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[2015] ZAWCHC 219
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Owners And Parties who bear risk in and to the Pontoon 'Margaret' and the Cargo of two Floating Docks and Twelve Barges v MT 'Salvaliant' (Separation of Issues Application) (AC81/2009; AC144/2010) [2015] ZAWCHC 219 (16 November 2015)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: AC81/2009
Name
of ship: MT ‘Salvaliant’
In
the matter between:
THE
OWNERS AND PARTIES WHO BEAR RISK
IN
AND TO THE PONTOON ‘MARGARET’ AND THE
CARGO
OF TWO FLOATING DOCKS AND TWELVE BARGES
Applicant/Plaintiff
And
THE
MT
‘SALVALIANT’
Respondent/Defendant
Admiralty
action in rem
Case
No: AC144/2010
Name
of ship: MT ‘Salvaliant’
In
the matter between:
L
J BOER HANDEL
B.V
1
st
Applicant/Plaintiff
L
J BOER VASTGOED
B.V
2
nd
Applicant/Plaintiff
And
SEMCO
SALVAGE (VI) PTE
LTD
1
st
Respondent/Defendant
POSH
SEMCO PTE LTD
Admiralty
action in personam
Coram:
BOZALEK
J
Heard:
15 -17 September 2015 & 5 – 6 October 2015
Delivered:
16 NOVEMBER 2015
JUDGMENT
– SEPARATION OF ISSUES APPLICATION
BOZALEK
J:
[1]
The
plaintiffs, two Dutch companies, part of the LJ Boer Group, claim
damages from the defendants, two Singapore based companies,
for
damages arising out of the stranding of the pontoon ‘
Margaret’
and
its cargo of barges and two halves of a floating dock (together
referred to as ‘
the tow’
)
at Jacobs Bay on the coast of South Africa on 24 June 2009. The tow
was stranded after the tow-wire from the tug Salvaliant parted
whilst
it was being towed from Shanghai to Rotterdam. The plaintiffs’
case is that the parting of the tow-wire and the stranding
was
attributable to the negligence of the tug and/or those responsible
for it. An action in rem was instituted against the Salvaliant
in
this Court in September 2009 and in 2010 the plaintiffs also
instituted an action in personam against the owner and demise
charterer of the Salvaliant, the defendants, the cause of action in
the two actions being essentially the same. These actions were
consolidated in 2013.
PARTICULARS
OF CLAIM
[2] The
particulars of claim allege that the second defendant
(‘Vastgoed’
)
was the owner of the twelve barges and ‘
Handel’
,
the first plaintiff, was the owner of the pontoon and the two halves
of the floating dock. They allege, in great detail, that
the
defendants owed the plaintiffs a legal duty to take all reasonable
steps to prevent harm to the tow and loss to the plaintiffs
notwithstanding that the former had no contractual relationship with
them and had taken no steps to contract directly with them.
They
allege further that the damage suffered by the tow as a result of the
stranding was physical damage which was readily foreseeable
by the
defendants and that the loss of profits and/or income claimed by the
plaintiffs are the direct and natural consequences
of the physical
damage to the tow, were readily foreseeable by the defendants and do
not result in indeterminate liability for
them.
[3] In
para [8] they allege that the defendant tug and the defendants were
negligent in numerous respects in the
manner in which they executed
the tow inter alia in that they failed to obtain any or adequate
advice with regard to the routing
of the tug and the tow around the
South African coast at the material time. In para [9] the plaintiffs
allege that were it not
for the negligent conduct ascribed earlier
the tow would not have stranded.
[4] In
the premises the plaintiffs claim as a consequence of the stranding
of the tow and the breaches of duty
and fault alleged damages in the
sum of €34,172,792.61, US$2,102,493.48 and R10,919,417.96 being
comprised of the value of
the ttow, salvage costs, wreck reduction
costs, miscellaneous damages suffered by Boer, contractual penalties
and a loss of profits/loss
of income claim in the amount of
€13,132,080.00 alternatively €9,367,952.00. This last claim
has been the subject of
much dispute and controversy between the
parties and has been the subject of repeated amendments by the
plaintiffs with its validity
being consistently challenged and
interrogated by the defendants.
