“This is because inspectors work alone, their names do not appear on the final published reports and there are virtually no checks on the quality and accuracy of their inspections. They may visit ships in any part of the world, conduct the inspection and write up their reports entirely without supervision. As a result, the utmost trust is placed in them and the system as a whole depends on that trust being respected. … given the confidence that SIRE subscribers place in OCIMF to operate an effective programme and the potential significance for the industry of an accurate SIRE report, the total objectivity, diligence and integrity of SIRE inspectors is absolutely critical.”
“2.6.6 Investigation Panel Hearings Investigations into any of the above-listed situations may be initiated by the OCIMF Compliance Manager in order to determine the facts associated with a particular case and whether there is sufficient evidence to convene the SIRE Focus Group Disciplinary Committee to consider the facts. 2.6.7 SIRE Focus Group Disciplinary Committee A Committee of at least 3 representatives of the SIRE Focus Group will be formed. This Committee will review the evidence in order to reach a decision as to what action should be taken. The [Compliance Manager] has the right to attend the hearing and present details of the alleged infringement. The Inspector may attend the hearing and be accompanied at the hearing by a representative and must submit any evidence that is intended to be considered at the hearing a minimum of two weeks before the hearing date. If the Inspector is unable to attend the hearing, the Inspector may participate in the hearing by the use of conference telephone call. The Committee has the authority to permanently disqualify an Inspector, to disqualify an Inspector for a specific period of time, to issue a warning letter of reprimand, or to make a decision to dismiss the case. If an Inspector requests an appeal, the sanctions imposed upon the Inspector shall remain in force until the appeal has taken place and a final decision reached. All costs associated with the attendance at the hearing will be for the Inspector’s account. The location and date of the hearing will be determined by the OCIMF secretariat.”
“If the inspection took place over two or more days, in two or more sessions, or was carried out by more than one inspector, record the arrival and departure details in Comments.”
“6. The guide time for an inspection as specified in 4.3.4 below is 8-10 hours and as a guide the documentation checks should not exceed 3 hours, and this time should be used to conduct the inspection of the vessel, compile the observation list if appropriate, and conduct the close out meeting. The completion of the report using the report editor software before the inspector leaves the vessel must not occur as this reduces the time that the inspector will spend conducting the physical inspection of the vessel. As specified in 4.1.1.5 above, the inspector must leave the vessel on completion of the inspection and must not remain on board to complete entering the report details into the report editor. 7. The guide time as specified below in 4.3.4 is 8-10 hours, however the actual time to conduct the inspection will be greater than this taking into account travel time to and from the vessel. All inspectors should take into account their own rest hours and fatigue levels when conducting inspections. ‘Back to back’ inspections are discouraged and inspectors should complete the report for one vessel before commencing an inspection on another vessel.”
“Do all personnel maintain hours of rest records and are the hours of rest in compliance with MLC or STCW requirements.”
“Through this message you are challenging my integrity, I find your actions amounting to prima facie slander, harassment, baseless allegations and assumptions. I am retaining a lawyer, you’ll hear back from us, I would suggest you don’t take any further steps in the meantime.”
“1. Inspector has coerced a vessel crew to falsify log entries concerning Inspector’s time spent on board carrying out a SIRE inspection at least once in the previous 12 months according to a vessel operator provided statement. 2. Inspector has misrepresented the time spent on board to complete at least four SIRE inspections within the last 12 months. The actual amount of time spent on board these vessels was not sufficient for an Inspector to have satisfactorily completed a SIRE inspection in accordance to the VIQ guidance and OCIMF inspector training. OCIMF alleges that all four of these inspections have been falsified. 3. The Inspector has failed to follow written guidance from two OCIMF submitting member companies concerning the arrangement of accompanied inspections for training purposes. 4. The Inspector has provided instruction to at least one applicant Inspector on a method that can be used to deceive submitting members and the SIRE programme to submit falsified SIRE reports.”
