Judgment of the Full Court was read in H.M. Supreme Court on June 18 in the appeal of defendant in the case of Ching Chao Ca, v. H. Browett, administrator of the estate of James Magi, against a decision given by Judge G.W. King in Chambers refusing to order the pi to" furnish further security for costs. The Full Court allowed the appeal though Judge King dissented concerning his former decision, The decisions of the Court were read by Judge Sir Peter Grain.
Judge King's decision follows:—
This is an appeal from an order made'by myself in chambers on a summons by defendant for the deposit. in court by the plaintiff of a further sum of $250, the latter having already deposited in court the stm of $250 as security for defendant's costs. I declined to direct a further deposit by plainti, The necessity for a non-British plaintiff making a deposit in court as security for a defendant's costs is provided for by article 205. (2) of the China Order in Council 1925 ich years as follows:— provided that the foreigner....if veguired by the Const. give security. to the satisfaction of the Court and to such reasonable amount as the Court thinks fit....
There are no rales of this court which regulate the amount to be deposited: in the first instance nor which regulate the deposit of further amounts. There is however a practice which has been in force for many years in the court which lays down the amount. of security to be deposited in the first instance and which amount is based on the sum sued for in an action, Role 99 which deals with the matter of a plaintiff? out of the jurisdiction of the Court has no bearing on this appeal.
Te seems to me however that eases not coming under rule 99 there is a discretionary power inn Judge to direct a deposit of a further amount as security for costs and that the exercise of such discretion may. be subject to a view by the Full Court, the question for the latter Court being are there any grounds for upsetting the ruling of the judge of first instance, as to. whether he has exercised the discretion in a reasonable manner.
As there are no roles of this court bearing on the subject counsel for the appellant directed our attention to certain cases decided in the English courts which trate the reasons for farther security for costs. cases are of interest but they do not give much assistance in coming to a decision on this appeal. Two of them refer to litigants out of the jurisdiction, "two to limited companies alleged to be in liquid tion, and the last to an appeal by fan unsuccessful litigant in a lower court, In this court there have been but few occasions on which the question of the giving of further has arisen, and there are dicta of the judges which one can refer for enlightenment.
Tt seems to me that each applica tion for an increase of security for costs must be dealt with on its merits, and that no general rule can be laid down.
In refusing this application in chambers T gave two reasons for refusal: (1) amount claimed small (2) nature of action issues define! Te has been argued that neither of these reasons should have been considered by me in exercising my discretion. It is true that in one the cases quoted Morceroft Evans Cotton L. J. said value is not a question but he vent on to say the question was the probable costs of the appea ion before him being secur fan appeal by a litigant unsuccessful in the lower court.
Assuming that I had nog given any reasons but merely stated that T did not consider it was a case for ordering farther security how would counsel for appellant have based hhis argument? In using the above words it seems to me mow, as it di hen, that T hat this was not a case for directing deposit of-a further security I repeat that each case must be considered on its merits and that Twas and still am of opinion that in this case further security should not be ordered, If it were ordered it seems to me it would not be easy to refuse an application in any fatare case. HM every British defendant was entitled to be secured at every stage of an action for his costs, by the deposit of an amount estimated of the costs to date by non-British plaintiff, the latter would be hampered in and in some cases debarred from bringing an faction in this Court. It should be borne in mind that the term "non British" is not confined to Chinese litigants alone, consider this appeal should be dismissed with costs, Judge Grain's judgment read:—
This is an appeal by the appellants to set aside an order made by the Assistant Judge sitting in chambers on April 26, 1980, dismissing the appellant's application for further security for costs.
The grounds of the appeal are:
That the grounds on which the application was dismissed were not grounds on which the learned Judge could properly consider in the exercise of his discretion.
The grounds of dismissal appear in the Judge's notes as follows:—
(2) The amount. claimed was (2) Tu the nature of the action the issues were defined.
I understand that the second reason. referring to the issues the action as being defined means that the hearing would not have been of any length, nor expensive in the way' of bringing evidence at the trial.
