Leon Plaskett v Stevens Yachts Inc. and Others
| Jurisdiction | British Virgin Islands |
| Judge | RAWLINS, J. |
| Judgment Date | 04 July 2003 |
| Neutral Citation | VG 2003 HC 2 |
| Court | High Court (British Virgin Islands) |
| Docket Number | Claim No. BVIHCV2002/0001 |
| Date | 04 July 2003 |
IN THE HIGH COURT OF JUSTICE
Claim No. BVIHCV2002/0001
Ms. Susan Demers for the Claimant/Respondent
Mrs. Janice M. George-Creque for the Defendants/Applicants
The action in this case was instituted by way of Claim Form and a Statement of Claim. They were filed on the 2 nd January 2002. In these processes, the Claimant gave his address as Cruz Bay, St. John, US Virgin Islands. The action arose out of a motor vehicle accident that occurred on or about the 20 th day of August 1998 at Frenchman's Cay, West End, Tortola, British Virgin Islands.
In the Statement of Claim, the Claimant alleged that the Second named Defendant who was driving a pick-up truck, owned by the First named Defendant, reversed the truck from a parking space into the public road and caused it to collide with the vehicle that he (the Claimant) was driving. He also alleged that the accident was caused wholly by the negligence of the Second named Defendant. He stated that the Second named Defendant did not take proper precautions before reversing, and had failed to give adequate warning of his intention to do so. He has alleged, further, that at the time of the accident, the Second named Defendant was an employee of the First named Defendant. He also alleged that at the time of the accident, the Second named Defendant was driving the truck in the course of his employment with the knowledge and permission of the First named Defendant. He stated, further, that as a result of the accident, he (the Claimant) sustained physical injuries and his vehicle was damaged. He alleged that he continues to suffer pain as a result of the injuries and has been unable to find suitable employment.
The Second named Defendant acknowledged service on the 21 st day of January 2002. A Defence was filed on his behalf on the 11 th day of February 2002. In that Defence, he has denied the claim. He stated that he began to reverse and stopped immediately he heard the horn of the Claimant and came to a standstill prior to the accident. He stated that he took the necessary precautions before he commenced reversing. He has insisted that the accident was caused wholly or in part by the negligence of the Claimant who was driving too fast, failed to stop or to heed the approach of his vehicle, and tried to squeeze between a small space colliding with his vehicle while it was at a standstill. He has denied that he is liable for the injury or loss to the Claimant.
The First named Defendant acknowledged service on the 21 st day of February 2002. A Defence was filed on its behalf on the 5 th day of March 2002. The Claimant filed Reply to the Defence of Second Defendant on the 26 th February 2002, and Reply to the Defence of the First named Defendant on the 12 th day of March 2002.
The Defendants are the Applicants in the matter that is the subject of this decision. On the 28 th day of March 2002, they applied for an Order that the Claimant gives security for costs and for a stay of proceedings in the meantime. The Application was made on the ground that the Claimant is ordinarily resident out of the jurisdiction. The Application was supported by an Affidavit deposed by Tanya Whistler. In that Affidavit, she deposed, inter alia, that the Claimant has no assets in the British Virgin Islands. She also deposed that correspondence with Solicitors for the Claimant show that the Claimant expects to receive damages in the vicinity of $425,000.00 if he prevails on the Claim. This, she stated, will result in costs in the sum of $64,000.00 when assessed under Part 65.12 of the Eastern Caribbean Supreme Court Civil Procedure Rules, 2000 (hereinafter referred to as ‘the Rules’). She therefore prayed that the Claimant be ordered to provide this sum as security for the costs of the Defendants. The schedule of costs presented shows this sum was calculated as prescribed costs pursuant to Part 65.5 of the Rules.
Notice of Case Management issued on the 7 th day of March 2002. The Defendants filed their Case Summary on the 16 th day of April 2002. The Claimant deposed two (2) Affidavits in Opposition to the Application for security for costs. The case came for hearing on the Case Management Conference on the 8 th day of May 2002. There was a further hearing on the 4 th day of July 2002. This hearing was conducted after Solicitors for the Parties filed and served written submissions/skeleton arguments and supporting authorities. The factual perspectives will present a fitting precursor to the consideration of the Application.