“Our concern is that the report makes reference to a number of assertions that are not being pursued, but because they are set out in the report they serve to prejudice the reader against our client in circumstances where our client does not have the opportunity to respond. Please confirm that at the outset of the Hearing, it will be made clear to the Committee exactly which allegations are to be dealt with by the Committee and they will be expressly requested not to draw any adverse inferences against our client in respect of any allegations that are no longer pursued. The specific allegations, not being pursued, which we consider are unfounded and prejudicial to our client are: …”
“I ask the SIRE Focus group to review the allegations against Captain Rashid which have been selected to be presented. OCIMF has not withdrawn any allegation. The four SIRE reports in question contain information which conflicts with other information. OCIMF allege that Captains Rashid did not spend sufficient time onboard each vessel relating to these SIRE reports. Captain Rashid’s counsel have requested that we ask the Focusi Group that no adverse inferences be drawn from any matter in the Inquiry report outside of the four inspections in question. I sent Captain Rashid a spreadsheet of inspections on 28 July. Captain Rashid was less than forthcoming in his response and slow to include documents relating to his SIRE activity. The documentation he did provide failed to provide any evidence. The travel itinerary was only sent to me yesterday and fails to prove his travel arrangements. There are substantial inconsistencies between his travel arrangements and the terminal logs. OCIMF considers it remarkable that four oil Terminals fail to make records in accordance with US legislation.”
“My role as chairman is to make sure that the integrity of SIRE is upheld. We will deliberate and anything which does not accord to OCIMF standard will be discussed together with everything else we think is relevant. This includes the recording of time on SIRE reports, quality of reports and everything to do with the SIRE system.”
“The allegations made at the beginning of the enquiry have been reduced and are now as set out in OCIMF’s letter at page 22 of the bundle. Captain Rashid has only addressed these remaining allegations. Our concern is that there have been questions raised during the course of the hearing in relation to matters not mentioned in the allegations, such as the standard of reports, number of inspections per year and the need to take breaks. At the moment no allegations have been made in respect to these matters. Without appropriate allegations [having] been made Captain Rashid is unable to respond to such allegations. We therefore ask the committee to only make decisions in relation to the specific allegations that have been made in order to ensure matters are dealt with fairly.”
“On behalf of the committee we would like to thank you for coming. We have reviewed the evidence and considered the discussions and reached a decision regarding the outcome. We recommend permanent withdrawal of accreditation. The time spent on ships was not within guidelines of eight to ten hours. Being on a vessel before an inspection is no defence to do a shorter inspection. Hours of work and hours of rest from the schedules seems that you are putting yourself at risk and the reputation of OCIMF. It affects the quality of inspections carrying out three to four back to back. There has been admitted that for the Maran Hellen and Algosea, the times were not properly recorded on the reports and were definitely not recorded properly. The time spent on the other vessels it is inconclusive if they are accurate or not. Our recommendation to [Captain McGroggan] is that OCIMF permanently withdraw accreditation. He will write next week and give the decision in writing.”
“Inspector accreditation permanently withdrawn for misconduct within another OCIMF Programme.”
“18. It is averred that on each occasion that the Claimant obtained his accreditation from the Defendant (either by way of initial application or renewal), he did so pursuant to a contract that he entered into with the Defendant. Under this contract the Defendant provided the Claimant with the accreditation, in exchange for the consideration of the Claimant paying a subscription fee to the Defendant.”
“a) It is admitted that it was an implied term of any contract between the Claimant and the Forum that the latter would set up a fair and proper enquiry into any disciplinary allegations against an accredited SIRE inspector. b) It is further admitted that it was an implied term of any contract between the Claimant and the Forum that the latter would take reasonable steps to see that the guidelines, so far as relevant, would be applied to any disciplinary proceedings in accordance with the law.”
