claim that has been raised in the present actions. That being so, Chapter 46, which has not been amended by any of the provisions of Chapter 43 of the Rules of Court, applies. This approach to matters means that the consequences of the approach urged upon the Court, by the pursuers, do not arise so that, for example, persons with personal injuries claims as defined in Section 47(2)(b) of the 1956 Act would be unable to arrest foreign ships to found jurisdiction. Claims by pursuers for personal injuries, who can, and do, invoke the ordinary jurisdiction of the Court arising from the locus delicti or the domicile of the defenders remain free to bring actions under Chapter 43 procedure but where, as here, they seek to invoke the Court's admiralty jurisdiction the appropriate procedure is under Chapter 46. For these reasons I am of the opinion that both actions are incompetent.