Caribbean Tourist Corporation (St. Lucia) Ltd
| Jurisdiction | St Lucia |
| Judge | Bishop, J. |
| Judgment Date | 20 December 1965 |
| Neutral Citation | LC 1965 HC 6 |
| Date | 20 December 1965 |
| Court | High Court (Saint Lucia) |
| Docket Number | No. 92 of 1965 |
Windward and Leeward Islands Supreme Court. High Court
Bishop, J.
No. 92 of 1965
Practice and procedure - Security for costs — Application by the defendant seeking an order that the plaintiff give security for costs in the event that the award was made in favour of the defendant — Court held that the cause of action which alleged slander was disclosed in the declaration brought the matter within the provisions of Art. 123 of the Code of Civil Procedure — Plaintiff ordered to pay sum of $4,000 as security for costs.
This a motion brought by the Attorney General of St. Lucia — the defendant in the suit -in which it is asked that this Court see fit to order the Caribbean American Tourist Corporation — the plaintiff in the suit — to give security for costs in the event that there is an award made in favour of the defendant. The motion also sought the order of the Court that proceedings be stayed until security be given and if no security be given within a fixed time then the Court should non-suit the plaintiff.
The grounds for the motion are that:
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(1) Although the plaintiff Company is incorporated in this Island nevertheless it is not resident in the Island.
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(2) the plaintiff Company is not possessed of real property in this Island either of value of four hundred and eighty dollars above all incumbrances, or of real property at all.
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(3) the plaintiff Company has no visible means of paying costs if judgment is given against the Company.
It the contention of the plaintiff Company that it is resident in the Island and that the application for security for costs cannot be maintained as there is “No legal basis or authority for the application within the meaning of Article 123 of the Code of Civil Procedure”. The plaintiff Company contended further “that the defendant erred by his failure to:
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(i) obtain the Leave of the Court or Judge to move this Honourable Court during the vacation period;
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(ii) To make this Application in Chambers within two days after appearance, as prescribed by law”.
The plaintiff Company has contended that for these reasons the motion should be dismissed.
For the sake of convenience I shall deal first with the third contention urged by the plaintiff Company.
The Supreme Court Rules and Orders made under the authority of the Leeward Islands and Windward Islands (Courts) Order in Council 1939 (Imp) as amended by Leeward Islands and Windward Islands (Courts) (Circuits and Sittings) (Amendment) Rules 1957, state inter alia that in every year there shall be vacations of the Court and that these vacations shall include the months of August and September. Since the 1 st October 1965 these Rules and Orders have been replaced by the Supreme Court (Sittings and Sessions) Rules 1965 but again the vacations of the Court in every year have been fixed to include the months of August and September.
The motion before this Court is dated 30 th July 1965 and was filed in the Registrar's Office on the same date — 30 th July 1965.
The notice of hearing indicated that the matter would be heard on the 19 th August 1965 at 9.30 o'clock in the forenoon. On that date the matter was considered, in chambers and it was agreed to adjourn it to Friday 1 st October 1965. On that date and in open Court the Attorney General stated that he was satisfied that the hearing might be conducted in open court. Counsel for plaintiff Company raised no objection and consequently hearing commenced in open Court on 1 st October 1965. The question as to whether or not the defendant had erred in accordance with the contention on behalf of plaintiff Company was at this stage purely academic in nature and I have not regarded it as relevant to the decision on the motion for security for costs.
The grounds of the motion and the reply thereto indicate that the essential issues to be determined are:
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(i) residence of the plaintiff Company. Is the plaintiff Company resident in this Island or not?
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(ii) property and means of the plaintiff Company. Is the plaintiff Company in possession of real property or not? If so, of what value? What are the visible means of the plaintiff Company?
In addition, it is the contention of the plaintiff that the application for security for costs is outside of the scope of the law of this island by which a plaintiff may be required to give security. Of course, if the motion is one, which would not be properly, brought under the law of the territory then that would be an end of the matter.
Attorney General submitted inter alia that the motion was brought by virtue of Article 123 of the Code of Civil Procedure and that the action brought by the plaintiff Company was one, which was included in actions referred to by the Article 123 of the Code of Civil Procedure.
