IN THE SUPREME COURT OF BELIZE, A.D. 2000

ACTION NO. 203

	( JOHN RICHARDS (	Plaintiff
BETWEEN	( AND (
	( BETH BRANNON ( SCOTT EARLY	Defendants

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BEFORE the Hon. Chief Justice Abdulai Conteh.

Mr. Leo Bradley for the Plaintiff/Applicant.
Ms. Beth Brannon, Defendant/Respondent in person.

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DECISION

I must say from the outset that this is an unusual application and it caused me some anxiety.

When the application was first issued on 6th June 2000 it requested an Order of this Court that the Defendants give security for the Plaintiff's costs in the action on the ground that the Defendants are ordinarily resident out of the jurisdiction, and that in the meantime all further proceedings be stayed and that the costs of this application be paid by the Defendants in any event.

The application is supported by an Affidavit dated 6th June 2000 by the Attorney for the Plaintiff.

Order 66 Rules 4 and 5 of the Supreme Court Rules govern the question of security for costs.

Rule 4 states: "In any cause or matter in which security for costs is required the security shall be of such amount, and be given at such time and in such manner and form, as the Court shall direct."

Rule 5 provides: "A plaintiff ordinarily resident out of the jurisdiction may be ordered to give security for costs, though he may be temporarily resident within the jurisdiction".

In this particular case, the Plaintiff's application is opposed by what can fairly be described as robust Affidavits by both Defendants. The first set of these is dated 12th June 2000 and the second set is dated 16 June 2000.

I must say on authority, and from the Rules and practice of this Court, it is not common to order security for costs against a Defendant. This position is supported by principle, logic and fair play. In any action , especially in our adversarial system, it is the plaintiff who, as it were, first throws down the gauntlet, by issuing a writ or summons stating his claim against the Defendant. And it is for the Defendant under pain or penalty, as it were, of a judgment in default, who must perforce, answer the Plaintiff's charges as stated in the writ, summons or statement of claim.

In the circumstances therefore to require of a Defendant security for costs will almost be tantamount to denying him the right to defend himself. Therefore, principle, logic and fair play require that generally a Defendant is not made to give security for costs. See Volume 37 of Halsbury's Laws of England 4th edition paragraph 302. See the dictum of Banks L.J. in the Shell Transport and Trading case (1923) 2 K.B. 166 C.A. at page 173 where he quoted Jessel M.R., In re Percy & Kelly & Co. 2 Ch.D 531 as stating the position thus:

"The principle is well established that a person instituting legal proceedings in this country and being abroad, so that no adverse order could be effectually made against him if unsuccessful, is by the rules of the court compelled to give security for costs. That is perfectly well established and a perfectly reasonable principle but it does not apply to a defendant or respondent who is brought here to defend himself." (emphasis added)

In the instant case, as mentioned earlier, it is the Plaintiff in the main action of which this application is an interlocutory phase, who pressed trigger by his application urging this Court to order the Defendants to give security for costs. In a five-paragraph Affidavit deposed to by the Plaintiff's attorney wherein it is stated inter alia, that the Defendants are citizens of the United States of America and that they are ordinarily resident in that country and that they do not, to the deposing Attorney's best knowledge and belief, own real property in Belize or any other assets in Belize the value of which would secure the Plaintiff's costs in the event the Plaintiff's claim were to succeed.

It may be observed that in none of these averments did the Plaintiff's Attorney state the source of her belief or the basis of her knowledge.

The Defendants for their part put in two sets of Affidavit in which they aver that not only do they have sufficient assets within the jurisdiction enough to meet the Plaintiff's costs were he to be successful (see paragraph 7 respectively of the Defendants' Affidavits of 12 June 2000 and paragraph 9 of the Affidavit of the first Defendant of 16 June 2000), but that they in fact reside within the jurisdiction of this Court (see paragraph 2 respectively of the first and second Defendants' Affidavits of 12 June 2000 and paragraphs 2, 3, 4 and 7 of the Affidavit of the first Defendant).

In a bid to turn the tables, as it were, on the Plaintiff, the Defendants have in their turn prayed this Court to order the Plaintiff to give security for their costs.

In this veritable ding dong for security for costs, I have carefully considered the respective applications, submissions and positions of both the Plaintiff and Defendants and having regard to all the circumstances of this case, I think it is just and fair not to order either side to give security for the other's costs.

I am satisfied from the material before me that each side, that is the Plaintiff and the Defendants, has sufficient presence and assets within the jurisdiction that will meet the costs of the other side and will not render nugatory any judgment the Court might give in the main action.

I am also mindful of the fact that the Defendants are asserting a counterclaim to the Plaintiff's action. But the mere fact that a defendant makes a counterclaim does not necessarily place him in the position of a plaintiff so as to be liable to give security for costs. The crucial question is whether, on analysis, the defendants' counterclaim operates as a defence, if it does, the defendant is merely defending himself. But if the counterclaim is in reality, a cross-action, then the defendant is in the position of a plaintiff prosecuting his own claim. In this case if the cross-action defendant who thereby becomes a plaintiff, in effect, is ordinarily resident abroad, he may be liable for security for costs.

