Teisha Combes v Russell Investments Ltd t/a Pier 1
| Jurisdiction | Jamaica |
| Judge | M. Jackson, J |
| Judgment Date | 22 July 2022 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2018HCV03257 |
[2022] JMSC Civ 129
CLAIM NO. 2018HCV03257
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
Security for costs — Claimant ordinarily resident outside the jurisdiction — Factors to be considered — Part 24 of the Civil Procedure Rules.
Miss Marsha Grant instructed by Nigel Jones & Company for the Claimant
Miss Lesley Ann Stewart instructed by Mayhewlaw for the Defendant
M. Jackson, J (Ag.)
This is an application for security for costs. This type of application runs counter to the ordinary rule that costs follow the event. In explaining this exception, the learned editors of Blackstone's Civil Practice, 2014, The Commentary, at paragraph 67.1, pointed out that:
“Generally, the question of who pays for the costs of a claim is not determined until the claim is finally disposed of, whether by means of consent, interim process or trial. This is because the rule is that the successful party recovers costs order from the loser and the outcome on the merits is only known when the judgment is obtained. It is for this reason that the parties are not generally allowed to anticipate the eventual costs order by asking for interim orders that their opponents provide funds as security to pay for the costs of the action. Despite this, it is accepted that there have to be exceptions for cases where there is significant risk of defendants suffering the injustice of having to defend proceedings with no real prospect of success of being able to recover costs if they are ultimately successful.”
Against that background, the Defendant (Applicant) has applied for these orders:
“(a) The Claimant gives security for costs in the sum of Two Million Six Hundred and Twenty Thousand Dollars ($ 2,622,000.00) within thirty (30) days of the Order herein;
(b) The said sum be paid into an interest bearing account in the names of Nigel Jones and Company and Symone Mayhew to be held until after the trial of this action or further orders of the Court;
(c) The Claimant's claim herein be stayed until the payment of the amount ordered in paragraph one; and
(d) If the security for costs is not paid in accordance with the terms of the order, the Claimant's claim shall be struck out.”
The grounds relied on in support of the application were formulated as follows:
“(a) Pursuant to Rule 24.3 (a) of the Civil Procedure Rules, (“CPR”) an order for security for costs may be made against a claimant who is ordinarily resident out of the jurisdiction;
(b) The Claimant is a resident out of the jurisdiction;
(c) The Applicant is unaware of any assets belonging to the Claimant within the jurisdiction against which an order for costs made in favour of the Applicant may be enforced;
(d) That Pursuant to Rule 24.4 of the CPR, on making an order for security for costs the Court must also order that the claim be stayed until such time as security for costs is provided in accordance with the terms of the order; and/or that if the security is not provided in accordance with the order by a specified date, the claim be struck out;
(e) The Applicant has a good prospect of successfully defending the claim; and
(f) The above orders are necessary for the just, fair and effective disposal of these proceedings.”
As is expected, the Claimant (Respondent) vehemently opposed the application.
The application for security for costs arises from a claim brought by the Claimant in negligence and for breach of occupier's liability. The facts averred by the parties that form the background to these proceedings are contained in their respective pleadings. Those facts are straightforward and succinct. I will endeavour to keep them so while providing the factual background to the application before me.
The Claimant is a retired nurse and resides in Florida, United States of America (“USA”). She stated that around January 16, 2014, during heavy rains, she disembarked an excursion bus in Montego Bay, Saint James, to use the restroom at the Defendant's business place. She was given permission by a member of staff to use the facility. While making her way to the bathroom, she slipped and fell. Her fall, she alleged, was as a result of the area leading to the bathroom being wet coupled with the presence of an uncovered board floor ramp.
The Defendant totally denies the incident. It avers that the incident was never brought to its attention at the material time and that it only became aware of the incident after the Claim was filed. The Claim was filed on August 28, 2018.
The Defendant has also refuted the structural layout of its business place as described by the Claimant, and contends that at the material time, the ramp leading to the bathroom was finished with exterior grade tiles and overlaid with non-skid asphalt strips. In addition, there was a handrail along the ramp that visitors to the premises were able to use in order to ensure their safety.
Finally, the Defendant further states that the property was refurbished in 2013 and so by January 16, 2014, the alleged date of the incident, the premises would have had no wooden structures. In short, it avers that there is no breach of duty and it puts the Claimant to strict proof.
Part 24 of the Civil Procedure Rules 2002 (“CPR”) enumerates a number of conditions which enables a defendant to make an application for security for costs against a claimant. Rule 24.2 of the CPR provides that:
“24.2 (1) A defendant in any proceedings may apply for an order requiring the claimant to give security for the defendant's cost of the proceedings.
(2) Where practicable such an application must be made at a case management conference or pre-trial review
(3) An application for security of costs must be supported by evidence on affidavit.
(4) Where the court makes an order for security for costs, it will –
(a) determine the amount of security; and
(b) direct –
(i) the manner in which; and
(ii) the date by which the security is to be given.”
Rule 24.3 outlines the conditions to be satisfied before the court may make an order for security for costs. This rule provides as follows:
“24.3 The Court may make an order for security for costs 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;
(b) the claimant is a company incorporated outside 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) or has changed his or her address since the claim was commenced, with a view to evading the consequences of the litigation;
(d) the claimant is acting as a nominal claimant, other than as a representative claimant under Part 21, and there is reason to believe that the claimant will be unable to pay the defendant's cost if ordered to do so;
(e) the claimant is an assignee of the right to claim and the assignment has been made with a view to avoiding the possibility of a cost order against the assignor;
(f) some person other than the claimant has contributed or agreed to contribute to the claimant's cost in return for a share of any money or property which the claimant may recover; or
(g) the claimant has taken steps with a view to placing the claimant's assets beyond the jurisdiction of the court.”
Rule 24.4 provides that:
“24.4 On making an order for security for costs the court must also order that –
(a) the claim (or counterclaim) be stayed until such time as security for costs is provided in accordance with the terms of the order; and/or
(b) that if the security is not provided in accordance with the terms of the order by a specified date, the claim (or counterclaim) be struck out.”
Rule 24.3, understandably, represents the most significant part of the regime. It provides two prerequisites which must be satisfied before the court may exercise its discretion to make an order for security for costs. These two prerequisites are that: (1) the court must be satisfied, having regard to all the circumstances of the case, that it is just to make such an order; and (2) at least one of the conditions identified at rule 24.3 (a) to (g) is satisfied. In other words, security for costs cannot be ordered solely on the basis that one or more of the conditions listed at rule 24.3 (a) to (g) apply. The court must also be satisfied that, having regard to all the circumstances of the case, it is just to make the order.
In this regard, I readily agree with Brooks J (as he then was) when he stated in Mannings Industries Inc. and Manning Mobile Co. Ltd. v Jamaica Public Service Co. Ltd. (unreported), Supreme Court, Jamaica, Suit No. C.L. 2002/M058, judgment delivered 30th May 2003 (“ Mannings Industries Inc.”) at page 16 that:
“The structure of the rule seems to indicate that the justice of the case is to be first considered and then a determination made as to whether the authority existed in 23.4 (a) to (f). It would seem, however, that logically, a court should approach it the other way round, that is to say, to determine whether any of the conditions stipulated in paragraphs (a) to (f) applied and then, having determined that the authority did exist, to then consider the circumstances of the particular case to be determined if an order for security for costs should justly be made.”
Before moving on, I must point out that the case of Mannings Industries Inc. was decided during the transitional period between the Judicature (Civil Procedure Code) Law and the introduction of the CPR. Nonetheless, the above...
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