Jersey Unreported Judgments

Companies - reasons relating to application by the respondent for security for costs and matters relating thereto.

[2016]JRC197

Royal Court

(Samedi)

31 October 2016

Before     :		Advocate Matthew John Thompson, Master of the Royal Court
Between	David John Trigwell		Representor
And	Gerald Norman Clapp		Respondent

IN THE MATTER OF THE REPRESENTATION OF DAVID JOHN TRIGWELL

AND IN THE MATTER OF THE COMPANY KNOWN AS ASTRAL ENTERPRISES LIMITED AND IN THE MATTER OF THE COMPANIES (JERSEY) LAW 1991

Mr D. J. Trigwell appeared on his own behalf.

Mrs Jane Clapp appeared for the Respondent.

CONTENTS OF THE JUDGMENT

		Paras
1.	Introduction	1
2.	Background	2-31
3.	The parties' contentions	32-33
4.	The relevant legal principles	34-42
5.	Decision	43-51

judgment

the master:

Introduction

1.        This judgment represents my detailed written reasons in relation to the application by the respondent for security for costs and related arguments. 

Background

2.        The present dispute concerns a representation presented to the Royal Court on 27^th November, 2015, in relation to a Jersey company known as Astral Enterprises Limited ("the Company").  The essence of the dispute between the parties is whether the Company is owned by the representor or by the respondent; the representation also seeks certain consequential orders if the representor is found to be the owner of the Company. 

3.        The representor filed an affidavit in support of his representation and claims to be the current beneficial owner of the Company, having acquired the same from a Mr John Harrod ("Mr Harrod"). 

4.        The respondent filed two affidavits in response dated 10^th December, 2015, and 31^st December, 2015, where he set out his arguments as to why he claimed he was the beneficial owner of the Company. 

5.        Exhibited to the respondent's affidavit was a letter dated 27^th November, 2015, from the Jersey Financial Services Commission ("the JFSC") in response to an application by Mr Harrod, the respondent and others seeking to file an annual return and a notice of registered office for the Company.  The letter was signed by the Director General of the JFSC and stated, "I write to inform you that it has come to my attention that you have submitted incorrect, misleading and potentially fraudulent information to the Companies Registry".  Accordingly the applications to file annual returns and a notice of change of Registered Office were rejected. 

6.        The letter also stated "I am copying Mr Clapp, who on our records, is the beneficial owner of Astral" as well as the Royal Court and Advocate Begg, the representor's then legal advisor.  The letter was also referred to the Enforcement Division of the JFSC. 

7.        Also exhibited to the respondent's second affidavit was a COBO Form (filed pursuant to the Control of Borrowing (Jersey) Order 1958) provided by the JFSC in respect of the Company dated 1^st May, 1998, which described the respondent as the beneficial owner.  This document comprised of two pages and had been allocated on both pages company number 71635 by the JFSC.  I will deal with the significance of this document later in this judgment. 

8.        On 23^rd June, 2016, the matter came before me for directions.  In relation to this case I firstly refused to strike out the respondent's affidavits of 10^th December, and 31^st December, 2015, because I was satisfied there was at least an arguable case which could only be determined by the Royal Court. 

9.        I also ruled that it was not necessary for the respondent to file pleadings because there was a single issue between the parties namely, who owned the Company and the respondent had filed two affidavits setting out his position and the evidence relied upon. 

10.      I also required both parties to produce any further documents not already exhibited to any affidavits already filed relating to the Company or another company called A Astral Enterprises Limited ("A Astral"). 

11.      The relevance of A Astral is that at paragraph 31 of the respondent's first affidavit, he alleges that A Astral had been set up by a number of individuals including the representor and a Mr Osment which company had been used to steal dividend cheques belonging to the Company. 

12.      I also made orders for Nautilus Trust Company Limited ("Nautilus") to produce any records it held in relation to the legal or beneficial ownership of the Company.  I further gave directions for each party to file affidavit evidence, for a hearing date to be fixed and for the production of trial bundles. 

13.      By an act of court dated 22^nd August, 2016, the timetable for the provision of a list of documents was extended to Friday, 2^nd September, 2016, and that, if a list of documents was not provided, then consequential strike out orders would take effect. 

14.      I also extended the time limit for the filing of affidavit evidence, again with consequential strike out orders and also allowed affidavits in reply to be filed. 

