Rajesh Prakash v Caribbean Ari Inc.
| Jurisdiction | Barbados |
| Judge | Reifer J |
| Judgment Date | 23 July 2019 |
| Neutral Citation | BB 2019 HC 018 |
| Docket Number | CV No. 2253 of 2007 |
| Court | High Court (Barbados) |
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
The Hon. Madam Justice Margaret Reifer, Judge of the High Court
CV No. 2253 of 2007
George Walton Payne & Co. represented by Ms. Diana Doughlin for the Defendant Applicant
Elliott D. Mottley & Co. represented by Ms. Lani Daisley for the Claimant Respondent
Civil practice and procedure — Security for costs — Whether there were grounds for ordering security for costs — Quantum.
This is an application by the Defendant (Defendant/Applicant) in this action for security for costs for the interlocutory proceedings and costs of the trial after the failure of the parties to reach any agreement on the same. Both sides appear agreed that the Court should make an order for security, but are far apart on the quantum of any such order. They are unable to agree on the value of the claim and the amount to be advanced as security.
The bare facts can be stated as follows.
The Claimant/Respondent registered the business name “The Runway” for a retail clothing and accessory store.
The Defendant/Applicant is a company incorporated under the Companies Act Cap 308 and is the proprietor of a number of retail stores at the Grantley Adams International Airport (GAIA) trading under the title “Runway”. The names used by the Defendant/Applicant include: Runway Duty-free, Runway Fashion, Runway Beauty, Runway Voyager and Runway Beach.
On 29 November 2007 the Claimant/Respondent filed a writ and statement of case against the Defendant/Applicant. It was a “passing off” action which claimed the following relief: an injunction to restrain the Defendant/Applicant from using or carrying on business under the name and title of The Runway; damages; interest and costs.
The Defendant/Applicant filed its Defence on 24 January 2008. A list of documents was filed, subsequent to which the Claimant/Respondent's attorney, by Consent, filed a Certificate of Readiness together with the required copies of the Trial Record on 25 June 2009. The Certificate of Readiness estimated that the trial would take 3 days.
The Defendant/Applicant filed its trial brief on 25 February 2010.
On 7 February 2011, pursuant to Richards J's costs order of 1 March 2010, the Defendant/Applicant's Bill of Costs was taxed and certified by the Deputy-Registrar in the sum of $14,266.00.
By letter dated 16 January 2012, the Defendant/Applicant's attorneys-at-law wrote the Claimant/Respondent's attorneys-at-law advising that despite their written requests, the Claimant/Respondent had failed and/or refused to pay the Defendant/Applicant's taxed costs of 7 February 2011.
The Defendant/Applicant's attorney-at-law also sought security for its costs on the grounds that it had been recently brought to their attention that the Claimant/Respondent does not ordinarily reside within the jurisdiction. It was noted that the Claimant/Respondent's address was not stated in his statement of claim and that the application for security was necessitated by the fact that the Claimant/Respondent had failed to comply with the costs order made against him. Counsel proposed that security be given in the sum of US$30,000 for the conduct of the entire matter excluding the already taxed costs.
By Notice of Application of 11 April 2012 together with affidavit of even date, the Defendant/Applicant, inter alia, applied for the following orders:
“2. Unless the Defendant/Applicant's costs taxed and certified on the 7 th day of February 2011 to the sum of $14,266.00 be paid by the Claimant/Respondent to the Defendant/Applicant within 14 days the Claimant/Respondent's claim will be struck out.
3. Claimant/Respondent give security for the Defendant/Applicant's costs in this action to the satisfaction of the Honourable Court and that until such security be given all further proceedings be stayed.
4. The Honourable Court direct that pre-trial review be held.
5. The costs of and occasioned by these applications be the Defendants/Applicant' costs, to be agreed or taxed.”
The grounds of the application for security were articulated as follows:
“2. The said costs were taxed and certified on the 7 th day of February 2011 to the sum of $14,266.00.
3. The Plaintiff's counsel was present at the said taxation.
4. Despite requests, the Claimant/Respondent has failed and/or refused to pay the said costs.
5. The Claimant/Respondent does not ordinarily reside within the jurisdiction.
6. The Claimant/Respondent's Statement of Claim does not state the address of the Claimant/Respondent.
7. The Claimant/Respondent has failed and/or refused to pay costs already ordered, taxed and certified in this action on the 7 th day of February 2011.
