Dampskibssel v Ghobrial

A party advancing a counterclaim must establish it on admissible evidence. Where clear case-management orders require evidence by specified dates and provide for debarment on default, repeated non-compliance may justify enforcing those consequences and proceeding without the excluded evidence. A litigant in person is not automatically entitled to an adjournment where previous extensions and opportunities have been given and no explanation for default is offered. Permission to appeal should be refused where there is no real prospect of challenging the orders or the decision below. A clean bill of lading recording apparent good condition does not establish liability for damage caused by inherent vice existing before shipment where the carrier’s liability is confined to damage caused in transit.

The claimants, a liner shipping company, sued the defendant on dishonoured freight cheques following the carriage of four refrigerated containers of grapefruit from Turkey to England. The defendant counterclaimed for more than £54,000, alleging that inadequate refrigeration caused mould damage.

The Central London County Court dismissed the counterclaim with costs. Before trial, orders had required service of witness statements and a marine surveyor’s report, with debarment from relying on the relevant evidence in default. The defendant repeatedly failed to comply and sought an adjournment on the hearing date without explaining the default. The central issues were whether the judge was entitled to proceed and whether the evidence disclosed a real prospect of successfully challenging the decision.

1. Permission and procedural decision. Lord Justice Tuckey dismissed the application for permission to appeal. The defendant had repeatedly failed to comply with orders requiring witness statements and expert evidence. Those orders expressly provided for debarment in default. Previous requests for extensions had been granted, the hearing date was known, and no explanation for the failures was offered. The judge was therefore entitled to refuse an adjournment, enforce the debarring provisions and proceed to hear the counterclaim.

2. Evidence and merits. A party advancing a counterclaim must establish it on admissible evidence. The claimants’ cargo surveyor’s report and mycologist’s report strongly supported the conclusion that the damage resulted from disease present before shipment. The defendant had no evidence capable of answering that case. The judge had reached the correct decision on the evidence available.

3. Bills of lading. The clean bills of lading recorded only that the grapefruit had been received in apparent good condition. They did not assist where the alleged damage was caused by inherent vice existing before shipment, because the claimants were liable only for damage caused while the goods were in transit. A separate shipment involving oranges delivered at an unsuitable temperature was materially different: the defect was apparent on receipt and the bills were accordingly claused.

4. Phytosanitary certificate. A certificate stating that the grapefruit were free from quarantine pests did not answer the mycologist’s evidence. The fungal organisms relied upon were not quarantine pests.

5. There was no real prospect of upsetting either the judge’s procedural orders or his decision on the counterclaim. The application for permission to appeal was dismissed.

• Court of Appeal (Civil Division) — On 31 January 2001, the application for permission to appeal was dismissed: [2001] EWCA Civ 103.
• Central London County Court — His Honour Judge Cotran dismissed the defendant’s counterclaim with costs on 11 September 2000.