On 12 July 1957, the ferry boat Vadne collided with the HMS Redpole in Portsmouth Harbour, UK. On 25 August 1959, the plaintiff widow, Winifred Mary Bartlett, issued a writ on her own behalf and as administratrix of the estate of her deceased husband, Reginald Walter Bartlett. She claimed compensation for the loss of her husband and for personal injury to herself. She also claimed damages under the Law Reform (Miscellaneous Provisions) Act 1934 (UK) in respect of loss of expectation of life. The first part of the claim was for personal injury to herself, and the second part was under Lord Campbell's Act (ie the Fatal Accidents Act 1846) as the widow. The first defendants were the Admiralty, while the second defendants owned the Vadne. The Admiralty applied to set aside the writ on the ground that it was time-barred under s 8 of the Maritime Conventions Act 1911 (UK) (the MCA). The facts leading up to this application were as follows.

Within three weeks of the collision, the Treasury Solicitor was alerted to the existence of the plaintiff's claim. The plaintiff's solicitors repeatedly wrote to the Treasury Solicitor for information. On behalf of the Admiralty, the Treasury Solicitor denied liability and wrote that the plaintiff's claim 'must depend upon what is the proper conclusion regarding liability for the casualty as between the Admiralty and the owners of the ferry boat'. The Treasury Solicitor suggested that the plaintiff's solicitors 'should not take further action on behalf of [their] client pending … clarification' of the position between the Admiralty and the owners of the ferry boat. Thereafter, the Treasury Solicitor by a letter dated 12 June 1958 stated that no settlement had been reached and that the Admiralty's writ had been issued and sent out.

By 1958, there were multiple statements by the plaintiff's solicitors that they intended to issue a writ. In the course of correspondence, the Treasury Solicitor thrice took up the position that the moment a writ was issued they would have to apply for a stay of the plaintiff's action pending the decision of liability as between the Admiralty and the ferry boat. The suggestion of dependence of the plaintiff's claim on the collision action was never abandoned by the Treasury Solicitor but was present throughout the correspondence.

As late as 11 June 1959, correspondence from the Treasury Solicitor (in answer to another demand written on 5 June 1959 for further information) clarified that there has been no withdrawal from the position that '[the plaintiff] had better wait and see'. While that correspondence did not suggest that the plaintiff should not issue the writ, it did mean that:

[The plaintiff] will not get any further forward with [the plaintiff's] writ until this collision action has been tried. Somehow or another [the plaintiff's] proceedings will be held up.

On 12 June 1959, presumably before the plaintiff's solicitors had received the letter of 11 June 1959, the plaintiff herself wrote to the Treasury Solicitor asking when the action between the Admiralty and the Gosport Ferry Boat Co 'is likely to commence'. She emphasised that '[f]or nearly two years I have waited'. She also stated that 'there is no reason why this case should not have been disposed of months ago' and concluded that

unless I can have your assurance that the case is due for an early hearing, I intend to take further steps to end this entirely unwarranted delay.

On 17 June 1959, just before the expiry of the two-year period, the Treasury Solicitor wrote letters to the plaintiff and her solicitors. In the letter to the plaintiff, the Treasury Solicitor stuck to the point that inevitable delay in deciding the collision action will hold up the determination of her claim. The personal letter was shared with the plaintiff's solicitors, who received a further letter. Overall, the letters explained that the plaintiff's claim would inevitably be delayed and did not recede from the position that the plaintiff's claim would be held up pending the decision of the collision action.

Held: Application dismissed.

The writ was issued after the two-year time bar of MCA s 8. There is thus a time bar defence subject to the discretion which rests in the Court owing to the proviso to MCA s 8. That is in two limbs. The second limb (that there was not any reasonable opportunity of arresting the vessel within the jurisdiction of the Court within the time in question) is compulsory but inapplicable here. The first part of the proviso was quoted by the Court as follows:

Provided that any Court having jurisdiction to deal with an action to which this section relates may, in accordance with the Rules of Court …, extend any such period, to such extent and on such conditions as it thinks fit …

The Court was convinced it should exercise its discretion to extend time. There were very strong reasons for doing so. The letters of 12 and 17 June 1959 were critical. The plaintiff's personal letter of 12 June 1959 to the Treasury Solicitor was a reminder that the plaintiff knew that that two years' period was nearly up. The phrase 'nearly two years' would have alerted the Treasury Solicitor that the limitation period was running out. While the Treasury Solicitor's letters of 17 June 1959 were candid and written accurately in good faith, the personal letter to the plaintiff was a candid letter that conveyed an uncandid impression. Far from giving any hint that she had better be quick to get her claim in to avoid difficulty, the Treasury Solicitor stuck to the point that inevitable delay in deciding the collision action will hold up the determination of her claim. If this letter and the separate letter to the plaintiff's solicitors were intended to be uncandid, they would be calculated to lull to sleep both the plaintiff and her solicitors. If so, then time must be extended under MCA s 8. Although the letters were candid, the Court exercised its discretion to extend time. Although the reason for extending time might be described as technical, MCA s 8 gives the Court an absolute discretion. It is not a discretion which can be applied and exercised capriciously and without any sort of reason for it. It is one which must be exercised judicially.

As to the Treasury Solicitor's desire to apply for a stay of the plaintiff's action (upon issuance of the writ by the plaintiff) pending the decision of liability as between the Admiralty and the ferry boat, this was perfectly sensible. The Court accepted that something would have to be done to the plaintiff's claim which would hold up the decision of her claim until the rights and wrongs of the collision action were determined.

The Court discussed two more points. First, the argument concerning the alleged mistaken impression of the plaintiff's solicitors that another statute applied to extend time to three years missed the real point in this case. Second, as to the argument that no injustice will be done to this plaintiff because she can recover to the full extent in an action for negligence against her own solicitors, this did not account for the fact that the correspondence had similarly affected the plaintiff's solicitors to think only about the fact that the plaintiff would not be able to get anywhere with her action until the collision action was out of the way.