(1988)1988April 15 {TRIANTAFYLUDES,P.,SAW1DES,KOURRIS,JJ.) GEORGHIOS CHRISTOFOROU, ADMINISTRATOR OFTHE ESTATEOFTHEDECEASED ANTONISCHRISTOFOROU (NO.1) Appellant-Plaintiff, v. 1.GEORGHIOS ASPROFTA, 2.ANDREASMALIOTISLTD., Respondents-Defendants. (CivilAppeal No. 7142). CivilProcedure —Security for costs—Appeal —0.35 r.2and 0.60 r.4 of the CivilProcedure Rules —Person suing asnominal plaintiffin somebody else's interest —Security on ground of insolvency or poverty —Principlesapplicable —Extensive analysisof Authorities on thesubject. The present appeal was filed against the judgment of the District Court of Nicosia, dismissing Action No. 6200/83 brought by the appellant-plaintiff in hiscapacity asadministrator ofthe estate of the deceased Antonis Christoforou, late of Ayios Dhometios, claiming damagesboth undersection34oftheAdministration ofEstatesLaw, 10 Cap. 189 and under section 58of the Civil Wrongs Law, Cap. 148, against therespondents-defendants for causingthedeath ofthesaid deceased Antonis Christoforou as a result of their negligence in a road traffic accident. The deceased left no property. The administrator was appointed 15 onlyforthepurpose ofpursuingtheaforesaid claims.Thecostsofthe action, adjudged against the estate, remained unpaid. However, no evidence wasadduced thattheadministrator washimself insolvent. Thisisan application bytherespondent (defendant) forsecurityof costs. The application isbased on 0.35 r.2* of the Civil Procedure 20 Rules. *Therelevantpartofftisruleisquoted atp. 248 post. 246 *-* 1C.LR 5 Christoforou v. Asprofta Held,dismissingtheapplication:
(1)0.60 r.4oftheCivilProcedure Rules provides that «if itappears that a person suing is not the real plaintiff but is merely suing as nominal plaintiff in somebody else's interests, then such person may, at any stage of the action, be required tb give security for costs on the grounds of insolvency or poverty».
(2)Twoquestions pose for consideration inthe present case: (a)Whether the insolvency oftheperson suingasnominal plaintiff orthatofthoseonwhosebehalftheactionisbrought,isthecriterion. 10 15 20 (b)Assumingthattheinsolvencyoftheestateisamaterialcriterion, isthisa proper case toordersecurityfor costs?
(3)In the light of the authorities an order for security for costs on the ground of insolvency which (if the appellant is right) the defendants had wrongly caused, may amount to a denial ofjustice, especially in view of the fact that it has not been proved to the satisfaction of the Court that the proceedings are vexatious or unreasonable.
(4)On the other hand, assumingthatwhatisrequired tosatisfy the provision of 0.60, r.4 is insolvency of the person suing as nominal plaintiff, the applicantshave not proved anything tothat effect. Application dismissed withcosts." Casesreferredto: Cowell v. Taylor,[1886)31 Ch. D.34; Sykes v.Sykes (1868-1869) LawRep.,Vol.IVC.P.645; 2o • Harlockv.Ashberry [1881] 19Ch.D.84; Hallv. Snowden and Co. [1899] 1Q.B.593; Re Ivory [1878] 10Ch.D.372; Re Spencer [1881]45 L.T.396; 30 Usil v. Breariey, TheSame v. Hales, TheSame v.'Clarke [1878] 3 C.P.D. 206; Farrerv. Lacy, Hartlandand Co. [1885]28Ch.D. 482; ' • Rourke v. TheWhiteMoss CollieryCompany
(1876)1C.P.D.