15.      By the time of these directions the trial dates had been fixed for 9^th, 10^th, and 11^th November, 2016, and accordingly I ordered trial bundles to be produced by the representor by 21^st October, 2016, and skeleton arguments to be exchanged by 5pm Wednesday, 2^nd November, 2016.  

16.      The representor filed an affidavit of discovery in compliance with Practice Direction RC05/04.  The respondent also filed an affidavit sworn on 20^th September, 2016, i.e. within the time permitted and which stated "my wife and I have searched exhaustively and believe that we have now submitted all there is to be found in relation to the legal or beneficial ownership of Astral Enterprises Limited".  One of the representor's arguments is that this affidavit does not comply with Practice Direction RC05/04 and so the respondent has failed to file an affidavit of discovery in accordance with the orders I had made.  Accordingly his affidavits of 10^th and 31^st December, 2015, have been struck out and the representor is entitled to the relief claimed in the representation.  I address this argument later in this judgment. 

17.      The representor has since filed a further affidavit in his own name together with affidavits from Mr Harrod, Mr John Marshall, Mr Nicolas William Morgan, Mr Osment and Mr Barry Shelton. 

18.      The respondent has filed two further affidavits in his own name.  The representor complains in respect of these affidavits, in particular the last affidavit, that it exhibits documents not previously produced by the respondent who is therefore in breach of the order requiring him to produce all relevant documents not already disclosed and accordingly again asks for his claim to be struck out.  Again I will deal with this argument later in this judgment. 

19.      On 3^rd October, 2016, the respondent signed a summons seeking security for costs, which is the principal application I had to determine.  I set out below the arguments of both parties in relation to this application. 

20.      As part of the hearing, the representor also indicated he would not be able to produce trial bundles by the timetable I had set and therefore required more time. 

21.      Before I address the parties' arguments however, it is also necessary to set out certain matters that have occurred in England. 

22.      In 2014, the representor commenced proceedings in England against an entity known as Astral Enterprises (Jersey) Limited.  However no company incorporated under Jersey or English law known as Astral Enterprises (Jersey) Limited has ever existed. 

23.      Mr Harrod purported to represent the Company in these proceedings on the basis that he was a director of Astral Enterprises (Jersey) Limited. 

24.      The representor therefore obtained a judgment dated 30^th October, 2014, in claim number HQ14X03247 against Astral Enterprises (Jersey) Limited in the sum of £671,200 (the English proceedings). 

25.      Pursuant to this judgment the representor obtained a final charging order over a property in the name of the Company not Astral Enterprises (Jersey) Limited known as 14, Kingston Close, Blanford Forum, Dorset and a final third party debt order over a bond held by Clerical Medical in the Isle of Man again in the name of the Company.  Pursuant to this final charging order the sum of £165,000 was paid to the representor. 

26.      The representor explained that this sum had been received by him and had been spent. 

27.      In 2015 the respondent became aware of the English proceedings and applied to set aside the judgment, the final charging order and the final third party debt order.

28.      The application was made on 8^th July, 2015; directions were given by Deputy Master Partridge by an order dated 13^th November, 2015, including requiring the representor to pay the respondent's costs of the hearing of 13^th November, 2015, summarily assessed in the sum of £1,530. 

29.      The matter then came back before Master Fontaine at a hearing on 12^th July, 2016.  At this hearing I was informed that the judgment, the third party debt order and the charging order were all set aside. 

30.      The representor was also given time to apply to amend his claim failing which the claim would be struck out.  The representor was also ordered to pay the costs of the hearing, including previous hearings before Deputy Master Partridge on the basis of a summary assessment.  This assessment has not yet taken place. 

31.      Although the representor stated that no sealed order had been served following this hearing, which was accepted by Mrs Clapp, Mrs Clapp produced an order of Master Yoxall dated 4^th August, 2016, obtained by the representor extending the time for any appeal until seven days after service of the order made on 12^th July.  I was informed by Mrs Clapp that to-date, due to an extended absence of Master Fontaine (which had now concluded) and a back-log of orders to be approved, a sealed order had not yet been received from the High Court in London.  However, given that the representor had obtained the order of 4^th August, 2016, it was clearly not in dispute that a hearing had taken place on 12^th July, 2016; the representor also did not dispute the orders made by Master Fontaine which I have summarised above. 

