Birbeck v New Guarantee Trust Finance Ltd

JurisdictionJersey
CourtCourt of Appeal
Judge(Ereaut, Bailiff):
Judgment Date02 September 1980
Date02 September 1980
COURT OF APPEAL
(Ereaut, Bailiff):

R.P. Le Cras for the appellant;

F.C. Hamon for the respondent.

Civil Procedurecostssecurity for costsdiscretion to order security for costs on appeal only in "special circumstances" under Court of Appeal (Civil) (Jersey) Rules 1964, r.12/4appellant's residence outside jurisdiction and absence of assets within jurisdiction not conclusiveappeal raising important questions of law and affecting liberty of subject justifies not ordering security

EREAUT, BAILIFF: This is an application made before a single judge on behalf of the respondents for security for their costs in respect of the appeal presently pending.

The judgment appealed against may be summarised as follows. On 23rd January, 1978, the respondent obtained a judgment against the appellant in the Royal Court for 54,799.02 with interest, and subsequently registered it. Later the appellant's real property was subjected to a dgrvement under the Loi 1880 sur la Proprit Foncire. Three properties were involved. In accordance with the provisions of Article 94 of the 1880 Law the respondent was called upon by the Greffier at the hearing provided for by the Article to accept the properties seriatim as "tenant aprs dgrvement". It refused to do so. The relevant part of Article 94 then came into force. Subsequently, the respondent sought to imprison the appellant relying on the unsatisfied judgment of 23rd January, 1978. The appellant submitted, however, that on the correct interpretation of the Article, because the respondent had renounced its rights before the Greffier to take the properties as "tenant", the judgment was of no effect and the respondent therefore could not rely on it. The Deputy Bailiff held that the relevant words in the Article did not have the effect of depriving the respondent of the right to imprison the appellant, and he confirmed his arrest.

The present application is brought under and in terms of Rule 12, sub-paragraph 4 of the Court of Appeal (Civil) (Jersey) Rules, 1964. That Rule provides: "The Court may, in special circumstances, order that such security shall be given for the costs of an appeal as the Court thinks just."

That Rule essentially prescribes that the decision is one of discretion on the part of the Court. Moreover, it is only in "special circumstances" that the discretion may be exercised. These circumstances must be circumstances special to the case. Essentially, therefore, the Court must look to these particular...

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6 cases
  • Le Monnier v Attorney General
    • Jersey
    • Royal Court
    • 26 April 1989
    ...(1) Att. Gen. v. Clark, 1987-88 JLR 448, distinguished. (2) New Guar. Trust Fin. Ltd. v. Birbeck, 1980 J.J. 117; further proceedings, 1980 J.J. 183; on appeal, sub nom. Birbeck v. Midland Bank Ltd., 1981 J.J. 121, considered. (3) Nicholson v. Brown, [1974] RTR 177; [1974] Crim. L.R. 187; (1......
  • The Representation of Thompson, Amy (Née Remon), Whorrall (Née Remon) and Remon
    • Jersey
    • Royal Court
    • 15 May 1989
    ...1977 J.J. 71; further proceedings, sub nom. Birbeck, In re, 1979 J.J. 111; further proceedings, 1980 J.J. 117; further proceedings, 1980 J.J. 183; on appeal, sub nom. Birbeck v. Midland Bank Ltd., 1981 J.J. 121, applied. (9) Overseas Ins. Brokers Ltd., Re, 1963 J.J. 325; further proceedings......
  • Fort Regent Development Committee v Regency Suite Discotheque and Restaurant Ltd
    • Jersey
    • Royal Court
    • 23 October 1990
    ...1977 J.J. 71; further proceedings, sub nom. In re Birbeck, 1979 J.J. 111; further proceedings, 1980 J.J. 117; further proceedings, 1980 J.J. 183; affirmed, sub nom. Birbeck v. Midland Bank Ltd., 1981 J.J. 121, considered. (5) Warner (ne Rimeur) v. Hendrick, 1985-86 JLR 366. Additional case ......
  • Burke v Sogex International Ltd
    • Jersey
    • Court of Appeal
    • 30 August 1988
    ...v. New Guar. Trust Fin. Ltd., 1977 J.J. 71; further proceedings, 1979 J.J. 111; further proceedings, 1980 J.J. 117; further proceedings, 1980 J.J. 183; on appeal, sub nom. Birbeck v. Midland Bank Ltd., 1981 J.J. 121, distinguished. (2) Clore v. Stype Trustees (Jersey) Ltd., 1980 J.J. 149; f......
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