Burke v Sogex International Ltd

• Jurisdiction: Jersey
• Court: Court of Appeal
• Judge: Crill, Bailiff:
• Judgment Date: 30 August 1988
• Date: 30 August 1988

COURT OF APPEAL

Crill, Bailiff:

A.P. Begg for the appellant;

R.J. Michel for the respondent.

Cases cited:

(1) Birbeck 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; further proceedings, 1984 J.J. 13, not followed.

Additional cases cited by counsel:

D.B. Installations Ltd. v. Vaut Mieux Ltd., 1987-88 JLR N-5.

Davest Invs. Ltd. v. Bryant, 1982 J.J. 213.

Edwards (R.H.) Decorators & Painters Ltd. v. Tretol Paint Systems Ltd., 1985-86 JLR 64.

Heseltine v. Egglishaw, Royal Ct., May 18th, 1988, unreported.

Lindgren v. Jetcat Ltd., 1985-86 JLR 66.

Legislation construed:

Court of Appeal (Civil) (Jersey) Rules, 1964 (R. & O. 4561), r.12(4): The relevant terms of this rule are set out at page 636, lines 6-8.

Rules of the Supreme Court, O.59, r.10(5): The relevant terms of this order are set out at page 636, lines 11-13.

Text cited:

Supreme Court Practice 1988, vol. 1, para. 59/10/16, at 885: para. 59/10/19, at 886.

Civil Procedureappealscostssecurity for costssecurity for costs normally to be ordered under Court of Appeal (Civil) (Jersey) Rules, 1964, r.12(4) against non-resident party with no assets within jurisdiction unless unjust or special circumstances, e.g. if security oppressive or prevents pursuit of appeal

The respondent company applied under r.12(4) of the Court of Appeal (Civil) (Jersey) Rules, 1964 for an order that the appellant give security for the costs of his appeal.

The appellant was resident outside and had no assets within the jurisdiction but was nevertheless allowed to bring an action against the respondent, a Jersey-registered company which had formerly employed him, upon complying with an order requiring him to give security for the respondent's costs. When, however, interlocutory judgment was given for the respondent, the appellant appealed, in consequence of which the respondent made the present application under r.12(4), requesting an order that the appellant pay a token sum into court as security for the costs of the appeal.

The respondent submitted that regard should be had to the English practice in relation to ordering security for costs in so far as the Rules of the Supreme Court, O.59, r.10(5) was parallel to r.12(4), so that an order should normally be made in cases such as the present in which the appellant did not reside or hold assets within the jurisdiction, unless it would be unjust to do so. Since only a token payment of 1,000 was sought as security here, such an order would not be unjust.

The appellant submitted in reply that (a) although it was true that he was non-resident and held no assets in Jersey, an order for security for costs would be oppressive and unjust, particularly in view of his lesser financial standing than the respondent; and (b) in any event, in the absence of very special circumstanceswhich the non-residence and lack of assets did not constitutesuch an order should not be made.

Held, granting the application:

It was not the case that the court's discretion to...