The parties' contentions

32.      In relation to the application for security for costs, the respondent's summons provided as follows:-

"I Gerald Norman Clapp, 22 Westhall Park, Warlingham, Surrey, CR6 9HS apply for security for costs in the sum of £20,000 for the following reasons:

1.     The Claimant has been ordered to pay costs in the Case No. HQ14X03247 in the High Court of Justice in London on 13th November 2015 and 12th July 2016 and has failed to do so.

2.     The claimant is domiciled in England.

3.     The Claimant has no realistic prospect of success in this claim which is entirely without merit and foundation.

4.     The Claimant has had a judgment against Astral Enterprises Ltd set aside on 12th July 2016 in the High Court as having no real prospect of success and no other compelling reason why his claim should proceed.

5.     The Claimant will in due course be required to repay £165,000 paid to him on the above judgment."

33.      Mrs Clapp, having been permitted by Commissioner Sir Michael Birt to address the Court on behalf of the respondent due to the latter suffering from Alzheimer's Disease, therefore relied on the following in relation to the application:-

(i)        The claim was bound to fail because the representor could not demonstrate that he was the beneficial owner of the Company.  This submission relied on the affidavits filed by the respondent. 

(ii)       The representor had failed to pay the costs summarily assessed by Master Partridge. 

(iii)      The representor had a further costs judgment against him by reference to the hearing of 12th July, 2016, and the decision of Master Fontaine. 

(iv)      Mr Harrod had no basis to represent the Company as he had resigned as a director on 8th September, 2005.  He could not represent Astral Enterprises (Jersey) Limited as no such company had ever existed.  There was therefore no basis to obtain a judgment or a third party debt order. 

(v)       The sum of £165,000 obtained pursuant to the third party debt order had not been repaid. 

(vi)      She also relied on the creation of A Astral and the diversion of funds. 

(vii)     In relation to obtaining funds from Clerical Medical, she asked the question as to why a judgment was needed if the representor was owner of the Company as alleged. 

(viii)    In relation to the quantum of costs claimed, the respondent had retained a barrister to help for the hearing whose fees were £9,600.  The respondent had also spent monies on travelling to Jersey in respect of previous hearings.  To date he and Mrs Clapp had incurred £11,000.  They also had to attend for the final hearing which was set down for 3 days. 

(ix)      They had not made the application earlier because they were not aware that security for costs could be sought.  They would have applied earlier had they known they could make such an application. 

34.      The representor in response contended as follows:-

(i)        There was no sealed order of Master Fontaine at present.  The order was stayed in any event, and the issue of who owned the Company was now before the Court in Jersey. 

(ii)       In relation to proceedings in England, he dealt with Mr Harrod. 

(iii)      The sum of £165,000 had been spent and he was not able to return the same. 

(iv)      He had no other income apart from a state pension and housing benefit and lived in rental accommodation.  Any order for security would therefore stifle the claim. 

(v)       He also invited me to strike out the claim both on the basis that the respondent was in breach of the order for discovery and also because no reliance could be made on the respondent's affidavit evidence due to the diagnosis of Alzheimer's. 

(vi)      The application for security for costs should have been made earlier.  

(vii)     While initially he stated that the claim was bound to fail, in the course of submission the representor accepted that his claim was arguable. 

(viii)    The representor reminded me that ordinarily security for costs is not generally ordered against a UK resident by reference to Leeds United Association Football Club Limited & Ors v Phone-In Trading Post Limited t/a Admatch [2009] JLR 186. 

The relevant legal principles

35.      I agree with the representor that generally security for costs is not appropriate to be ordered against an individual resident in the United Kingdom against whom a cost judgment can be enforced.  At paragraphs 19 to 21 of the Leeds decision Sumption J A. stated as follows:-

"19     We agree with the Deputy Bailiff that protecting the interest of a defendant in being able to enforce a judgment for his costs if he succeeds is, in principle, a legitimate objective of the practice. However, like the English Court of Appeal in Nasser (4), we are unable to accept that a blanket presumption that such protection is appropriate where the plaintiff is resident outside Jersey is a proportionate way of achieving that objective.

20       In the first place, we do not accept the Deputy Bailiff's view that, if a plaintiff's claim is not stifled by an order for security, he suffers no substantial prejudice by providing it. The plaintiff is forced to lay out funds equal to the other side's costs in addition to paying his own, at a time when the court is rarely in a position to form any view of the merits. The provision of cash security by the usual method of paying it into court has implications for his cash flow which are likely to be significant, even if they are not ruinous. It ties up funds which would otherwise have been used in his business or deposited at interest. If the security is not funded from cash balances, it will cause him to incur borrowing or guarantee charges.