8. The Plaintiff has not filed his pre-trial on or before the 15 th day of March 2010 as ordered by the Court.
9. On coming on for trial, the matter was adjourned on the 1 st day of March 2010. Pursuant to Part 73.3 of the Supreme Court (Civil Proceedings) Rules 2008, the Rules now apply to these proceedings.
10. A pre-trial review must be held such that the usual and necessary orders with respect to the filing and serving of witness statements, particulars, memorandums, arguments or other statements, and other relevant orders may be made so that the objective of case management pursuant to Part 25 and Part 38 of the Rules may be fulfilled.”
The affidavit in support was deposed by the General Manager of the Defendant Company, a Mr. Dominick O'Reilly. He deposed to the events leading to the filing of the application with the primary submission speaking to the Defendant/Applicant's difficulty in enforcing the costs order stemming from the Claimant/Respondent's unwillingness and/or refusal to pay the Defendant/Applicant's costs award in the sum of $14, 266.00 This, despite several letters sent to the Claimant/Respondent and his counsel.
In addition, Mr. O'Reilly deposed that he had been advised and verily believes on information from his attorneys that the Claimant/Respondent does not ordinarily reside in Barbados (see paragraphs 10 and 12) and that the Statement of Claim does not state the Claimant/Respondent's address (see paragraph 13).
The following issues arise for the Court's determination in this application for security for costs:
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i. Whether there are grounds for ordering security for costs;
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ii. On a finding that there are grounds for ordering security for costs, whether the court's discretion should be exercised in favour of making the order; and
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iii. The quantum of such security should the Court exercise its discretion in favour of making the order.
An order for security for costs usually requires a 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 and staying the claim until the security is provided. The purpose behind such an order is to safeguard a defendant against the risk of being unable to enforce any costs order he may later obtain.
In Investment Invoice Financing Ltd v Limehouse Board Mills Ltd [2006] 4 Costs LR 632 Moore-Bick LJ stated at paragraph [46]:
“An order to provide security for costs is a means of ensuring that a claimant will be able to meet a liability for costs that may be imposed on him in future if his claim is unsuccessful and it cannot be made unless certain conditions relating to his personal circumstances are satisfied.”
Part 24 of CPR deals generally with the power of the court to require a Claimant/Respondent to give security for the Defendant/Applicant's costs. Rule 24.2 provides as follows:
“24.2 (1) A defendant in any proceedings may apply for an order requiring the claimant to give security for the defendant's costs of the proceedings.
(2) Where practicable such an application must be made at a case management conference and without delay.
(3) An application for security for costs must be supported by evidence on affidavit.
(4) The amount and nature of any security ordered shall be such as the court thinks appropriate.”
In Roseal Services Limited v Michael Challis et al CV 1736 of 2008 (unreported decision of the High Court delivered July 2013), Kentish J adopted the guiding principles to be found in Aeronave S.P.A and Another v Westland Chardters Ltd and Others [1971] 1 WLR 1445. These are:
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(1) First, it is a matter for the discretion of the court whether or not security for costs should be ordered and in what amount;
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(2) Second, there is no longer an inflexible rule that a foreign plaintiff must give security for costs; and
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(3) Third, the court must consider whether it is just or not to order security.
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(4) An order for security may be made at any stage of the proceedings;
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(5) Security for costs is not necessarily confined to future costs, but may, when applied for promptly, be extended to costs already incurred in the suit.
Blackstone's Civil Practice 2011 at paragraph 65.1 posits that on an application for security for costs three matters arise and enumerates them as follows:
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(1) Whether there are grounds for ordering security for costs;
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(2) If so, whether the court's discretion should be exercised in favour of making the order; and
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(3) If so, how much security should be provided.
In making the determination in this matter I shall adopt the three-step approach above.
Denning MR in Aeronave SPA and Another v Westland Charters Ltd and Others [1971] 1 WLR 1445, a pre-CPR authority, stated:
“It is the usual practice of the Courts to make a foreign plaintiff give security for costs. But it does so, as a matter of discretion, because it is just to do so. After all, if the defendant...
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