In any event in this application, it is noteworthy to observe that the Plaintiff in both the summons and the supporting Affidavit of his Attorney dated 6 June 2000, singularly fails to state why the Defendants should be ordered by this Court to pay security for costs, other than the fact that the Defendants are citizens of the United States of America and are ordinarily resident there and that they do not own any real property or assets in Belize the value of which would secure the Plaintiff's costs in the event that the Plaintiff's claim is successful.

I must say that a Plaintiff must take his defendant as he finds him. If one chooses to sue a person of straw that is his own choice; subject to the lawful processes of execution in satisfaction of a judgment of the Court, a Plaintiff must take the residence and resources of his potential adversary into account before commencing suit. It is not for the latter to adjust his or her circumstances to suit the Plaintiff.

However, if the Defendant in meeting the Plaintiff's claim sets up a counterclaim of his own which is more than a defence and is in fact a counter-action, he, of course, assumes the mantle of a Plaintiff. If he is ordinarily resident abroad, he may be liable for security for costs in order to prosecute his own counter-claim.

On the materials before me, it is, again, worth noting that the Plaintiff was rather quick off the draw in issuing the summons for security for costs against the Defendants in this case. The summons was together with its supporting Affidavit issued on 6th June 2000, some three days before the Defendants delivered their Defence and Counterclaim. This was done on 9th June 2000. I am not surprised therefore that the Plaintiff/Applicant could not aver in the supporting Affidavit of 6 June 2000 that the Defendants had by their counterclaim don on the mantle of Plaintiffs for the purposes of security for costs, assuming that the condition as to their ordinarily being resident abroad could be satisfactorily proved. Indeed, the Plaintiff/Applicant could not so assert as at the time the summons for security for costs was issued, there was then no Defence or counterclaim. This summons could therefore be seen to have been intended as a pre-emptive strike. I shall refrain from conjecturing as to the purpose of this move.

There was no further Affidavit filed by the Plaintiff/Applicant even after the Respondents/Defendants had filed their Defence and Counterclaim. Although at a subsequent hearing of this application on Tuesday 20 June 2000, the Attorney for the Plaintiff did raise the issue of the Respondents' Defence and counterclaim and urged that they had raised matters outside the purview of the original claim.

The Respondents/Defendants for their part vigorously assert in their Affidavits that they are resident within the jurisdiction of this Court and they have sufficient assets to meet any possible costs of the plaintiff.

However, as I have said, from a careful study of the materials before me, I am satisfied that both sides have sufficient presence and assets within the jurisdiction to meet the costs of the other depending, of course, on the outcome of the trial of the action itself. It is worth noting that security for costs will not be required from a person permanently residing out of the jurisdiction, if he has substantial property, whether real or personal, within it - Redondo v Chaytor (1879) 4 Q.B.D. 453 at page 457; Clarke v Barber (1890) 6 T.L.R. 256.

Also, an aspect of this application that struck me as odd is the fact that the Plaintiff/Applicant is praying "that in the meantime all further proceedings be stayed". Quite what this prayer is intended to secure I couldn't decipher. Ordinarily, if a Plaintiff (against whom an order for security for costs is normally, in appropriate cases, made) who has been ordered to give security for costs does not do so, the action he has commenced may be stayed until the security so ordered is given or dismissed for want of prosecution - La Grange v McAndrew (1879) 4 QBD 210; and Volume 37 Halsbury's Laws 4th edition at paragraph 308.

In this application however, I find it somewhat curious that it is the Plaintiff himself who is in fact praying the Court that "in the meantime all further proceedings be stayed." I would have thought that a Plaintiff who approaches the Court with a claim against a defendant would be eager for an early resolution of his claim; unless of course the action itself is conceived as a litigation strategy and meant to be held in terrorem over the head of the Defendant. If this were so, this Court will take a very dim view of the move as an attempt to abuse its process. I am not sure if this was the intention here. I can only say that in the circumstances of this application, the prayer is misconceived.

The Defendants/Respondents have, it must be said, shown some moderation and common sense in the process of this application. They offered a mutual withdrawal by the Plaintiff and themselves of their respective requests to this Court to order security for costs (see paragraph 17 of the first Defendant's Affidavit dated 16 June 2000). But this has not been acceded to and the applications for security for costs against each other were persisted in before the Court.

I have however found that each side has sufficient presence and assets within the jurisdiction to meet any order or judgment that may be made at the end of the day on the trial of this action. I will therefore not order any security for costs.

But, I am constrained however, in the circumstances of this application, to order the Plaintiff to pay the costs of this application. I therefore Order the sum of $750.00 to be paid by the Plaintiff/Applicant to the Defendants/Respondents, before any further action can be taken in the action.

A. O. CONTEH
Chief Justice

Dated: 28th June, 2000.