Robber Dick's Ltd v Robert Dick-read Ltd et Al

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: Byron J.A.
• Judgment Date: 10 January 1995
• Neutral Citation: VG 1995 CA 1
• Docket Number: Civil Appeal No. 6 of 1994
• Date: 10 January 1995

Court of Appeal

Floissac, C.J., Byron, J.A., Liverpool, J.A.

Civil Appeal No. 6 of 1994

Robber Dick's Limited

and

Robert Dick-read Limited et al

Mr. S. Bennet and Dr. N. Terras for the applicant

Mr. T. Neale for the 2 ^nd respondent

Practice and procedure - Costs — Security for costs — Second-respondent applying for security of costs of appeal — Allegations that the appellant company had no assets in the jurisdiction, had done no business herein since 1987, had all its directors resident overseas and could not pay the second respondent's costs if unsuccessful in litigation — Eastern Caribbean States Supreme Court (Virgin Islands) Ordinance s. 31(4) — Court of Appeal Rules 1968 Rule 31(1) and (2) — Application tainted by extreme delay — Application dismissed.

Byron J.A.

1 This is an application by the 2 ^nd respondent for security for costs of appeal in this matter. The application was by motion and it was supported by an affidavit sworn by the General Manager of the 2 ^nd respondent alleging that the appellant company had no assets in the jurisdiction, had done no business herein since 1987, had all its directors resident overseas and could not pay the second respondent's costs if unsuccessful in the litigation. The appellant did not adduce any evidence.

2 In their arguments both counsel conceded that they were unable to refer to any case in which such an application had been considered by this court. There was a consequent dearth of jurisprudence presented on this issue. Their arguments were in the main evidential. The 2 ^nd respondent contended that as the appellant had not rebutted it's alleged impecuniosity it should be ordered to put up security for costs. The appellant contended that it was under no such burden of proof and that the 2 ^nd respondent had failed to adduce sufficient evidence to establish its allegation, and that in any event it had failed to provide any information of the amount of costs it was likely to incur and the court should not make a speculative order.

3 Although the power to do so has been rarely, if ever, employed by this court, the Eastern Caribbean States Supreme Court (Virgin Islands) Ordinance section 31(4) does confer jurisdiction to order security for costs on appeal in special circumstances. The Procedures to be followed are set out in the Court of Appeal Rules, 1968 and rule 31(1) and (2) reads as follows:

• “1. Before an application for security for costs is...