Jersey Unreported Judgments

Costs - security for costs.

[2023]JRC146

Royal Court

(Samedi)

14 August 2023

Before     :

Advocate David Michael Cadin, Master of the Royal Court

 

Advocate E. A. C. Colley for the Plaintiff.

Advocate N. H. MacDonald for the Defendant

judgment

the master:

Introduction

1.        On 2 August 2023, in the course of a first directions hearing, I refused the Defendant's application for security for costs against the Plaintiff for reasons which were to follow.  This judgment sets out my reasons for that decision.

Background

2.        The Plaintiff is not resident in Jersey and from the material before me would appear to be resident in England.

3.        The Plaintiff's Order of Justice, issued in December 2022, alleges that he was employed by the Defendant as a chief engineer on a yacht called the "Burkut" between December 2020 and April 2021 and in the course of his employment he sustained psychiatric and other injuries.  He alleges that those injuries were caused by the negligence or breach of statutory duty on the part of the Defendant. 

4.        An Answer was filed by the Defendant in January 2023 taking issue with much of the claim, as is illustrated by paragraph 3 of that pleading:

"3. For the avoidance of doubt, the Defendant: -

i. Avers that the Plaintiff has failed to specify when or where any physical injury that he alleges occurred;

ii. Avers that the Plaintiff has failed to identify the cause of any psychological injury alleged;

iii. Avers that the Plaintiff has failed to serve medical evidence to demonstrate such injuries;

iv. Denies liability for any injury, whether as alleged in the Plaintiff's Order of Justice or at all;

v. Alternatively, alleges contributory negligence;

vi. Denies the causation of any injuries claimed; and

vii. Raises credibility."

The Defendant will further: -

i.              Put the Plaintiff to strict proof as to the appropriate jurisdiction for this claim;

ii.             Aver that the Order of Justice is embarrassing in that it is improperly pleaded, convoluted, imprecise, at times impossible to plead to and often raises irrelevant issues. This is dealt with below;

iii.            Aver that the Order of Justice has failed to plead any or any adequate cause of action against the Defendant;

iv.            Contend that the Order of Justice should be struck out as a result."

5.        A Reply was filed in February 2023.

6.        Neither party had applied for directions within 3 months of the action being placed on the pending list and the Court arranged a directions hearing pursuant to Royal Court Rule 6/26.

7.        In advance of the hearing a set of draft directions was prepared by the Defendant and both parties filed Skeleton Arguments.  The first of those draft directions provided that "The Plaintiff shall pay the sum of £100,000 (or such other sum as the Master shall deem appropriate) into Court...as security for costs for the Defendant in these proceedings."  In his Skeleton Argument, the Plaintiff resisted the application on the basis that amongst other things, the qualified one-way costs shifting provision in Part 12A of the Royal Court Rules prevented the Court ordering security for costs. 

Discussion

8.        Royal Court Rule 4/1(4) provides that "Any plaintiff may be ordered to give security for costs".  The principles applicable in relation to this Rule have been the subject of numerous decisions and have evolved with time. In Leeds United Association Football Club Limited v Phone-In Trading Post Limited [2009] JLR 186, the Court of Appeal considered the Royal Court's practice of ordering non-resident plaintiffs to pay security for costs and held that (quoting from the headnote):

"Applications for security for costs against non-resident plaintiffs should be assessed on an individual basis...The indiscriminate practice of requiring security for costs from plaintiffs resident outside Jersey constituted discrimination on the ground of status under art. 14 of the European Convention on Human Rights, in that it impeded their right of access to the courts...The protection of the ability of a Jersey defendant, if successful, to enforce a costs judgment in its favour was a legitimate objective but the indiscriminate practice of requiring security from all non-resident plaintiffs was not a proportionate means of achieving it. First, it could not be said that, even if a plaintiff's claim would not be stifled by providing security, he would not suffer substantial prejudice, as providing security was likely to have significant financial implications. Secondly, although in certain cases Jersey defendants might have considerable difficulty in enforcing costs judgments overseas, which might be slow, expensive and stressful, the difficulty should be assessed in individual cases. In the present case, the appellant, like most non-resident plaintiffs in Jersey, was British and the registration of a costs judgment in the United Kingdom was straightforward and inexpensive. If it were established that there was a probability that a non-resident plaintiff had no assets or would seek to hide them, security for costs would probably be ordered, unless it would stifle the plaintiff's case. In the present case, however, there was no basis for making such a finding against the appellant. The trivial expense of registering a costs judgment in the United Kingdom did not even justify an order for security in the reduced amount that had been allowed by the Master."

9.        In assessing an application for security for costs against a non-resident plaintiff, on an individual basis, the Court has to consider, amongst other things, the likelihood of a defendant actually having an enforceable costs order against the Plaintiff.  It is this potential interest which is being protected by the order for security and it is in that context that Part 12A of the Royal Court Rules 2004 becomes relevant.

10.      Part 12A applies to, amongst other things, proceedings which include a claim for damages for personal injuries.  It provides that:

"12A/2 Costs orders against certain plaintiffs - limit on enforceability

(1)       Subject to Rule 12A/3, orders for costs made against a plaintiff -

(a)       may be enforced without the permission of the Court but only to the extent that the aggregate amount in money terms of such orders does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the plaintiff; and

(b)       may only be enforced after the proceedings have been concluded and the costs have been assessed or agreed.

