Bambury & Anor v Owner of the Ship "Huiduk"

An appellate court should not interfere with a trial judge’s findings of fact and witness assessment merely by reviewing the judgment, particularly after a lengthy trial in which the judge heard the relevant witnesses and gave reasons for preferring some evidence. Fresh evidence may be refused where it could have been adduced at trial and would not affect the issue decisive of the claim. A claim for wrongful arrest requires proof of mala fides or crassa negligentia, expressed here as malice or recklessness. Where the underlying claim justified the security obtained, a wrongful-arrest counterclaim cannot succeed without that additional culpable conduct.

A yacht collided with a tug in Poole Harbour. The yacht owner arrested the tug owner’s barge as a sister ship for security of a damages claim. After a lengthy trial, Master Miller found that the collision caused the claimed damage and awarded approximately £14,200, with interest and costs. He also rejected the tug owner’s counterclaim for wrongful arrest.

The tug owner applied to the Court of Appeal for permission to appeal, an extension of time, a stay of execution, permission to rely on further evidence, and permission to suspend orders. The central issues were whether the first-instance factual findings could be challenged on appeal, whether the proposed new evidence should be admitted, and whether the arrest was wrongful.

The Court of Appeal refused the applications.

1. Findings of fact. Lord Justice Rix held that the Master had heard the witnesses and expert surveyors, considered the photographs and other evidence, and gave full reasons for preferring the yacht owner’s evidence. On a review of the judgment, it would be impossible for the Court of Appeal to differ with the Master’s assessment of the witnesses and the facts established by their evidence.
2. Further evidence. The proposed evidence from the tug’s master and engineer was refused. It could have been supplied at trial, at least in writing. It also did not address the vital issue whether the yacht’s damage was pre-existing or caused by the collision. The evidence therefore did not take the matter further.
3. Wrongful arrest. The counterclaim was hopeless once the Master’s findings on damage and loss were upheld. The arrest sought security of £30,000, which the trial proceedings showed to be appropriate. The shipowner could have provided alternative security but did not do so. The counterclaim nevertheless required proof of malice or recklessness, corresponding to the older admiralty expressions mala fides and crassa negligentia; that case had failed at trial.
4. Lord Justice Aldous agreed with Lord Justice Rix. The formal order was: applications refused.

• Court of Appeal (Civil Division): The applications for permission to appeal and related relief were refused. The Court upheld the factual and quantum findings made by Master Miller and rejected the challenge to the wrongful-arrest counterclaim.
• First instance: After a trial continuing from January into May 2001, Master Miller gave a judgment on quantum and a further judgment dated 25 June 2001 on the counterclaim for wrongful arrest.