TUCKEY J:
Introduction
The second and third defendants to the counterclaim in this action ("M.V."
and "T.F.") are associated Spanish companies. On 24 November 1995,
Rix J entered judgment under Ord. 14 against MV and under Ord. 19, r.
7, against TF for damages to be assessed. By summons dated 3 March
1997, MV and TF apply under Ord. 12, r. 8, to set aside the proceedings
against them on the grounds that this court has no jurisdiction to hear
them under the Civil Jurisdiction and Judgments Act 1982. To enable them
to make this application, they need leave to give notice of intention to
defend out of time. Alternatively (and without prejudice to their position
on jurisdiction) MV and TF apply to set aside the judgments against them
on the ground that they have good defences to the claim. MV also say
that the Ord.14 judgment was irregular.
The Underlying Dispute
The case concerns damage to a tank. The tank was owned by the Queen,
in her right as Sovereign of Canada, and loaned to O., who wanted to
display it at a trade fair in Turkey. (I shall call the Queen and O. 'the
plaintiffs' in this judgment.) Under the terms of a bill of lading, A. Limited
(whom I shall call 'the carrier') agreed to carry the tank from Montreal to
Valencia and then on to Istanbul. The bill of lading contained at clause 4.2
a Himalaya clause which provided that:
"The [plaintiffs] undertake[s] that no claim or allegation shall be made
against any person whomsoever by whom the Carriage or any part
of the Carriage is performed or undertaken (other than the Carrier)
which imposes or attempts to impose upon any such person, or any
vessel owned by any such person, any liability whatsoever in connection
[with] the Goods or the Carriage of the Goods, whether or not arising
out of negligence on the part of such person and, if any such claim or
allegation should nevertheless be made, to indemnify the Carrier against
all consequences thereof. Without prejudice to the foregoing every such
person shall have the benefit of every exemption, limitation, condition
and liberty herein contained and of every right, exemption from liability,
defence and immunity of whatsoever nature applicable to the Carrier as
if such provisions were expressly for his benefit (...); and in entering into
this contract, the Carrier, to the extent of these provisions, does so not
only on his own behalf but also as agent and trustee for such persons."
There were other provisions in the bill of lading, which contained an
English law and jurisdiction clause, limiting the carrier's liability.
The tank was discharged at MV's container terminal in Valencia to await
trans-shipment. On 23 August 1993, whilst it was being moved in the
terminal on a lorry owned by the fourth defendants to the counterclaim
and driven by the fifth defendant to the counterclaim, it fell off the lorry
and was badly damaged. It has cost something in the order of Canadian $
3 million to repair.
The carrier started these proceedings, asking for declarations that they
were entitled to limit their liability to the plaintiffs and that the plaintiffs
were not entitled to sue MV and the other defendants to the counterclaim.
The plaintiffs' case was that before the bill of lading was issued they
made an oral collateral contract with the carrier and MV that MV would
accept responsibility for any damage to the tank whilst it was in the port
of Valencia. In their counterclaim they claimed against MV under this
agreement. They also alleged that the damage to the tank was caused by
negligence or breach of duty as bailees.
TF was responsible for the movement of cargoes within the port and
engaged the lorry drivers' employers to move the tank.
History of the Proceedings
The counterclaim was served on MV and TF in Spain on 14 July 1994.
They had also been joined and served the previous month by the carriers
as third parties in the proceedings. They did not respond to either claim
against them. This entitled the plaintiffs to sign judgment in default
of defence under Ord. 19, r. 7, but they wanted to obtain an Ord. 14
judgment.
The matter came before Rix J on 24 November 1995. At the hearing,
which I am told lasted half a day, the carriers appeared by counsel
and argued that judgment should not be given, at least under Ord.
14, because of the provisions of clause 4.2 of the bill of lading. He also
pointed out that the before a summons under Ord. 14 could be issued,
the defendant must have given notice of intention to defend. The judge
dealt with this point, relying on Ord. 13, r. 6.1. This is one of the points of
alleged irregularity, with which I shall deal later in this judgment.
Rix J gave judgment against MV under Ord. 14 on the basis that they
were intermediate bailees in possession of the tank. He would not
give judgment under Ord. 14 against TF because they might not have
been bailees at all and were not bailees in possession. He rejected the
submission based on clause 4.2 on the basis that MV and TF had not
invoked the clause. He said:
"it is clear from the terms of the speech of Lord Goff in The Pioneer
Container [1994] 2 AC 324, for instance at page 344, that it is a matter
for sub-bailees to decide which, if any, of the possible relevant terms
they would wish to invoke against a bailor with whom they are not in
contractual relations".
