Barnes (Kidson) v City of Kingston Cooperative Credit Union Ltd

• Jurisdiction: Jamaica
• Court: Supreme Court (Jamaica)
• Judge: Mangatal J:
• Judgment Date: 15 September 2006
• Judgment citation (vLex): [2006] 9 JJC 1502
• Date: 15 September 2006

BETWEEN

KIDSON BARNES

CLAIMANT

AND

CITY OF KINGSTON COPERATIVE CREDIT UNION LIMITED

DEFENDANT

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

CIVIL PROCEDURE - Security for costs - Application

Mangatal J

1 This is an application by the Defendant Credit Union for an order that the Claimant Mr, Barnes provides security for the Defendant's costs. The application is made pursuant to Part 24 of the Civil Procedure Rules 2002 "the C.P.R.".

2 In the substantive claim in this action Mr. Barnes alleges that the Credit Union by the publication of an advertisement in the Sunday Gleaner newspaper issue of 2 ^nd June 2002 defamed him and injured him in his character and reputation. The advertisement complained of stated the following words:

A very reasonable reward is offered to anyone advising the correct present local residence and/ or workplace of each of the following: Kidson Barnes, 2a Wireless Drive, Kingston 8.

3 Mr. Barnes complains that these words are defamatory both in their natural and ordinary meaning as well as by way of imputation based on certain extrinsic facts and circumstances. The Credit Union on the other hand has denied that the words in the advertisement were defamatory, libelous and untrue and also states that if the words complained of bore the extended defamatory meanings alleged, the words were true in substance and in fact.

4 Rule 24.2(1) of the C.P.R. states that a Defendant in any proceedings may apply for an order requiring the Claimant to give security for the defendant's costs of the proceedings.

5 Rule 24.3 of the C.P.R., so far as relevant to the Credit Union's application, and which bears the heading "Conditions to be satisfied", states:

24.3 The court may make an order under rule 24.2 against a claimant only if it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order, and that-

• (a) the claimant is ordinarily resident out of the jurisdiction;.....

• (c) the Claimant-

  • (i) failed to give his or her address in the claim form;

  • (ii) gave an incorrect address in the claim form; or

  • (iii) has changed his or her address since the claim was commenced, with a view to evading the consequences of the litigation; or

• (d) the claimant has taken steps with a view to placing the claimant's assets beyond the jurisdiction of the court.

6 The Credit Union is relying on sub-paragraphs 24.3(a), (c) and (g) in the alternative.

7 In Porzelack K.G. v. Porzelack(U.K.) Limited [1987] 1 All E.R. 1074 AT 1076, Browne-Wilkinson V-C stated:

The purpose of ordering security for costs against a Plaintiff ordinarily resident outside the jurisdiction is to ensure that a successful defendant will have a fund available within the jurisdiction of this court against which it can enforce the judgment for costs.

8 Whereas in the past there were fairly inflexible rules that a Claimant resident abroad should provide security for costs, it is now clear that under the C.P.R. and similar Rules in other jurisdictions, the court has a wide discretion and the principles upon which the discretion is exercised depend upon what is just in the particular circumstances of the case before the court.

9 I agree with the reasoning of my learned brother Brooks J. where he stated at page 16 of his judgment in Suit No. C.L. 2002/M058 Mannings Industries Inc. and Manning Mobile Company Limited v. Jamaica Public Service Company-Limited , delivered 30 ^th May 2003:

The structure of the rule seems to indicate that the justice of the case is to be first considered and then a...