At Last: A Follow-Up To The Preliminary Act

• Published date: 25 May 2023
• Subject Matter: Litigation, Mediation & Arbitration, Professional Negligence
• Law Firm: Quadrant Chambers
• Author: Mr James M. Turner KC
• topic: Admiralty,Civil Procedure

OVERVIEW

Updates to CPR Part 61 introduce welcome and overdue reforms to Collision Statements of Case, but leave unaddressed the real bottleneck to the full articulation of the issues in ship collision disputes.

The Backdrop

The Admiralty Court has always been special. Before the reforming zeal of the Victorian age put an end to such anomalies, it was part of the "wills, wives and wrecks" jurisdiction of the court at Doctors' Commons, a civilian enclave distant in training, thought and geography from the rough-and-tumble of Westminster Hall.

Among the vestiges of its history is its unique treatment of ship collision disputes. Known until the CPR came into force as the "Preliminary Act", the Collision Statement of Case ("CSoC") comes in two parts. The first part, which is not technically a statement of case at all, requires each party to make a series of binding admissions regarding key features of the collision: the ships involved; their drafts, speed, course, cargo and engine power; the place and time of the collision; when and how the other ship was first seen; and how the party's ship was navigated in response. The answers given to the questions posed in Part 1 cannot be departed from without the Court's permission – which is rarely and grudgingly given, and even then (generally) only if the amendment makes the amending party's position worse.

Part 2 of the CSoC is more recognisably a pleading (to use the old school terminology), although one written to a particular formula: Part 1 is repeated; it is alleged that the collision was caused by the other ship's negligent navigation; and somewhat formulaic allegations are made about that negligence, rounded off with an incantation of the provisions of the Collision Regulations said to have been offended.

There was and remains an art to drafting a CSoC. That is due partly to the significance of the Part 1 answers, but it is also born of the fact that, then and now, they are settled "blind", i.e., without sight of the other side's case. The parties only get to see their opponent's CSoC once both (or all) have been filed.

Before the advent of voyage data recorders ("VDR"), it was very common for the combined effect of the parties' CSoCs to produce no collision at all – whereas one had most definitely occurred. The principal enquiry at trial was how the ships had been navigated into collision, leaving relatively limited scope for enquiry as to why. Yet the why, of course, is at the root of any case on negligence. Nowadays, the near-ubiquity and...