21       Secondly, in considering the prejudice to the defendant in having no security, the Deputy Bailiff looked at the matter globally, pointing to the worst possible cases. We do not doubt that there may, in some cases, be serious difficulties about enforcing a judgment for costs. The foreign law may be obscure. Its procedures may be slow or expensive. To the extent that these things are true, the experience will no doubt be stressful. But the question is not what may happen in the worst cases, but what is likely to happen in this case. The second plaintiff in this case is British. As the Deputy Bailiff himself observed (2008 JLR 287, at para. 28), most non-resident plaintiffs in Jersey are British. The law relating to the enforcement of judgments in England is not obscure and Jersey lawyers, who deal with English law every day, can reasonably be expected to be familiar with it. A Jersey judgment for costs will be enforceable in England in the same way as an English judgment, by registration in the United Kingdom under Part I of the Foreign Judgments (Reciprocal Enforcement) Act 1933. The Deputy Bailiff has not suggested that registration is a problematical procedure and indeed it is not. We have had put before us a letter from a firm of English solicitors indicating that it would cost £50 in court fees and that its charges would be £500. The grounds for setting registration aside are narrowly defined by the statute and there is no reason to think that any of them would apply in this case."

36.      In Café de Lecq Limited v R.A. Rossboroughs (Insurance Brokers) Limited [2011] JLR 31 at paragraph 20, the Royal Court summarised at paragraph 30 the effect of the Leeds decision as follows:-

"In our view, the protection hitherto given to resident plaintiffs must now be extended to all plaintiffs so that the practice following Leeds should be as follows, namely that consistent with the policy that there should be access to the courts for all, rich or poor, and without detracting from its wide discretion to order security where justice so requires, it will be the general practice of the court not to require plaintiffs (wherever resident) to provide security because there is reason to believe that they will be unable to meet orders for costs against them save in the case of:

(i) Corporate plaintiffs (wherever resident), where security may be ordered on such grounds following the principles set out by the Court of Appeal in A.E. Smith (9); and

(ii) Non-resident plaintiffs, who may be required to provide security to meet the legitimate objective of protecting the ability of defendants to enforce costs judgments outside the jurisdiction, such applications to be assessed on an individual basis."

37.      What is required therefore is to assess the application against the representor on an individual basis with the general practice being not to require an individual plaintiff to provide security. 

38.      It is also right to refer to paragraph 22 of the decision in Leeds where the Court of Appeal following the remarks quoted above stated:-

"Like the Deputy Bailiff, we are perfectly prepared to accept that some plaintiffs may have no assets or may hide them. If this is established as a probability on the application for security, then, unless the effect would be to stifle the claim, the application will probably succeed."

39.      I followed this approach in ordering security for costs against a Jersey resident in Home Farm Developments Limited v Le Sueur [2014] JRC 131.  In that case I ordered security for costs be provided. 

40.      In a further case, Holmes v Lingard & Anor [2015] JRC 172, I again had to consider the question of security for costs and at paragraphs 28 to 30 stated the following:-

"28.    However, I was also referred by Mr Holmes in his skeleton and Advocate Taylor to the case of Olatawura v Abiloye [2002] EWCA Civ 998 another decision of the English Court of Appeal.  That judgment firstly noted at paragraph 22 as follows:-

"22     Before ordering security for costs in any case (whether or not within CPR Pt 25 ) the court should be alert and sensitive to the risk that by making such an order it may be denying the party concerned the right of access to the court. Whether or not the person concerned has (or can raise) the money will always be a prime consideration, not least since article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms became incorporated into domestic law. Paradoxically, of course, the more difficult it appears to be for the person concerned to raise the money, the more obvious becomes the need for an order for security to protect the other party against the risk of incurring irrecoverable costs. The court will have to resolve that conundrum as best it may."

29.      Paragraphs 24 and 25 of the Olatawura decision continue as follows:-

"24     Now, it is clear, the Court has an altogether wider discretion to ensure that justice can be done in any particular case. Obviously relevant considerations, besides the ability of the person concerned to pay, will be (a) his conduct of the proceedings (including in particular his compliance or otherwise with any applicable rule, practice direction or protocol), and (b) the apparent strength of his case (be it claim or defence). And these considerations, of course, are expressly reflected in the new rules governing the court's power to order payment into court: rule 3.1(5) dealing expressly with compliance, rule 24 with the probabilities or otherwise of success.