I shall have to return later to this, because Mr Cook QC, counsel for MV
and TF, submits that the judge got it wrong.
A trial of preliminary issues relating to the alleged collateral agreement
was fixed for hearing on 12 February 1996. Before it started, the plaintiffs
and the carriers settled on terms which gave the carriers £ 60,000
towards their costs and the plaintiffs the right to continue with their
claims against the Spanish parties, including MV and TF. The plaintiff's
solicitor, Mr Barnett, deposes that:
"the fact that judgments had been obtained against M.V. and T.F. was
fundamental to the settlement."
The assessment of damages against MV and TF was held up because
repairs to the crane took a long time. It was due to take place yesterday,
22 May; but in the meantime MV and TF had made this application, and
so that hearing has not taken place.
MV and TF's reasons for delay
There are two affidavits from Mr C., MV and TF's English solicitor, based
on information provided to him by their Spanish lawyers dealing with
this aspect of the case. It is clear that immediately after the incident MV
and TF notified their brokers ('C.') and their insurers ('H.'). Mr C.'s first
affidavit says:
"From then on, M.V. and T.F. acted exclusively and strictly in accordance
with the advice or instructions of H. and/or C(...).in relation to all aspects
concerning the accident, including inspections, surveys of damage and
communications with all other interested parties."
The broker from C., he says, gave emphatic advice to MV and TF that the
claims were subject to the jurisdiction of the Spanish court alone and that
an English judgment would not be enforceable against MV and/or TF He
goes on a bit later to say:
"(...) it is not surprising that M.V. and TF should have accepted this advice
so readily: to behave otherwise would have very arguably placed them
outside the terms of their insurances."
Further on he says:
"With hindsight, and with the benefit of advice from English lawyers
(...) M.V. and T.F. now recognise that they are directly implicated by
the English proceedings and that they would have been better advised
to have taken part in the English proceedings prior to judgment being
entered against them (...) The first clear news that M.V. and T.F. received
that the Judgments had been entered was on or about 27 September
1996, when the [Spanish] lawyer acting for the Plaintiffs (...) telephoned
[their Spanish lawyer]."
Then further down:
"They were shown the Judgments of Rix J. They could not believe that
such Judgments could have been obtained."
They arranged a meeting with H., which took place in Madrid on 25
October at which H. argued that it was the fault of MV and TF that the
proceedings had not been defended in London and they therefore declined
to cover them for the risk. The affidavit then says:
"It then became apparent that C. had not passed on to M.V. and T.F.
certain correspondence from H. to the effect that M.V. and T.F. should
respond to the proceedings in London."
After that affidavit was filed, the plaintiffs' solicitors asked for discovery
to support the assertions made in the affidavit and a certain number of
documents were disclosed and exhibited to a second affidavit from Mr C.
in response to that request. Included in those documents is a letter from
H. to C. dated 22 June 1994, a photocopy of which, as the letter makes
clear, was sent to MV (at least), in which the insurers (referring, I think,
to the third party proceedings which had been issued against MV and TF
said to the brokers:
"(...) we should be grateful if you would note and so advise MV. that in
accordance with the General Conditions of the policy, in the paragraph
headed 'Geographic Limitation', it is clearly stated that 'The guarantee of
this insurance extends to and is limited to liabilities arising from damage
occurring in Spanish territory and claimed or recognised by Spanish
Courts. In such circumstances, they should understand that a decision of
the English Courts has no effect on the cover of our policy. Therefore, all
that we can suggest to MV. in defence of its interests is that they contact
a firm of lawyers in London which is expert in this area to handle their
defence and they should acknowledge receipt of the notice received within
the time limit given to them."
C. replied to this letter by saying that they did not agree that the policy
did not cover this situation. When they got the counterclaim the following
month, MV sent it to C. on 15 July saying:
"We believe that you should indicate to our insurance company that
they should write to the appropriate organisations in order that these
procedures be addressed directly to the lawyers of our insurance
company. Similarly we do not understand how we were required by a
British Court of Justice when the operating contracts which we have
established with the Owners operating in the Terminal in the jurisdiction
paragraph specify that any dispute which may arise between the parties
must be resolved by the Spanish Courts of Justice."