- Application. 35 Application by respondents foran orderthattheappellant gives security for costs of the respondents inthe sum of £
- '247 I Christoforou v.Asprofta
(1988)N.Zomenis,fortheapplicants-respondents. P.Lysandrou,forthe respondents-appellants. Cur. adv. vult. SAWIDES J. read the following judgment of the Court. The President of this Court Mr. Justice Triantafyllides is unable to participate inthedeliveryofthisjudgmentduetotheassumption byhimofhisnewduties.ThejudgmentIamgoingtodeliveristhe unanimousjudgment ofallthreeofuswhichwasreachedonthe 24th March, 1988andtowhichMr.JusticeTriantafyllides wasin fullagreement. 5 Bythe present application the applicants, respondents inthis appealseekanordermattheappellantgivessecurityforthecosts oftherespondentsinthesumof£450.-.Theapplicationisbasedon theCivilProcedure Rules,Order35, rule2whichprovides,inter alia,that-« Suchdepositorothersecurityforthecoststo 15 be occasioned byany appeal shallbe made orgiven as maybe directedunderspecialcircumstancesbytheCourtofAppeal». ThepresentappealwasfiledagainstthejudgmentoftheDistrict Court of Nicosia, dismissingActionNo.6200/83brought bythe appellant-plaintiff inhiscapacity asadministratoroftheestate of 20 the deceased Antonis Christoforou, late of Ayios Dhometios, claimingdamagesboth undersection34oftheAdministrationof EstatesLaw,Cap. 189and undersection 58oftheCivilWrongs Law, Cap. 148, against the respondents-defendants for causing thedeath ofthesaiddeceasedAntonisChristoforou asaresultof 25 theirnegligenceinaroadtraffic accident. ThelearnedtrialJudgedismissedtheactionhavingconcluded thatthedeceasedwassolelytoblameforhismisfortune. Itiscommonground,asitemanatesfromtheaffidavitsswomon bothsidesthatthedeceasedleftnopropertyandtheadministrator 30 wasappointed onlyforthepurposeofpursuingtheclaimsofthe dependantsandtheestateofthedeceasedagainstthe defendants for having caused his death by their wrongful act and/or negligence. Intheaffidavit insupportofthepresentapplication,whichwas 35 swombyanadvocate'sclerkofcounselforapplicantsitisalleged thattheappealisfrivolous andvexatiousinviewofthereasoned decision of the trial Court, that the estate of the deceased is 248 *•" 1 CLJL Chrtstoforott v.Asprofta S a w M a J. insolvent and there is no chance of recovering the costs of this appeal, that the costs of the action which were adjudged against theestateofthedeceased havenotbeen paidandthatitwould be unjust inthecircumstancesfortheapplicantsifnosecurityforcosts 5 isordered. On the other hand in the affidavits swom by the appellant in support of the opposition, it is alleged that there are strong grounds in support of the appeal and that neither he as administrator northedependants onwhose behalf theaction was 10 broughtaredestituteofmeanstoreimbursetheapplicantsfortheir costs. Insolvencyorpovertyof aperson suingasa nominal plaintiff in somebody else'sinterest isaground entitlingthedefendant toask forsecurityforcostsunderOrder60, rule4oftheCivil Procedure 15 Ruleswhichprovides as follows: 20 «Ifitappears that a person suing isnotthe real plaintiff but is merely suing as nominal plaintiff in somebody else's interests,then such person may,atanystageoftheaction, be required to give security for costs on the grounds of insolvencyor poverty.» Inthemarginalnotetothesaidrulereference ismadeto Cowell v. Taylor[1886131 CH. D.34 at p.38 obviouslyasan indication of theapplication of the rule. Inthecase of Cowell v.Taylor(supra)itwasheldthatthe Court 25 willnotrequiresecurityforcoststobegivenbyaplaintiff whosues as trustee in bankruptcy even where he is in insolvent circumstances. Baggalay L.J., in his judgment after reviewing a number ofpreviouscasesandafter makingreference tothe case of Sykes v.Sykes (Law Rep. IVC.P. 1868-1869, p. 645)said the 30 following (atpp.37,38):- 35 « Twopropositions,then, areestablished -thefact that the plaintiff is a trustee in bankruptcy or liquidation is not a sufficient ground; the fact that theplaintiff isinsolventisnota sufficient ground. Hereitissaidyouhaveacombination ofthe two, and though neither alone would be sufficient, both together willsuffice. Icannot cometothatconclusion.Itissaid thatLord Blackburn cametoitinMalcolmv.Hodgkinson. He there says: 'Where an insolvent person issuing astrustee for another, ithaslongbeen theruletorequiresecurityforcosts.' 249 S a w t d e · J. Christoforon v.Asprofta