THE
PRESENT APPLICATION
[5]
In
February 2015 the plaintiffs brought their initial application to
separate certain issues which was set down together with an
application for postponement brought by the defendants and a further
application by the plaintiffs to amend their particulars of
claim.
[6]
On
17 February 2015 the application for postponement of the trial was
granted and during March 2015 some argument was heard in the
plaintiffs’ application to amend. In the event the parties
resolved that application by agreement and the plaintiffs effected
certain amendments to their particulars of claim in both the action
in rem and the action in personam.
[7]
The
parties then sought to reach an agreement on the terms upon which the
matter would proceed to trial on the basis of a separation,
broadly
put, of the merits and quantum.
[8]
In
pre-trial meetings the plaintiffs put up a draft order setting out
their proposed terms for the separation which draft forms
the subject
matter of the present application for separation.
[9]
The
parties could not agree on those terms, however, the defendants’
position being that they would agree to a separation
of issues but on
different terms. The plaintiffs accordingly supplemented their
original application for separation with a supplementary
founding
affidavit, further affidavits were exchanged and this application was
argued.
[10]
In
essence then the position is that the parties are in apparent
agreement that a separation of issues should be ordered with the
‘
merits’
being
heard first, to be followed, if needs be, by the later determination
of ‘
quantum’
.
However, the parties are at odds as to what issues make up the
‘
merits’
and
what make up the ‘
quantum’
issues.
THE
RELIEF SOUGHT BY THE PLAINTIFFS AND THE PLAINTIFFS’ CASE
[11]
In
its application for a separation in terms of Rule 33(4) the
plaintiffs describes the ‘
quantum’
issues
as the questions arising from para [16] and [19] of the plaintiffs’
particulars of claim in the
in
personam
action and paras [32] and
[34] of the defendants’ plea therein as well as the equivalent
question in the in rem action.
[12]
They
ask that these issues be stayed until all the other questions in the
consolidation action have been finally disposed of.
[13]
In
para [16] of their particulars of claim the plaintiffs set out the
damages which they claim with an introductory averment that
these
were sustained ‘
as a consequence
of the stranding of the tow and the breaches of duty as aforesaid’
.
Para [19] merely alleges that the first and/or second defendants are
liable to pay the plaintiffs these sums.
[14]
In
paras [32] of their plea the defendants plead that in the event of
one or both being held liable to pay any damages any such
sum must be
reduced by:
1.
the
sum of €15,929,000.00 being the total amount paid to the
plaintiffs in respect of a hull contract of insurance and a cargo
contract of insurance;
2.
by
the sum of €2,734,000.00 being the amount paid to the first
plaintiff in respect of certain buyers interest contract of
insurance.
[15]
In
para [34] of their plea the defendants plead that in the event that
one or both of them are held liable to pay any damages to
the
plaintiffs, the plaintiffs failed to take reasonable steps to
mitigate their alleged claims for loss of profits and for
miscellaneous
damages.
[16]
According
to the plaintiffs a separation of issues on these terms would leave
the following broad issues to be determined first
as part of the
‘
merits’:
1.
the
ownership of the tow;
2.
whether
the defendants or their servants were negligent and whether this
caused the stranding;
3.
whether
the plaintiffs’ claims are precluded because the terms of the
towing contract concluded between one of the defendants
and Ningbo, a
Chinese entity and seller of the tow, has application to the
plaintiffs, either on the basis of their being a party
thereto or on
the basis of bailment;
4.
whether
the defendants are entitled to limit their liability in terms of sec
261 of the Merchant Shipping Act to a specified number
of Special
Drawing Rights;
5.
whether
certain insurance payments made by a Chinese insurer, PICC, to the
plaintiffs in respect of a portion of their loss had
the effect of
depriving the plaintiffs of their ‘
locus
standi’
to sue the
defendants;
6.
whether
the plaintiffs ought to make a deduction equivalent to the amounts
received from the insurers.
[17]
In
its barest outline the plaintiffs’ case is that the separation
they advocate is sensible since all the ‘
merits’
issues
save for one are decisive of the case as a whole. The one exception
is the defendants’ defences arising out of the
insurance
payments which were received by the plaintiffs as a result of the
wreck of the Tow. However, the defendants had insisted
that this
issue be dealt with as part of the merits and the plaintiffs
therefore accommodated them in this regard as it was a discreet,
finite issue.