It is clear from such further correspondence as has been disclosed that
after this H. maintained their stance that the claim was not for them to
deal with and that MV should instruct English lawyers to deal with the
proceedings which had been served on them. MV say that C. did not pass
this correspondence on to them. Mr C., in his second affidavit, says:
"(...) M.V. were confident that the matter had clearly been left safely in
the hands of the insurers and/or the brokers, in the usual way, and that
they, M.V. and T.F., need not be concerned to take further steps of their
own."
It was not until the meeting with H. in October 1996 that MV realised that
H. had not altered their stance.
I am bound to say that I am very sceptical about this explanation. It is
not deposed to by anyone from MV or TF or C.. What possible reason did
C. have for concealing what H. were saying? What did MV or TF think
was happening when they were served with the plaintiffs' Ord. 19, r 7,
summons and the affidavit in support of it on 6 November 1995? A more
probable explanation for MV and TF's inactivity appears to me to be that
they did not believe, as they said in the letter which I have quoted, that
the English courts could touch them.
The explanation for the delay between September 1996 and March 1997
when the summons was issued is that there were without prejudice
discussions and negotiations between the Spanish lawyers acting for the
plaintiffs and the Spanish lawyers acting for MV and TF before MV and TF
first went to English solicitors on 27 January 1997. Both sides have put in
evidence about the content of these discussions. There is a dispute as to
whether or not they were without prejudice and as to what was said which
it is quite impossible for me to resolve on paper. I do not, therefore, refer
to them further in this judgment.
Looking at the delay as a whole, I conclude that no satisfactory
explanation has been given for the period between July 1994 and
September 1996. Some explanation is given for the delay between
September 1996 and the end of January 1997; but in the context of
the earlier delay and what they were told by H., MV and TF should have
taken steps to instruct English solicitors immediately they learned of the
judgment, whatever discussion or negotiation was going on between the
Spanish lawyers.
The issues to be decided
1. Ord. 12 r. 8:
(a) leave to extend time.
The rule requires a defendant who wishes to dispute jurisdiction to
give notice of intention to defend and apply within the time limited for
defence – a total period, in this case, of five weeks. The purpose of
imposing a short time limit is to ensure that jurisdictional challenges
are made at the earliest opportunity. In my judgment, in the absence
of a satisfactory explanation for the delay, it is too late for MV and TF to
challenge jurisdiction now. Leave to extend time is therefore refused.
(b) the jurisdiction point.
As this point has been fully argued, I will shortly state my conclusions
about it. It turns upon the meaning of art 6(3) of the Brussels
Convention, which says:
"A person domiciled in a Contracting State may also be sued (...) on a
counterclaim arising from the same contract or facts on which the original
claim was based, in the court in which the original claim is pending."
The plaintiffs say this entitled them to sue the Spanish parties. MV and TF
say that it only applies to a counterclaim made against the plaintiff who
has instituted proceedings against the counterclaiming defendant.
Article 6 of course creates one of the exceptions to the general rule that
parties must be sued in the courts of their domicile. Article 6(1) permits
joinder of defendants in the courts where any one of them is domiciled.
Article 6(2) permits joinder of third parties and gave the court jurisdiction
against MV and TF in the third-party proceedings started by the carriers,
in this case. The purpose of art 6 is obviously to avoid duplication of
proceedings and inconsistent decisions in different jurisdictions. In this
case, if MV and TF are right they could have been sued by the carriers as
third parties but the plaintiffs have to sue them in Spain, even though the
claim arises from the same contract and involves the same facts.
There is no decided case on this point. O'Mally & Leyton, in European Civil
Practice, simply say that it is unclear.
I think art 6(3) does give jurisdiction to counterclaim against a party who
is not also the plaintiff. This achieves the purpose of art 6. If art 6(3) had
been intended to have the restricted meaning contended for, it could and
would have said so.
Mr Cook submitted that even if the Court did have jurisdiction, it had a
discretion under art 6 as to whether or not to allow service to stand and
that the discretion should be exercised in favour of MV and TF because
of problems with H. and C., who can only be sued in Spain. Spain is the
most appropriate forum in which to resolve this dispute.
Assuming without deciding that I do have a discretion, I would decline
to exercise it in favour of MV and TF The application might have been
received with some sympathy if it had been made in 1994, but it was not.
