Guernsey Legal Resources

    In the absence of Guernsey rules and case-law on applications for security for costs in respect of plaintiffs resident abroad, it had previously been the practice of the Royal Court to follow the principles of the English Rules of the Supreme Court and English authorities. The development of the English Rules—now the Civil Procedure Rules (“CPR”)—and modern case-law now means that it is no longer the case that security will be ordered from foreign plaintiffs as a matter of course. If, in the words of r.25.13 of the CPR, there is “reason to believe” that a foreign plaintiff will be unable to pay the defendant’s costs if required to do so, the court may order him to provide security if it is just to do so in the circumstances of the particular case (Leyvand v. Barasch, English Ch. D., The Times, March 23rd, 2000, dicta of Lightman, J. applied). Under r.25.12 of the CPR, an application for security should be supported by written evidence, but the court may, and should, take note of obvious realities not backed by formal evidence (Nasser v. United Bank of Kuwait, [2002] 1 W.L.R. 1868, dicta of Mance, L.J. followed).

    In an application for security for costs, the onus is on the party seeking security to indicate clearly which portion of the bill of costs represents costs already incurred, and which is an estimate of future costs, so that the court may arrive at a fair estimate of the quantum of security which would be just at that point in time. On any further application for security, the bill should be updated to reflect actual and estimated costs at the time it is being considered by the court. However, if the bill is not updated and there is little supporting material for guidance, the court should adopt as realistic a view as possible on the existing material, which should include the quantum of the sum claimed, in deciding what further quantum (if any) for security should be awarded.