25       That, however, is by no means to say that the court should ordinarily penalise breaches of the rules and the like by making orders for payment into court under rule 3.1(5). Quite the contrary. The one case drawn to our attention in which this question has been considered-Buckley J's judgment in Mealey Horgan plc v Horgan The Times, 6 July 1999, to which reference is made in paragraph 3.1.5 of Civil Procedure, Spring 2002, vol 1-held that it would be inappropriate to order a defendant to give security as a penalty for failure to serve witness statements in time when that had prejudiced neither the trial nor the claimant. Buckley J suggested, however, that such an order might be appropriate if

"there is a history of repeated breach of timetables or of court orders or if there is something in the conduct of the party which gives rise to suspicion that they may not be bona fide and the court thinks the other side should have some financial security or protection."

That seems to me to point the way admirably: a party only becomes amenable to an adverse order for security under rule 3.1(5) (or perhaps 3.1(2)(m)) once he can be seen either to be regularly flouting proper court procedures (which must inevitably inflate the costs of the proceedings) or otherwise to be demonstrating a want of good faith-good faith for this purpose consisting of a will to litigate a genuine claim or defence as economically and expeditiously as reasonably possible in accordance with the overriding objective."

30.      I regard these as helpful observations.  Ultimately, in reaching a decision whether not to order security for costs, whether in the circumstances considered in Café de Lecq or whether in applying the exceptional circumstance test applicable to residential individuals, I consider I am entitled to take into account, in exercising the discretion vested in me, the extent to which a plaintiff has provided a full account of his assets or whether there are unexplained gaps.  I consider that the lack of any account goes not just to the amount of any security but is also a factor that may be taken into account in deciding whether or not to order security to be provided.  This because a lack of candour may well increase the need for an order for security to protect a defendant.  I also regard it as artificial to separate out information about a plaintiff's means and criticisms of any such evidence from an analysis of any other factors which can be taken into account in deciding whether or not to order security for costs.  As noted in paragraph 25 of Olatawura, I can take into account repeated breaches of timetables or Court orders, and I am entitled to take into account something in the conduct of a party which gives rise to a suspicion whether they are acting bona fide and the Court thinks the other side should have some financial security or protection.  I consider that, in deciding whether or not to order security, this extract also justifies having regard to any lack of candour in an affidavit of financial circumstances on a case by case basis.  I stress in reaching this conclusion that the test to order security for costs against a resident individual remains a high one and requires exceptional circumstances to be established."

41.      Finally, in Young v Haden [2016] JRC 089D I had to consider the question of stifling in relation to a number of companies.  I therefore stated the following in relation to how to approach the question of stifling at paragraph 43 as follows:-

"In evaluating an assertion of stifling and weighing it in the balance, as I am required to do by the A.E Smith & Son case, the final paragraph of the extract of A.E. Smith & Son cited above notes the importance of appreciating that there is a range of effects which an order for security for costs may have "extending from, at one end, possible deterrence, through probable deterrence, possible stifling, probable stifling, to inevitable stifling at the other end of the range."  There are shades of grey, not black and white dividing 'deterrence' from 'stifling'."

42.      I had regard to the above principles in reaching my decision. 

Decision

43.      Ultimately I decided to require the representor to provide security for costs in the sum of £12,500.  My reasons for doing so were as follows:-

(i)        While ordinarily a plaintiff resident in England would not be required to provide security because of the decisions in Leeds, I considered that this was the sort of case that fell within the extract found at paragraph 22 of Leeds, which I have set out above. 

(ii)       Firstly, the representor has not explained why he pursued a defendant with a different namely Astral Enterprises (Jersey) Limited and not the Company. 

(iii)      Secondly, the representor has not explained why Mr Harrod purported to represent Astral Enterprises (Jersey) Limited when such a company did not exist.  He has also not explained how Mr Harrod could act as a director of the Company when Mr Harrod had not been a director of the Company since 8^th September, 2005. 

