Some Cases

Factors listed are

Introduction
Defendant in any proceedings
may apply for an order
requiring C to give
security for D's
costs of the proceedings
Order for Security
for costs usually requires
the Claimant to pay
money into court
as security for the
payment of any costs order
that may eventually be made
in favour of the defendant
Order is never made
against the
defendant unless
counterclaiming - the
fact that he is resident
abroad is irrelevant

Enforcing the order

The Court should also
order that the claim
(or counterclaim) be
stayed and/or the
claim/counterclaim
be struck out (at
a certain date)
unless security for
costs is provided with
in accordance with the
order
WORDING of
ORDER
"the claim be
stayed until such time as
security for costs
is provided in accordance
with the terms of the order"
WORDING of
ORDER
"that if security is not
provided in accordance with
the terms of the order by a
specified date, the claim
(or counterclaim) be struck
out"

CPR Part 24
[governs security for costs]

Introduction

Procedure

Enforcing

Procedure

Order for Security for Cost

-"C provide security for
D's cost in the claim
in the sum of X
by date y"
-The said sum is to be paid into
court or an interest bearing
account at an agreed commercial
bank in the joint names
of Attorney's at Law for
D and for C (or firms)
-Sum to be held until the
determination of the
claim or further order
of the court
-The Claimant's claim should
be stayed until such time
as the security for cost
is provided in accordance
with the terms of the order
-unless security for cost
is provided in terms of the
order then C's claim
is to be struck out and judgment
entered for D
-Cost in the claim..or how cost
is to be awarded

-Part 24 provides court to

make such an order
if just to do so
-Other grounds
-e.g Rule 24 states that
it is just and where C
is overseas, in this
circumstances, C lives
in florida
-C has no assets in jurisidtcion
-likely to suceed and would
be prejudiced if C
is unlikely to pay or
unwilling

Order will
not be granted
unless it is just
and at LEAST ONE
of the factors
listed is satisfied
CPR Rule 24.3

Security
for Costs

Examples of Grounds

Grounds

C ordinarly resident
OUTSIDE of the jurisdiction
C is a company incorporated
OUTSIDE of the jurisdiction
C failed to give his/her
correct ADDRESS, gave
an incorrect address
in the claim form or
has changed address
since claim
was commenced WITH A VIEW to evading the
consequences of the
litigation
C is acting as a NOMINAL
claimant, other than
as a representative claimant
under part 21 and
reasons to believe C will be
unable to pay D's costs
if ordered to do so
C is an ASSIGNEE of the
right to claim and the
assignment has been made
with a view to avoiding
possibility of a costs order
against assignor
Some person OTHER
than C
has CONTRIBUTED or
agree to contribute to
C's costs in return
for a share of any money
or property which C
may recover
C has taken STEPS with a view
to placing C's assets beyond the
Jurisdiction of the court

Good practice to
request by letter first
[in CA it is a requirement
though not in Supreme
Court]
Notice of application
for Court Order +
Draft Order + Affidavit
in Support
CPR Rule 24.2

Security for Costs

Sir Lindsay Parkinson v Triplan

[not a sham, bonafide claim,
reasonably good prospect of
success (no detailed
examination), any admissions
by D of C's claim
any payment into court,
whether lack of funds of C
caused by D, whether
application is made agressively
to stiffle genuine claim,
delay in applying, impecuniousity**]

Determining the
amount
Impecuniousity

When to apply

Impecuniousity

Impecuniosity
Where C is an
individual and Impecunious
the Court may
refuse to grant the order
[at Common law]
Where C is a company
and impecunious
legislation allows a judge
at his discretion
to require security for costs
if he feels it necessary
to protect D
Where a limited company
is plaintiff in any action
or other legal
proceeding, any judge
having jurisdiction in the
matter may, if it appears
by credible testimony that
there is reason to believe
that the company
will be unable to pay the
costs of the defendant
if successful in his
defence, require sufficient
security to be given for
those costs, and may
stay all proceedings
until the security is given.
The Companies Act, 2004
Section 388

D applies at CMC where

practicable or at the
pre-trial review
May be made at
any time, however
genuineness
may be questioned.
Court may reduce or
reject the
cost if application
is late (though newly
arising
circumstances
could assist the a
application)

Determining the
amount
A draft bill of costs
will assist the court in
determining the amount
to be granted
Court applies the amount
it thinks just considers - the stage, future
events, delay in applying, costs
which D may incur.
Old rules - 2/3
of what was requested
however Brooks J
in Manning gave full
amount. It depends
on who you represent
as law is not settled

Corfu Nagivation
v Mobil Shipping
Co Ltd
[...basic principle
underlying orders
is that it is
prima facie unjust that
a foreign C
who by virtue of foreign
residence is more
or less immune to the
consequences of
an order for costs..
without making funds
available w/i jurisdiction..]

Maragh v Comptroller of
Customs
[B'dos case - T&T claimant,
had no assets in B'dos
- order was given in action
to retrieve quantity of
US currency seized
by customs officer]

Manning Industries Inc v

Jamaica Public Servce Co
Ltd
[Brooks J - Old rule which prevented
security for costs against
c where one of two C's lived
in jurisdiction is no longer
good law - security
for costs ruling based on
residence abroad
is not considered "discriminatory
and unjustifiable" as per CHR.
Applied principle of Corfu Navgigation
Co to Jamaica]
[Court will consider all circustmaces
however can exercise authority if
C is a company outside Jurisidiction]
[Notwithstanding that D take steps
to enforce judgement outside JA,
still an extra burden and so
order can be made]

JMMB case
[even though local
party present in the jurisdiction,
depends on the expected
order for costs that the
court is expected to make]