The factual bases for the Claimant's opposition to the Application for security for cost are set out in his two (2) Affidavits. They were filed on the 26 th day of April 2002 and the 20 th day of June 2002 respectively. In the first Affidavit, he set out his perspective on the accident. He exhibited thereof a copy of the Traffic Accident Report of the Police dated the 7 th day of September 1998. He stated the effects which the accident has occasioned him. He stated that he is employed as the a Manager of a small Marina in Red Hook, St. Thomas, United States Virgin Islands. He said that he earned seven thousand dollars ($7,000.00) for the year 2001. He deposed that he cannot give security for the sum requested and that such an Order will deny him the opportunity to prosecute the Claim. He stated, further, that he has ties with the British Virgin Islands. In this regard he stated that he has worked from time to time as an independent contractor for the Government of this Territory since 1996. He is of the view that he has a strong likelihood of succeeding on the Claim. He urged the Court to order a reasonable sum that would be within his means if it orders him to give security for costs. He also urged the Court to note that his Claim does not include a Claim for lost wages. As far as he is concerned, the Defendants used the sum of four hundred and twenty-five dollars ($425,000.00) as his possible damages with the hope that it will cause him to abandon his claim. He thinks that his claim is meritorious.
In his Second Affidavit, the Claimant deposed that his earnings for the year 2001 amounted to less than $2,000.00. He exhibited a copy of his U.S. Individual Income Tax Return for the year 2001 in support of this assertion. The subject activity is LEON'S MANAGEMENT SERVICES LLC. He also deposed that he is the owner of a lot of land in St. Thomas, United States Virgin Islands which was assessed by the Tax Assessor's Office of the Government of the United States Virgin Islands in 1999 at a value of $32,971.00. He said that this was the most recent assessment that is available. He holds that land by Quitclaim Deed. He stated that in the event that he does not prevail on his claim and he is ordered to pay costs, he has assets in the United States Virgin Islands against which the order for costs may to be enforced. He also gave an undertaking to pay any costs ordered against him. He deposed, however, that he does not have liquid assets available from which to give security for costs.
In her written submissions, Ms. Demers, learned Counsel on behalf of the Claimant urged the Court to consider two (2) issues. The first is whether, having regard to all of the circumstances of the case, it is just for the Court to make the order for the Claimant to give security for costs. The second is whether it is discriminatory for the Court to make such an order based solely upon the Claimant's residence outside of the jurisdiction.
In her submissions, Mrs. George-Creque, learned Counsel for the Defendants noted that the Claimant opposed the Application for security for costs on two main factual grounds. The first is that he has a strong likelihood of succeeding on the Claim. The second is that he is not possessed of sufficient means to give security for costs and that such an Order will drive him out of Court. There are of course other grounds that raise legal issues, for example, the statement that the Claimant owns a parcel of land in St. Thomas, United States Virgin Islands. The Claimant is thereby entreating the Court to consider this property available for the purposes of denying the Application, notwithstanding that it is not within this jurisdiction. This raises issues related to enforcement that will be considered later. The submissions that were made by Counsel for the Parties will now be examined.
First, the submissions made on behalf of the Defendants in support of the Application are summarized in Paragraph 12 post. Learned Counsel for the Claimant set out the case for the Claimant in opposition to the Application in twenty-one (21) points. In the main, they reflect the factual perspectives contained in the Affidavits of the Claimant. The legal principles and the authorities find some common ground with the submissions on behalf of the Defendants. I think it appropriate, however, to set out her assertions that revolve around the case Nasser v. Untied bank of Kuwait [2001] 1 ALL E. R. 401 fully. These assertions speak to the applicable principles for security for costs under the new English Civil Procedure Rules, 1999 (hereinafter referred to as ‘the English CPR 1999’), which came into effect in May 2000. Rule 25.13 of the English CPR 1999 makes provisions for security for costs that are similar to those provided in Part 24.3 of our Rules, mutatis mutandis. In particular, these submissions deal with the issue of the impact of constitutional safeguards and considerations of enforceability in relation to security for costs. They are set out in the following Paragraphs from 13 to 27.
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