Counsel for plaintiff Company submitted that this application was meant to be governed under the title Summary Proceedings; “that the application was brought long after two days after appearance; that the Attorney General had not applied for extension of time to do so”. In the words of counsel for plaintiff Company — “this motion for security for costs is a summary proceeding ; if not it is meaningless”.
In support of his contention counsel for plaintiff Company cited Articles 727 to 735 inclusive of Code of Civil Procedure and “in particular Articles 729 and 730 of the Code of Civil Procedure”. He also referred to Articles 106 and 123 of the Code of Civil Procedure and urged that “the defendant has not pleaded by way of exception supported by affidavit and has not further satisfied the requirement that he should have deposited the sum of $9.60” and, according to counsel “not having complied he is legally estopped from proceeding with this matter”.
In dealing with Article 123 of the Code of Civil Procedure counsel for the corporation submitted: “The plaintiff did not bring an action of slander of title to goods; that section was included to serve the purpose of aggravated damages. The action is one, which involves a breach of the conditions and terms of a lease. It is one of lessor and lessee involving breach of the conditions; that paragraph was included to be regarded in assessment of damages; the action remains primarily one of breach of a lease”.
In reply, the Attorney General submitted that Article 727 of the Code of Civil Procedure defined summary matters and it would have to be an application for security for costs in those summary matters mentioned in that Article for it to be governed by the Articles cited by counsel for the corporation; however, the Attorney General submitted this case as one involving a claim for an amount of one hundred and forty-eight million dollars, would never be considered as a summary matter and be governed by the provisions governing summary proceedings.
Article 123 of the Code of Civil Procedure reads as follows:
“Any person against whom an action is brought for malicious prosecution, illegal arrest, assault, seduction, libel or slander or other action of a like nature, or a qui-tam action, may plead by way of exception supported by affidavit, that the plaintiff has no visible means of paying the costs in case of an adverse judgment, and the Court may thereupon order such plaintiff to give security”.
This Article therefore sets out the type or class of actions in which a defendant may seek an order of Court that the plaintiff should give security. The actions are actions for malicious prosecution, for illegal arrest, for assault, for seduction, for libel, for slander or other actions of like nature or a qui-tam action.
The expression “or other actions of like nature” coming where it does in the Article is an expression which in my view must be interpreted as being restricted to matters Eiusdem Generis with the class of actions mentioned before.
The declaration filed by the plaintiff's solicitors states inter alia:
“7 The Plaintiff contends that the said Government had no legal authority to disturb the Plaintiff's possessory rights and other legal rights and/or interests covenanted for in favour of the plaintiff under the said Lease Agreement”.
“7 In consequences thereof the plaintiff's Business Arrangements therefore were immediately prejudiced generally whereby the plaintiff has suffered:
“(a) Damage as per particulars hereunder resulting from the Defendant's non-fulfilment of their obligations hereinbefore mentioned and arising under the said Lease Agreement”.
“(b) Damage for slander of title to the plaintiff in respect of the defendant's letter of the 16 th January 1965, published over the radio, and to the St. Lucia Development Company Limited, whereby the plaintiff was ridiculed, shunned and suffered loss of Business from Financial Investors”.
“And the plaintiff claims…
(vi) General damages for slander of title-from the Lessor's letter dated 16 th January 1965 published over a local Radio and to the St. Lucia Development Company Limited
(vii) General Damages for non-fulfilment of the Defendant's obligations arising from the relation of Lessor and Lessee. From this declaration it would seem to me to be indisputable that the plaintiff company in the suit has alleged it is entitled to damages for two reasons: Firstly because of a breach of an agreement and secondly because of a publication whereby the plaintiff company was “ridiculed” and “shunned”.
I considered it as abundantly clear — at least among legal practitioners – that slander of title was a well known form of unlawful interference with business and as such, a tort which rendered the wrongdoer liable in damages; and therefore I would have thought that when the expression was used by a legal practitioner, and when as in this case it was stated unequivocally that the plaintiff claimed “General damages for slander of...
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