IN THE SUPREME COURT OF GRENADA
AND THE WEST INDIES ASSOCIATED STATES
IN THE HIGH COURT OF JUSTICE
CLAIM NO. GDAHCV 2011/0017
COLONIAL LIFE INSURANCE COMPANY (TRINIDAD) LTD
CLiCO INTERNMATIONAL LIFE INSURANCE LTD
Mr. Alban John for the Claimant
Mr. Ian Sandy for the Defendant
2012: October 19.
2013: January 16
 ELLIS, J.: On 16th March 2011, the court entered a default judgment against the
Defendants herein in the amount of $3,236,356.70 together with interest at 6% per
annum until payments.
 By notice of application dated 7th July 2011 and filed on 8th
July 2011, the First
Named Defendant applied to set aside the default judgment. By order dated 23rd
February 2012, the court refused to set aside the default judgment and awarded
costs to the Claimant in the sum of $750.00.
 By notice of application filed on 9th March 2012, the First Defendant applied to this
Court for leave to appeal to the Court of Appeal against the order dated 23rd
1  This application for leave to appeal is not opposed by the Claimant. However by
notice of application filed on 9th March 2012, the Claimant applied to the Court for
the following orders:
1. That (should leave to appeal be granted) the First Defendant do, before
proceeding with the appeal give security for the Claimant’s costs up to and
including the hearing and determination of the appeal, such costs to be as
prescribed by Appendix B to Part 6S.S and 6S.13 of the CPR 2000, as
amended by SRO 26 of 2011, Eastern Caribbean Supreme Court Civil
Procedure (Amendment) Rules Part 4thereof, with liberty to apply.
2. That all proceedings be stayed until the First Defendant shall have given
such security in accordance with the order so to do.
3. The costs of this application be costs in the cause.
[S] The Claimant makes this application on the following ground:
1. The First Defendant is an external company with offices in Trinidad and
Tobago and by its own admission or assertion, is not authorised to
conduct business in Grenada.
2. The Claimant has no knowledge of the First Defendant having any assets
within the jurisdiction and the Claimant fears that unless the First
Defendant is ordered to give security for costs, any award of costs that
may be made against the First Defendant will be unenforceable.
3. By letter dated 7th May 2012, the Claimant’s attorney wrote to the First
Defendant’s attorney seeking confirmation of its preparedness to pay
security for costs into court and as at the date of the application there has
been no response to that letter.
 It appears that prior to the hearing of these applications, Counsel for the First
Defendant responded to the Claimant on 9th May 2012, indicating that based on
his understanding, the conjoint effect of Part 6S.13 (as amended) and Part 62.17 is
that the only security of costs that the Respondent (the Claimant) would be entitled
2 to in the Court of Appeal is two-thirds of the costs awarded in the court below,
upon dismissal of the application to set aside the default judgment; that is to say
the sum of EC$500.00.
 Counsel for the First Defendant opposes the application for security for costs on
two main bases:
That this court has no jurisdiction to entertain this application as there is no
 Counsel for the First Defendant referred the court to the Part 62.17 of the
amended CPR 2000 which provides:
(1) The court may order
(a) An appellant; or
(b) A respondent who files acounter notice asking the court to vary or set
aside an order of alower court
to give security for the costs of an appeal.
(2) An application for security may not be made unless the applicant has
made aprior written request for such security.
(3) In deciding whether to order a party to give security for costs of the
appeal, the court must consider
(a) the likely ability of that party to pay the costs of the appeal if ordered
to do so; and
(b) whether in all the circumstances it is just to make the order.
(4) On making an order for security for costs the court must order that the
appeal be dismissed with costs if the security is not provided in the
amount in the manner and by the time ordered.
(5) Any costs to be paid under paragraph (4) must be assessed by the court.”
I  He also noted that Part 62.1 (2) defines “appellanr as “the party who first files the
notice of appeal”. He submitted that when read together, these provisions
prescribe that an application for security for costs of an appeal can only be
entertained once a notice of appeal has been filed in the Court of Appeal or the
matter is already before the court in some manner.
 No notice of appeal has been filed in this case and there is therefore nothing
before the Court of Appeal.
 Counsel for the Claimant also noted Rule 31 (2) (a) of the Court of Appeal Rules
Chapter 336 of the Revised Laws of Grenada which provides that,
“An application for security for costs may be made at any time after an appeal
has been brought and must be made promptly thereafter.”
