The "Plato"

• Jurisdiction: Singapore
• Judge: Christopher Lau JC
• Judgment Date: 19 August 1995
• Neutral Citation: [1995] SGHC 197
• Docket Number: Admiralty In Rem Nos 322, 323, 349 and 366 of 1979 (Consolidated)
• Date: 19 August 1995
• Published date: 19 September 2003
• Year: 1995
• Plaintiff Counsel: Michael Khoo, Aloysius Leng and Cheah Kok Lin (Abraham Low & Partners)
• Citation: [1995] SGHC 197
• Defendant Counsel: Kenneth Siow and Alan Loh (Godwin & Co)
• Court: High Court (Singapore)
• Subject Matter: Whether valid reason to delay proceedings,Settlement negotiations,Whether plaintiffs induced into believing that defendant would proceed with action,Inordinate and inexcusable delay,Want of prosecution,Civil Procedure,Striking out

This is an appeal against the decision of the assistant registrar on 16 August 1994 dismissing the application by Lloyds Bank plc, the second defendants in this action (whom I shall henceforth refer to as `the bank`):

(i) to dismiss the plaintiffs` action in Admiralty in Rem No 366 of 1979 against the first defendants as the owners of the vessel `Plato` and the bank for want of prosecution; and

(ii) for the bail bond furnished in that action by the bank on behalf of the first defendants to the plaintiffs to be discharged and released to the bank for cancellation.

Background

On 26 June 1979, that is 16 years ago, there was a collision involving three vessels, the `Asia-Afrika`, the `Plato` and the `Ussuriysk` at the Western Anchorage, Singapore. Following that collision admiralty writs in rem were issued by the plaintiffs, as the owners of the `Asia-Afrika`, against the first defendants as the owners of the `Plato` (whom I shall henceforth refer to as the `Plato`) and the owners of the other vessel `Ussuriysk` (whom I shall henceforth refer to as the `Ussuriysk`). The plaintiffs considered both the Plato and the Ussuriysk were to blame for the damage suffered by the plaintiffs` vessel Asia-Afrika. The Plato in turn issued a writ against the plaintiffs and so did the Ussuriysk.

The Plato was entered with a protection and indemnity association known as Oceanus Mutual Underwriting Association (Bermuda) Ltd with an address at Hamilton 5, Bermuda (`Oceanus`). On the arrest of the Plato by the plaintiffs, as a condition for the Plato`s release from that arrest, Oceanus arranged for Lloyds Bank International Ltd, as the predecessor in title of the bank, to furnish on 1 August 1979 a bail bond to the plaintiffs for the sum of S$672,820. The bail bond served as security for the plaintiffs` claim against the Plato for the damage the plaintiffs alleged the Plato had caused to their vessel Asia-Afrika.

Subsequently the amount of the bond was reduced, following an application by the Plato, by an order of court dated 21 August 1981 to S$338,000 and in its place, a fresh bail bond was furnished on 4 September 1981 by the bank (as the successors in title to Lloyds Bank International Ltd) to the plaintiffs for S$672,820. This bond remains valid today. By this bond, the bank, as its predecessor did, undertakes a secondary liability to pay any amount unpaid by the Plato on a judgment for a stated sum being obtained by the plaintiffs in this action.

The firm of solicitors M/s Emmanuel & Barker was instructed by Oceanus to represent the Plato and to protect her interests as well as to defend the claim brought by the plaintiffs.

Preliminary acts, and the necessary pleadings (statements of claim and defence and counterclaim, etc) were then filed by the plaintiffs and the Plato in their respective admiralty actions against each other. The plaintiffs` action against the Plato, and the Plato`s claim against the plaintiffs, were consolidated with the plaintiffs` claim against the Ussuriysk and the Ussuriysk`s claim against the plaintiffs pursuant to a court order of 5 March 1982.

At some point in 1984 winding up proceedings were being undertaken against Oceanus. M/s Emmanuel & Barker then were no longer able to obtain instructions from Oceanus on the further conduct of the proceedings. These solicitors in turn attempted to obtain such instructions from the Plato. They were unable to do so as the Plato did not respond. Accordingly, on 14 September 1984, they applied and obtained an order to discharge themselves from further acting for the Plato. As from that date, the Plato was no longer represented by solicitors in these proceedings.

