Sivaji v Ministry of Defence

The Claimant as executrix of the estate and representative of the dependants of Bhanu

To the contrary, the Defendant denies employment, pleading that at all material times the deceased was a Crown servant and as such not the beneficiary of either implied contractual terms nor of the protection of the alleged tortious duties of care. However, he admits that during the material period, the deceased worked at the dockyard and that it was operated by the Defendant. As regards exposure to asbestos however, he pleads no positive case, simply putting the claimant to proof.

Superficially, the issues for determination in this case therefore are simple, namely:

Superficiality however hides layers of complexity that have complicated this case. While there is no issue that the English court has jurisdiction to hear this claim, issues have surfaced to complicate matters, namely:

It is right to state that the Claim Form specifically alleges in the general endorsement, that English law is the applicable law for all purposes. That is repeated and amplified in the Particulars of Claim. It remains the Claimant’s primary case.

Those layers of complexity have been compounded by a particularly unfortunate procedural litigation history that I am afraid to say only serves to illustrate the perils of leaving litigation to the last minute and also of leaving it to the parties to regulate litigation rather than enabling the court to actively and robustly case manage the litigation.

The deceased developed symptoms that with the benefit of hindsight can now be attributed to his terminal illness in early 2015 and he died on 3^rd November 2015. The claim form was issued on 12^th October 2018 just days before what would have been the expiry of the primary limitation period if the proper law to determination limitation issues was English law. In circumstances that I will explain later in this judgment, it now emerges that there is no dispute between experts in the law of Singapore, that by the date of death, if Singapore law applied to determine limitation issues, the claims on behalf of the estate had become statute barred by section 24B of the Singapore Limitation Act as amended, which imposed an end point of 15 years from the date of the alleged breach of duty, whether or not the cause of action had become complete by that date by damage having been suffered. In other words, the same protections against latent damage that exist in English limitation law are not the same as those in Singapore which are less benevolent.

Those same experts however agree that the same may not be true in relation to the claims for loss of dependency which are governed by section 20 of the Civil Law Act of Singapore. The experts agree that there is a moot undecided point, but agree that it is more likely that the courts of Singapore would decide that the limitation period for such claims was 3 years from the date of death and therefore that the dependency claims in this case were brought in time, if time is to be measured from the date of issue of the Claim Form in this court. Since determination of foreign law when it is to be applied in English courts is a question of fact, in the sense that the court makes a ‘determination’ of what the foreign law is, under the Civil Evidence Act 1972, the English court would be bound to accept that agreed expert position.

What then occurred in the litigation does not flatter those who have conduct of it. The Claim Form was served together with Particulars of Claim on 13^th November 2018. The Defendant sought and the claimant consented to extension of time to serve the Defence which was not in fact served until 19^th February 2019, late, in breach of Rule and Order, but retrospectively validated by Master Thornett in paragraph 3 of his Order dated 27^th March 2019. No question of sanction arose probably because the application for extension had been made before the last extension had expired, and also because no application for judgment in default had been made or actioned.

The Defence denied that the relevant applicable law was English law, and asserted that liability fell to be determined according to laws of Singapore different from those relied upon by the claimant as the justification for the averment that English law applied. It also pleaded that by the law of Singapore, the claim was statute barred. Finally, it is averred that for the Claimant to succeed, she must demonstrate that her claim is actionable both under the law of Singapore and under English law (described in the written advocacy and in relevant authorities as the ‘doctrine of double actionability’).

An unseemly and serious dispute has arisen now about the order dated 27 March 2019. and an awful lot of time energy and research has been devoted to it. That again in my judgment does not flatter the legal representatives or the court. It arises in this way.

The Claimant submits that Master Thornett granted permission to Amend the Particulars of Claim so as to advance an alternative case that the claimant retains a valid cause of action under the law of Singapore enforceable by proceedings in the English court. That is disputed by the Defendant despite the clear wording of paragraph 3 of the Order and the Defendant also submits that the Particulars of Claim cannot be amended to raise this new cause of action without also amending the Claim Form, and neither was there an application nor an Order so to permit. So it is that in response, the Claimant applies to amend the Claim Form, which application is for me to determine today, and also the parties expect me to determine whether the Claimant still requires permission to amend the Particulars of Claim.

So much industry has been devoted to these procedural issues that I have before me a hearing bundle and various iterations of skeleton arguments and supplementary skeleton arguments and supporting evidence and authorities that extends to over 1200 pages, and tens of thousands of pounds have been expended in costs in bringing this matter to this hearing. The principle beneficiaries therefore are the lawyers and I regard that as unseemly. I have not seen any Schedule of Loss, but my experience of asbestos claims and their valuation now extending over more than 40 years entitles to me question whether the costs of this procedural wrangle bear any proportionate relationship to the value of this claim.