2. Ord. 14 judgment against MV irregular:
(a) affidavit in support.
The plaintiffs' affidavit was sworn by their solicitor, Mr Barnett. At para 8
he says:
"It is my view that if M.V., T.F. or TG had chosen to defend the
proceedings and had sought to raise the provisions of the bill of lading by
way of defence to claims against them as bailees and for negligence, then
they would have had arguable defences to the claims against them, and
the matter would have had to proceed to trial. However, they have not
done so. In the circumstances, and to that extent only, I believe that none
of M.V., T.F. or TG have a defence to the claims against them as bailees or
for negligence".
This, submits Mr Cook, does not comply with the essential requirement
of Ord. 14, r. 2(1), which is that the affidavit should state the deponent's
belief that there is no defence to the claim. This, Mr Cook argues, says
that there is an arguable defence: just because the point has not been
taken does not mean that the defence is any the less arguable.
If this is what the affidavit said, I would agree with Mr Cook. But it is not.
The affidavit is saying that MV and TF have not, in the language which
Rix J. used, invoked clause 4.2 and therefore they have no defence. I
shall have to examine whether this was right as a matter of law later in
this judgment, but as a matter of form I think that the statement in the
affidavit did comply with Ord. 14 r. 2.
(b) Ord. 15, r. 3(5)(a).
In his judgment, Rix J said that counsel for the carriers had pointed out
quite correctly that:
"(...) Under Ord. 14, r. 1, it is a condition for the issue of a summons
for summary judgment that the defendant has given notice of intention
to defend the action. Under Ord. 14, r. 5, which deals with applications
for summary judgment on a counterclaim, there is no such condition
precedent because what is there being considered is a counterclaim
against the plaintiff himself. Under Ord. 15, r. 3, however, a counterclaim
against additional parties, as here, is considered and, under sub-rule
(2) of that rule, a form of acknowledgement of service has to be served
with a copy of the counterclaim. That would suggest that Ord. 14, r. 1's
condition of a notice of intention to defend was applicable to such a case.
Under Ord. 15, r. 3(5A), however, the provisions of Ord. 14, r. 5, are
made to apply in relation to such a counterclaim, and reference back to
Ord. 14, r. 5, takes one back to a regime in which there is no reference to
the need for a notice of intention to defend".
Mr Cook submits that the judge was in error when he said that Ord. 15,
r. 3 (5A), brought one back to the Ord. 14, r. 5, and therefore no need
for notice of intention to defend, because that rule only applies where the
counterclaim is required to be served on:
"(...)any person other than the plaintiff who before service is already a
party to the action (...)"
As MV and TF were not already parties to the action, this rule did not
apply to the counterclaim against them.
Despite the ingenuous submission of Mr Browne-Wilkinson, counsel for
the plaintiffs, that his position could be saved if one inserted a comma
after the words 'any person', I think Mr Cook is right on this point. But
this does not carry the day for him, because after the passage that I have
cited from the judgment of Rix J, he said:
"Whatever may be the correct solution to these provisions, Mr. Browne-
Wilkinson has nevertheless brought to my attention, and relied upon, Ord.
13, r. 6(1)(...)"
It was this rule, as I have already said, which the judge relied on to get
over the fact that there was no notice of intention to defend, and this
brings me to Mr Cook's third irregularity.
(c) Ord. 13 r. 6.
In dealing with this point, the judge first cited the rule which says:
"Where a writ is indorsed with a claim of a description not mentioned
in rules 1 to 4 then, if any defendant fails to give notice of intention to
defend, the plaintiff may, after the prescribed time and if that defendant
has not acknowledged service, upon filing an affidavit proving due service
of the writ on him and, where the statement of claim was not endorsed
on or served with the writ, upon serving a statement of claim on him,
proceed with the action as if that defendant had given notice of intention
to defend."
The judge went on to say:
"The important words there are the further words: '(...)proceed with the
action as if that defendant had given notice of intention to defend'. That
is what has happened in this case. It seems to me that that gives to the
plaintiffs to the counterclaim the right in any event to issue summary
judgment proceedings under Ord. 14 against [M.V. and T.F.], even though
they have not, in fact, given notice of intention to defend, because the
plaintiffs to the counterclaim are entitled to proceed with the action
against them as though they had given notice of intention to defend. The
condition of Ord. 14, Rule 1 is, thereby, in any event met."
