Keith Nethersole v Airports Authority of Jamaica
| Jurisdiction | Jamaica |
| Judge | P. Mason J |
| Judgment Date | 31 January 2023 |
| Docket Number | CLAIM NO. 2013HCV04173 |
| Court | Supreme Court (Jamaica) |
and
[2023] JMSC Civ 10
P. Mason J (Ag)
CLAIM NO. 2013HCV04173
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
Civil Practice and Procedure — Security for costs application — Ordinarily resident abroad — No assets in the Jurisdiction — Whether unable to pay costs — Delay in bringing the application.
Phyllis Dyer instructed by Phyllis L. Dyer Attorney-at-Law for the Claimant.
Joerio Scott instructed by Messrs. Samuda & Johnson Attorneys-at-Law for the Defendants.
The facts in this matter are straightforward. The Claimant, Mr. Keith Nethersole alleges that on or about the 19 th of August, 2011, he was injured at the Norman Manley International Airport. While downstairs in the pre-boarding area, the chair on which he sat collapsed causing him to fall to the ground. He commenced proceedings on the 18 th of July, 2013, by filing a Claim Form and Particulars of Claim against the Defendants for damages for personal injuries, loss and expenses incurred, as a result.
The 1 st Defendant, the Airport Authority of Jamaica, is a body incorporated under the Airport Authority Act with the power to make regulations for the operation and use of the Norman Manley International Airport. The 2 nd Defendant, the Norman Manley International Airport, is incorporated under the abovementioned Act as described in the Norman Manley International Airport Order 1960 and the facility at which the incident occurred.
The Defendants, in their Defence filed on the 5 th September, 2013, deny any negligence or that they caused the injuries pleaded by Mr Nethersole. It is important to note that the Defendants acknowledged that there was an incident concerning the Claimant at the Norman Manley International Airport where he was treated by their nurse. The Defendants have, however, filed an ancillary claim in which they are seeking to be indemnified by Neveast Supplies Limited, the supplier of the chair in question of any costs to the Claimant that may be awarded at trial. In their Defence at paragraphs 4, 9 and 10, the following was stated:
“4. Save that these Defendants will admit that the 2nd Defendant received a report that the Claimant fell from a chair in the Food Court area of the Ticketing Concourse and sustained injuries on the date alleged, no further admission is made to paragraph 6 of the Particulars of Claim.
9. These Defendants aver that the dining furniture located in the Food Court of the 2 nd Defendant's premises, including the chair on which the Claimant allegedly sat, was purchased from Neveast Supplies Limited (Neveast), a reputable supplier of furniture and that the 2nd Defendant acted reasonably in contracting Neveast to supply the said items having taken all steps to satisfy itself, and was so satisfied, that the said Neveast was a competent and reliable provider of furniture.
10. In the premises, these Defendants will say that the said fall was caused and/or materially contributed to by the negligence of Neveast Supplies Limited.”
It is from that Claim for damages that this application has arisen for security for costs, filed by the Defendants/Applicants (hereinafter referred to as “the Applicants”) on the 26 th of January, 2021, supported by the Affidavit of Chad Lawrence filed on the 26 th January, 2021. This application for security for costs is being vehemently opposed by the Claimant. Against this background, the following orders are being sought by the Applicants:
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“1. The Claimant gives security for the Defendants' costs in this action within 21 days of the date of this Order in the amount of $1,795,000.00
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2. The Security for Costs be paid into an interest bearing account in the joint names of Phyllis L. Dyer and Samuda & Johnson at a branch of the National Commercial Bank Jamaica Limited within 21 days of the date of the Order;
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3. The action herein be stayed until the giving of such security for costs in accordance with the terms of the order herein as provided;
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4. In the event the Claimant fails to give such security for costs, within the prescribed time the claim struck out; and
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5. Costs, incidental to and occasioned by this application be awarded to the Defendants to be paid forthwith upon agreement or taxation.”