 He therefore submitted that the Claimant’s application is premature as there must
be an existing appeal before the Court of Appeal (or a High Court Judge
exerCising the power of a single judge of the Court of Appeal) can entertain an
application for security for costs in the Court of Appeal.
 Counsel for the Claimant disagrees that this application is premature. He
submitted that ajudge at first instance is empowered to order security for costs in
these circumstances. He further submitted that this power is not trammelled by
any condition that an appeal must first be filed before such power can be
exercised. He submitted that the judgments of Rawlins JA in Michael James v
Tasman Gaming Inc. and Anor. Civil Appeal No.6 of 2006 and Floissac CJ in
Kingsley Bowman v Hansraj Matadial Civil Appeal No.7 of 1996 in support this
4 That the Security claimed is exorbitant given the likely costs to be awarded
in the Court of Appeal.
(14] In a letter dated 71h May 2012, the Claimant claimed the sum of $89,000 as
security for costs. The calculation is based on the judgment sum set out in the
default judgment ($ 3,236,356.70) less the costs therein calculated of
($46,421.36). The Claimant then calculated prescribed costs to be in the amount
of $99,632.04. The Claimant indicates that it would be prepared to cap the security
 Counsel for the Claimant argued that the court would in these circumstances be
entitled to exercise its discretion to award appropriate costs as it sees fit in
accordance with Part 65.13(2) (b) and suggested that there are exceptional
circumstances in this case which would prompt this court to so act. The evidence
filed in support of the Claimant’s application did not point to any specific
exceptional circumstances which would affect the discretion of the court; neither
did counsel seek to advance any in his oral submissions save to say that the
amount of work which would be involved in this appeal would be significant and
would be far in excess of $500.00.
 He argued that that the circumstances of this appeal warrant adeparture from the
general rule prescribed by Part 65.13 which is set out below:
(1) The general rule is that the costs of any appeal must be determined in
accordance with Rules 65.5, 65.6 and 65.7 and Appendix B but the costs
must be limited to two thirds of the amount that would otherwise be
(2) The Court of Appeal may, if the circumstances of the appeal or the justice
of the case require, depart from the general rule and, in such a case, it
(a) make an order for budgeted costs whether on an application made in
accordance with Rules 65.8 and 65.9 or otherwise; or
(b) make such other order as it sees fit.”.
[17) Counsel for the First Defendant argued the Claimant would not be entitled to the
amount of costs claimed. He noted that the amount of being claimed by the
Claimant as security for costs is unreasonable given that the decision! judgment
which is being appealed included an award of costs in the amount of $750.00.
 In light of this, counsel contended that in accordance with Part 65.13, the amount
of costs which the Court of Appeal could likely award would be no more than
$500.00. The Claimant’s security in the circumstances would be negligible.
Analysis and Conclusion
 The power or discretion to make an order for security for the costs of an appeal is
principally derived from section 35 (4) of the West Indies Associated Supreme
Court (Grenada) Act Cap 336 of the Revised Laws of Grenada (the Supreme
Court Act) which provides that,
(1) On the hearing of an appeal from any order of the High Court in any civil
cause or matter, the Court of Appeal shall have power to
(a) confirm, vary, amend or set aside the order or make such order as
the High Court might have made, or to make any order which ought
to have been made, and to make such further or other order as the
nature of the case may require;
(b) draw inferences of fact;
(c) direct the High Court to enquire into and certify its findings on any
question which the Court of Appeal thinks fit to be determined before
final judgment in the appeal.
(2) The powers of the Court of Appeal under this section may be exercised
notwithstanding that no notice of appeal or respondent’s notice has been
given in respect of any particular part of the decision of the High Court by
any particular party to the proceedings or that any ground for allowing the
appeal or for affirming or varying the decision of that Court is not specified in
such notice; and the Court of Appeal may make any order in such terms as
the Court of Appeal thinks just to ensure the termination on the merits of the
real question in controversy between the parties.
(3) The powers of the Court of Appeal in respect of an appeal shall not be
restricted by reason of any interlocutory order from which there has been no
(4) The Court of Appeal may make such order as to the whole or any part of the
costs of an appeal as may be just, and may, in special circumstances, order
that such security shall be given for the costs of an appeal as may be just.