“20. I must record that I find the approach of the Respondent a surprising one for a responsible regulatory authority to adopt. Although it is ultimately a matter for exploration at trial, it is difficult to see how it is consistent with basic rule of law standards and fairness for a regulatory body (even one operating in a private law sphere such as the respondent) to suggest an inspector has been found guilty of dishonesty in disciplinary proceedings when the decision actually communicated to him does not state any such serious finding. 21. The fact that they are described by the Respondent’s counsel as informal proceedings does not seem to me to detract from that principle of fairness, particularly where an individual’s professional reputation is at stake. I must record that one is left with the real concern that the applicant may have been found to have been dishonest by the disciplinary committee without ever having faced such a charge, and indeed without ever having been told of this conclusion, it appearing for the first time four months after the material decision and in responsive evidence to an injunction application.”
“It must be stressed that, whether a contract exists or not, the applicable principles of fairness are the same … the existence of a contract is therefore only relevant to the issue of remedy – specifically, the availability of damages in the event of any breach by OCIMF.”
“49. The importance of these authorities is that they establish that a court should not merely assume a contract to exist, but must consider all the surrounding circumstances to determine whether or not the contract can properly be implied. … 50. There is no doubt that over a period of many years the Claimant accepted that, if she entered meetings under the auspices of the Defendant or of the IAAF she would be subject to the relevant rules. Equally, it seems to me to be a proper inference that the Defendant in its turn accepted the responsibility to administer those rules in relation to all subject to its jurisdiction who competed in those meetings. I see no difficulty, therefore, in identifying with certainty the basic obligations undertaken by both the athlete and the Defendant. There is a benefit and a detriment to both. The benefit to the athlete is that he or she knows that every athlete competing will be subject to the same rules, and that to remain entitled to compete, both nationally and internationally, he or she must comply with those rules. The Defendant accepted the burden of administering those rules, and the benefit of having recognised athletes compete both in national and international events. The latter benefit has become the more significant over the years as, from the documents we have, it is clear that the Defendant obtained financial benefit in terms of sponsorship and media exposure for its events. I therefore see no difficulty in determining the consideration which each provides. Further, it seems to me to be clear that the athlete accepts the obligation under the rules whenever he or she enters a competition, or undergoes out of competition testing in order to be eligible to enter such competitions. The basic structure for a contract is, in my view, readily identifiable.”
“Contracts may be either express or implied. The difference is not one of legal effect but simply of the way in which the consent of the parties is manifested. Contracts are express when their terms are stated in words by the parties. They are often said to be implied when their terms are not so stated, as, for example, when a passenger is permitted to board a bus: from the conduct of the parties the law implies a promise by the passenger to pay the fare and a promise by the operator the bus to carry him safely to his destination … since, as we have seen, agreement is not a mental state but an act, an inference from conduct, and since many of the terms of an express contract are often implied, it follows that the distinction between express and implied contracts has very little importance, even if it can be said to exist at all.”
“103. In the present case, although the language of the defendant’s rules has the contractual aspects to which I have drawn attention, there is no conversation or document which can be identified as constituting an express agreement. Any contract must be implied from conduct, in the light of the rules. The rules, in my view, contain a framework of rights and duties of sufficient certainty to be given contractual effect with regard to the athlete’s entitlement and ability to compete. Consideration exists in the athlete’s submission to the rules and to the defendant’s jurisdiction, in the defendant’s agreement to operate the rules and to permit the athlete to compete in accordance with them, and in both parties’ agreement on the procedures of resolution of any disputes contained in the rules.”
“It is essential that the inspector’s conduct during the course of an inspection sets an exemplary example to the Master, officers and crew. As a representative of the submitting company and OCIMF, the inspector must at all times maintain a professional and cordial relationship with the Master, officers and ratings and must respect the authority of the Master.”
“On each occasion that the Claimant obtained his accreditation from the Defendant he did so pursuant to a contract that he entered into with the Defendant.”