The grounds relied on in support of the application on which the Applicants have sought the said Orders are articulated as follows:
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“(i) This application is made pursuant to part 24 of the Civil Procedures Rules, 2002 and under the inherent jurisdiction of the Court;
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(ii) The Claimant is ordinarily resident out of the jurisdiction and does not have assets within the jurisdiction;
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(iii) In all the circumstances, it is just to make the said orders”
The issues in determining the application are as follows:
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(1) Whether any of the conditions for ordering security for costs as outlined in Part 24.3 of the Civil Procedure Rules are satisfied; and if so
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(2) Whether having regard to all the circumstances of the case, it would be just to exercise the court's discretion in favour of making the order;
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(a) was there delay in the filing of the application for security for costs?
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(b) will an order for security for costs stifle the claim by the Claimant?
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(3) Whether the amount sought by the Applicants is appropriate enough so as not to stifle the claim of the Claimant.
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(4) If the answer to (3) above is yes, then the question is, what ought to be the amount ordered for security for the Applicants' costs.
In support of the application, the Applicants on the 24 th May, 2022, filed written submissions and a List of Authorities. The Claimant filed submissions on the 17 th June, 2022. I have read both carefully and am grateful to both parties for their effort in filing the submissions. I have found them to be helpful. I will only make reference to same, in so far as is necessary in determination of this application.
Counsel for the Applicants submit that they have satisfied the requirement that the Claimant is ordinarily resident outside the jurisdiction by placing reliance on Kidson Barnes v City of Kingston Cooperative Credit Union Limited (C.L 2002/B-134, delivered September 15, 2006 and Manning Industries Inc. and Manning Mobile Co. Ltd v Jamaica Public Service Co. Ltd (C.L. 2002/M058). Counsel states that in accordance with the authority of Pisante v Logothetis [2020] EWHC 3332 at paragraph 52, that in assessing the adequacy of a Claimant's assets, it is critical to have regard not only to the assets, but also to his liquidity and liabilities.
Counsel puts forward the submission that the impecuniosity of the Claimant together with the residence outside the jurisdiction will move a court to grant an order for security for costs. Counsel relied on Barton v Minister of Foreign Affairs [1984] FCA 108. It is further submitted that the evidence of the Claimant's financial position shows that it is precarious and discloses a history of instability; that it was adverse prior to the advent of this claim; that he has no liquid assets in the jurisdiction and that if the Claimant is unsuccessful at trial he will not be in a position to satisfy the costs order.
Counsel for the Applicants, in their submissions, assert that the burden of proving the claim would be stifled rests squarely on the Claimant's shoulders (see Rushti v Alkhoshirbi [2007] NSWSC 1374). The Applicants submit that they are disputing the very integrity of the case for the Claimant insofar as the Claimant asserts that the accident occurred, in light of his history in making claims for personal injuries. Consequently, that the Claimant has failed to place any evidence to discharge the onus it bears.
Counsel further relied on Rushti (Supra) which infers that prejudice must accompany the delay and if the Claimant has suffered no material prejudice because of said delay, the significance of the delay is reduced. Additionally, there is no evidence to negate a costs order being made. Regarding the conduct of the parties, Counsel submits that it is not sufficient that the Defendants' conduct contributed to the Claimant's impecuniosity.
Lastly, Counsel for the Applicants submit that once the conditions of Rule 24.3 are met, it is for the Claimant to show special circumstances that would relieve him from an order to pay security for costs. To this end, Counsel submits that the Claimant has failed to demonstrate that other factors have intervened causing a security order to not be granted. As such, Counsel submits that regarding the amount to be awarded, the authorities indicate that the amount should be tailored to reflect the nature and size of the risk against which it is designed to protect (see Manning Industries Inc. and Manning Mobile Co. Ltd) above.
The Claimant's Counsel submits that he admits that he is a resident abroad and that he has no assets in this Jurisdiction but that bankruptcy proceedings were discontinued and that he is now able to pay his bills and is currently doing so. The Claimant submits that as such, he is therefore asking the Court in the exercise of its discretion to refuse the Application on the ground that it is unfair and unjust to grant same. Counsel relied on Texuna International Ltd v Clairn Energy Plc [2004] EWHC 1102 (Comm) in outlining the points that the court should consider in exercising its discretion, including the delay in bringing the application; whether the grant would stifle the claim; and the Claimant's impecuniosity.
The Claimant submits that while the delay has not prejudiced him, he is being asked to consider his finances almost at the end of the proceedings. He further submits that it is the injuries he sustained on the...
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