Manning Industries Inc. and Manning Mobile Company Ltd v Jamaica Public Service Company Ltd

• Jurisdiction: Jamaica
• Judge: Brooks, J.
• Judgment Date: 10 October 2003
• Judgment citation (vLex): [2003] 5 JJC 3001
• Court: Supreme Court (Jamaica)
• Docket Number: SUIT NO. C. L. 2002/M058
• Date: 10 October 2003

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN COMMON LAW

SUIT NO. C. L. 2002/M058

BETWEEN

MANNING INDUSTRIES INC.

1 ^ST PLAINTIFF

AND

MANNING MOBILE CO. LTD.

2 ^ND PLAINTIFF

AND

JAMAICA PUBLIC SERVICE CO. LTD.

DEFENDANT

^st

CIVIL PROCEDURE - Security for costs - First plaintiff incorporated outside of jurisdiction - Whether court has authority to order security for costs against first plaintiff

Brooks, J

1 This application before the Court is one by which the Defendant to this claim seeks an order that the first Plaintiff provides security for the Defendant's cost in the claim.

2 The Background to the application is that the first and second named Claimants have sued the Defendant seeking declarations that certain equipment in the possession of the Defendant is the property of the first Plaintiff. The Plaintiffs also seek other orders, including an order for damages, which flow from such a declaration.

3 It is important to note that the Plaintiffs do not have identical causes of action against the Defendant.

4 The first Plaintiff pursues its claim as the owner of the abovementioned equipment. The second Plaintiff s claim is based on its lease from the first Plaintiff of the said equipment and claims it is entitled to possession of same by virtue of that lease.

5 By way of completeness it should also be noted that the Defendant in its pleadings has claimed a contractual right to take possession of the equipment based on certain assurances made to it by the first Plaintiff.

6 The application for the payment of security for costs is based on the fact that the first Plaintiff is a company incorporated and "resident" outside of the jurisdiction of the Court. It is not in issue that the first Plaintiff is indeed a foreign company as its Texas address in the United States of America is provided in both the Writ of Summons and the Statement of Claim.

7 The application was filed before the advent of the Civil Procedure Rules 2002 ("the CPR") and hence was made pursuant to Section 663 of the Judicature (Civil Procedure Code) Law ("the CPC"). The bulk of the submissions by counsel on both sides were also made before the CPR came into effect.

8 Counsel who addressed the Court for each side were both of the opinion that the provisions of Part 24 of the CPR would nonetheless apply to the Court's consideration of the present application. Rule 73.3 (2) seems to give the Court a discretion in these circumstances as to how the proceedings shall be conducted but it is my view that the provisions of the CPR which should apply.

9 I shall, out of deference for the erudite submissions made by counsel in the context of the CPC provision, and bearing in mind the fact that some guidance can be gleaned from the old authorities, summarize the submissions before considering the changes, if any, made by the CPR. Section 663 of the CPC states as follows:

"The Court may, if in any case it deems fit, require a plaintiff who may be out of the Island, either at the commencement of any suit or at any time during the progress thereof, to give security for costs to the satisfaction of the Court, by deposit or otherwise; and may stay proceedings until such security be given."

10 Mrs Minott-Phillips for the Defendant submitted that the practice of the court with respect to the interpretation of this section dates back to a time when the rule was inflexible and rigid. That rule, she submits, is that:

"The court will order (her emphasis) security for costs where a plaintiff is resident outside the jurisdiction, unless he satisfies the Court that there are special circumstances which would make it unjust to do so"

11 She cited the case of Watersports Enterprises Limited vs. Errol Frank (1991) 28 JLR 111 in support of the submission that this was the practice of the court. The submission was in relation to the provisions of the CPC. It is for the plaintiff, she says, to show that the imposition of an order for costs would be unjust.

12 Mrs. Minott-Phillips also cited the case of Porzelack K.G. v Porzelack (U.K.) Ltd. [1987] 1 All E.R. 1074 at p. 1076 j: to show the reason behind such orders:

"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 judgement for costs." (per Browne-Wilkinson V.C.)

13 Mr. Vassell, again in the context of the CPC, agreed that the court will, without more, make an order for security for costs in the case of a foreign based plaintiff. He submitted however that the rule did not apply in cases where there was a resident or locally based co-Plaintiff. He submitted that the rule in those circumstances was "clearly that an order for security for costs would not in any circumstances be made against a foreign Plaintiff if there was also a local co-Plaintiff".

14 The authority relied on for the submission was the case of D,Hormusgee & Co. and Isaacs & Co. vs. Grey (1882) 10 QBD 13.

15 Denman J. (as he then was) in that case is reported as saying (at p. 15) in this context;

"But there can be no doubt that, by the law before the Judicature Acts, where one of two joint plaintiffs is a foreigner, out of the jurisdiction, yet if the other resided in England, there can be no order for security for costs"

16 The learned judge later went on to say, in the context of the right to bring joint actions allowed by the then Order XVI r. 1;

"Therefore the question is reduced to this. Does Order XVI r. 1 make any alteration in the practice as regards security for costs? I think that it does not."

17 In applying the principles to the facts of the case before him the learned judge concluded (at p. 16);

"This is not a case in which a separate action is brought by either of them independently of the other, so as to warrant us in departing from the ordinary rule as to security for costs in the case of joint plaintiffs, one of whom resides abroad."

18 These almost inflexible rules hark back to rules in force in England prior to 1962. Although researches have not uncovered any English provision identical to S. 663, it appears that the approach, at least up to then, was similar in both jurisdictions. By 1997 however a new, less stringent, approach was being utilized in England. The 1997 Supreme Court Practice (the White Book) cites the relevant provision in respect of security for costs in England as being contained in Order 23 r. 1. The relevant portion states:

"Where on the application of a defendant to an action or other proceedings in the High Court, it appears to the Court-

• (a) that the plaintiff is ordinarily resident out of the jurisdiction or... then if, having regard to all the circumstances of the case, the Court thinks it just to do so, it may order the plaintiff to give such security for the defendant's costs of the action or other proceedings as it thinks just."

19 The learned authors of that work, at O. 23/1-3/2 say,

"it is no longer, for example, an inflexible or rigid rule that a plaintiff resident abroad should provide security for costs"

20 With regard to the aspect of co-plaintiffs resident within the jurisdiction, the learned authors report the ordinary rule as Mr. Vassell has cited it to be, but went on to say at O. 23/1-3/3 A;

"The ordinary rule, however, is subject to the general discretion of the court; it is not an unvarying rule. Its application is appropriate where the foreign and English co-plaintiffs rely on the same cause of action, where each of the plaintiffs is bound to be liable for all of such costs as may be ordered to be paid by any of the Plaintiffs to the defendants at the conclusion of the trial, and where one or more of the plaintiffs has funds within the jurisdiction to meet such liability. Its application is inappropriate where there is a possibility that each of the plaintiffs may be ordered to pay an aliquot share of the defendant's costs ( Slazengers Ltd. v. Seaspeed Ferries Ltd.; The Seaspeed Dora [1988] 1 W.L.R. 221; [1987] 2 All E.R. 905 C.A. ). Where the plaintiffs do not rely on identical causes of action...