“37. That brings me to the nature of the court’s supervisory jurisdiction over such a decision. The most important point, as it seems to me, is that it is supervisory. The function of the court is not to take the primary decision but to ensure that the primary decision-maker has operated within lawful limits. It is a review function, very similar to that of the court on judicial review. Indeed, given the difficulties that sometimes arise in drawing the precise boundary between the two, I would consider it surprising and unsatisfactory if a private law claim in relation to the decision of a domestic body required the court to adopt a materially different approach from a judicial review claim in relation to the decision of a public body. In each case the essential concern should be with the lawfulness of the decision taken: whether the procedure was fair, whether there was any error of law, whether any exercise of judgment or discretion fell within the limits open to the decision maker and so forth. … 40. … The supervisory role of the court should not involve any higher or more intensive standard of review when dealing with a non-contractual than a contractual claim … 43. Of course, the issue in the present case is not one of procedural fairness but concerns the proportionality of the penalty imposed. To my mind, however, that underlines the importance of recognising that the court’s role is supervisory rather than that of a primary decision maker. The test of proportionality requires the striking of a balance between competing considerations. The application of the test in the context of penalty will not necessarily produce just one right answer: there is no single “correct” decision. Different decision makers may come up with different answers, all of them reached in an entirely proper application of the test. In the context of the European Convention on Human Rights it is recognised that, in determining whether an interference with fundamental rights is justified and, in particular, whether it is proportionate the decision maker has a discretionary area of judgment or margin of discretion. The decision is unlawful only if it falls outside the limits of that discretionary area of judgment. Another way of expressing it is that the decision is unlawful only if it falls outside the range of reasonable responses to the question of where a fair balance lies between the conflicting interests. The same essential approach must apply in a non-ECHR context such as the present. It is for the primary decision maker to strike the balance in determining whether the penalty is proportionate. The court’s role in the exercise of its supervisory jurisdiction is to determine whether the decision reached falls within the limits of the decision maker’s discretionary area of judgment. If it does the penalty is lawful; it does not, the penalty is unlawful. It is not the role of the court to stand in the shoes of the primary decision maker, strike the balance for itself and determine on that basis what it considers the right penalty to be. Mr Higginson, who was counsel for Mr Bradley, cited Daly v Secretary of State for the Home Department[2001] 2 AC 532 in support of his submissions on the correct approach of the court towards the issue of proportionality. I see nothing in Daly that is inconsistent with the views I have expressed above. The importance of the court limiting itself to a supervisory role of the kind I have described is reinforced in the present case by the fact that the Appeal Board includes members who are knowledgeable about the racing industry and are better placed than the court to decide on the importance of the rules in question and decide the weight to be attached to breaches of those rules. I treat the Appeal Board as the primary decision maker since, although its function under Appendix J of the Rules of Racing is largely a review function, it is found that the penalty imposed by the disciplinary committee was disproportionate and, as it had power to do, substituted a penalty of its own as a proportionate penalty.”
“55. Care needs to be taken as to what is meant by ‘natural justice’. In Local Government Board v Arlidge[1915] AC 120 Hamilton LJ described the phrase ‘contrary to natural justice’ as ‘an expression sadly lacking in precision’. It is commonly treated as having two central principles: 1) The principle encapsulated in the Latin tag audi alteram partem, namely that the decision maker should afford to a person adversely affected by the decision a reasonable opportunity to be heard (which will generally also require sufficient notice of the nature of the matters under consideration by the decision maker); and 2) The principle that the decision maker shall not be a judge in his own cause and will be free from bias." It is of course the first of those principles with which the present case is concerned. In particular, as it seems to me, the question is whether in the context of the agreement as to the scope of the disciplinary hearing and the issues to be considered, the panel went so far beyond the appropriate scope of the enquiry in relation to the questioning of Captain Rashid and the reasons for their decision that, although Captain Rashid was given a reasonable opportunity to be heard, he was not given sufficient notice of the nature of the matters which formed the focus of the decision to remove his accreditation. This was further addressed by Popplewell J as follows: “However, the rules of natural justice involve requirements which are flexible and fact specific in their application. They will often, but not always, require a person adversely affected to have an opportunity to be heard, depending on the circumstances … ”
“59. Further guidance may be found in the line of cases considering the exercise of a discretion conferred by one party to a contract on the other. It is well established that such discretion must be exercised in good faith and not arbitrarily, capriciously or unreasonably in the public law sense of Wednesbury unreasonableness, i.e. irrationality: see for example the summary by Rix LJ in Socimer International Bank Limited (in liquidation) v Standard Bank London Limited[2008] EWCA Civ 116 .”