THE
DEFENDANTS’ PROPOSED ORDER AND ITS CASE
[18]
The
order for a separation of issues proposed by the defendants, which
was contained in the defendants’ counter-application
for a
separation of issues, proposes that the determination of the
following issues be stayed until all other questions have been
finally disposed of:
1.
the
quantum of the damages described in para [16] and [19] of the
plaintiffs’ particulars of claim in the personam action;
2.
the
issues embodied in para [34] of the defendants’ plea in that
action;
3.
the
equivalent issues in the rem action.
These
numbered paras have been described above.
[19]
The
order proposes that the determination of the above issues be stayed
‘
until all other questions ….
have finally been disposed of’
.
So far, so good. However, a further paragraph in the defendants’
proposed order reads as follows: ‘
for
the avoidance of doubt, the identity of the plaintiff or plaintiffs
who, it is alleged, suffered the damages described in the
categories
listed in para [16.1] – [16.6], and the entitlement of such
plaintiff or plaintiffs to claim payment of the damages
described in
the aforementioned categories from the defendants shall be decided
….’
as parts of the merits
issues.
[20]
The
defendants’ case is that the separation sought by the
plaintiffs conflates issues of causation and quantification, leaving
those for determination in a later ‘
quantum
hearing’
and the deferment of the
determination of some of these issues will at the least cause
substantial inconvenience to the Court, if
not be unworkable.
[21]
Before
dealing with the plaintiffs’ cases in greater detail a
recapitulation of some of the guiding principles in the application
of Rule 33(4) is called for.
[22]
Rule
33(4) provides as follows:
‘
If,
in any pending action, it appears to the Court mero motu that there
is a question of law or fact which may conveniently be decided
before
any evidence is led or separately from any other question, the Court
may make an order directing the disposal of such question
in such
manner it may deem fit and may order that all further proceedings be
stayed until such question has being disposed of,
and the Court shall
on the application of any party make such order unless it appears
that the questions cannot conveniently be
decided separately.’
[23] As
was noted in
Braaf
v Fedgen Insurance Ltd
[1]
the
Rule enjoins the Court to ‘
accede
to the application and make the necessary order ‘unless it
appears that the questions cannot
conveniently
be decided separately'. Thus it is incumbent on the plaintiff (the
party opposing the separation on those terms) to
satisfy the Court
that the application should not be granted’.
[24]
The
Court went on to point out that ‘
(c)onvenient’
connotes
not only ‘
facility or ease or
expedience’,
but also
‘
appropriateness; the procedure
would be convenient, if in all the circumstances it appeared to be
fitting and fair to the parties
concerned’
.
[25]
In
Denel
(Edms) Bpk v Vorster
[2]
the
Court highlighted the need to ‘
clearly
circumscribe’
with
‘
clarity
and precision’
the
issues that are sought to be separated on the pleadings and warned
against the separation based on unspecific generic terms
such as
‘
merits’
and
‘
quantum’
.
[26]
In
Absa
Bank v Bernert
[3]
a
similar warning was issued by the Supreme Court of Appeal and the
following passage is particularly relevant to the present case:
‘
[20]
Before turning to the detail of the evidence there is an
observation I that I need to make. Before the trial commenced
the parties agreed to separate some of the issues in the case, as
envisaged by rule 33(4). They recorded their agreement in a pre-trial
minute, in which they said that they agreed to separate the 'merits'
from the 'quantum', and went on to define what they meant
by the
'merits', with reference to certain paragraphs of the particulars of
claim. Amongst other things they said that 'the
merits . . .
consist of . . . paragraphs 11 to 18 (excluding 18.1 to 18.3)'. In
para 18 of the particulars of claim it was alleged
that '(a)s a
result of the [allegedly unlawful acts], [Rotrax] suffered damages
computed as follows' and the subparagraphs set
out the calculation of
the alleged damages. In the course of the evidence of the first
witness the learned judge interposed to
note that the parties had
agreed to separate the 'merits' from the 'quantum', and to obtain
confirmation that he was to try only
the 'merits'.
