New rules regarding collision claims came into force on 6 April 2023, with implications for the English Admiralty Court procedure. This article reviews the changes and how they will affect the handling of claims before the court.
Previously, parties were required to disclose electronic track data (VDR, ECDIS, AIS etc) prior to pleading their case only if both parties had such data (CPR r61.4(4A)). The requirement for a mutual exchange has now changed, meaning that even if only one party has electronic data, they must give early disclosure.
The requirements within the Admiralty and Commercial Court Guide about early disclosure of electronic data remain the same:
Failures to comply may attract cost penalties from the court.
Collision statements of case, particularly in relation to part 2, have generally become ‘generic and formulaic, and therefore largely unhelpful’, in the words of the new Admiralty Judge (MV Pacific Pearl Co.Ltd v NYK Orpheus Corp and Quick Ship Holding SA  EWHC 2828 (Admlty) at 140).
The lack of particulars of causative fault meant issues were not being properly ventilated before cases came to trial, meaning far too many remained unresolved and had to be dealt with before the court. Furthermore, the absence of any general requirement to plead a defence to those allegations meant the real issues in the case were insufficiently narrowed or defined.
It was common for the parties to know the other’s responses to allegations of negligence only when skeleton arguments were served a few days before trial. Now, because of the amendments, the parties will have to plead their case fully and properly; the judge will have little sympathy where parties attempt to introduce new allegations, or additional defences to allegations, just before or during the trial.
Collision statements of case will continue to be filed without seeing the other party’s statement. Defences and replies will also be served ‘blind’. Accordingly, for each stage of the pleadings, there will be a mutual exchange.
Part 1 (admissions about own ship): The existing 16 questions remain. Eight further questions have been added, summarised as follows:
17. Who was on the bridge at the time (including role, experience and nationality)?
18. Describe the navigational equipment on the bridge and whether it was in use at the time of the collision? (If radar was in use, state what type, its range and the display settings at the time of the collision.)
19. What VDR and/or ECDIS and/or other equipment capturing electronic track data was the ship fitted with? Was it in use at the time of the collision (and, if not, why not)?
20. State what electronic track data was available at the time of the collision and whether it has been retained and disclosed (and, if not, why not).
21. Is there an audio recording of what was said on the bridge or in the wheelhouse?
22. Was the vessel required to broadcast AIS data? If so, was it broadcasting such data, and, if not, why not?
23. Was the vessel engaged in fishing? If so, what fishing gear was deployed?
24. Was the vessel power-driven and restricted in its ability to manoeuvre?
Part 2 (allegations of causative negligence by other ship): The requirement is now for ‘full particulars of:
This means all allegations of causative fault that the court is asked to consider as being relevant to apportionment of liability must be particularised. This will require far more detail than (often) previously included about disputed facts, breaches of duty (faults) and causative potency. Only allegations that are relevant to the facts should be included; standard allegations of general breaches of the COLREGS will no longer be sufficient.
Previously there was generally no response pleaded to part 2 of the other party’s collision statement of case. Now each party must file a defence within 28 days of the collision statement of case.
It must state which of the allegations are admitted, which are denied, and which cannot be admitted/denied but which the alleging party must prove.
Where an allegation is denied, the defence must:
If an allegation is not dealt with, it will be deemed admitted.
Again, this is a brand-new statement of case, which would give each party the chance to reply to the other party’s defence. It is filed within 21 days of service of relevant collision defence (notice given to other parties).
The changed requirements for early disclosure of navigational data (ie VDR, ECDIS and AIS, but possibly other data too) are welcome. Parties can no longer refuse to release their VDR because the other vessel does not have it.
Similarly, the requirement in part 1 of the CSOC to explain what data is available (and if it is not available, why not) should similarly cut through discussions about disclosure in circumstances where one party says they do not have it; they must now make admissions about their vessel’s navigational data without the other party having to force them to do so.
It is expected that from now on the court will give short shrift to any party that does not have a good reason for failing to preserve electronic data, particularly if they fail to include an adequate explanation in their CSOC.
Whilst most collision claims are capable of being settled, usually at an early stage where reasonable parties are involved and adequate navigational data is available, cases still occur where settlement is difficult. These latter cases should benefit most from the changes to the statements of case.
Parties will need to formulate their case strategy and evidence earlier, to enable them to prepare a proper set of pleadings and respond adequately to the case of the other vessel(s). This will inevitably mean a front-loading of time and costs, as well as an earlier reality check as to the strength of the parties’ respective cases. These factors should encourage more focused negotiations.
Where a case proceeds in court, the increased certainty about the particular issues in dispute should enable more measured (and cost effective) evidence preparation and disclosure, a narrowing of issues ahead of the hearing, and more efficient trial preparation. No longer will a party be able to avoid setting out its case until just before, or during, trial.