Government of Republic of Cuba v Attorney General
| Jurisdiction | Grenada |
| Judge | Haynes, P. |
| Judgment Date | 15 November 1987 |
| Neutral Citation | GD 1987 CA 2 |
| Docket Number | Civil Appeal No. 4 and 5 of 1987 |
| Court | Court of Appeal (Grenada) |
| Date | 15 November 1987 |
Court of Appeal
Haynes, C.J.; McKay, J.; Kendall, J.
Civil Appeal No. 4 and 5 of 1987
Mr. D. Thompson Q.C., Mr. Carol Bristol Q.C with
Miss Shirley Playfair for the plaintiff/appellant
Mr. K. Hudson Phillips Q.C. with Mr. D Cambard for the defendant/respondent
Costs - Security for costs — Appeal — Mistake of legal adviser — Order for security for costs not obeyed — Appeal filed after expiration of time fixed — Date for hearing appeal — Defendant filed preliminary objection — Plaintiff filed motion for leave to appeal and for extension of time to bring appeal — Defendant filed another preliminary objection — Application to amend plaintiff's motion — Order for security for costs an interlocutory order — Mistake of legal adviser a substantial reason — Prima Facie cause shown in grounds of appeal — Leave to amend motion.
In the proceedings before us it has not been disputed that, at some time prior and close to May 1984 the Government of the Republic of Cuba (the plaintiff herein) was the legal and beneficial owner of a particular aircraft and of certain items of equipment then located in Grenada. Again it has not been disputed that on or about 29 th May 1984 the plaintiff, by letter of that date addressed apparently to the Governor-General of Grenada and the Chairman of the interim advisory council demanded the return of both aircraft and equipment. Nor is it disputed that the demand was unheeded. In August 1984 the plaintiff set in course legal proceedings under the Crown Proceedings Ordinance, chapter 79 of the Revised Laws of Grenada in relation thereto, against the attorney general of Grenada (the defendant herein) as the representative of the crown in this State.
Suit No. 270 of 1984 related to the aircraft valued herein at “1.987 million Cuban pesos.” The Statement of Claim alleged.”
“PARTICULARS OF LOSS
(i) Loss of aircraft 1.987 million Cuban pesos;
(ii) Loss of use for 81 days to the 17th day of August, 1984 and continuing 79,371 Cuban pesos;
and claimed
“(i) damages for detinue and conversion:
(ii) an order for the delivery up of the said aircraft or its value and damages for its deterioration:
(iii) an order that such delivery includes transportation back to the Republic of Cuba or the costs of such transportation;
(iv) damages for negligence;
(v) costs;
(vi) interests;
(vii) such further relief as may be just.”
Suit No. 271 of 1984 related to the equipment valued therein at five million two hundred and forty-six thousand United States dollars. The Statement of Claim alleged:
“PARTICULARS OF LOSS
(i) loss of equipment valued at $5,246.00 United States Dollars.
(ii) loss of use at 81 days to the 17th day of August 1984 at $2587.00 U.S. per day and continuing $209,547 U.S. dollars.”
and claimed relief similar to that claimed in respect of the aircraft.
Each Statement of Claim was dated 17th August 1984 and filed thereabouts. Yet no further step in each action was taken for some considerable time during which, presumably some negotiations happened between the parties, I assume, without prejudice. However, on 30th July 1985 in relation to suit No. 270 of 1984 His Excellency the Governor-General gave under his hand and seal the following certificate:
“Pursuant to subsection (2) of section 8 of the Crown Proceedings Ordinance (Cap.79) I do hereby certify that I am satisfied from all the circumstances existing in Grenada at the time, that the act of the crown its servants and/or agents in refusing to return the aircraft to the Government of the Republic of Cuba “as stated in the Statement of Claim in the abovementioned suit) was necessary for the defence of the realm.”
And in suit No.271 of 1984 on 22 nd December 1986 His Excellency gave under his hand and seal a certificate that:
“Pursuant to subsection (2) of section 9 of the Crown Proceedings Ordinance (Cap.79) I do hereby certify that I am satisfied, from all the circumstances existing in Grenada at the time, that the act of the crown its servants and/or agents in refusing to return the items of equipment listed in the schedule hereto to the Government of the Republic of Cuba (as stated in the Statement of Claim in the abovementioned suit) was necessary for the defence of the realm.”
Then on 22 nd January 1987 the defence in each action was filed. It reads as follows:
“1. The defendant will object that the whole indorsement of the writ in this action discloses no reasonable cause of action against him.
2. The defendant will further object that the Statement of Claim in this action discloses no reasonable cause of action against him.