[21]
It is imperative at the start of a trial that there should be clarity
on the questions that the court is being called upon
to answer. Where
issues are to be separated rule 33(4) requires the court to make an
order to that effect. If for no reason but
to clarify matters for
itself a court that is asked to separate issues must necessarily
apply its mind to whether it is indeed
convenient that they be
separated, and if so, the questions to be determined must be
expressed in its order with clarity and precision.
In some cases it
might be appropriate to order the separation of the 'merits' and the
'quantum' of the claim.
But
to use that terminology when the causative link between the wrongful
act and the damage is a contested element of the claim,
as it
was in this case, is bound to create uncertainty
.
[
my underlining]
[22]
In this case the court made no separation order as it was required to
do by rule 33(4), and it gave no indication at the outset
of the
trial of what it understood the 'merits' of the claim to entail. In
its judgment it found that the conduct of Absa
Bank was unlawful
and that it was 'both factually and legally the cause of the
transaction failing', and it said in one sentence,
without more, that
'causality has been established'. It then made an order declaring
'that [Absa Bank] is liable for the proven
or agreed damages suffered
by [Mr Bernert]'.
[23]
At the outset of the hearing before us the legal representatives of
the parties said that they understood the court below
to have
disposed of the 'merits' as they had been defined in their agreement
with reference to the pleadings. Thus they understood
the order to
mean that Absa Bank was declared to be liable to Mr Bernert for the
loss of the anticipated sales of the cars. All
that remained for
determination, they said, was the monetary value of those sales.
[24]
I have difficulty accepting that that was indeed what the court below
intended, because an order to that effect would be breathtaking.
The
evidence in this case comes nowhere near establishing that if Absa
Bank had not acted as it did, Rotrax would probably have
constructed
its plant and manufactured and sold the cars. Indeed, the
establishment of that causative link was not even touched
upon in the
evidence.
[25]
… If the causative link was indeed one of the issues
that the court was called upon to decide then the claim ought
to have
failed on that ground alone. Indeed, that causative link is
inherently so speculative that I think the claim was always
doomed from the start.’
THE
PLAINTIFFS’ CASE IN MORE DETAIL
[27]
The
plaintiffs described the quantum issues as being the assessment of
the damages which they suffered and whether they ought to
make a
deduction equivalent to the amounts received from the insurers. They
contend that the deferment of these issues would be
sensible and
convenient since the issues encapsulated in the merits are decisive
of the case as a whole. They criticised the defendants’
proposed formulation and in particular the defendants’
contention that ‘
the determination
of the issues of whether the loss of the tow in fact caused the
plaintiff to suffer the damages of the nature
claim, including …
loss of profits, and if so which plaintiff suffered the loss and/or
has the requisite necessary locus
standi’
as
being ‘
an issue of causation’,
as
being fundamentally flawed. They argue instead that the issue of
‘
causation’
is
dealt with simply in para [11] of the particulars of claim in the
following terms: ‘
as a consequence
of the stranding the tow suffered irreparable damage and has been
wrecked’
. They argue further that
in order to succeed on the merits the plaintiffs must prove the above
allegation in which case it is axiomatic
that a diminution of their
patrimony would have been caused.
[28]
This
last assertion may indeed be so but this does not apply to the
plaintiffs’ case as a whole since a large and important
component of their claim is that for loss of profits. That particular
claim, as it stands on the pleadings, is placed squarely
in issue
both in relation to the identity of which plaintiff suffered any loss
and whether any loss was suffered at all. In the
result it is, in my
view, an over-simplification for the plaintiffs to contend that the
issue of causation is in effect comprehensively
dealt with in para
[11] of the particulars of claim. Accordingly, if the separation is
ordered on the terms sought by the plaintiffs
and the plaintiffs
succeed wholly or partially on the merits, in the deferred hearing on
quantum there will not simply be a hearing
on the computation of any
damages suffered by them. That hearing, at the least insofar as the
claim for loss of profits is concerned,
would deal with issues of
causation in the sense that the Court will have to determine whether,
accepting that the defendants negligently
caused the stranding of the
tow, was this indeed the effective cause of the damages suffered by
the plaintiffs.
[29]
In
my view, at least insofar as the claim for loss of profits is
concerned, the circumstances in the present matter are similar
to
those which applied in
Bernert
.
In that matter the merits were defined with some precision with
reference to particular paragraphs of the particulars of claims
and,
in the understanding of the parties and of the trial Court, this left
only a relatively straightforward exercise of computing
the value of
various motor vehicles not manufactured in order to assess damages.