 The Supreme Court Act has subsidiary legislation in the form of the Court of
Appeal Rules, SRO 58 of 1968 as amended which is also relevant. Section 27 (1)
(a) of the Court of Appeal Rules provides:
“In any cause or matter pending before the Court, a Single Judge of the Court
may upon application make orders for
(a) giving security for costs to be occasioned by any appeal;”
Section 28 (1) of the Court of Appeal Rules provides:
“Applications referred to in the preceding rule shall ordinarily be made to a
Judge of the Court, but, where this may cause undue inconvenience or
delay, a Judge of the court below may exercise the powers of a single
Judge of the Court under that rule.”
Section 31 of the Court of Appeal Rules provides:
“(1) Before an application for security for costs is made, a written demand
shall be made by the respondent and if the demand is refused or if an
offer of security be made by the appellant and not accepted by the
respondent, the court or the court below shall in dealing with the costs
of the application consider which of the parties has made the
7 (2) An application for security for costs may be made at any time after the
appeal has been brought and must be made promptly thereafter.
(3) An order for security for costs shall direct that in default of the security
being given within the time limited therein, or any extension thereof, the
appeal shall stand dismissed with costs.
(4) A bond with sureties for securing the costs of an appeal shall be in Civil
 It is on the basis of similar provisions in the S1. Vincent and the Grenadines
Supreme Court Act that the Court of Appeal in Kingsley Bowman v Hansraj
concluded that a judge of the High Court had the requisite authority to
make the order for security for costs of an appeal.
 These substantive legislative provisions have since been somewhat crystallized in
the Part 62.17 of the Civil Procedure Rules 2000.
 Counsel for the First Defendant argues that the Court’s jurisdiction to order such
security depends on the existence of an extant appeal. He argues that in the
current circumstances no leave having been yet granted and no notice of appeal
having been filed; there is in fact no appeal and therefore this court has no
jurisdiction to order security for the costs.
 Not surprisingly, counsel for the Claimant does not agree and referred the court to
the case of Tasman Gaming Inc., in which Rawlins JA acting as a single judge of
the Court of Appeal, awarded security for costs to the respondents within the
context of an application for leave to appeal filed by the intended
 Counsel for the Claimant noted that the circumstances in the present application
are similar. On that basis he submitted that this Court does have jurisdiction to
make the order sought. He further submitted that it would be inconvenient and
1 Page 3 of the Judgment of Sir Vincent Floissac CJ
8 cause unnecessary delay were the Claimant to be forced to await the filing of an
appeal before applying for security for costs when the First Defendant has already
signalled its intention to appeal.
 Counsel for the First Defendant however contends that the case of Tasman
Gaming can be distinguished on the basis that there were already proceedings in
the Court of Appeal.
 The Court does not accept that there is any basis for distinction. It is clear from the
judgment in Tasman Gaming that no notice of appeal had yet been filed in the
matter. Michael James is clearly listed as the intended appellant/applicant and as
in the instant case there were two applications before the Rawlins JA: in respect
of the intended appellant, there was an application for leave to appeal and for a
stay and in respect of the respondents, there was an application for an order that
the appellant be directed to give security for the costs of the appeal proceedings.2
This is confirmed by the learned Judge’s order in summary.3
[28) A similar approach was also followed in the English case of Charman v
Charman.4 Here the applicant wife applied for an order that the granting of
permission to appeal to the respondent husband against a judgment made in
ancillary relief proceedings be subject to a condition that he provide security for
the outstanding part of the financial settlement plus interest, and to acondition that
he provide security for W’s costs of the appeal.
 The Court of Appeal held that the wife entitled to be protected against the costs of
the appeal on the basis that he husband was resident outside the jurisdiction and
not in a Brussels or Lugano contracting state. An order for security for costs in the
sum of £225,000 was therefore made under the CPR r.25. 13(2) (a).
2 Paragraph 4 and 5 of Judgment of Rawlins JA
3 Paragraph 30 of the Judgment of Rawlins JA
4  EWCA Civ. 179
9  In advancing his contention that this court lacked jurisdiction to order security for
costs on an application for leave to appeal, Counsel for the First Defendant did not
refer the Court to any judicial authorities. However, it is apparent that this issue
has been considered in a number of English cases.