With the greatest respect to the industry and learning of counsel, the product in this case is mostly irrelevant to the determination of the issue before me, which, simply stated, is whether the Claimant should be granted permission to amend her case. The principles in this regard are straightforward.

CPR Part 17 provides a framework for the grant of permission to amend. Rules differ however depending on when in the history of the litigation a party seeks to amend, and whether at that time it is arguable that a relevant limitation period has expired.

What it seems to me the industry of counsel has failed to grasp is the question of how that is to be achieved, and with the greatest of respect to the Master, it seems to me that so did he. That is the case because although it is the fact that no draft pleading was produced for consideration by the Master, what he ordered was expressed in the following terms:

“3.

The Claimant has permission to file and serve amended Particulars of Claim by 4pm on 31 May 2019.

4.

The Defendant has permission to file an amended Defence by 4pm on 12 July 2019.

…

7.

The Claimant has permission to file and serve a Reply by 4pm on 9 August 2019.

8.

The parties each have permission to instruct an expert in Singaporean law, on the issues of:

a.

Whether the claim is actionable under Singaporean law; and, if so,

b.

Whether each head of damage sought by the Claimant is actionable under Singaporean law.

9.

The Claimant’s expert report is to be served in support of and with her amended Particulars of Claim.

10.

The Defendant’s expert report is to be served in support of and with its amended Defence.”

The Claimant’s primary submission advanced by Mr Young, counsel who appears for the Claimant, is that this Order amends the Particulars of Claim pursuant to CPR Part 17.1 either because it is with the written consent of the Defendant (because it is verbatim the draft minute of order suggested by the Defendant and agreed by the Claimant after the hearing before the Master), or alternatively because it was with the permission of the court on the face of the Order itself.

Mr Johnston, counsel who appears for the Defendant, to the contrary submits that this order was infelicitous (his word) in its wording and that all that the Defendant was agreeing to or suggesting was a timetable for the making of an application to amend based on a fully formulated draft, to which the Defendant was neither consenting (because no such draft had been seen) nor was the Defendant waiving rights to object to the formulation of the draft when it became available. So it is that the Defendant now says that because the Claimant’s claims are, or might arguably be statute barred under the law of Singapore, thereby offending the doctrine of double actionability, so these are amendments or proposed amendments outside relevant limitation periods so that any application to amend falls to be considered under CPR part 17.4. This provision severely limits the availability of amendment in such cases so as to avoid the potential injustice to defendants of the doctrine of relation back that has the effect of treating the amended case as taking effect as from the date of the original claim. That would have the effect of treating a claim as having been brought in time for limitation purposes even though as a matter of historical fact it had been commenced out of time.

The editors of the White Book 2020 in the narrative in Volume 1 at paragraph 17.3.2 say this:

“On an application under r.17.3a copy of the proposed amended statement of case should be filed with the application notice (as to which, see r.23.6and PD 23A para.2.1 (para.23APD.2)). Applications for permission in respect of an amendment yet to be identified are unlikely to succeed unless the proposed amendment is agreed by the parties as self-evident and uncontroversial.”

The Master clearly had the thrust of this in mind at the hearing on 27^th March 2019 as is evident from observations he made during the course of argument, which included saying:

“So I think there needs to be a proper draft with either agreement, in which case consequential direction for amendments and (inaudible) or in the event of disagreement, permission to restore on the issue of permission.” (internal page 5 letter B of the transcript of the hearing)

and

“I will deal with it on exactly the same basis as I was contemplating last time which is permission in principle but there is an issue, come back, so liberty to reply on that issue today and to come back to the court if there is an issue about the nature or the scope (inaudible) but otherwise permission to amend the claim, defence, through to reply.” (internal page 18 letter D of the transcript of the hearing).

Unfortunately, neither did he carry that thrust through into his judgment nor did he reflect it in the terms of the order he made. Instead, he approved the form of order suggested by the Defendant and in the terms of the sealed Order which I have already recited. Neither party has sought either to correct that Order nor sought permission to appeal against it. Moreover, since it was drawn, neither has the Claimant applied to amend the Particulars of Claim in the form now drafted, which form was filed and served on 28^th June 2019, nor has the Defendant applied to strike out that purported amended pleading. In fact, the Defendant has responded to it by filing and serving a purported amended Defence dated 10^th September 2019 and the Claimant has responded to that by filing and serving a Reply dated 30^th September 2019. Between those 2 dates, the experts in the laws of Singapore provided a joint statement dated 27^th September 2019.

