THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
SAINT VINCENT AND THE GRENADINES
MILLHAWKE HOLDINGS (BEQUIA) LTD
STOWE CONSTRUCTION (BEQUIA) LTD
HENRY JOHN MARRIOTT (A.K.A. HARRY MARRIOTT)
HON. DINAH LILIAN MARRIOTT
(1) JORG “STANLEY” DORNIEDEN
(2) TIMOTHY GABRIEL
(3) CARIB CONSTRUCTION
(4) CARIB INTERNATIONAL
(5) LEOMORE MACDONALD
(6) STANLEY’S FOOD AND BEVERAGES LTD
- The Hon. Mde. Justice Esco L. Henry High Court Judge
- Mrs. Kay Bacchus-Baptiste for the claimants.
Mr. Stanley K. John Q.C. with him Mr. Akin John for the first, second and
2020: Sept. 23
 Henry, J.: This case involves a claim
by Millhawke Holdings (Bequia) Ltd., Stowe Construction, Mr. Henry Marriott
and Hon. Dinah Marriott
against Mr. Jorg Dornieden, Mr. Timothy Gabriel and Stanley’s Food and
Beverages (Stanley’s Food’)
for damages arising from allegations of breach of a joint venture agreement
(‘JVA’), fraud, conversion and breach of fiduciary duty. Mr. Dornieden and
Stanley’s Food filed a defence and counterclaim
alleging wrongful repudiation of the JVA.
 In 2014
, the claimants obtained an order for security for costs in the sum of
$80,000.00, which was upheld on appeal. The defendants were directed to pay
that sum within 28 days of the order. The claimants allege that the
defendants have paid none of it. The claimants contended that Civil
Procedure Rules 2000 (‘CPR’) 24.5(b) mandates the court to include in an
order for security for costs, a stipulation that if it is not paid within
the timelines in the order, that the counterclaim will be struck out. They
submitted that the defendant’s counterclaim should be struck out for
failure to comply with the referenced order. They have applied
for an order striking it out and for costs.
 Mr. Gabriel did not object to the application.
The defendants’ legal practitioners indicated that Mr. Dornieden and
Stanley’s Food have not been in contact with them for an extended period
and further that their attempts to contact them have been futile. The legal
practitioners filed no legal submissions on in respect of the substantive
application to strike out the counterclaim. They however filed
speaking notes in which they noted that the referenced security for costs
order did not contain a stipulation that the counterclaim would be struck
out if not paid by the specified date. They reasoned that the order was
irregular in this regard and that as a result the present application
should be dismissed. For the reasons outlined below the claimants’
application is dismissed.
Issue – Should the defendants’ counterclaim be struck out by reason
that they failed to comply with the order to pay security for costs?
 The security for costs order arose from an application by the claimants
pursuant to CPR 24.3(g). The claimants asserted that the defendants live in
the United Kingdom; had limited assets within Saint Vincent and the
Grenadines and further that it would be difficult to recover any costs
order against them. Those are matters which the learned Master considered
in making the order and which were re-visited by the Court of Appeal when
they upheld the learned Master’s order.
 The learned Master’s order is set out paragraph 57 of her decision and
‘ Summary of award
(a) The Claimants are awarded security for costs of the Ancillary Claim in
the sum of $80,000.00 to be paid by First and Sixth Named Defendants within
28 days hereof, into an account under the management of the Registrar of
the High Court, or by way of bank guarantee for an equivalent amount from a
bank doing business in St. Vincent and the Grenadines.
(b) Costs to the Claimants on their application in the sum of $3000.00
payable within 21 days hereof.
(c) The First and Sixth Defendants’ application for security for costs is
dismissed with costs in the sum of $1500.00 to the claimants payable within
21 days hereof;
(d) No costs are awarded on the application for budgeted costs which
.’ (Underlining provided)
 The claimants outlined 6 grounds on which the instant application is
hinged. In the first 4 of those grounds they summarized the chronology of
proceedings which culminated with the referenced order. In the 5 th ground, they asserted that CPR 24.5(b) stipulates that a
security for costs order must also direct that the related claim or
counterclaim will be struck out if security is not provided in accordance
with the terms of the order. Ground 6 stated simply that the security was
not provided within the stipulated 28 days and consequently the application
is being made for the counterclaim to be struck out.
 The affidavit in support of the order was sworn to by Ms. Beverly
Frederick, senior legal clerk in the law chambers of Williams and Williams
– the former attorneys on record for the claimants. Ms. Frederick averred
that the claimants were awarded security for costs which was upheld on
appeal. She added that the appellate court held that the security for costs
order was properly awarded. She stated that the security has not been paid
by the defendants and requested an order striking out their counterclaim.
