MITSUI AND CO LTD AND OTHERS v. FURAMA MARITIME S.A. AND ANOTHER

IN THE COURT OF APPEAL

1986, No. 96
(Civil)

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JUDGNENT

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Yang, J.A. :

1. After some discussion with counsel this morning, and by their agreement, we are of the view that if we are against Mr. Ma on the first of the three grounds of the Plaintiffs' appeal, then no practical purpose would be served by considering the other grounds, which will in the circumstances be of academic interest only.

2. On the 9th June 198h the Plaintiffs issued a protective writ. The writ claims against the 1st Defendants as owners of the vessel “Furama” and against the 2nd Defendants as managers and operators of the Furama damages for breach of contract and/or duty and/or negligence in and about the loading, storage, handling, custody, care and discharge of the Plaintiffs' cargo and the carriage thereof on board the 1st Defendants' vessel Furama operated and/or managed by the 2nd Defendants in the year 1983.

3. On the 26th September 1985 Mayo J. made an ex parte order that the Plaintiffs' writ be renewed for a period of 6 months. There was nothing in the supporting affidavit which made any mention of the fact that the time bar of one year under the Hague Rules, which were incorporated in the Bills of Lading, expired.

4. Three matters were canvassed by Mr. Ma on behalf of the Plaintiffs:

5. The first was whether the Plaintiffs, in their ex parte application before Mayo J. to renew the Plaintiffs' writ, were guilty of a material non-disclosure in that nowhere in the supporting affidavit was there any mention that the contract entered into between the parties was subject to a time bar of one year under the Hague Rules. We have heard arguments this morning as to the materiality or otherwise of the non-disclosure. It is not in my view necessary to consider the question in detail. Suffice it to say that in all the circumstances of the case it seems clear that the non-disclosure was material.

6. The second matter was whether, in the event of a material non-disclosure, the court has a discretion to refuse to set aside Mayo J.'s order. I have read the judgment of Power J. with some care, and speaking for my part, it seems clear that he thought that in the circumstances he did not have a discretion. Power J. referred to the case of R. v Kensington Income Tax Commissioners (1917) 1 K.B. 486 where Warrington L.J. used words which indicated that there is no discretion which could be exercised by the court. It is true, however, that there are certain later authorities which have been cited this morning where the court did exercise a discretion. Even assuming that the judge had a discretion it would in the circumstances be very difficult for the Plaintiffs to persuade the court that it should be exercised in their favour. Mr. Sussex attempted to persuade us that Power J. did exercise his discretion but we do not think that argument is in accord with the wording used by the learned judge.

7. Thirdly, nothing which has been said by Mr. Ma today indicates that a discretion should be exercised in his favour.

8. For these reasons I would dismiss the appeal.

Kempster, J .A. :

9. I agree that the terms of the judgment of Power J. make it reasonably apparent that he felt he had no discretion to exercise once it was clear that in seeking ex parte relief the Plaintiffs had failed to disclose to Mayo J. cogent material that would have affected the exercise of his discretion. Like my Lord Yang J.A. I believe that the authorities show that there is a discretion which Power J. did not purport to exercise. Accordingly it now falls to us to exercise our discretion on the material available.

10. Without voluminous citation the principle seems only too clear that on an ex parte application the party seeking the indulgence of the court should make full and frank disclosure of all matters within his knowledge which are material for the judge to know. This is a principle of respectable antiquity and contemporary relevance. I would wish to do nothing to lessen its importance and find in the affidavit sworn on behalf of the Plaintiffs and read by Mayo J. nothing which would allow this court to exercise its discretion in any way other than against them.

11. In the circumstances I agree that the appeal fails on this one ground, the others being academic, and must be dismissed.

Cases cited in argument:

Battersby v Anglo-American Oil Co. Ltd. [1945] 1 K.B. 23

Heaven v Road and Rail Wagons Ltd. [1965] 2 Q.B. 355

The “Angelina the Great” [1983] 1 Lloyd's Rep. 591

Peter Scales v William Wong [1983] H.K.L.R. 110

Booker McConnell v Plascow [1985] R.P.C. 425

Bank Mellat v Nikpour [1985] F.S.R. 87