Understandably, in these circumstances, by 1 October 1984, the Plato was in breach of various court orders regarding the further conduct of the action. In the result, on 1 October 1984, the plaintiffs obtained a default judgment against the Plato in Admiralty in Rem No 366 of 1979 and on 15 October 1984, the Plato`s claim against the plaintiffs was dismissed.

No further steps were taken thereafter by the plaintiffs to refer their claim for assessment of damages against the Plato for ten years. Once such damages are assessed, it would enable the plaintiffs to call on the bank to pay these under the terms of the bond furnished by the bank to the plaintiffs.

On 24 October 1986, the actions commenced by the Ussuriysk and the plaintiffs against each other for the damage each alleged was caused by the other was heard by Coomaraswamy J. He reserved judgment on the conclusion of those hearings.

In or about March 1988, no doubt concerned by its continued exposure under the bond it had furnished to the plaintiffs, the bank enquired and was informed by M/s Emmanuel & Barker who had earlier acted for the Plato that the plaintiffs had in fact already obtained judgment on their claim against the Plato. In the event, the bank between 16 and 18 March 1988 attempted to contact the plaintiffs` solicitor then having charge of this matter but was apparently unsuccessful although it seemed to have been informed by that solicitor`s office the case was still pending.

On 5 February 1990, Coomaraswamy J delivered judgment. In that judgment, he dismissed both the plaintiffs` claim against the Ussuriysk and the Ussuriysk`s claim against the plaintiffs. He made no finding insofar as this action was concerned, viz the plaintiffs` claim against the Plato as that action was not before him. On 3 March 1990, the plaintiffs filed a notice of appeal against Coomaraswamy J`s judgment but they took no steps to proceed with their claim for damages to be assessed in respect of their claim against the Plato and in respect of which they had already obtained judgment in 1984.

On 1 May 1991, the bank ceased its operations in Singapore. On 29 August 1991 the bank wrote to the plaintiffs` solicitors to enquire on the status of the plaintiffs` claim against the Plato. This was followed by a request in writing from the bank to the plaintiffs` solicitors for the Plato to accept a substitution of the bank`s bond for one issued by the Development Bank of Singapore. As no reply was received to that letter, on 28 February 1992, the bank wrote to the plaintiffs` solicitors seeking a reply.

On 10 March 1992, the Court of Appeal dismissed the plaintiffs` appeal against the judgment of Coomaraswamy J. By that date, some 13 years had lapsed since the collision between the plaintiffs` vessel Asia-Afrika and the Plato and some eight years had lapsed since the plaintiffs obtained judgment against the Plato. Nevertheless, it was not until about seven and a half months later, on 1 October 1992, that the plaintiffs were stirred into action by filing a notice of intention to proceed in the action in which they had obtained judgment against the Plato, viz Admiralty in Rem No 366 of 1979. The notice specified that the plaintiffs would, on the expiry of a month from the date of that notice, proceed with their claim for assessment of damages.

No assessment was however filed on the expiry of the month`s notice. The result was that the bank applied, about eight months later, on 8 June 1993 to be added as a party to this action. By then, it was some 14 years since the collision had occurred.

On 5 May 1994, the bank applied for the plaintiffs` claim to be struck out for want of prosecution.

Law

An order dismissing an action for want of prosecution is, as Warren LH Khoo J said, in Wee Siew Noi v Lee Mun Teck , at p 235H `... draconian ... and will not be lightly made.` Since the Court of Appeal decision in Allen v Sir Alfred McAlpine & Sons , the House of Lords decision in Birkett v James and the Singapore Court of Appeal decision in Wee Siew Noi v Lee Mun Teck it is settled law that in exercising its discretion to strike out an action for want of prosecution, the court has to be satisfied (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers; and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiffs or between each other or between them and a third party. What is or is not inordinate and inexcusable delay will of course depend on the circumstances of each case but where it is shown that the delay has been inordinate, it is for the plaintiffs to prove that this delay is excusable: Allen v Sir Alfred McAlpine & Sons Ltd per Salmon LJ at p 268F.

The defendant in asserting that he has suffered prejudice or that there is a substantial risk that a fair trial would not be possible has to produce some evidence to show there has been a significant addition to the prejudice he alleges to have suffered as a result of the delay or produce evidence to show that there has been a significant addition to the substantial risk that there could not be a fair trial: Hornagold v Fairclough Building Ltd ; Ling Kee Ling v Leow Leng Siong .

And if there is such evidence, even where liability has been admitted, or where there has been no real dispute as to liability, the Court may still dismiss an action for want of...