(iv)      Thirdly, the representor has not explained the use of A Astral Enterprises Limited in the affidavit evidence filed by him or on his behalf including from Mr Osment.  I was therefore left with unchallenged evidence that a company with a different name had been formed, which had been used to divert funds belonging to the Company. 

(v)       Fourthly, I was informed that the sum of £165,000 received pursuant to the final third party debt order had been spent.  However, these funds were only received in around January 2015 and the application to set aside the judgment, pursuant to which these funds had been obtained, had commenced in July 2015.  Yet there was no evidence before me as to what had happened to these funds and why they had been completely dissipated.  This is in the context of the judgment obtained having been set aside.  There is also no stay of the setting side order only an extension of time pending appeal.  

(vi)      This position goes far beyond the position of taking your plaintiff as you find it, him or her.  Rather this is a party who has received funds pursuant to a judgment wrongly obtained against an entity that did not exist, which funds were then obtained from the Company on the basis of a third party debt order not made against the Company and which has been set aside.  Yet the representor is unable to account for the same.  If the representor has not accounted for these monies, I am entitled to conclude that any costs order made in the respondent's favour will also not be met. 

(vii)     Sixthly, while it is not for me to resolve the claim to ownership of the Company on a strike out application, I have serious concerns about the evidence filed on behalf of the representor.  The affidavit of Mr Harrod sworn on 23^rd September, 2016, criticises the respondent's claim to ownership of the Company at paragraph 7 as follows:-

"THAT even more strangely, the COBO form intimates that the Mr Clapp was himself a nominee and that Astral was a subsidiary of Grosvenor Byde International Limited, a UK registered company, which, according to Companies House records, has been defunct since 18th October 2005. If, therefore, Mr Clapp's claim to ownership of Astral is based upon the COBO form, he has no legitimacy at all, and never has done."

(viii)    However the COBO Form exhibited to Mr Harrod's witness statement is not in fact the COBO form of the Company but only part of it.  It comprises page 1 of the COBO Form for the Company, which bears number 71635 as allocated by the JFSC as set out above and page 2 of a different COBO Form with number 73303.  This page cannot therefore relate to the application in respect of the Company itself because it states that the applicant is a beneficial owner of another Jersey company and then lists the name of the Company and its number 71635.  Both COBO forms are exhibited to the respondent's affidavit sworn on 11^th October, 2016.

(ix)      The suggestion of Mr Harrod by reference to paragraph 7 of his affidavit that the Company is a subsidiary of a company called Grosvenor Byde International Limited also cannot be reconciled with page 2 of the COBO form the exhibits with number 73303 that the applicant was beneficial owner of the Company.  In addition the original COBO Form for the Company was exhibited to the respondent's second affidavit dated 31^st December, 2015, so the representor in obtaining affidavits had the correct COBO form. 

(x)       Mr Marshall in his evidence at paragraph 9 exhibits the same two pages of the COBO form, the first page bearing number 71635 and the second page bearing 73303.  He expresses surprise as to why the COBO form is dated 5^th January, 1999, given he states that the Company was formed on 5^th May, 1998.  Mr Marshall also does not address why the second page of the COBO form exhibited to his affidavit could have been filed to incorporate of the Company when it expressly states at paragraph 10 that the applicant was already beneficial owner of the Company. 

(xi)      No doubt the content of these affidavits will be explored at trial and in cross-examination.  However, at present the respondent has original share certificates given to him, which I have ordered be produced to the trial Court, and has received from the JFSC a COBO form which recalls him being the beneficial owner since 1998.  The evidence of the representor in relation to this COBO form is not compelling for the reasons set out above and, putting its lowest, is based on a combination of two different documents. 

(xii)     I accept there is later evidence that suggests Mr Harrod is the beneficial owner but at present the respondent has the original share certificates, a copy of the original COBO form, and no evidence that the respondent ever transferred his beneficial interest.  For the purposes of this application, I am therefore of the view that the respondent's case is one that is very likely to prevail at trial.  I accept the representor argued that the respondent does not appear on the register of members.  However, the respondent has a share certificate which is prima facie evidence of title (see Article 51 of the Companies (Jersey) Law 1991 which entitles him to seek rectification of the share register (see Article 47 of the Companies (Jersey) Law 1991).  In relation to preparation of the COBO Form the only evidence is that of Mr Shelton, who said he would have done this at the request of Mr Dermot Dimsey which Mr Shelton would then sign.  Mr Dimsey sadly passed away some time ago.  Mr Marshall does not address this evidence or why the COBO Form for the Company was incorrect at the time it was filed but only deals with position from 2005 onwards. 

