clr/1983/1983_1_655.pdf

(1983)Everett v. Islington Guardians [1923] W.N. 72; SirLindsayParkinson Co.Ltd. v.Triplan Ltd. [1973]2All E.R. 273 at p. 275; Naamlooze-VennootschopBelegginsCompagnie "Uranus"v. Bank of England& Others[1948] 1 All E.R. 465; 5 Visco v. Minter [1969] 3 W.L.R. 70; In re B. (Infants) [1965] I W.L.R. 146; Willmott v. FreeholdHousePropertyCo.[1885]W.N. 65; Baird v. Hecquard [1889] 5 T.L.R.

1. Application. 10 Application by the respondents for an order of the Court directing the appellants to give security for respondents* costs in the sum of £250.-. G. Mitsides, for the applicants. G. Cacoyannis, for the respondents. 15 Cur. adv. vult. TRIANTAFYLLIDES P.: The judgment of the Court will be delivered by H.H. A. Loizou. A. Loizou J.: By the present application the applicants seek an order that the respondents give security for their costs in 20 the sum of C£
2. The application is based on the Civil Procedure Rules, Order 35, rule 2, which provides that, "such deposit or other security for costs to beoccasioned by any appeal shall be made or given as may be directed, under special circumstances by the Court of Appeal." 25 The applicants are a State company of Iraq, engaged in the import to that country of vehicles and machinery. On the 5th July, 1977, they instituted in the District Court of Limassol against the respondents Action No. 1748/
3. The latter entered an unconditional appearance on the 20th July, 1977,and on the 30 same day they applied for security for costs. On the 24th August, 1977,an order wasmade to that effect for the amount of C£300.- which was deposited with the Court on the 19th September,
4. On the 21st September, 1977, the Statement of Claim was 35 filed. On the 11th October, 1977, an application for judgment against the respondents in default of filing their Defence was 656 I C.L.R. Ports Association v.State Machinery A. LoizouJ* withdrawn withcostsagainsttherespondents,whowereordered to file their Defence within one month. Onthe 16thJuly, 1977,an application for an interim order to observe the status quo of the machinery, subject-matter of the 5 action, was filed, which was granted on certain conditions the 29th October,
5. The respondents appealed against that order by Civil Appeal No. 5759 which was withdrawn and dismissed on the 2nd December,
6. During the hearing of theapplication for thesaidinterlocutory orderacertain Andreas 10 Avraam gave evidence on behalf of the respondents and in the course of his cross-examination he disclosed that the respondents werenot registered though he was acting as the treasurer of the Association. After that evidence and after the conclusion of the said appeal on the 10th January, 1978,an appli15 cation was made by the plaintiffs-applicants to join as codefendants all the persons who were the members of the respondent Association. That application was determined and a ruling was given on the 11th March, 1978, granting the said amendment whichwasappealed from by CivilAppeal No.5825 20 which isnow pending and in which the present application for security for costs has been made. In order to complete the picture the proceedings in Action No. 1748/77 were stayed by virtue of an order of the Court pending the determination of thisCivilAppeal. That order wasappealed and upheld by this 25 Court by its judgment delivered on the 21st November, 1978, inCivilAppeal No.5834whichappeal wasdismissed withcosts. The opposition filed by the respondents to the application of the applicants to join as co-defendants all the persons who were the members of the said Association, was based on the 30 allegation that such amendment could not bemadeinasmuch as the Limassol Licensed Porters Association, the original defendant 2intheaction, "has no legal entity and/or that theydo not exist as a legal entity". In fact, the grounds of appeal turned mainly on the same issue, namely, that the trial Court 35 had no power to make the order appealed from as the whole proceedingswereanullityabinitio sincetherewas no defendant or proper defendant in the action. It has been all along the case for the applicants that as the respondents admit that they do not possess a legal entity, yet 40 they have fought the case step by step, and if that is so and if 657 A.LoizouJ. PortersAssociationv.StateMachinery

(1983)their appeal fails, the applicants shall not be able to recover theirowncoststhoughtheythemselvesdeposited incashC£300.as security for costs. It has been submitted that these facts constitute special circumstances satisfying the requirement of Order 35, rule 2, for themakingbythisCourtofanorder asapplied bythe plaintiffsapplicants for security for costs. 5 In support of their application counsel for the applicants has referred ustothecasesofDence v.Mason

(1879)W.N. 177C.A., whichsupports theproposition that suchan order may bemade 10 against the appellant whether he isplaintiff or defendant in the Court below. Also to the case of Weldon v. Maples, Teesdale &Co.[1887J 20Q.B. 331,to theeffect that the Court of Appeal willorder, that security begivenfor thecosts ofan appeal upon facts whichestablisha prima faciecaseofan abuseor athreate- 15 ned abuse by the appellant of the process of the Court. We were also referred to the case of Everettv. Islington Guardians