And T will say at once that, in my of 'a very good ground for his exercise of discretion as to extra deposit for security of costs.
The application was made to the learned Judge under article 205 (2) of China Order in Council, 1925. "Provided that the foreigner..if required by the Court to gi security to the satisfaction of the Court and to such reasonable amount as the Court thinks fit.'
There is no doubt that the Judge has absolute discretion and so lenz as he uses his discretion reasonably and judicially his discretion cannot be interfered with.
In a case, Morgan v. Morgan (1869) 1 P.D. 644, Lord Penzance] Says "the discretion to be exercised should be a regulated discretion and not a free option subordinated to. no rules."
It is true that he is speaki the use of discretion in quite a different case to this.
But he does sound the same not= as counsel for the appellant does this case, who maintains that there are certain broad principles, almost rules which have been laid down by the British courts with regard to applications for security for costs.
To formulate and limit with grounds to be exercised is a practical impossibility. There are] several eases cited before us for the purpose of showing the grounds on which Judges have based thei applications for security for costs.
"They are mot cases which ave identical with this because there no such rule in the courts England equivalent to the rule now In the case The Republic of Costa Rica v, Erlanger 1876, 3 Eh. D. p.62, which was an application for fan increase of deposit for security of costs on the ground that the plaintiffs were a foreign government, Malins, V.C, refused the application saying "that in the exercise of his discretion he should be "very reluctant indeed to apply any yule which should have the effect in any way of stopping litigation.
The Court of Appeal over-ruled the Vice-Chancellor on the ground that they considered that the defendants were entitled to some reasonable amount over and above the £100 already paid as the plai tiffs were a foreign government and, if unsuccessful, the defendants had no means of recovering their costs, costs for £1,000 having already' been incurred.
In Massey ¢. Alen, 1879, LR. 12, ch. D. 807. Hall V.C. gave security for past costs to the extent of £609
Northampton Coal Iron Waggon Company v. Midland
500, Tu that case the judge of first instance hed refused further security for costs applied for on the ground that a fresh case hed been raised by amendments which would cause great increase of ex pense. On appeal Jessel M.R. "Of course in a sense it is (a case of discretion) but not so that the Court of Appeal cannot examine into the ground of the exercise the discretion.
The appeal judges over-ruled the judge of first instance James LI. saying "it is a very important matter whether suitor, if successful, is likely to be able to obtain payment of his costs."
In the Dominion Brewery Ltd. v. Foster. 77 L-T-R. 507 Lindley MR. to apply to a case of this Kind" (a company said to be insolvent. who if unsuccessful would not have sufficient assets to pay costs)
se-e.in deciding upon the amount of security to be ordered, that you must have regard to the probable costs which defendant will be put to so far as can be ascertained."
Chitty J. refers to "estimate of expenses, the nature of the suit and any other matters which may be properly brought int Now it appears from these cages that at least one judge has decided that the amount in dispute is not a basis on which security was to be given but that it was the pro-'Bale cost.
The other decisions are: "estimate of expenses to be incurred," "the nature of the suit" i.e. "the probable length as regards expenses to be be incurred and the chances of one of the parties getting his costs if the other party is successful, especially in such cases where there would be no opportunity of the successful party recovering his costs,"
the case now before us there are undoubtedly all these elements: arising the respondent plaintiff 's. not within this jurisdiction a8. regards recovery of costs, I am of opinion that because the amount, claimed was a small one, is not a good xround for refusing extra security, but that the nature of issues well defined can be a good ground because it relates to the probable expenses to be incurved. In this case the appellant is in a fiduciary capacity as administrator of the estate and he is entitled to protect the estate by making. cer= tain of the costs in the event of ture to succeed by the respondents.
And I think this Court is justified in assisting him to do 80, I also agree with the statement of Colton LI. in Morecroft ¢. Evans that the amount of the claims is not the measure of the amount to be givin for security of costs.
The appeal is therefore allowed with costs and further security given for $850.
Text read from the printed page and cleaned; old type leaves the occasional error.