“Natural justice plainly requires that a director facing disqualification should know the charges he has to meet. I am far from suggesting that this requirement should lead to the technicalities associated with criminal charges but prior notice of such a fundamental shift in the Official Receiver’s case should have been given so that Mr Browning could direct evidence to the point … the requirements of natural justice must depend on the circumstances of each case, and in my judgment a fundamental change of case from one alleging commercial dishonesty to one alleging crass commercial misjudgement is a change of a nature which requires wholly different evidence and prior notice should have been given.”
“Here, while the disciplinary panel in this case were not legally trained individuals, they were professional men with extensive experience of internal disciplinary proceedings.”
“Captain Rashid’s counsel have requested that we ask the focus group that [no] adverse inferences be drawn from any matter in the Inquiry Report outside of the four inspections in question.”
“I read the report briefly at this stage, for the chief reason of checking that there were no conflicts of interest from my perspective in hearing the case against Captain Rashid.”
“But did you read the whole report?” to which he replied: “No. I flicked through it, as I said in my witness statement. I glanced through it beforehand.”
“Has provided instruction to at least one applicant inspector … can be used to deceive submitting members”
“Not for me. I was quite focused that we were just focussing on the four vessels.”
“Patrick, this has my approval.”
“Although this letter did not expressly state that the Panel thought Captain Rashid had been dishonest (as we thought this would be unnecessarily rude), the letter did set out our findings referred to in paragraph 40 above as well as our findings that Captain Rashid had routinely failed to spend the guideline eight to ten hours on board each vessel.” 103. In his second witness statement, Captain Ashby said: “43. I understand that it is now being suggested by Captain Rashid’s lawyers that, because of my use of the word ‘dishonest’ at one point in my first witness statement in this case, this means the Panel had in fact made findings of dishonesty against Captain Rashid without communicating them to him, and that this made the disciplinary process inherently unfair. I confess that I do not really understand this allegation. In my mind, being ‘dishonest’ and ‘lack of ethics’ effectively means the same thing and I don’t think we could have been clearer in our decision that we considered Captain Rashid to have committed very serious breaches of OCIMF’s ethical rules. Perhaps I could have used the word ‘dishonest’ in the decision letter but I don’t see what this would have added. In my mind, it means the same thing as ‘unethical’ but is a bit more emotive and rude, so there was no need to use it.”
“Yes, in my opinion.”
“Q: So it is right, isn’t it, that the Committee did not make any decision about whether the times stated in the four SIRE reports were accurate? A: We didn’t, no exactly. Q: Save for the particular points raised in the six determinations which feature below, you didn’t make any determination as to whether the times were accurate? A: Yes, and the reason we decided that was because of the times there was a lot of discrepancy. No matter which times were right, they still didn’t allow sufficient time for a full inspection to have been completed. … that’s why we used the words ‘regardless of which times were correct’ because of for that reason. Q: Well you say that but actually you didn’t make or nowhere does it say in this letter that you decided that even if Captain Rashid had spent 7 hours or 7.5 hours inspecting the Maran Hellen you didn’t make any finding that that was not enough time to carry out a proper inspection of that particular vessel. A: We do say that the times were insufficient to complete an inspection. Q: And where does it say that? A: Somewhere (pause) … no correct. Q: So just to be clear, you didn’t actually, the Committee didn’t carry out any assessment of whether the inspection times stated in the inspection report for each of the four vessels was actually long enough to carry out a proper inspection. A: We asked questions to see if they were. Q: But you didn’t make any decision as to whether it was or not. A: Yes well, when we were deciding on the outcome we did, in deliberation. Q: There’s no reference in the decision letter to that effect. A: No there isn’t.”