 In Kevythalli Design v Ice Associates5
the applicant (K) applied for security for
costs against the respondent (R). Rhad applied for permission to appeal against a
decision not to set aside a judgment. It had been known since December 2009
that the application would be heard in March 2010, with the appeal to follow
immediately if the application was granted. Rhad failed to respond to a letter from
Kseeking security for costs.
 Lord Justice Aikens noted that the first issue which arises was the jurisdiction of
the court to order security for costs in circumstances where there is no appeal but
rather apending application for permission to appeal.
 Counsel for the R and the K conceded that in such circumstances strictly
speaking, CPR 25.15 which deals with security for costs on an appeal cannot
apply. Counsel for the Khowever argued that although CPR r.25.15 did not apply
(because there was no appeal pending) the court had broad jurisdiction to award
security for costs under CPR r.3.1 which sets out the Court’s general case
 Aikens LJ refused the application and held that where only an application for
permission to appeal was pending, CPR r.25.15 could not apply. The learned
judge however elected to assume that he did have the requisite jurisdiction to
entertain the application and by analogy with CPR r.25.13 (2) (c) he had to decide
whether it was just in the circumstances to order security for costs. He concluded
5  EWCA Civ 379
I that on the evidence, R’s financial position it would not be reasonable or just to
order security for costs of the appeal.
 In Mulford Holding and Investments Ltd v Greatex Ltd6
, Greatex applied for
security in the sum of £50,000 in relation to the oral hearing on notice of Mulford
Holdings’ application for permission to appeal with the appeal to follow
immediately if permission was granted.
 Lloyd LJ in the Court of Appeal substituted CPR r.3.1 in place of CPR r.25.13 as
the basis on which an order for security for costs was sought in circumstances
where an application for permission to appeal had been brought. The court
awarded security for costs and ordered payment into court of the sum already
ordered to be paid on account of the costs below, but which had not been paid.
 The case of Shlaimoun v Mining Technologies International Inc.7 also
concerned an application on the papers for permission to appeal. The issues were
whether (i) the court had jurisdiction to order security for costs when there was no
appeal pending; (ii) whether it was appropriate for the court to exercise its
discretion in the respondent’s favour. The court held that although the jurisdiction
under CPR r.25.15 to grant security for costs in relation to appeals did not apply to
an application for permission to appeal which had not been determined, the court
had power under r. 3.1 (2), to make such an order. The court also held that in
exercising its discretion to order security, the same tests applied as if the
jurisdiction was being exercised under r.25.15.
 Although in the circumstances of these cases, permission to appeal had not been
granted at the time of the hearing of the application for security for costs of the
appeal, it is clear that the English Court of Appeal has assumed jurisdiction under
Part 3.1 of the English CPR which prescribes the court’s general case
6  EWCA Civ. 1178
7  EWCA Civ 772
management powers.8 The English Court has therefore combined the power to
make an order subject to conditions, including a condition to pay a sum of money
into court and the power to stay the whole or part of any proceedings either
generally or until a specified date or event and in so doing have prescribed that it
has the jurisdiction to order security for costs on an application for leave to appeal.
 Before this Court is an application for leave to appeal which is unopposed and
which the court has no hesitation in granting. Within this context, the Court will
assume the jurisdiction to entertain this application. In arriving at this conclusion
the court relies on the decisions of Tasman Gaming and Channan v Channan.
 The court is also satisfied that under its general case management powers under
Part 26.1 (2) (q) and 26.1 (4) that it has the jurisdiction to consider the Claimant’s
application. In so doing the Court must take into account the factors prescribed in
Part 62.17 sub clause (3) of which reads:
“In deciding whether to order a party to give security for the costs of the
appeal, the court must consider
(a) the likely ability of that party to pay the costs of the appeal if
ordered to do so; and
(b) whether in aU the circumstances it is just to make the order.”
 It is clear that these are separate and individual criteria that the court must apply.9
 Veronica Plenty, a clerk in the law office of the Claimant’s attorney swore an
affidavit in support of the application for security for costs in which she notes the
Claimant’s fear that unless the First Defendant is ordered to give security for costs,
any award of costs that may be made against the First Defendant at the appeal,
will be unenforceable.