However, as Nugent JA made clear, even when the
plaintiff succeeded
in its case on those specific issues delineated as the ‘
merits’,
a
great deal more than the computation of the monetary value of the
loss of the anticipated sales of motor vehicles remained for
determination. As Nugent JA pointed out, ‘
the
establishment of a causative link’
had
not been touched upon in the evidence on the merits.
[30]
Thus,
as I see it, were a separation to be ordered on the terms proposed by
the plaintiffs and were they to succeed on the issues
defined as the
‘
merits’
,
in the ‘
quantum’
hearing
they will, at least as far as the loss of profits claim is concerned,
be seized with the onus of proving the element of
causation and,
quite conceivably, the issue of the identity of the party which
suffered that loss, which issues may well be interlinked.
[31]
The
conclusion which I have reached does not necessarily preclude a
separation of the issues on the terms proposed by the plaintiffs.
What must still be considered is whether a separation on these terms
would be convenient in the sense that this phrase has come
to be
understood through the case law. However, before dealing with this
question I consider the convenience of a separation on
the terms
proposed by the defendant.
[32]
As
noted by Mr MacWilliam on behalf of the plaintiffs, the incorporation
of para [3] of the defendants’ proposed order, with
its
reference to ‘
the identity of the
plaintiff or plaintiffs’
who
have suffered the damages listed under the various heads and their
‘
entitlement’
to
claim payment of such damages being stipulated as part of the
‘
merits’
issues,
for the ‘
avoidance of
doubt’,
points in the first
place to the imprecision of the preceding description of the quantum
of the damages and the merits issues. Secondly,
the formulation
itself introduces a concept, the ‘
entitlement’
of
such plaintiff or plaintiffs, which is vague and not defined in
relation to any particular averments in the pleadings. As such
it
introduces an element of imprecision into the formulation of the
separation of issues which could, in time, prove confusing
and
counterproductive to a smooth and convenient hearing of the case.
[33]
A
further important factor in considering whether a formulation along
these lines is feasible and convenient was Mr Wragge’s
concession, on behalf of the defendants, that if that formulation is
adopted the plaintiffs, in order to succeed under each head
of a
damage, will have to prove in the merits hearing that they have
suffered at least some damages under each such head. This
in effect
means that the plaintiffs will have to lead all the evidence
necessary to prove their claims, both on the merits and
on the
quantum under each of the heads of damages save that they will not
have to prove exactly how much damages they suffered.
When it was put
to Mr Wragge that in effect this would leave for the second (quantum)
hearing no more than, simply put, an arithmetical
computation of the
damages suffered under each head he was constrained to concede that
this was indeed the case.
[34]
These
factors alone, in my view, make it quite clear that a separation of
issues along these lines would definitely not be convenient.
Such a
separation would mean that as part of the merits hearing the
plaintiffs would have to call all the evidence necessary to
prove the
loss of their damages save that it would not be incumbent upon them
to prove the exact amount of such damages suffered.
Although the
Court can only see through a glass darkly at this stage as regards
what evidence and witnesses the plaintiffs may
see fit to lead to
prove their damages, it takes little imagination to envisage that the
plaintiffs will, in that situation, have
to call a number of Dutch
witnesses such as accountants, engineers, marine specialists and
public officials concerned with the
granting of permission for the
floating dock to operate in Sliedricht to prove the viability of some
of the heads of damages, most
notably the loss of profits. If their
evidence stops short of the exact computation of such damages and
these are not resolved
by agreement then clearly many of these
witnesses will have to return to testify in the quantum hearing.
Similar considerations
may apply to witnesses the defendants may
call.
[35]
Such
an exercise is likely to be unproductive, time consuming,
inconvenient and inefficient. If such witnesses are to be called
then
they may as well round off their evidence by testifying as to the
exact amount of the damages suffered. In effect half of
their
evidence will have to be heard and they will have to return at a
later stage to complete their evidence. The situation would
be
similar in all respects to that of a claimant who is paralysed in a
motor vehicle accident and sues for loss of income/loss
of earning
capacity. Assuming that the claimant was an accountant but must now
practise wheelchair-bound he/she would be called
upon, in a situation
in which the merits are defined in the manner presently proposed by
Mr Wragge on behalf of the defendants,
to prove in the merits hearing
that whatever s/he might earn as an accountant wheelchair-bound would
be less than what s/he earned
had s/he not been so injured. I would
venture to suggest that in such a situation it would seldom, if ever,
be convenient to hear
the claimant’s claim for damages in two
tranches. The experts called to establish the existence of damages
would sensibly
give their full evidence at one hearing and not in
instalments.
