HDX 9000 Inc. v Price Waterhouse (A Firm)

• Jurisdiction: Jamaica
• Judge: HARRISON, P.
• Judgment Date: 08 September 2006
• Neutral Citation: JM 2006 CA 50
• Judgment citation (vLex): [2006] 9 JJC 0801
• Court: Court of Appeal (Jamaica)
• Date: 08 September 2006

IN THE COURT CIVIL APPEAL No. 65/2006

BETWEEN

HDX 9000 INC.

CLAIMANT

AND

PRICE WATERHOUSE (A FIRM)

DEFENDANT

PROCEDURAL APPEAL

CIVIL PROCEDURE - Payment into court

CIVIL PROCEDURE - Security for costs

HARRISON, P

1 The defendant/appellant appeals in this procedural appeal (R2.4) against the order of Rattray, J on 19 ^th July, 2006 increasing the amount of the security for costs to a sum less than the amount sought by the appellant.

2 Rule 24.3(b) permits a court to order security for costs in circumstances where a claimant company is incorporated outside this jurisdiction.

3 A change in circumstances after an order for security is made may oblige a court, in the case of a claimant, to reduce the security (see Gordano Building Contractors Limited and Burgess et al [1988] 1 WLR 890 ). A change of circumstances, otherwise, for example, a security for costs which is now insufficient, may also oblige a court to increase the amount previously ordered (Kristjansson v R. Verney & Co. Ltd. [1998] LTL June 18, 1998, C.A. ). See also Speedways Jamaica Limited v. Shell Co. (W.I.) Ltd. et al. S.C.C.A 66/01 dated 20 ^th December, 2004.

4 The Court has a discretion in considering an application for security for costs, whether to order such security. The court will do so, if it seems that the claimant company, if unsuccessful, will be unable to pay the costs ordered (Sir Lindsay Parkinson v. Triplen Ltd. [1973] 2 All ER 273).

5 In ordering security for costs, the court in its discretion, will have regard to the circumstances of each case, and the claimant's prospect of success, without examining in detail the merits of the case. In considering the amount of the security, it was held in Keary Development v. Tarmac Construction [1995] 3 All ER 574, that,

" ... the court will have regard to the fact that it is not required to order the full amount claimed by way of security and it is not even bound to make an order of a substantial amount.."

6 However, the discretion must be exercised justly, in the circumstances, of the particular case.

7 In the instant case, there are changed circumstances, in that the witnesses vital to the defence's case have, since the former order, been living abroad. The defendant/appellant seeks an order for security for costs in the sum of US$48,810.00. The Court of Appeal (U.K.) in Procon (GB) Ltd. v Provincial Building Co. Ltd. [1984] 2 All ER 368, rejected any...