 The claimants filed skeleton arguments
and very brief written submissions
. They acknowledged that the CPR provides at rule 24.5(a) and (b) that the
court must include in a security for costs order, a direction staying the
related claim or counterclaim until the security is provided as ordered;
and also an order that the claim will be struck out if the order is not
complied with. They submitted that the objective of a security for costs
order is to ensure that in the event of an adverse result ‘the respondent
would be able to recover the costs incurred in defending the claim. They
submitted further that while the learned Master did not include a term in
her order mandating that the claim will be struck out if the defendants do
not provide security; the mischief is still present and in the
interest of justice the counterclaim ought to be struck out.
 The claimants argued that the order is an unless order which prevents
the defendants from proceeding with their ancillary claim unless the
security is paid. The remainder of their brief submissions
were made in bullet form as follows:
‘Contempt of court see:
The Defendants should
(1) Not even be permitted to file the extant submissions.
(2) Gavin Scott Hapgood vs COP et al‘
 The claimants did not elaborate on those further points. It is not
clear whether those bullet points are related. It is difficult to extract a
coherent stream of argument from those bullets. For what it is worth, the
court reviewed the Gavin Scott
decision, from the copy of the order made in the and the reasons for
decision supplied by the claimants. In that case, the Court of Appeal
refused an application for a Hadkinson order; made an
order for other issues to be scheduled for hearing by the Full Court and
issued case management directions for filing of written submissions and
 The Court of Appeal also noted the conditions necessary for a
Hadkinson order, as articulated in the case of De Gafforj v De Gafforj
‘1. The respondent is in contempt;
- The contempt is deliberate and continuing;
As a result there is an impediment to the course of justice;
There is no realistic and effective remedy;
The order is proportionate to the problem and goes no further than
necessary to remedy
 The case of De Gafforj v De Gafforj was decided by
the UK Court of Appeal. Lord Justice Peter
Jackson explained what a Hadkinson order is and outlined some principles
for activating it. He stated:
‘9. The nature of the Hadkinson order was described in this way by
Sir Ernest Ryder in Assoun v Assoun [No 1]
 EWCA Civ 21
“Such an order is draconian in its effect because it goes directly to a
litigant’s right of access to a court. It is not and should not be a
commonplace. As developed in case law,
it is a case management order of last resort in substantive proceedings
(for example for a financial remedy order) where a litigant is in wilful
contempt rather than a species of penalty or remedy in committal
proceedings for contempt.” …
- An order of this kind can be made at any stage of proceedings, both at
first instance and on appeal. Its history and modern development is set out
in the judgment of Eleanor King J in C v C (Appeal: Hadkinson Order)
 1 FLR 434 at 
- For present purposes, it is enough to note the exceptional nature of
the order …’ (Bold added)
 He added:
’14. The fourth condition underscores the obvious point that a Hadkinson order will not be made if the court has other powers
that can be effectively deployed.
- Lastly, a Hadkinson order is a flexible one with a range of
possible sanctions. …. In Hadkinson itself, the Court of
Appeal refused to hear a mother’s appeal until she had returned a child to
England. The form of order will be tailored to the needs of the case. What
is important is that the sanction is no stronger than it need be to remove
the impediment to justice.’
 The claimants failed to explain why they cited the case of Gavin Scott in support of their application. There is no
application before this court for the making of a Hadkinson order. In those
circumstances, it does not appear that the principles just outlined are
applicable to the case at bar, in respect of the present application. The
claimants did not highlight any learning from the case that they consider
to be applicable to the present application. They just listed it as an
 I think it is useful to remind counsel that it is for them to
communicate their submissions in a manner which would enable the court to
understand their case; and not for the court to distill from a decided case
the portions on which a party hinges his contentions, except in the most
obvious of cases; where for e.g. a legal authority is notoriously known. I
find that the Gavin Scott case is not helpful in that
regard and disregard it for present purposes. The claimants advanced no
other decided cases in support of their application.
 On 22nd July 2020, the court ordered parties to file
written submissions on the principles which guide the court in considering
an application or other process where a party has remained out of contact
with his legal practitioner on record and the court for an extended period.
They did. I have already referred to the brief notes filed by learned
Queens Counsel in which he made observations and mentioned legal
authorities in respect of the present application. He stressed that they
were not provided as formal submissions in opposition to the claimants’
application; or on instructions from Mr. Dornieden or Stanley’s Food.