(1988)Ithing that this observation iscorrectly interpreted by ViceChancellor Hall in In re CartaParaMining Company as not referring to a case like that of a trustee in bankruptcy, but to the case of a person whoisa bare trustee for some one else. Suppose I,having a shadowy case, assign itovertoa man of 5 straw that he may sue for my benefit, then security for costs will be ordered. Looking at Denston v. Ashton, and United Portsand General Insurance Company v.Hill,Ithink thereis no doubt to what conclusion we ought to come. There is abundant authority in support of the view that security for 10 costsought nottobe ordered, andtheonlycasethatseemsto tend the other way,except Pooley'sTrustee inBankruptcy v. Whetham, hasbeen explained.» Sixteen years before Cowell's case in 1869, the Court of Common Pleas, in Sykes v. Sykes (Law Rep. 4 C.P. 645) 15 considered the case of an executor; there Bovill,C.J., said at pp. 647,648:«Theentitle a defendant tosecurity,he mustshew not only that the plaintiff is insolvent, but also that he is suing as a nominal plaintiff, in the sense of another person being 20 beneficially interested in the result of the action. Inthat case, the Court would stay the proceedings until security is given. That doctrine,however, hasneverbeen appliedtothecaseof an executor orthe assignee of a bankrupt.» and went on to say:- 25 «No authority has been or could be produced in which security for costs has been ordered to be given by a plaintiff suingasexecutor orasassignee,simplyonthegroundthathe isnot ina position topay costs». The above cases, of course, are cases inwhich the question of 30 securityforcostswasraisedbefore aCourtoffirstinstanceand not onappeal.Reference wasmadetothemsimplyforthepurposeof expoundingontheprinciplesunderlyingtheexercisebytheCourt of itsdiscretion to order security for costs. It appears that in cases of appeal, it is a settled practice in 35 England to require security for costs to be given by an appellant who would be unable through poverty to pay the costs of the appeal, if unsuccessful, without proof of any or other special circumstances. (Harlock v. Ashberry [1881] 19 Ch.D. 84; Hall v. 250 1 C.L.R. Christoforou v.Asprofta S a w l d e s J. Snowden &Co. [1899}1Q.B. 593; inRe Ivory [1878] 10Ch.D. atp.372per Cotton, L.J.; Re Spencer
(1881),45 L.T.396).The reason for that isas explained by Bowen L.J. in Cowell v. Taylor (supra),due tothe fact that «theappellant hashad thebenefit ofa 5 decision byone of HerMajesty's Courts,andsoaninsolventparty isnot excluded from the Courts, but only prevented, ifhe cannot find security, from dragging his opponent from one Court to another.» However, in Usil v.Brearley, The Same v.Hales, The Same v. 10 Clarke ([1878] 3 C.P.D. 206) it was held that insolvency of an appellant byitself wasnotsufficient to ordersecurity for costsbut alsothatheisvexatiouslyorunreasonablyprosecutingtheappeal. Cockbum, C.J. hadthistosayinhisjudgment (atp.207),towhich Bramwell, Brettand Cotton, L.JJ., concurred:15 20 Ithink that in considering the question we are justified in taking into account not merely the pecuniary position of the plaintiff, but also the other circumstances of the case. If the Court were of opinion that the plaintiff had any reasonable ground for going on with his action, they should not allow mere poverty to stand in the way of his appeal. But we are justified in looking at the peculiar circumstances of the case; and to my mind the law isclear, and the principleson which itrestsare wellsettled.» - It is, however, well settled that security will not be ordered 25 where the insolvency of the appellant arisesfrom what he alleges to be the wrongful act of the respondent. Thus in Farrer v. Lacy Hartland & Co., [1885] 28 Ch.D. 482 though the principle that insolvency of the appellant isa ground for ordering security for costswasaccepted, adistinction wasdrawnbetween thatcaseand 30 thecasewhere the insolvencyarisesoutofthealleged negligence of the defendant as in the case of R^urke v. White Moss Colliery Company, [1876] 1 C.P.D. 556. Baggalay, L.J. who was a member of the Bench in both appeals had this to say in his judgment (atpp. 484,485):35 40 «Iwish to make a few remarks as to Rouike v. White Moss Colliery Company, which· appears to have been misunderstood. The action there wasofaveryspecial nature. The plaintiff was a workman employed by a contractor who was executing a work for the company, and he was injured owing to the negligence of an engineer employed by the 251 S a w i d e s J. Christoforou v.Asprofta