(2)       An order for costs which is enforced only to the extent permitted by paragraph (1)(a) shall not be treated as an unsatisfied or outstanding judgment.

12A/3 Exceptions

(1)       Orders for costs made against the plaintiff may be enforced to the full extent of such orders without the permission of the Court where the proceedings have been struck out on the grounds that -

(a)       the plaintiff has disclosed no reasonable grounds for bringing the proceedings;

(b)       the proceedings are an abuse of the Court's process; or

(c)       the conduct of -

(i)        the plaintiff, or

(ii)       a person acting on the plaintiff's behalf and with the plaintiff's knowledge of such conduct,

is likely to obstruct the just disposal of the proceedings.

(2)       Orders for costs made against the plaintiff may be enforced to the full extent of such orders with the permission of the Court where the claim is found on the balance of probabilities to be fundamentally dishonest.

(3)       Orders for costs made against the plaintiff may be enforced up to the full extent of such orders with the permission of the Court, and to the extent that it considers just, where -

(a)       the proceedings include a claim which is made for the financial benefit of a person other than the plaintiff or a dependant (other than a claim in respect of the gratuitous provision of care, earnings paid by an employer or medical expenses); or

(b)       a claim is made for the benefit of the plaintiff other than a claim to which this Part applies..."

11.      The effect of Part 12A is to limit the costs actually payable by a plaintiff in a personal injuries case to an amount which does not exceed the aggregate amount of damages and interest, unless the case falls within certain, limited, exceptions.  Accordingly, an order for costs made against an unsuccessful plaintiff, who does not recover any damages, is unlikely to be enforceable unless one of the exceptions set out in RCR 12A/3 applies.  Those exceptions are that:

(a)       the proceedings were struck out on one of the grounds specified in RCR 12A/3(1); or

(b)       the claim is found to be fundamentally dishonest, and the Court gives permission to enforce (under RCR 12A/3(2)); or

(c)       the proceedings include a claim for the benefit of someone other than the Plaintiff or a claim which is not one within Part 12A, and the Court both gives permission to enforce and identifies the extent to which it considers just to enforce.

12.      Whilst the provisions of Part 12A may make it unlikely that a plaintiff in a personal injuries case will have an enforceable liability for costs which exceeds the amount of damages and interest awarded, it is possible.  It does, however, require the Defendant to bring the matter within one of the exceptions set out in RCR 12A/3.

13.      In my judgment, that possibility of a defendant having a costs order which they can enforce is a matter which could be protected by an order for security for costs on the basis of the reasoning in Leeds United Association Football Club Limited v Phone-In Trading Post Limited.

14.      Notwithstanding that almost identical provisions have existed in England and Wales for some time under CPR 44.14 and 44.15, on the basis of Counsel's researches, there would appear to be very few English decisions on the point.  However, the decision of Lambert J in GL v PM, BM [2018] EWHC 2268 (QB) is relevant.  The case concerned an appeal from the County Court following a refusal to order a claimant in a claim for personal injuries to provide security for costs.  On appeal, Counsel for the claimant submitted, for the first time, that the claim fell within the qualified one-way costs shifting regime and that an order for security for costs in such a case would therefore go against the underlying philosophy of such a costs scheme and would deprive the claimant of the costs protection available to her via the scheme.  Lambert J held that:

"I decline to exercise my discretion in favour of allowing the argument to be raised for the first time on appeal. However, even if I had taken a different view, I do not accept that the point raised is the knock-out blow that [Counsel for the Claimant] suggests it to be. One of the conditions for setting aside the usual costs regime in a QOCS case is dishonesty, or bad faith, and this is one of the grounds upon which the claim is being defended by PM. It does not inevitably follow therefore that if the Defendants are successful at trial the Claimant will not be burdened with a costs liability."

15.      Insofar as Lambert J held that qualified one-way costs shifting does not prevent an order for security for costs being made, I respectfully agree.

16.      In my judgment, the Court has to assess the likelihood of a defendant obtaining a costs order which they could enforce on the basis of the pleadings and the evidence. In this case:

(a)       no evidence has been filed; and

(b)       whilst the Answer purportedly raises issues about the Plaintiff's credibility, it does so somewhat faintly and certainly does not allege that the claim is fundamentally dishonest.

17.      In the absence of any allegation that the claim is fundamentally dishonest, I think it most unlikely that the Court would make such a finding or that the exception in RCR 12A/3(2) would, or could, apply.  I contrast the current pleading with that in GL v PM, BM where Lambert J noted that "dishonesty, or bad faith...is one of the grounds upon which the claim is being defended by PM."

18.      Similarly, whilst the Answer contends that the Order of Justice should be struck out, no such application has been brought.  Nor indeed, has the evidence or other material which might support such an application been adduced before the Court in relation to the application for security. 

19.      Accordingly, on the basis of the material before me, I cannot find that there is any realistic possibility of the Defendant obtaining a costs order against the Plaintiff which they could enforce beyond the aggregate amount of damages and interest.  In the absence of such a realistic possibility, the Defendant has no interest to protect by way of an order for security for costs. I therefore declined the application.

Authorities

Leeds United Association Football Club Limited v Phone-In Trading Post Limited [2009] JLR 186.

Royal Court Rules 2004.

GL v PM, BM [2018] EWHC 2268 (QB).