clr/1988/1988_1_437.pdf

(1)The Admiralty Order, 1893 is silent on the matter. Therefore, and in virtue of Rule 237, the old English Rulesare applicable.

(2)Under such Rules in case of default togivesecurity of costs as ordered, the proceedings are either stayed or dismissed. However, thedefendant should notbesubjected tothealternativeofhavingthe action hanging over him indefinitely, or of giving up hissecurity for costs.The defendant isentitled to have hiscivil dispute determined within reasonable timeaccording to Law. 437 Warde v.Ship «ElSexto»

(3)Inthepresent casetheplaintiff notonlyhasnotgivensecurity forcostswithintheappointed time,butevenhefailed torespondto thecommunications ofhisowncounsel. Action dismissedwithcosts. Casesreferredto: 5 Asimenosv. Paraskeva

(1982)1 C.L R.145; La Grange v. McAndrew[1879]45Q.B.D.210; ReHurter'sTradeMark[18871.W.N.

1. Application. Applicasion bydefendant forthedismissaloftheactionforwant 10 of prosecution, as the plaintiffs failed to give security for costs >rdered by the Court. M.Montanios, for defendant-applicant. St. McBride, for plaintiff-respondent Cur.adv. vult. 15 STYLIANIDES J. read the following decision. The applicantdefendant applied for the dismissal of the action for want of prosecution, astheplaintiff failed togivesecurityforcosts ordered by the Court. The plaintiff in this action isa permanent resident of Paris. By 20 this action he claims damages forbreach of contract of carriage. The pleadings closed and theaction was listed for hearing. The defendant applied bysummons foranorder forsecurity for costs, under Order 185,whichprovides that:«If any Plaintiff (otherthan a seaman suingfor hiswages or 25 for the loss of his clothes and effects in a collision) or any Defendant making a counterclaim is not resident in Cyprus, the Court or Judge may, on the application of the adverse party, order him to give such security for the costs of such adverse party astotheCourtorJudge shallseem fit;and may 30 order that all proceedings in the action be stayed until such security be given.» On 25th February, 1988, with the consent of counsel for the plaintiff an Order was made that the plaintiff do give security for 438 1 C.L.R. Warde v. Ship «ElSexto» Stylianides J. costsinthesumof£3,000.-,eitherbyBankguaranteeorpayment intoCourt.Such securitytobegivennotlaterthan the28th March.
2. Itwas.further, ordered that ifthesecuritywasnotgiven,the proceedings in the action be stayed. 5 The plaintiff failed tocomply with the above Order. Hence this application for dismissal of the action forwant of prosecution Thedrafters oftheCivilProcedure RulesinCyprus,which came into operation in 1938.made specific provision inOrder
3. rule 5asfollows;- 10 «5.Where the Court orderssecurity for coststobe given it may stay the proceedings in the action until such security is given, and inthe event of the security nut boiny given within the time appointed, may dismissthe action.» These Rules are not, however, applicable in the Admiralty 15 Jurisdiction of this Court. The application isbased on Orders 185and 237 of the Rulesof the Supreme Court in itsAdmiralty Jurisdiction
4. Order
5. rule 6 of the Rules of the Supreme Court of England (old Rules) and on the inherent jurisdiction and powersof the Court 20 The application was adjourned to enable counsel for the lespondent to communicate with hisclient abroad. He informed theCourtthat,though hedulynotified hisclient,tohisregret there wasnoresponse,neitherhasanysecurityforcostsbeen received • ThequestionthatposesiswhethertheCourtshouldfurther stay 25 the action or dismissitfor want of prosecution? OurAdmiraltyRulesaresilenton thematterand. therefore, the Rules and practice obtaining in England before Independence Dayareapplicable -(see0.237 andAsimenos v. Paraskeva

(1982)1 C.L.R. 145). 30 InEnglandifaplaintiff whohasbeen ordered togivesecurity for costs does not do so, the action may be stayed until security is given ordismissed forwent ofprosecution -(TheAnnual Practice

1. p. 1891;Halsbury's Lawsof England, 4th Edition. Volume 37, para. 308). 35 In La Grange v. McAndrew [1879] 4 Q.B.D.
2. 'he plaintiff was a foreigner resident abroad, and an order had been made stayingthe action untilhe should givesecurity for costs.The timr 439 Stylianldes J. Warde v. Ship «ElSexto»

(1988)for delivery of statement of claim had expired and no security for costs had been given. The defendant thereupon applied at chambers to dismissthe action forwant ofprosecution, and Field, J., made an order dismissing the action accordingly. The plaintiff moved to rescind the order of Field,J., butthe order of dismissal 5 was upheld. Cockburn, C.J. said that the defendant ought not to be subjected to the alternative of having the action hanging over him indefinitely, or of giving up hissecurity forcosts. See. also, InreHurler's Trade-Mark

(1887)W.N.71. Aplaintiff has to prosecute hiscase according to the Rules and 10 comply with the Order of the Court for security for costs. A defendant who desists the claim is entitled to have his civil dispute determined within reasonable time according to Law. Ifan order of security for costs ismade and the Court appoints time within which such security should be given, the defendant 15 may applytotheCourt, eitherforastayoftheaction untilsecurity is given, or dismissal for want of prosecution. He is not bound, however, towaitindefinitely andhaveanactionhangingoverhim indefinitely. Thiswould be againstjustice and reason. In the present case the plaintiff not only has not given security 20 for costs within the appointed time, but even he failed to respond to the communications of hisown counsel. Justice compels that thisaction should come toan end and the defendant be free from the burden of having a claim in Court pending against him indefinitely, due tothe fault of the plaintiff. 25 In the result this action is dismissed with costs against the plaintiff. Action dismissed with costs againstplaintiff. 440