8 The equivalent provisions in the Eastern Caribbean are set out in CPR Part 26.1
9 Global-X Canadiana Ltd et al v Clifford Johnson Eastern Caribbean Civil Appeal 4 of 2003
 This fear is premised on the fact that the First Defendant is an external company
with offices in Trinidad and Tobago and by its own admission or assertion, is not
authorised to conduct business in Grenada and has long ceased business in
Grenada. Ms. Plenty also deposes that the Claimant has no knowledge of the
First Defendant having any assets within the jurisdiction. She also exhibited to her
affidavit a consolidated judgment in Claim Nos. CV 2010 – 02917; CV 2010
04378; CV 2010 – 04784 which in her words reflects the “difficult financial affairs
of the First Defendant that are now notorious
 In resisting the application for security for costs, Wendy Hoyte, a legal consultant
to the First Defendant admits that the Claimant is an external company with no
operations in Grenada. In fact she confirms that that the First Defendant has long
ceased doing business in Grenada and in fact has no principal representative in
 Most importantly, while Ms. Hoyte makes no admission in respect of the First
Defendant’s lack of assets within the jurisdiction, she proffers no evidence to
suggest that the First Defendant in fact has any assets within the jurisdiction.
Indeed the First Defendant has provided no evidence of having any assets in the
jurisdiction and counsel made no such representations in his submissions. Neither
has the First Defendant sought to traverse the Claimant’s contention that it is
experiencing financial difficulties which would render any costs order against it,
 Rather, the First Defendant relies solely on advice received regarding the likely
costs to be awarded on an appeal ($500.00) and states that it would be able to
pay these costs if unsuccessful on the appeal.
 In the Court’s view, the advice which the First Defendant received is flawed. The
basis upon which costs of an appeal are to be calculated are clear set out in Part
65.13 which provides that the general rule is that the costs of any appeal must be
determined in accordance with Rules 65.5, 65.6 and 65.7 and Appendix “B”.
These costs must however be limited to two thirds of the amount that would
otherwise be allowed.
 It follows that the costs would in the normal course be calculated on the basis of
the prescribed costs regime. This regime mandates that costs be calculated on the
basis of the value of the claim and the percentages specified in Appendix B. The
paint of reference therefore is not the costs award made on the unsuccessful
application to set aside the default judgment in the court below.
 Given this basis of computation, it is possible that the costs on appeal could be
significant. In the premises, the First Defendant’s avowal that it will be able to
satisfy costs in the sum of $500.00 would be very cold comfort to the Claimant.
 Recently, in Societe Generale S.A. v Saad Trading Contracting and Financial
Services Company and ANR  EWCA Civ. 695, French financing company
(C) brought a substantial High Court contractual claim against a Saudi Arabian
limited partnership (01) and an individual partner (02) (a Saudi national owning 90
per cent of D1’s share capital and guarantor of sums claimed by C). The trial
judge at first instance gave judgment for C in sum of US$49 million on ajoint and
several liability basis.
 Asingle lord justice granted 01 and 02 permission to appeal to Court of appeal. C
applied to court for an order for security for their costs of the appeal in sum of
£330k. In granting CiS applications (though in reduced amounts) the court held
that since full and frank evidence had not been adduced by 02 as to his means or
by 01 as to the whereabouts of its assets, in the circumstances it was appropriate
to order that they provide security for costs in the sum of £90,000.
 Having regard to the evidence proffered the court is of the view that this is a case
where the circumstances make it just to make an order that the First Defendant
12/07/2012 15:37 FAX 12844946342
(intended appellant) should be required to enter security for the costs of the
appeal. Counsel for the Claimant has not advanced any factor or consideration
which would militate against the grant of such security.
153} The Claim, in this case is in the amount of $2,578.964.44 together with interest at
a rate of 11 %. In the Court’s view it is reasonabfe to require that the First
Defendant enter security in the sum of $20,000.00 for the presentation of this
 It is therefore ordered as follows:
1. The First Defendant has leave to appear against the order made on 23n1
February 2012 refueing to let aalde the default judgment.
2. The Notice of Appeal Is to be filed and served within 14 days of today’s
3. The Claimanrs application for an order that the First Defendant should
enter security for their costs for the prosecution of this appeal is
4. The Firat ~efendant shalt enter security in the 8um of $20,000.00 within
21 days of taday’. date either by payment of the ,um Into the Registry
of the Supreme Court or by way of surety.
5. The coats occasioned by these applleatlona shall be in the appeal
~(J;;~ High Court Judge