[36]
Accordingly,
for these broad reasons I am satisfied that a separation of the
issues as proposed by the defendants will not be convenient
and
should not be acceded to.
THE
SEPARATION PROPOSED BY THE PLAINTIFFS
[37]
I
return now to the separation on the terms proposed by the plaintiffs.
As I have indicated a separation of issues proposed by the
plaintiffs
at least has the merits of greater clarity than that proposed by the
defendants. However, the question is whether a
separation on these
terms in the circumstances of this case would be convenient.
[38]
As
has been demonstrated, a separation as proposed by the plaintiffs
would probably not dispose of all issues of causation. A separation
on those terms will leave at least the following issues to held over
for determination in the hearing concerned with the assessment
of
damages:
1.
which
of the two plaintiffs, if any, suffered the various heads of damages;
2.
whether
Handel is entitled to advance the loss of profit claim relating to
the floating dock and pontoon as owner;
3.
whether
all the various heads of damages listed in paras [16] of the amended
particulars of claim were caused by the defendants’
negligence
or breach of duty.
[39]
In
arguing against a separation on the plaintiffs’ terms the
defendants point out that the identity of which plaintiff claims
the
damages, under at least several of the heads of damages, is not
clear, the formulation ‘
Handel
and/or Vastgoed’
and other
formulations ‘
in the
alternative’
being not uncommon.
Furthermore, in their trial particulars the plaintiffs allege that
Handel was going to sell the pontoon to Vastgoed
which was going to
charter it out to third parties. Nonetheless Handel claims damages
for loss of profits in relation to the chartering
out of the pontoon
jointly with or in the alternative to Vastgoed. Furthermore, it is
pleaded that Handel was going to sell the
floating dock to Vastgoed
which was going to rent it to another entity, SWB, for operation.
Notwithstanding this Handel claims
damages in relation to the
operation of the floating dock in a sum which indicates that it is a
claim arising out of the rental
of the floating dock by Vastgoed to
SWB. For their part the plaintiffs contend that this formula is
entirely defensible in that
Handel and Vastgoed are part of a group
of companies and that in terms of current English law claims such as
they advance lie at
the instance of the owner or another party such
as a beneficial owner provided those parties are cited together in
the action.
[40]
It
would be premature to express a view on this question of law, let
alone the prior question of which system of law applies in
a
situation such as the present where there are possible contending
legal systems which are applicable. It is sufficient that,
once the
evidence as a whole has been heard, the identity of a particular
plaintiff/claimant, the role which it played in the chain
of events
leading up to the stranding and its envisaged role had the stranding
not taken place, may well be relevant and important
to the
consideration of whether any particular head of damage has been
suffered and, if so, by which party. It is also instructive
that both
Handel and Vastgoed claim the salvage costs, wreck reduction costs,
miscellaneous damages and contractual penalties.
To the extent that
the actual claimant is not the owner of the property in respect of
which the aforesaid claims are made, those
can also be seen as claims
for pure economic loss.
[41]
In
these circumstances it may well be that the Court cannot make a
determination regarding the wrongfulness of the defendants’
conduct vis-a-vis the plaintiff without determining which of the
plaintiffs has suffered damages in the form of a loss of profits
or
in the form of the other damages that may fall to be categorised as
pure economic loss.
[42]
As
far as the claim for loss of profits is concerned the fact that a
defendant faces a consequential claim for loss of profits from
the
owner of property is a material factor which the Court might take
into account in deciding whether the defendant owes a legal
duty to
the prospective owner of that property which also advances a
consequential loss of profit claims in relation thereto. The
question
of which plaintiff suffered the loss may well become vital and it
would be inconvenient should this issue be dealt with
by a witness,
such as Mr Boer, in a second hearing when this could be just as more
conveniently addressed when he first gives evidence
in the
‘
merits’
hearing.