(1988)company, but acting under the orders of the contractor. The action was against the company, on the ground that it was answerable for the negligence of the engineer, who was its servant; the decision was adverse to the plaintiff on the ground that the plaintiff and the engineer were engaged ina 5 common employment under the others and control of the contractor. Itwaspressed on the Court of Appeal, of whichI wasatthetime a member, and Iwellrememberthecase,that itwould be a denial of justice to the plaintiff, who had been reduced to poverty by the accident, if he could not appeal 10 withoutgivingsecurityforcosts.Itwasalsourgedinhisfavour thatthepoint had neverbeen before a Courtof Error;butthe decision went, not on that, but on the ground, that, having regard to the whole circumstances of the case, itwould have been a denial of justice not to allow the plaintiff to appeal 15 without giving security;» and Bowen, L.J., in his concurring judgment in the same case said the following (atp. 485):«Iam of thesame opinion.The LordJustice Baggallay has expressed what appears tome to be the true view of Rourke 20 v. WhiteMoss CollieryCompany. Suppose theplaintiff inthat case had beenrightonthepointofLaw,hisinsolvencywould have arisen from thewrongful actcomplained ofintheaction. To have required security for costs on the ground of an insolvency which (ifthe plaintiff wasright)the defendant had 25 wrongly caused, might havebeen a denialofjustice.» Twoquestions pose for consideration inthepresent case:. (
- a)Whether the insolvency of the person suing as nominal plaintiff or that of those on whose behalf the action isbrought, is the criterion. (
- b)Assuming that the insolvency of the estate is a material criterion, isthisa proper case toorder security for costs? Weshallproceedfirsttoconsiderthecaseontheassumption that insolvencyofthe estate amountsto«aspecialcircumstance»tobe taken into consideration by the Court of Appeal in making an 35 order forsecurity for costs. Itiscommon ground that the death of the deceased which led to his insolvency was the result of the alleged negligence of the 252 30 1 C.L.R. Christoforou v.Asprofta Savvldes J . defendants. Adopting the principle emanating from Rourke v. White Moss Colliery (supra) and affirmed In Fairer v. Lacy Hartland&Co. (supra)andwehavenottracedanydecisiontothe contrary in this respect, an order for security for costs on the 5 ground of insolvency which (if the appellant is right) the defendants had wrongly caused, might have been a denial of justice,especiallyinviewofthefact that ithasnotbeen proved to thesatisfaction of theCourtthattheproceedingsarevexatious or unreasonable.Themereallegation thatanappeal ismade against 10 a reasoned decision of the Court dismissing the action on the meritsorthefactthatthecostsoftheactionhavenotbeenpaidare not such as to render further proceedings on appeal vexatious or unreasonable. Inthe lightof theabove,thisapplication should be refused. 15 On the other hand, assumingthat whatisrequired tosatisfy the provision of0.60, r.4isinsolvencyoftheperson suingas nominal plaintiff, the applicants have not proved an^hing to satisfy the Court that the appellant as administrator of the estate of the deceased is insolvent and therefore not in a position to pay the 20 costsoftheappealpersonally, ifheissoordered bytheCourt. On thecontraryinhisaffidavit inopposition,theappellantallegesthat heisinagood financial positionand can payanycostsincurredin theappeal ifhe isso ordered. For the above reasons this application isrefused and is hereby 25 dismissed with costs. The appeal willproceed to be heard on its meritson a date to be fixed bythe Registrar. Application refused. 253