The reason Ord. 13, r. 6, applied to the counterclaim was because it asked
for a declaration that the carriers and MV were liable to indemnify the
plaintiffs under the collateral contract. Mr Cook argued that there was
never a proper basis for such a claim. The real claim was for damages,
even under the collateral contract, and so on a proper analysis the
counterclaim did not fall within the Ord. 13, r. 6, at all.
I disagree. In form the pleading did not fall within Ord. 13, r. 2, which
only applies where the pleading claims unliquidated damages only; nor
did it fall within r. 1, r. 3 or r. 4. Rule 6 applies to claims not mentioned in
r. 1 to r. 4. For this purpose, legal analysis of the true nature of the claim
is not necessary; even if it was, the collateral agreement alleged arguably
was a contract of indemnity.
For those reasons, I conclude that MV are not entitled, as of right, to set
aside the Ord.14 judgment for irregularity.
Application to set aside
Here Mr Browne-Wilkinson submits that a distinction has to be drawn
between the position of MV and that of TF, since the applicable principles
differ depending upon whether there has been judgment on the merits
or a judgment in default. To make good this submission, he referred
me to the case of Shocked v Goldschmidt The Times 4 November 1994,
which was decided in the Court of Appeal on 1 November 1994 and which
is apparently unreported in any official law report. In that case, S., a
pop star, failed to appear at the trial of her action against her former
managers, who had made a counterclaim against her. After a four-day
hearing, judgment was given against her, which she subsequently applied
to have set aside. She succeeded before the deputy judge but lost in the
Court of Appeal.
In the course of his judgment, Leggatt LJ reviewed the authorities and
contrasted the position following a default judgment with the position
after trial. At page 5 of the report which I have, he said:
"Different considerations apply to these two categories because in the
second [that is, where there has been a trial], unless deprived of the
opportunity by mistake or accident or without fault on his part, the absent
party has deliberately elected not to appear, and an adjudication on the
merits has thereupon followed."
Then, after reviewing the authorities on default judgments, he said at
page 7:
"These cases relating to default judgments are authority for the
proposition that when considering whether to set aside a default
judgment, the question of whether there is a defence on the merits is the
dominant feature to be weighed against the applicant's explanation both
for the default and for any delay, as well as against the prejudice to the
other party."
He then reviewed the authorities about setting aside after trial, and at
page 9 he said:
"These authorities about setting aside judgment after a trial indicate that
each case depends on its own facts and that the weight to be accorded
to the relevant factors will alter accordingly. But from them I derive the
following propositions or 'general indications' as Lord Wright might have
called them:
(1) Where a party with notice of proceedings has disregarded the
opportunity of appearing at and participating in the trial, he will normally
be bound by the decision.
(2) Where judgment has been given after a trial it is the explanation
for the absence of the absent party that is most important: unless the
absence was not deliberate but was due to accident or mistake, the Court
will be unlikely to allow a re-hearing.
(3) Where the setting aside of judgment would entail a complete retrial
on matters of fact which have already been investigated by the Court the
application will not be granted unless there are very strong reasons for
doing so.
(4) The Court will not consider setting aside judgment regularly obtained
unless the party applying enjoys real prospects of success.
(5) Delay in applying to set aside is relevant, particularly if during the
period of delay the successful party has acted on the judgment (...)
(6) In considering justice between parties, the conduct of the person
applying to set aside the judgment has to be considered: where he has
failed to comply with orders of the Court, the Court will be less ready to
exercise its discretion in his favour.
(7) A material consideration is whether the successful party would be
prejudiced by the judgment being set aside, especially if he cannot be
protected against the financial consequences.
(8) There is a public interest in there being an end to litigation and in not
having the time of the Court occupied by two trials, particularly if neither
is short.
Contrasting the cases in the two categories it seems to me that whereas
in the first the Court is primarily concerned to see whether there is a
defence on the merits, in the second the predominant consideration is
the reason why the party against whom judgment was given absented
himself."
So what is the position after Ord. 14, which is neither a trial or a default
judgment? The power to set aside such a judgment is given by Ord. 14, r.
11, the notes to which the White Book refer to the principles applicable to
judgment in default.
I do not think it would be right to equate the position after Ord.14 with
a judgment in default, because there has been a determination, albeit
summarily, of the merits and a hearing of which the defendant has had
notice. It seems to me that an approach somewhere between the two
approaches considered by Leggatt LJ is called for in a case such as this.