The first issue I have to decide therefore is when is an amendment not an amendment, an unenviable decision to require of a judge other than in an appellate capacity. What makes it particularly unenviable in this case is that this state of affairs was of the Defendant’s making because the Defendant suggested the form of order. What should have happened was, the point having either been taken positively by the Defendant, or at least the Defendant reserving his position in this regard, the application to amend should have been adjourned, pending the obtaining of expert evidence as to which directions were given.

In fact, I venture to suggest that had the Defendant correctly advised the court of its intentions at this stage, even before expert evidence was obtained, the claimant would have realised the urgent need to draft an amendment and would have asked for a short adjournment to deal with that matter promptly, in which event it would have been determined by the Master, probably more than a year ago, and would not be left for determination by me at this hearing.

What then makes the Defendant’s position even more unattractive is that on the one hand he submits that there was no permission to amend, and none should be granted now, yet he also stands and continues to stand on the terms of his amended Defence served in response to a pleading that he submits to have no formal or essential validity.

Mr Young submits both in writing (paragraph 26 of his Skeleton Argument) and orally that the Particulars of Claim have been amended validly and effectively for 7 reasons, namely:

“(1)

Paragraph 11 of the Defence and counsel for the Defendant skeleton argument required the Claimant to plead a case under Singaporean law;

(2)

this is undoubtedly what Master Thornett was discussing during the hearing, as clarified in the transcript that became available only on 5th June 2020;

(3)

this is what the Order drawn up by the Defendant’s counsel and approved by Master Thornett actually says;

(4)

this is the only reasonable explanation for the direction that the expert’s report is to be served ‘in support of and with’ the relevant pleading;

(5)

no other possible construction has been offered for the amendment direction, if it is not intended to provide for pleading alternative Singaporean claims;

(6)

the wide ambit of the discussion about suitable preliminary issues does not make sense unless permission had been granted for the Singaporean claims;

(7)

the Defendant’ solicitor, John Bolton, at no point suggests in either of his two lengthy witness statements made on 10th July 2019 and 29th August 2019 that the Amended Particulars of Claim, which were served on 28th June 2019, contained amendments for which permission had not been granted by the court.”

Mr Johnston in his written submissions (skeleton argument paragraph 19) and his oral submissions, refutes these arguments, submitting that the Order did not effect amendment, that the Master did not conduct the relevant analysis of the procedural requirements, and did no more than set a timetable for consideration of amendment.

Both arguments are circular. The claimant’s argument is circular because I ask, not rhetorically, how can you validly and effectively amend a statement of case in a respect that is neither self-evident, nor on the face of it, uncontroversial, without having a draft document to consider. The issue was known to be controversial ever since the Defendant repudiated the claim by protocol response in a detailed fully argued email dated 8^th January 2018, approaching a year before the Claim Form was issued. Moreover, it is not correct to say that the Defendant ‘required’ the Claimant to plead. He only pointed out that according to his view of the law, it was necessary for the Claimant to raise this issue. Whether and if so, what matters were in the mind of the Master are neither here nor there. It is the order made that is relevant.

The defendant’s argument is circular, because if correct, then paragraphs 3, 4, 7, 9, and 10 of the Order as drawn were valueless, pointless and of no effect, and all that was necessary was the set of directions concerning the obtaining of expert evidence as to foreign law and discussion of it, yet the Defendant not only advocated the form of order, but then acted upon it in advancing his own pleading.

And so, unassisted by that circularity, I simply have to decide. In my judgment, irrespective of the form of words adopted in the Order, it did not effect, and could not have effected amendment. I am fortified in my view by the comment of the editors of the White Book, which is consistent with CPR 17 PD paragraph 1.2 and my experience of civil litigation for over 4 decades. It is one thing to permit without a draft a proposed amendment that is self-evident and uncontroversial such as an erroneously pleaded date or reference to the wrong document or even sometimes as to a name. It is quite another thing to amend upon an issue known to be controversial and going to the very core question of whether a liability in law arises. The language of the order was not merely and permissibly infelicitous. It neither reflected practice nor rule and was impermissible in the way now relied upon by the claimant. What she needs therefore is permission to amend both the Claim Form and the Particulars of Claim and as I have already indicated, those applications seem to me to stand or fall together.

In Hyde v Nygate [2019] EWHC 1516, which was an insolvency case, Mr John

This decision is cited with approval by the editors of the White Book 2020 in the narrative in Volume 1 at paragraph 17.4.4.3 and I detect no disagreement between Counsel as to its correctness or applicability to this case. What this passage serves to identify is that different and more stringent requirements have to be satisfied by an applicant to amend if it is reasonably arguable that the proposed amendments are outside the applicable limitation period.

