Skip page header and navigation

Strike out application success in Admiralty personal injury claim commenced in the County Court

Details

Ship-owner defendants struck out a claim for personal injury sustained during the course of the claimant’s employment at sea, on board ships. Tony McDonach of our PI and regulatory team, acted for the successful defendants.

Facts

The claimant, Mr Stephen Meek, brought a claim for noise induced hearing loss (NIHL) which he alleged he had sustained during the course of his employment as a ship’s carpenter on ships owned by BP Shipping and Fyffes between 1974 and 1979. His solicitors issued proceedings in the County Court and served them on the defendants. 

The claim was a relatively standard NIHL claim with more than one defendant, involving alleged exposure many decades ago. What made it different from many other such claims however, was that both defendants were ship-owners and the claimant’s alleged exposure to injurious noise all took place on board ships at sea.

The defendants pleaded that s.20(2) of the Senior Courts Act 1981 and Part 61.2 of the Civil Procedure Rules (CPR) applied. Part 61.2(1) states:

The following claims must be started in the Admiralty Court:

(a) A claim:
(v) for loss of life or personal injury specified in section 20(2) of the Senior Courts Act 1981.

Section 20(2) of the Senior Courts Act 1981 states:

(1) The Admiralty jurisdiction of the High Court shall be as follows, that is to say—
(a) jurisdiction to hear and determine any of the questions and claims mentioned in subsection (2);

(2) The questions and claims referred to in subsection (1)(a) are—

(f) any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or in consequence of the wrongful act, neglect or default of—

(i) the owners, charterers or persons in possession or control of a ship; or

(ii) the master or crew of a ship, or any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of a ship are responsible,

being an act, neglect or default in the navigation or management of the ship, in the loading, carriage 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. 

The claimant refused to discontinue the County Court proceedings and as a result the defendants issued a strike out application. 

At the hearing the claimant’s counsel argued:

  1. that the claim did not fall into the definition provided by section 20 (2) of the Senior Courts Act 1981
  2. alternatively, that the defendants should have made an application under Part 11 CPR within 14 days of filing an acknowledgment
  3. that strike out was too draconian a sanction and that the court should transfer the matter to the Admiralty Court under its CPR Part 3 case-management powers

The judge held that: 

  • the claim was clearly a personal injury claim arising out of the management of a ship so that section 20 (2) applied and the case should have been commenced in the Admiralty Court
  • there was no need for an application under Part 11, as those provisions were relevant only where a defendant might wish to avail itself of an argument about jurisdiction, as opposed to the present situation where the County Court simply had no jurisdiction
  • he had no power to transfer to the Admiralty Court  - that being a secondary consideration which the County Court ought not to get to having struck the case out for lack of jurisdiction

Disappointingly, although the judge awarded the defendants their costs he refused to dis-apply the Qualified One-way Costs Shifting (QOCS) provisions and hence, barring an appeal or new evidence indicating dishonesty on the part of the claimant, the defendants are unable to recover their costs. 

This is a potentially important judgment. Claimant solicitors routinely commence proceedings against ship-owners in industrial disease claims in the County Court and often prevail over defendants’ objections on the basis that other defendants who employed the claimants are land-based. The County Court jurisdiction is invoked  vis-a-vis these land-based defendants and thereafter the Admiralty defendants are effectively joined under Part 19 CPR as they are necessary parties in order to resolve all the matters in dispute in the proceedings. 

County Court judgments are not binding authority but nevertheless, this judgment provides a persuasive precedent that where this land-based ingredient is lacking, ship-owner defendants have good prospects of striking out erroneously commenced County Court claims.

This article also appeared in the November 2018 edition of shipping case digest. 

The shipping, transport and offshore industries have particular needs around personal injury (PI) and regulatory issues. From minor incidents to major disasters, employers, operators and owners in the sector need specialist expertise in dealing with the potential fallout if and when something goes wrong.

A swift, effective response that deals with all aspects of a situation can be effected by our international experts whenever an incident occurs. From investigations to inquests, we can assist at all stages with pragmatic and realistic advice. We can also help with proactive and preventative advice and training on health and safety issues for crew, officers and management.