[43]
In
short, given the plethora of factual and legal disputes in this
matter, many of them relating to the identity of the plaintiffs
vis-a-vis the various claims brought, I am not persuaded that a
separation of the issues along the lines proposed by the plaintiffs
will conduce to the convenience of the Court and/or the parties.
[44]
It
is entirely conceivable to me that a separate hearing along the lines
proposed by the plaintiffs will result in an order where
the issues
remaining for assessment in the ‘
quantum
stage’
are less than clear
and may very well require the re-calling of witnesses whose evidence
was taken in the first hearing. Worse still,
certain issues may have
to be re-visited, thus placing the Court in a position similar to
that which the Court found itself in
Bernert
,
having seemingly determined certain issues in the first hearing, but
where, in truth, these have not been dealt with. A further
concern I
have is that, even if the issues described as part of the merits are
determined, a clear and workable order may not be
capable of being
formulated.
[45]
Whatever
separation formulation is adopted, it appears to me that there are a
considerable number of defences and legal points in
issue which will
have to be determined before liability in any particular sum can be
established. I can readily envisage a situation
where one or more of
the disputes between the parties could be disposed of initially such
as, for example, the simple question
whether the stranding of the tow
off Jacobsbaai was a result of the negligence of the defendants or,
by way of a further example,
whether the tow contract excludes
liability on the part of the defendants. Neither party, however,
suggested the isolation of one
or more of these questions or other
isolated instances.
[46]
Having
regard to the nature of the issues and the defences raised by the
defendants I consider the most convenient and cost effective
way of
dealing with this particular litigation may well be for the parties
to join battle on all issues in one hearing. I am not
persuaded that
a separation of the issues along the lines proposed by the plaintiff
will necessarily be more convenient. In this
regard I take into
account that a separation of the issues on those terms, even if
feasible and convenient, will likely lead to
a prolonged hearing. The
litigation in this matter already commenced some six years ago and
the breaking up of the trial into two
parts will inevitably prolong
it with the result that it could be a decade after the stranding of
the tow that a decision is reached
in the court of first instance.
[47]
The
result is that neither party has persuaded the Court that it would be
convenient to separate the issues on the terms that they
propose.
Although there are issues which could be more readily and
uncontroversially isolated for prior determination, these have
not
been proposed by the parties and I am not in a position to reach a
clear conclusion that if one or more of such issues were
initially
disposed of this would conduce to a more convenient disposition of
the matter as a whole. In the result it seems to me
that both the
application and the counter-application to separate fall to be
dismissed and the parties must ready themselves for
a hearing in
which all issues are tried.
COSTS
[48]
Both
parties, although adopting the stance that a separation of issues
would be convenient, have failed to make out a case that
a separation
on the terms they propose should be ordered. In that sense neither
party has succeeded and both have failed. In these
circumstances I do
not consider that it would be appropriate to award costs to either
party. Nonetheless, the applications to separate
have generated a
significant amount of paper and were argued over the course of
several days. I consider that the trial court will
probably be in a
better position to determine whether, in hindsight, the separation on
one or other basis would have been appropriate.
It may well emerge
later that either or both separation applications were stratagems to
have the trial determined in the manner
best suited to the strengths
or weaknesses of their respective cases. This is a further reason why
no costs order should be granted
in this application since, as the
trial unfolds, it may well become clear whether the matter could have
been conveniently separated,
on what terms and whether separation was
resisted on cogent grounds or simply for strategic reasons. In the
result I consider that
the most appropriate costs order would be that
the costs of the separation application stand over for later
determination.
[49]
The
Court’s order is that both the plaintiffs’ and
defendants’ application for a separation of issues are refused
and the costs of the application/s will stand over for later
determination by the trial court.
BOZALEK
J
APPEARANCES
For
the Applicants/Plaintiffs: Mr
RWF MacWilliam SC
Mr
D Cooke
Instructed
by: Assheton-Smith
Inc
For
the Respondents/Defendants: Mr
M Wragge SC
Mr
JD Mackenzie
Instructed
by: Norton
Rose Fulbright SA
[1]
1995
(3) SA 938
(C)
at 939 G – H
[2]
2004
(4) SA 491
(SCA)
para [3]
[3]
2011
(3) SA 74
(SCA)