(1923)W.N.p.72whereitwasheldthat themerefact that there was a novel or important point of Law which was reasonably fit for argument wasnot a sufficient ground for dispensing with 20 security for costs even wherethere wassuch a point of Law the practice ofthe Court wastohave regard to allthe circumstances of the case. Security for costs may be also ordered in a case where the defendant isappealing asitmakes no difference from that ofan 25 appeal by aplaintiff whohad brought thedefendant into Court. Counsel for the respondents in answer to the argument advanced on behalf of theapplicants that theprinciples governing the exercise of the Court's discretion in cases of insolvency or poverty apply also to cases as the present one, has argued 30 that insolvency or poverty of a plaintiff is no ground for requiring him to givesecurity for costs. He based this argument on the provisions of Order 60 of our Civil Procedure Rules which corresponds to Order 65, rules 6(A), 6(B) and 7 of the old English Rules (seeAnnual Practice 1958pages1884et seq.). 35 He also referred as to the case of Sir LindsayParkinson Co. Ltd. v.TriplanLtd. [1973]2All E.R.,p.273atp. 275,insupport of theproposition that in exercising itsdiscretion theCourtwill 658 1 C.L.R. Porters Association v.State Machiery A. Loizou J. have regard to all the circumstances of the case that security cannot now be ordered as of course from a foreign plaintiff but only if the Court thinks it just to order such security in the circumstances of the case and as to the circumstances which the 5 Court might take into account whether to order security for costs, as expounded by Lord Denning in the said judgment. 10 15 20 25 It may be pointed out here, however, that this case turned on the interpretation of Order 23, rule 1, of the new English Rules (See Annual Practice 1982, p. 420) which is different than the previous one; the main and most important change effected by this order concerns the nature of the discretion of the Court on whether to order security for costs or not. He also referred us to the case of Naamlooze Vennootschop Beleggins Compagnie '•Uranus" v.Bank of England&Others [1948] 1All E.R. p.465, where it was held that the defendants were exercising their right to defend themselves against attack and their right to obtain security for costs from foreign plaintiffs and they ought not to be prevented from doing so or hampered by being themselves ordered to give security for costs. It should be noted that in that case one of the defendants was in effect agent for a Dutchman and a Dutch Charity, both resident out of the jurisdiction and on the plaintiff's volition these parties were joined as defendants; the two new defendants applied for security for costs which was ordered by the Master and thereupon the plaintiffs asked that the new defendants should also give security for costs. He also referred us to the case of Visco v. Minter [1969] 3 W.L.R. p. 70, which again turns on the interpretation of the new Order 23, rule 1 and to the effect that the Court must look 30 at the proceeding in question but assuming that that proceeding turns on a preliminary issue, regard must also be had to the substance of the matter which meant that the position of the parties in the substantive proceedings ought not to be ignored. Also reference was made to the case of In reB. {Infants)([1965] 35 1 W.R.L. 146) which supports the same propostion; and to the case of Willmott v. Freehold House Property Co.

(1885)W.N. 65, on the proposition that where the appeal relates merely to a point of procedure the Court is disinclined to order security. 659 A.LoizouJ. PortersAssociationv.StateMachinery

(1983)Wemust,however, saythat therearecertain exceptionstothe rule that insolvency or poverty is no ground for requiring security for costs. As an example for this proposition we have thecaseof an appellant whomay beordered to givesecurity for costs on such ground under Order 59, rule 10

(5)which cor- 5 responds to the old Order 58, rule 9 (see the Annual Practice 1982, pages 434 and 435) and also the Annual Practice 1958, Order 58, rule 9, at page 1684,where it isclearly stated that it isthe settled practice to require security for coststo begivenby an appellant who would be unable through poverty to pay the 10 costs of an appeal, if unsuccessful, without proof of any other special circumstances. Needless to say that Order 58, rule 5, para. 5,ismore or lessin thesameterms asthe relevant part of Order 35, rule 2. The said paragraph reads: "The CourtofAppeal maymakesuchorder astothewhole 15 or any part of the costs of an appeal as may bejust and may, in special circumstances, order that such security shall be given for the costs of an appeal as may bejust." The issue, therefore, for determination is whether this Court should exercise its discretion in ordering the defendants to give 20 security for costs on the basis that the facts as outlined and relied upon by the applicants constitute special circumstances. We are afraid we cannot subscribe to that view as the totality of them do not constitute special circumstances and we cannot saythatprimafacietherehasbeenestablished acaseofabuseor 25 threatened abuse, by the appellant, of the process of the Court. No question of insolvency or poverty arisesin thiscase and by no stretch of imagination we should apply the same principles on the facts of thepresent caseas they apply regarding casesof insolvency or poverty of an appellant. The choice of defen- 30 dants 2 under the present title which they sought to amend by adding 69 other persons as defendants should not be used as a means for the applicants to benefit if they made a mistake in chosing the wrong name or a non-existing legally, as alleged, defendant. They have themselves to blame for that though we 35 must stress that by saying this we are in no way committing ourselveseither wayonthemeritsoftheappealwhichispending against the order of amendment made by the District Court of Limassol. Moreover, this is indeed aprocedural appeal and in line with 40 660 1 C.L.R. Porters Association v.State Machinery A. Loizou J. existing authority, (see Willmott (supra) and Bairdv. Hecquard [1889] 5 T.L.R. 576), we are disinclined to order security for costs. For all the above reasons we dismiss this application with 5 costs. Application dismissed with costs. 661