As I have already referred to, the joint statement of the experts in the law of Singapore dated 27^th September 2019 at paragraph 5(g) agree that the claims on

It is therefore undeniable that questions 1 and 2 are answered in the affirmative. Mr Johnston concedes and accepts that question 3 is satisfied. Therefore, the only remaining live issue is whether I am persuaded as a matter of discretion to grant the applications.

Discretion has two aspects in this context. First, there are clear and well-established principles that apply to the specific issue of the exercise of discretion when the court is asked to permit amendment to add a new cause of action arguably outside the relevant limitation period. Mr Johnston summarises them in his skeleton argument at paragraphs 11 to 18 and I do not detect any disagreement as to those principles on the part of Mr Young. In summary Mr Johnston submits that:

I bear all of that guidance relating to the specific discretion in mind, but I indicated that there is also a general aspect to the discretion, and counsel do not disagree with that, and that is that it must be exercised compliantly with the overriding objective in CPR Part 1. As so, it seems to me that although a proposed amendment would fail if what I have called the specific discretion guidance is not satisfied, once a proposed amendment has satisfied that guidance, it might still fail under the overriding objective. I must therefore retain in mind proportionality, ensuring that the parties are on an equal footing, saving of expense, the importance of the case to the parties and the complexity of the issues, and dealing with the case fairly and expeditiously.

Having described the parameters for the exercise of discretion, I must return to the history of this claim. The letter before action was dated 25^th August 2015 before the deceased died. Despite 4 chaser letters and one complaint, the first substantive but incomplete response was dated 14^th March 2017. Thereafter the Defendant sought further extensions of time to complete research and investigation. True it is that in the response dated 14^th March 2017, the Defendant did raise as an issue the doctrine of double actionability, but it was not until 8^th January 2018 that a full substantive response is forthcoming from the Defendant to the letter of claim and that is a reasoned repudiation of the claim. In that response, liability is denied for a whole raft of reasons including but not limited to asserting that the English duties relied upon by the Claimant had no extraterritorial effect, that in any event the doctrine of double actionability applied and the facts gave rise to no claim according to the law of Singapore, and even if they did, any cause of action was statute barred under the law of Singapore, and finally, even if all of that were wrong, sovereign immunity protected the Defendant. True it is that it then took the Claimant 9 months to issue the Claim Form and there is no adequate explanation of why it took so long. That as I have indicated takes us very close to the expiry of the English limitation period. Service took place on 13^th November 2018, and Acknowledgement of Service was filed on 26^th November 2018. The original Particulars of Claim were served with the Claim Form. The Defence was due on 11^th December 2018. The Defendant sought and obtained either by consent or pursuant to court order, 5 extensions of time and did not serve the original Defence until 19^th February 2019. I have already detailed how the matter then came for first costs and case management hearing before Master Thornett on 27^th March 2019, initially as a ‘show cause’ hearing under the Mesothelioma Practice Direction in CPR 3 PDD. Thereafter, everyone is overtaken by the Covid 19 health emergency, including, of particular relevance, the closing of the National Archive.

This history does not reflect well on the parties but contrary to the submissions of Mr Johnston, it reflects particularly badly on the Defendant. I do not accept his submission that the Defendant has behaved like an exemplary opponent drawing to the attention of the Claimant her failings in failing to formulate the claim under the law of Singapore. It took the Defendant 17 months to even begin to raise the issue (preliminary response dated 14^th March 2017), and in fact it took him 27 months to detail why the claim was repudiated in the formal response letter (8^th January 2018).

I also reject Mr Johnston’s submission that this is excusable because this is an important test case that requires detailed investigation and response because of potential impact on other cases. There can now be very few people alive who were exposed to asbestos in the naval dockyard in Singapore before independence or before 1968 when the deceased ceased working there.

I also reject Mr Johnston’s submission that any delay there may have been on the part of the Defendant can be excused by the need to undertake further research as regards the constitutional position and the arrangements concerning the control and administration of the naval dockyard in Singapore that require access to the National Archive. The Defendant had 3½ years in which to undertake those researches before the health emergency closed the National Archive, and the whole structure of CPR 3 PDD required that it do so and produce the necessary evidence to show cause why judgment should not be entered before the hearing on 27^th March 2019 which was a year before lockdown.

In my judgment, the following conclusions are justified on the history that I have now set out in detail.

For all of these reasons as a matter of discretion, I accede to the Claimant’s applications and grant permission to amend both the Particulars of Claim and the Claim Form in the form of the drafts that have been circulated.