2000/245
4 pages
ROYAL COURT
(Samedi Division)
11th December, 2000
Before: M.C. St J Birt., Deputy Bailiff and
Jurats Rumfitt, and Le Breton.
Between Bermuda Trust (Jersey) Limited
MIL (Jersey) Limited and
Bermuda Trust Executors (Jersey) Limited Representors
And Shujauddin Valibhai First Respondent
And Izzuddin J. Sharafally Second Respondent
And Siafuddin J. Sharafally Third Respondent
Applications:
(1) by the Representors for leave to file an amended representation; and
(2) by the first and second Respondents for Orders:
(a) adjourning the hearing of this action fixed for 11th January,2001; and
(b) requiring the third Respondent to provide security for the costs of the
first and second Respondents.
Advocate M.H.D. Taylor for the Representors
Advocate F.B. Robertson for the first and second Respondents
Advocate M.L. Preston for the third Respondent.
JUDGMENT
THE DEPUTY BAILIFF:
1. We refuse leave to amend paragraph 11, and the consequential insertion of paragraphs D, E, F, and G of the Representation, but we grant leave to amend paragraphs 4, and 9, and the minor amendments to paragraph C of the Representation.
2. The reasons for refusing the amendment to paragraph 11 are twofold. First, this comes far too late in our judgment. This cannot have been a matter which was sprung upon the Trustee; it has clearly been brewing for some time. This case has been wending its way at a snail-like pace, and we are not at all happy that an amendment of this nature should be sought at the eleventh hour. We think there is a risk that the parties would wish to delay the matter because of the need to plead to this amendment.
3. The second reason is that we do not think that it right or necessary for the amendment to be included in this particular case. This is a matter which seeks a decision as to the ownership of this company. The amendment seeks to deal with the administrative fees, which the Trustee has been accumulating for many years in administering the company, but which remain unpaid because the beneficial owner of the company is unknown, and the company has no liquid assets.
4. In our judgment those costs are a matter which will fall to be considered once the true beneficial owner is known. At that stage, the Trustee and the beneficial owner will no doubt enter into dialogue. That dialogue is not possible at present because the beneficial owner is unknown. Clearly, as a matter of general principle, the Trustee is entitled to its reasonable costs of administering the company subject to any particular defences which may be raised on the facts of this case. But that is a matter, it seems to us, for a future occasion. It ought to be capable of resolution; if it is not, then the parties, who at that stage will be identified, can come back before the Court and the Court will adjudicate on any dispute.
5. In our judgment it would be not in the interests of justice for this amendment to be added at this late stage, and we therefore reject it.
6. As to the application for an adjournment, there has been mention of a further amended answer within this application for an adjournment. This date has been fixed for some time and this case has drifted on for far too long, as we have said. No good reason for disturbing the Court's time table has been put forward.
7. The grounds for seeking an adjournment - a bit more breathing space, and possible time for settlement - are not sufficient. So the trial will proceed on the date at present fixed.
8. That brings us to the third summons: an application for security for costs by the first and second Respondents against the third Respondent. The principles upon which the Court considers such applications were authoritatively set out in the case of A.E. Smith & Sons Ltd -v- Eau des Iles (Jersey) Limited) (1999) JLR 319. They are summarised in the headnote, and we have also been referred to the judgment where they are set out at pages 322 to 323, and we have carefully considered those principles.
9. The matters which would seem to be most relevant to the present application are: (1) whether granting the application would have the effect of stifling the claim; and (2) the lateness of the application. As to the former, the Court of Appeal made it clear that the burden was on the person against whom an order is sought, to show that the claim would probably, rather than possibly, stifle the claim. That clearly requires evidence of means to be produced to the Court, so that the Court can assess whether the claim would be stifled.
10. Mr Preston, on behalf of the third Respondent, says that he has in his possession a draft affidavit of means but that in view of the short time since the summons was first notified to him on 1st December, and of the fact that his client resides in Dubai, he has not been able to finalise that affidavit, and accordingly we have not seen it.
11. There is therefore no evidence before the Court as to her means, save that Mr Preston has informed us that in the light of her means she has now been granted legal aid by the Bâtonnier.
12. That takes us on to the next point, which is the lateness of this application. Mr Preston informed us that the matter of security for costs was touched upon at the hearing before this Court in January, 2000, at which time the advocate for the first and second Respondents was informed that he should issue a summons in the normal way should he wish to pursue the matter of security for costs, which he apparently intimated at that hearing that he wished to do.
13. Notwithstanding that, nothing was done by the first and second Respondents until 1st December when they gave notice that they would be issuing the summons which has come before the Court today.
14. In our judgment, it is far too late to bring such an application. There was no reason why the application could not have been brought at any time after January. If it had been brought at that time greater notice of the summons could have been given, enabling Mr Preston to obtain full instructions as to his clients means. We think that the third Respondent has been prejudiced by the lateness of this application, and by the consequent need for it to come before the Court at short notice.
15. A further matter which arose during the course of the hearing was whether the Court should apply the same principles in an administrative hearing as in an ordinary action. The underlying philosophy of security for costs is that it is reasonable for a plaintiff, who chooses to invoke the jurisdiction of a court and who is non-resident, to provide security so as to make sure that a successful defendant, who has not chosen to be actioned, can recover his costs.
16. In an administrative action it is the Trustee who brings the action, and both the first and second Respondents and the third Respondent have been convened. It could be said therefore that they are more in the position of defendants than plaintiffs. Conversely it could be argued that it is up to them to decide what stance they take, and the fact that they choose, in effect, to bring a claim to the assets in dispute, puts them more in the position of plaintiff.
17. We make no finding on whether the principles to be applied in such cases to Respondents should be the same as those applied to plaintiffs in ordinary actions, because we are satisfied that whatever the test, and assuming it to be that they should be treated as plaintiffs, this application is brought too late. It is only a matter of a few weeks to the trial date and the Christmas and New Year period is intervening. We think that prejudice would be caused to the third Respondent if an order for security were made at this very late stage. We have heard no explanation for the delay and in the circumstances we refuse the application.
18. I think it would follow, Mr. Preston, that any application you might choose to make would fail on similar grounds. I think in this case it is right that the Trustees should pay the costs of the first and second Respondents, the Court having found that the application to amend was wrong. So I order the Trustee to pay the costs of the first and second Respondent, and of the third Respondent.
Authorities
A.E. Smith & Sons, Ltd -v- Eau des Iles (Jersey) Ltd. (1999) JLR 319.