 On the issue relating to a non-communicative litigant, learned Queens
Counsel submitted that the question which arises is ‘What is the general
character of litigation counsel’s authority to represent the interests of
the client?’ He continued:
‘The venerable principle that counsel is clothed with apparent authority to
do everything which, in the exercise of his discretion, he may think best
for the interests of his client in the conduct of the cause, was eloquently
pronounced in Strauss v Francis
by Blackburn J in the contest of counsel compromising a cause, as follows:-
The plaintiff by no means makes out that there was any express dissent on
his part to withdrawing a juror; there is nothing on the affidavits to shew
that the client absolutely withdrew all authority, nor is there anything to
shew that counsel had done so unprofessional a thing as to undertake the
conduct of a cause giving up all discretion as to how he should conduct it;
still less is there anything to shew that there was the slightest knowledge
on the part of the other side that the apparent general authority of
counsel had been in fact limited. Mr. Kenealy has ventured to suggest that
the retainer of counsel in a cause simply implies the exercise of his power
of argument and eloquence. But counsel have far higher attributes, namely,
the exercise of judgment and discretion on emergencies arising in the
conduct of a cause, and a client is guided in his selection of counsel by
his reputation for honour, skill, and discretion. Few counsel, I hope,
would accept a brief on the unworthy terms that he is simply to be the
mouthpiece of his client. Counsel, therefore, being ordinarily retained to
conduct a cause without any limitation, the apparent authority with which
he is clothed when he appears to conduct the cause is to do everything
which, in the exercise of his discretion, he may think best for the
interests of his client in the conduct of the cause:..”
 Learned Queens Counsel observed further:
‘Accordingly, the key issue for the court’s consideration in respect of the
issue raised is that on the assumption of Legal Practitioners on
Record/Counsel continuing their assumption of the brief, whether or not
their inability to make contact with the client in all the circumstances
must of necessity be treated as an implied withdrawal or limitation of
their retainer, that is to say has their apparent authority to represent
the 1st and 6th Defendants in relation to the subject
application or any other aspect of this matter been withdrawn such that
their action in the conduct of same ought not to bind their clients?’
 Learned Queens Counsel added:
‘it is respectfully submitted that legal practitioners on record for the 1 st & 2nd Claimant have the apparent authority to
act on behalf of the clients in pursuing the applications. However, the
distinct potential impact on the clients’ interest and consequences that
flow from each of the applications, inform what Legal Practitioners on
Record/Counsel consider as the reasonable action that can be taken without
the client’s express instructions but is in the clients’ best interest.
‘… the avoidance of any exposure to costs is a critical consideration
in responding to the application, given that no instructions have been
received from the clients. Hence it is hoped that by counsel drawing the
Court’s attention to the applicable law and authorities in the interests of
justice, this will not prejudice the Defendants as regards costs.
Legal Practitioners remain on the record and appear as counsel. It would be
failing in our duty to the court, if at the minimum these observations were
not made in an effort to assist the Court in its disposition of the
In light of the foregoing considerations and with specific reference to
Blackburn J’s observations on the character of his representation,
ounsel has the apparent authority to act, one considers that the
Speaking Notes are the
that can be made as it relates to this application
without reference to
.’ (Underlining added)
 The speaking notes were not supplemented by oral representations. In
them, learned Queens Counsel indicated that the court would need to decide
whether the learned Master’s order is an ‘unless order’; and if it is not,
whether the court has power to amend it, by making it an unless order and
thereby strike out the counterclaim. He noted that while the claimants
accepted that the security for costs order did not include the CPR 24.5(b)
sanction, they maintained that the counterclaim should be struck out in the
interest of the administration of justice, but supplied no legal authority
to support that contention.
 Learned Queens Counsel noted further that although CPR 24.5(b)
mandates the making of an unless order, no such order was incorporated in
the security for costs order. He posited that this goes to the substance of
the judgment. He observed that it is a settled principle of law that this
court being a court of concurrent jurisdiction with the Master’s, cannot
attempt to perfect a perceived imperfection in the learned Master’s order.
 He opined that this court has no authority to amend the security for
costs order by way of the slip rule pursuant to CPR 42.10. He reasoned that
to do so would be to go beyond correcting a clerical error or’ accidental
slip or omission’. He remarked that rule 42.10 is limited to the correction
of typographical errors. He stated that even if the court considered that
there was an omission, accidental slip or omission in the security for
costs order, it has no power to correct it, since it was appealed. He cited
in support the case ofSaint Christopher Club Ltd v Saint Christopher Club Condominiums and Ors
. Learned Queens Counsel concluded that the instant application is an abuse
of the court’s process and should be dismissed. On this latter point, he
referenced the decision in
Lauron Baptiste and Benjamin Exeter v Attorney General et al
 It has been accepted by the parties that the security for costs order
does not contain a stipulation that the ancillary claim will be struck out
if the security is not provided. This is self-evident. It is also clear
that this constitutes a departure from the mandatory language of CPR
As explained by Madame Justice Janice Pereira JA in Robin Darby v LIAT:
‘CPR 24.5 says in effect that
on making an order for security for costs the court must also order
that, ‘if security is not provided in accordance with the terms of the
order by a specified date, the claim (or counterclaim) be struck out
.’17 (Underlining added)
 The judgment of the Privy Council in Attorney General v Keron Matthews
is also instructive. There, the court considered what had been described as
an ‘implied sanction’ for the tardy filing of a defence. In that case, a
lower court had ruled that even though the CPR contained no express
sanction preventing a defendant from filing his defence after the stated
time limit had expired, an implied sanction arose in such circumstances.
