The Court of Appeal in Dr. Martin Didier et al v Royal Caribbean Cruises Ltd. held that the court will not order security for costs solely because the claimant is ordinarily resident outside the jurisdiction. However, a non-resident claimant with no assets in the jurisdiction will, in all likelihood, be required to put up security for the defendant’s costs.
In Dr. Martin Didier et al v Royal Caribbean Cruises Ltd., this Court considered an appeal against the judgment of a High Court Master. The master refused an application, made by Dr. Martin Didier and the other named appellants, for an order that Royal Caribbean Cruises Limited provides security for the appellants’ costs in the proceedings in the lower court. Royal Caribbean Cruises Limited is a company registered in Liberia with its registered office in Monrovia.
The Court held that it would not order security for costs on the sole basis that the claimant in the matter is ordinarily resident outside the jurisdiction of the court. The court however made it clear that a non-resident claimant with no assets in the court’s jurisdiction will likely be required to put up the security for the costs of the defendant. This ruling is based on the general principle that the court has the discretion, supported by rules 24.2 and 24.3 of the Civil Procedure Rules 2000, to make an order that a claimant is to put up security for a defendants costs once the court is satisfied “that there is a significant risk of the defendant suffering an injustice by having to pay to defend the proceedings, with no real prospect of being able to recover his costs if he is eventually successful.”
This Court was guided by the decision of the Court of Appeal of England in the case of Berkeley Administration Inc. and others v McClelland and others. The simple principle coming out of that authority is that the plaintiff being a resident abroad is not per se a ground for making the order. However, this Court having assessed the facts, acknowledged and applied the important point that a “non-resident claimant with no assets in the jurisdiction will, in all likelihood, be required to put up security for the defendant’s costs.”
Interestingly, this Court highlighted that Berkeley Administration Inc “coincidentally…made the point that a ‘one ship’ company resident in Liberia with no local assets will not contest the making of an order, only the quantum of costs to be posted.” Acknowledging though, that Royal Caribbean Cruises Ltd. was by no means a “one ship” company, this Court stated that “there is no evidence that it has assets in Saint Lucia, and the only ship about which there are any details (Explorer of the Seas) flies a Bahamian flag.” Given the circumstances this Court concluded that Royal Caribbean Cruises Ltd. does not have assets in the jurisdiction and there are potentially uncertain difficulties and expenses associated with enforcing a costs order against it, either in the jurisdiction or elsewhere. This Court conclusively found that it would be just to make an order that Royal Caribbean Cruises Ltd. provide security for the costs of the appellants.