As, at the end of the day, the court is exercising a discretion, I think it is
undesirable to be more precise than that.
Whichever approach is adopted however, the court is concerned with
the merits of the applicant's case. Here the position of MV and TF is
simple. They say that they can rely on the Himalaya clause in the bill
of lading, which gives them a complete defence to the plaintiffs' claim.
There is no requirement that a party who wishes to rely on the clause
has to invoke it. This only applies, as the passage relied on by the judge
from The Pioneer Container, KH Enterprise (cargo owners) v Pioneer
Container (owners) [1994] 2 AC 324, [1994] 2 All ER 250 makes clear,
to the situation where there are alternative inconsistent regimes and the
sub-bailee has to choose which one he will rely on. The "Mahkutai" [1996]
3 All ER 502, [1996] 2 Lloyd's Rep 1 reinforces earlier decisions that sub-
contractors can rely on bills of lading which contain Himalaya clauses.
The only contentious requirement in this case is one of authority from the
sub-contractor to contract on its behalf, which in the majority of cases is
solved by ratification – a technical requirement which Lord Goff, at page 8
of the latter report, suggested might soon be discarded.
Mr Browne-Wilkinson tried valiantly to show that it was necessary for a
sub-contractor to elect to rely on (invoke) the Himalaya clause before he
was able to do so, and that it was now too late for MV and TF to do that. I
am unpersuaded that this is the case. The passage relied on by the judge
does not support the proposition; nor do the passages in The Pioneer
Container relied on by Mr Browne-Wilkinson.
Mr Browne-Wilkinson really took his stand on ratification. Here he said
that there was no attempt to ratify until Mr C.'s first affidavit, sworn on
3 March 1997, where at para 23 he simply says that, 'with regard to the
defence which arises from clause 4 of the bill of lading, M.V. and T.F. ratify
the conclusion by carriers of the bill of lading contract as a principal, and
as an agent for M.V. and T.F.'. This, Mr Browne-Wilkinson says, was much
too late. Ratification must be made within a reasonable time. To allow MV
and TF to ratify now would cause substantial prejudice to the plaintiffs,
who settled their claim against the carrier on the basis that they already
had judgments against MV and TF.
In answer to these points Mr Cook said that in these cases ratification
always takes place after the casualty. It was a question of fact as to
whether ratification, if required, was within a reasonable time in a
situation where legally the restrictions on the right to ratify are not at all
clear (see Bowstead, paras 2-085 – 2-089).
It is of course not necessary for me to resolve these issues. Suffice it for
me to say that I think that MV and TF do have a defence based on art
4(2) which has a real prospect of success. Whilst the plaintiffs contend
that MV cannot rely on art 4(2) because of the collateral contract, Mr
Brown-Wilkinson did not contend that this alone entitled the plaintiffs to
hold the judgments on the merits.
With this conclusion about the merits of the proposed defence, should
I nevertheless refuse to set aside the judgments because of the lack of
satisfactory explanation for the delay and prejudice to the plaintiffs? The
delay of itself is of course prejudicial to the plaintiffs. They contend that
their settlement with the carriers effectively prevents them from making
their claim against MV under the collateral agreement. I agree that the
delay makes this more difficult, but there is no reason why the issue
should not be litigated if the plaintiffs so wish. If the judgments are set
aside, the plaintiffs will of course have incurred costs to no effect. They
can of course be compensated for this.
There is a distinction between the positions of MV and TF But at the
end of the day I do not think that the outcome of their applications to
set aside should be different. Considering what was said in the case of
Shocked and what I have said about it, I have (just) been persuaded that
it would be right to set both judgments aside on terms. Those will include
an appropriately worded order to ensure that the costs which the plaintiffs
have unnecessarily incurred as a result of MV and TF's inactivity will be
taxed and paid forthwith and that a sum of money should be brought into
court or secured in some other way to the plaintiff's satisfaction, out of
which those costs can be paid and to which the plaintiffs can look as some
security for their claim.
The sum I fix for these purposes is one of £ 100,000. This, I accept, is an
arbitrary sum, falling well short of the full value of the plaintiffs' claim.
However, it should be substantially more than the costs to which the
plaintiffs are entitled, and it will act, I hope, as an incentive to MV and TF
to participate actively in the proceedings from now on.