On 17 April 2011, a collision occurred between the defendant's vessel SB Seaguard and the claimant's catamaran yacht Odyssée.

Between March 2012 and October 2013 negotiations took place between the claimant's insurance claims handler and the defendant's P&I Club. On 21 October 2013 the defendant notified the claimant that it would rely on the two-year time limit provided for by s 190(3) of the Merchant Shipping Act 1995 (UK) (the 1995 Act), which had expired on 17 April 2013.

On 23 December 2013, the claimant issued an in personam claim form. On 20 January 2014, the claimant applied for an extension of the time limit pursuant to s 190(5) of the 1995 Act, which provided that:

Any court having jurisdiction in such proceedings may, in accordance with rules of court, extend the period allowed for bringing proceedings to such extend and on such conditions as it thinks fit.

Part 7.6(3) of the Civil Procedure Rules (CPR) provided that a claimant might apply for an order extending time for serving a claim form after the time limit for service but had been unable to do so, and the claimant had acted promptly in making the application.

Section 190 of the 1995 Act replaced s 8 of the Maritime Conventions Act 1911 (the 1911 Act). Part 7.6(3) of the CPR replaced RSC O 6 r 8.

The defendant contended that the appropriate test remained the two-stage test laid down by the Court of Appeal in The Al Tabith and the Alanfushi [1995] 2 Lloyd's Rep 336. The claimant had failed to satisfy the stage-one requirement of 'good reason'. Alternatively, the claimant had failed to satisfy the single-stage test.

The claimant submitted that The Al Tabith and the Alanfushi [1995] 2 Lloyd's Rep 336 was based upon the old RSC O 6 r 8 but that rule has been replaced by CPR 7.6. The test applicable to CPR 7.6 is wholly different from that applicable to RSC O 6 r 8 so that it is not necessary to show a 'good reason' for ordering an extension of time but, pursuant to CPR 7.6, the court is simply required to 'act justly' in accordance with the overriding objective. In all circumstances, the claimant's application was made reasonably promptly and should be allowed. In any event the time-bar point was raised too late.

Held: The claimant's application for an extension of the time bar is dismissed.

Section 8 of the 1911 Act and s 190 of the 1995 Act are based on art 7 of the Collision Convention 1910, which provides as follows:

Actions for the recovery of damages are barred after an interval of two years from the date of the casualty … . The grounds upon which the said periods of limitation may be suspended or interrupted are determined by the law of the court where the case is tried … .

The Admiralty Registrar held that, historically, the Admiralty Court recognised that the power of extending time to commence proceedings under s 8 of the 1911 Act was to be exercised upon discretionary principles, but only where there were special circumstances creating a real reason for doing so. RSC O 6 r 8 was not applied to applications under s 8 of the 1911 Act per se but rather the approach of the courts involving applications under s 8 of the 1911 Act, requiring a good reason, was applied to the operation of RSC O 6 r 8. For applications under s 8 of the 1911 Act a two-stage test was applied. The first stage was to enquire whether the claimant had demonstrated a good reason for the extension. The second stage was, if the claimant had satisfied the first, to enquire whether it would be proper to exercise its discretion in the circumstances of the case.

The replacement of s 8 of the 1911 Act by s 190 of the 1995 Act, and the replacement of RSC O 6 r 8 by CPR Pt 7.6 had not altered the two-stage test to be applied.

The claimant failed to demonstrate that there was a 'good reason' for failing to commence proceedings in time. The claims handler was unaware of the two-year limitation period applicable to the collision case. He admitted that if he had been aware that there was a two-year limitation period he would have ensured that proceedings were commenced in good time. He should have taken legal advice at an earlier stage. The fact that negotiations were continuing was irrelevant, unless the conduct of the defendant was such as to amount to an actual agreement that time would be extended or that the defendant would not take the time-bar point. There was no duty upon a defendant to warn or remind a claimant that time for commencing proceedings was running out or that, if it did, the defendant intended to rely upon it. Insofar as the claims handler had sought to suggest that he was lulled into a false sense of security by those acting for the defendant, such suggestion was fallacious as it could not be said that he was lulled into a false state of security about a situation of which he was totally unaware. There was no suggestion that the defendant's conduct led the claims handler to believe that time would be extended or that no limitation point would be taken. He could not have been influenced into any such belief because that would have required a knowledge of the existence of the time bar, which he did not have.

In any event, the Court would not have exercised its general discretion to allow the application. The application had not been made promptly. The delay before issuing the application for an extension of three months was outside what could be regarded as generally acceptable unless there were strong grounds for excusing the delay, but there was no satisfactory reason for the delay.