“Are you saying that you based your decision on deliberations which you had and conclusions you came to which were not then reflected in your reasons? A: This summarises our main points. Mr Justice Martin Spencer: What you just told me is that in your deliberations you came to other conclusions which are not in these reasons. A: Correct, yes.”
“Q: But can I ask you this, Captain Ashby. Can you look at your witness statement behind tab 5, please, in file B. Keep C2 to hand but look in file B, behind tab 5. At page 97, paragraph 37 you say: ‘Captain Rashid did accept that even based on his own timings, he had spent less than the guideline eight to ten hours. In those circumstances [you] did not consider it was necessary to go through all the detailed evidence to determine which were correct.’ A: Yes Q: You then said ‘We might have done this had the only issue been precisely how long these four inspections were. It’s only a guideline.’ As you put it: ‘Very occasionally [although we wouldn’t accept that] it might be possible for an inspector to conduct a competent inspection in slightly less than eight hours. However, Captain Rashid made a series of further statements which revealed far more serious matters than this …’ Then you set them out, but even there you don’t say that you had actually decided that the time recorded in each of those four SIRE inspection reports was not enough time to carry out a proper inspection? A: I don’t say it in here no. Q: If you had really made that conclusion, you would have put it in your witness statement wouldn’t you Captain Ashby? A: Yes I probably, I would have done but we did … I didn’t put it in my witness statement it’s in my handwritten notes which were accompanying the witness statement. Q: Certainly if you had made that decision, you would have ensured that it was put in the decision letter that was sent to Captain Rashid? A: As I say, I don’t consider that the decision letter has to include everything necessarily. Q: And the truth is you didn’t make any decision of that kind. A: A decision of what kind? Q: You did not make that decision, you did not make a decision that the times in the SIRE reports were not long enough to carry out a proper inspection of each of these four vessels? A: Not in the letter, no. Q: You didn’t do that at all. A: We did in the enquiry. If you look at my handwritten notes which all say less than seven hours on them. … Q: You certainly made no decision … sorry, according to what is said in the letter of 30 October, you had not reached any decision that Captain Rashid had deliberately falsified the times of his inspection reports. A: We didn’t come to that conclusion but we considered it was a possibility as I put in my witness statement, that he had falsified …”
“Inspector has misrepresented the time spent on board to complete at least four SIRE inspections within the last 12 months … OCIMF alleges that all four of these inspections have been falsified.”
“The time actually spent on board was insufficient to conduct a proper SIRE inspection.”
“Mr Justice Martin Spencer: There’s something else I want to ask you, which arises out of something you said earlier. You gave me the very strong impression that your approach to this was to hear the evidence first and then decide in your deliberations what misconduct the Captain was guilty of. A: That’s correct. Mr Justice Martin Spencer: That’s correct? A: That’s exactly how we have done all the disciplinary hearings, and I have done quite a few for OCIMF. That’s what we do, is we ask the evidence, we go away, deliberate and then come back. Mr Justice Martin Spencer: Those deliberations, or that misconduct might be something that’s never been alleged before? A: It could be, yes. It could be what we heard on the day. Mr Justice Martin Spencer: So rather than, as it were, let the Captain know what the charges are against him and answer those, you let him give evidence generally and then decide what the charges are afterwards? A: No, we know what we are investigating, which was the breach of the SIRE training guidelines and VIQ.”
“b) Loss of future reputation, of publicity, of credit 4-020 Loss of reputation generally makes for a non-pecuniary loss but it may also involve a pecuniary one for which damages may be awarded in contract. As Hallett J said in Foaminol Laboratories v British Artid Plastics: “A claim for mere loss of reputation is the proper subject of an action for defamation, and cannot ordinarily be sustained by means of any other form of action … [but] if pecuniary loss can be established, the mere fact that the pecuniary loss is brought about by the loss of reputation caused by a breach of contract is not sufficient to preclude the plaintiffs from recovering in respect of that pecuniary loss.”
"Oral evidence will not be permitted at trial from a witness whose statement has not been served in accordance with this order or has been served late, except with permission from the court." (c): "