3. That the court has no jurisdiction in the matter, and the certificate of the governor general issued in this matter is conclusive as to the matter so certified.
4. No admission is made as to the alleged damages suffered or the alleged loss of the aircraft.
5. And the defendant claims costs in this matter.”
No reply was put in between then and 24 th April 1987 when the defendant filed summonses for orders for security for the defendant's costs in each action:
“on the ground that the plaintiff is ordinarily resident out of the jurisdiction of the State of Grenada and that in the mean time all proceedings herein other than proceedings relating to the giving of such security be stayed.”
The summonses were fixed for hearing on May 20 th 1987. On May 13 th 1987 the registrar of the High Court received a letter of even date signed by Mr. Carol Bristol of and for the firm the plaintiff's solicitors. Leaving out the formal parts, it said:
“Re: Suit Nos.270/1984 & 271/1984. The Government of the Republic of Cuba
And
The Attorney General of Grenada
Summonses in the above suits have been filed for hearing on the 20th May 1987.
We humbly request an adjournment in both matters as counsel for the plaintiff, Mr. Dudley Thompson, is unable to be present. He has informed us, however, that he will be available for July 1st 1987, consequently, we would be grateful if you will bear this in mind in fixing a new date.”
But the hearings were fixed for May 27th 1987 one week later, although Mr. Bristol, who appeared then had requested the first Wednesday in July.
Two days before 27th two efforts were made to secure a further postponement, by letter to the registrar signed again by Mr. Bristol following upon a cable to him from Miss Shirley Playfair, associate counsel for the plaintiff, both dated May 25, 1987. The cable read:
“Kindly apply for an adjournment on the 27 th May 1987. Thompson, Q.C. is away from the Island for Medical Attention. Will be available after has return in the third week of June or thereabout.
Shirley Playfair
116-120 Tower Street
Kingston, Jamaica”
and the letter read:
“Re: Suit No 270/1984 & 271/1984 - The Government of the Republic of Cuba
And
The Attorney General of Grenada
The above matter were adjourned on 20th May, 1987 for peremptory hearing on Wednesday 27th May 1987.
At chambers on 20th May, 1987 the writer informed the court that Mr. Dudley Thompson Q.C., was counsel for the plaintiffs and sought an adjournment until the first Wednesday in July. This request was not granted.
We immediately notified Mr. Thompson's chambers of the fixture for 27th May, 1987 and have received a cable from Mrs. Playfair of Mr. Thompson's chambers that Mr. Thompson is away from Jamaica for medical attention.
In the circumstances we will have to renew our application for an adjournment.”
The judge's notes of the proceedings on 27th May records Mr. Bristol as appearing for the plaintiff, Mr. Hudson-Phillips for the defendant, that the cable from Jamaica was shown to the court, and that Mr. Hudson-Phillips opposed the application. The record goes on to state:
“Mr. Bristol States: He is applying for adjournment is not prejudiced. They admit they have plaintiff's property but say that they are justified. Here to apply that application for security be adjourned because Mr. Thompson is unwell.
By Court: Is there any reason why you have not been required to argue in his place?
Mr. Bristol: No, he Mr. Thompson, was always willing to come to argue it.
Mr. Bristol does not know the nature of his illness. No idea when Mr. Thompson left Jamaica for treatment.
Court rules:
1. No clear indication of nature and duration of Mr. Thompson's illness and indeed no indication as to when counsel left Jamaica for treatment and to where.
2. No explanation as to why counsel appearing was not required to argue for plaintiff or indeed for other properly instructed counsel.
Application refused. Application for security to be proceeded with.
Mr. Bristol says he is not instructed to argue and requires leave of court to withdraw.
Mr. K. Hudson-Phillips raises that Mr. Bristol is on record.
Mr. Bristol says that he has other matters in court No. 2 grants leave to Mr. Bristol.”
So the proceedings went on with the plaintiff unrepresented.
Order 23 Rule 1 (1) (a) under which the defendant made the application for the order, without doubt vests a discretion in the judge who hears it, reading as it does, that when the plaintiff in any action or other legal proceeding is ordinarily resident out of the jurisdiction:
“then if, having regard to all the circumstances of the case, the court thinks it just to do so, it may order the plaintiff to give such security for the defendant's costs…as it thinks just.”
It may (“not must”) do so. The rule applies to every plaintiff ordinarily resident abroad and so even to a sovereign state: see Republic of costa Rica v Erlanger [1874] 3 Ch. 62. The reason and justification for it is patent, for otherwise a successful defendant might unfairly and unjustly have to bear possibly heavy legal costs, where such a plaintiff has no assets within the jurisdiction of the court...
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