(xiii)    In relation to whether or not to order security for costs, I have also taken into account the attempt to file a notice of registered office and an annual return with JFSC which, at its lowest, was incorrect and according to the JFSC was misleading, and potentially fraudulent when Mr Harrod had not been a director of the Company since 8^th September, 2005.  The conduct of the representor is therefore very troubling. 

(xiv)    For all these reasons this case is very far removed from the position of a UK resident who happens to be a plaintiff in a Jersey action.  The respondent has therefore persuaded me that this is a case which justifies an order for security for costs. 

44.      I also refused to disregard the affidavits filed by the respondent.  In my judgment, while the respondent suffers from Alzheimer's, which has led to Sir Michael Birt, as the trial judge, to give permission to Mrs Clapp to speak on the respondent's behalf, this does not mean that the respondent does not have sufficient faculties to swear and approve affidavits.  It will also be a matter for the trial judge to what extent weight can be placed on the respondent's affidavits and the degree to which the respondent is able to answer questions.  However, these potential difficulties are not matters which justify the affidavits being struck out at this stage, in particular in light of the concerns set out above about the representor's conduct and the evidence filed on his behalf. 

45.      I was also not prepared to hold that a breach of any unless order had occurred.  While the affidavit of discovery of the respondent was not in accordance with the required practice direction, it did make it clear that the respondent had looked for all relevant material and believed he had disclosed the same.  The fact that subsequent material was later disclosed is not a basis to strike out the respondent's opposition to this claim.  The circumstances in which other documents later came to light is that I had given directions for affidavits to be filed including permitting each party to file a response to the other's affidavit evidence.  It is that context that the respondent sought to rely on further documents i.e. in opposition to the evidence filed by the representor.  It would be unjust and unfair to prevent the respondent from doing so, when the documents were produced in response to evidence filed by the representor.  While power is vested in me to strike out a party's case for breach of earlier orders, in this case, as a matter of discretion, I did not consider it just to do so when the evidence was produced in response to the representor's affidavit and in view of the concerns I have expressed above about the representor's evidence. 

46.      In relation to the question of the lateness of the application this is a factor against ordering security for costs, but in my view on the facts of this case it is outweighed by the concerns I have set out about the representor's conduct and evidence he relies on.  As a matter of discretion therefore the lateness of the application in this case was not sufficient to persuade me not to order security at all.  The question of delay was however relevant to the terms upon which I ordered security to be provided which I address below. 

47.      As to the amount of security, I considered it appropriate to order security for monies expended by the respondent and to be expended as set out above in the total sum of £12,500.  In view of the lateness of the application I did not however consider it appropriate to order security to cover the costs that might be recoverable in respect of time spent by the respondent and Mrs Clapp in dealing with this claim, I therefore limited the amount ordered to monies expended by them. 

48.      As to the terms upon which security is provided, I ordered security to be provided by 3^rd November, 2016.  If the representor does not provide security by this date, he is to provide an affidavit setting out and supported by evidence what has become of the sum of £165,000 and also confirming his financial position, which he already stated on oath in the hearing before me.  The representor's current position should also be supported by relevant evidence. 

49.      At this stage in the absence of any evidence as to what had become of the sum of £165,000, and my concerns about the representor's conduct set out above, I was not prepared to conclude that the claim would probably be stifled if security for costs was ordered. 

50.      If security is not provided it will then be a matter for the trial judge as to what order to make in respect of the non-provision of security.  If no affidavit is provided clearly that will be a powerful factor towards staying or striking out the representor's claim. 

51.      For these reasons I therefore ordered the representor to provide security for costs in the sum of £12,500 to be paid to the Judicial Greffier by Thursday, 3^rd November, 2016. 

Authorities

Control of Borrowing (Jersey) Order 1958.

Leeds United Association Football Club Limited & Ors v Phone-In Trading Post Limited t/a Admatch [2009] JLR 186.

Café de Lecq Limited v R.A. Rossboroughs (Insurance Brokers) Limited [2011] JLR 31.

Home Farm Developments Limited v Le Sueur [2014] JRC 131.

Holmes v Lingard & Anor [2015] JRC 172.

Young v Haden [2016] JRC 089D.

Companies (Jersey) Law 1991.