That court ruled that such a defendant was precluded from filing a defence
unless and until he had applied for and obtained an extension of time to do
so and relief from the implied sanction.
 Lord Dyson opined:
‘It is straining language to say that a sanction is imposed by the rules in
such circumstances. At most, it can be said that, if the Defendant fails to
file a defence within the prescribed period and does not apply for an
extension of time, he is at risk of a request by the Claimant that judgment
in default should be entered in his favour. That is not a sanction imposed
by the rules. Sanctions imposed by the rules are consequences which the
rules themselves explicitly specify and impose.’
 He reasoned:
‘There is no rule which states that, if the Defendant fails to file a
defence within the period specified by the CPR, no defence may be filed
unless the court permits.16
Lord Dyson concluded:
‘ …if the language of the rules admits of only one
interpretation, it must be given effect.’
 Rule 24.5(b) of the CPR must be interpreted in accordance with those
guidelines. It is pellucid that the provision does not state that a
defendant who fails to provide security for costs will have his ancillary
claim struck out. The onus is placed on the judicial officer making the
order to include that sanction as part of the order, so that the sanction
flows from the order and not from the rule. CPR 24.5(b) allows no other
interpretation. This interpretative approach is also congruent with natural
law and administrative law principles of fairness. It follows that in the
absence of the expressly stated sanction from the order, it may not be
invoked by the claimants.
 The decision in the Robin Darby v LIAT case also
demonstrates that even where a security for costs order contains the rule
24.5(b) sanction, it does not automatically lead to a striking out of the
related claim, if a timeous and justifiable application is made for
extension of time to comply. In this regard, the learned Justice of Appeal
‘Notwithstanding that relief is sought after the sanction is said to have
taken effect it is still open to the court, as it should be, in recognition
of and giving full effect to the broad and fundamental principles of access
to justice, to grant relief where the justice of the case requires.’
 For completeness, I will touch briefly on the other observations made
by learned Queens
Counsel Mr. John in relation to the slip rule. Suffice it to say that the
claimants have made no application for amendment of the order pursuant to
the slip rule. I agree with learned Queens Counsel that omission of the
sanction cannot be characterized as an accidental omission or slip which
can be corrected in that way. I accept too that once a matter has proceeded
to appeal, an order may not be amended in that fashion.
 For the foregoing reasons, I am satisfied that the sanction of
striking out the defendants’ counterclaim is not an option which arises
from the security for costs order. I hasten to add that the order must be
given its full effect. In this regard, it directs that the ancillary claim
be stayed pending payment of the security by the defendants. In the
circumstances, the defendants are still bound by that prohibition. The
claimants are not so affected.
 CPR Part 65 provides rules which govern the award of costs. The
general rule is that the victorious party is entitled to recover costs. The
defendants were successful in this skirmish. However, they filed no
submissions on the issue and did not take an active full-throated role in
the proceedings. I therefore make no order as to costs.
 It is ordered:-
- The claimants’ application to strike out the defendants’ counterclaim is
No order as to costs.
 I am grateful to learned counsel for the submissions and speaking
Esco L. Henry
HIGH COURT JUDGE
By the Court
Filed on 29th September 2010.
Collectively referred to as ‘the claimants’.
Collectively referred to as ‘the defendants’.
On 15th June 2011.
By Notice of Application filed on 1st June 2018.
See para. 3.7 of ‘Submissions of the first and sixth defendants’
filed on 22nd September 2020.
On 5th May 2020.
On 13th June 2018.
On 21st July 2020.
See paragraph 2 of the Brief Submissions.
AXAHCVAP2020/0003 an oral decision rendered by video conference on
May 7th 2020.
 EWCA Civ 2070.
LR 1 QB 379.
and SVGHCV2015/202 (Judgment delivered on February 27 2018).
Robin Mark Darby v LIAT (1974) Ltd. ANUHCVAP2011/002, at para. 12.
The underlined portions are an exact quote of rule 24.5(b) of the
 UKPC 38.
At paragraph 16 of the Keron Matthews judgment.
At paragraph 20 of the Keron Matthews judgment.
Paragraph 13 of the Robin Darby v LIAT case, per Pereira JA.