Elizabeth Guzman and Ors. v Stelvina Hall and Ors. (CL 58 of 2024) [2025] TCASC 6 (14 February 2025)

By Writ and Statement of Claim filed on 3^rd May 2024 the Plaintiffs sued the Defendants claiming General and Special damages for personal injury. This claim arises from a road traffic accident along the Long Bay Highway in Providenciales. It is alleged that on 23^rd July 2023 the Plaintiffs contacted the 2^nd  Defendant seeking his taxi service from the Marina at Leeward Highway. They were later picked up and riding as passengers in the 2^nd  Defendant’s Blue 211 Mazda Biante with the Registration Number TC01021 which was operated by the 1^st  Defendant, Stelvina Hall. They were travelling west in or around the vicinity of Long Bay  Highway.  On reaching the junction of  Long  Bay  Highway and  Seashell Drive, the 1^st Defendant collided with a Black 2019 Cadillac Escalade with the Registration number TC00889 traveling east (hereinafter referred to as  (“the Accident”) and registered to the 4^th  Defendant and operated by the 3^rd  Defendant, William Brooks.  It is also alleged that according to the police report, the 3^rd  Defendant was deemed to be at fault for the Accident.  The Plaintiffs also alleges that the 1^st  Defendant was also distracted with a phone call while driving.

The 2^nd Defendant admits that he was contacted by the Plaintiffs seeking a taxi service. It is also admitted that the Plaintiffs were picked up in the 2^nd Defendant’s Blue 211 Mazda Biante which was operated by the 1^st Defendant. It is denied by the 2^nd Defendant that the 1^st Defendant was distracted by a phone call at the time of the accident. The 2^nd Defendant avers that the accident was caused solely by the 3^rd Defendant whilst in the employ of the 4^th Defendant.

The 3^rd and 4^th Defendants deny that the Accident was caused by them and aver that it was caused by the 1^st Defendant while in the course of his employment with the 2^nd Defendant. They also aver that if they caused the accident, it was contributed to by the negligence of the 1^st and/or 2^nd Defendant.

On the 23^rd October 2024 the 2^nd Defendant filed an application for Security of Costs pursuant to Ord. 23 r.1 on the following grounds:- The accident was investigated by the Royal Turks and Caicos police who found the 3^rd Defendant to be solely liable: The Plaintiffs are all resident outside of the jurisdiction: The address provided by the Plaintiffs is vague and only gives the address as New York. Dr. Grant for the 2^nd Defendant submits that in addition to residing out of the jurisdiction the Plaintiffs have not provided any evidence of assets within the jurisdiction. Dr. Grant also submits that I am not entitled to take into consideration the strength of the Plaintiffs case in deciding whether to grant security for costs.

On 3^rd December 2024 the 3^rd and 4^th Defendants filed an application for Security for Costs pursuant to Ord. 23 r.1 on the following grounds: The 3^rd and 4^th Defendants deny liability: The Plaintiffs reside outside the jurisdiction: The address provided is very vague and will not assist the 3^rd and 4^th Defendants in enforcing a costs order if one is granted. The Submissions of the 3^rd and 4^th Defendants echoed that of the 2^nd Defendant. Ms. Tennant for the 3^rd and 4^th Defendants referred to the case of Keary Developments Ltd v Tarmac Construction Ltd [1995] 3 All ER 534 and submitted that the Plaintiffs’ case can only be a relevant consideration where it can be clearly demonstrated that the claim has a high degree of probability of success or failure. Ms. Tennant submits that due to the fact that the Plaintiffs have sued two different parties this is evidence that they are unclear as to who is at fault.

Counsel for the Plaintiff, Mr. Missick, admits that the Plaintiffs are resident out of the jurisdiction but contends that there is a strong likelihood of success. He submits that the Plaintiffs contend that they are unable to provide security for costs due to the financial burden of the medical expenses incurred from the accident.  Mr. Missick also referred to Allen Publishing plc v Bloomsbury and another (2011) EWHC 770 (CH) and submitted that it would be inequitable for the Plaintiffs’ claim to be stifled at this preliminary stage. He submitted that there must not just be the inconvenience of having to enforce a judgment abroad but there must be substantial obstacles to enforcement in order for the court to order security for costs. He submits in the present case the Defendants do not suggest that there would be any substantial obstacles in enforcing any order of the Court Mr. Missick also submits that in reference to Irvine v Commissioner of Police for The Metropolis and others [2005] EWCA Civ 129 the Plaintiff is entitled to “sit back and let the Defendants fight it out, this is not a case where the Plaintiff can be held liable, this is not a case for security for costs”.

Held: The applications for security of costs by the 2^nd, 3^rd, and 4^th Defendants are dismissed with costs to be paid to the Plaintiff, to be taxed on the standard basis in default of agreement. I direct that the Writ and Statement of Claim be amended to include the full address of the Plaintiffs.

Ord. 23 r. 1 provides that the Court may order security for costs “if, having regard to all the circumstances of the case, the court thinks it just to do so”. In Porzelack KG v Porzelack (U.K) Ltd [1987] 1 All ER 1074 the court considered that a major matter for consideration is the likelihood of the Plaintiff succeeding, however “parties should not attempt to go into the merits of the case unless it can be clearly demonstrated one way or another that there is a high degree of probability of success or failure”.

The authorities suggest that there is no inflexible rule that all litigants residing out of the jurisdiction and without assets in the jurisdiction are required to pay security for costs. Other considerations include impecuniosity or the stifling of the claim or appeal where security for costs is ordered. Only in exceptional circumstances would a court grant security for costs with the knowledge that to do so would stifle the claim or appeal.

Sedley LJ in Al-Koronky and another v Time-Life Entertainment Group Ltd and another EWCA Civ 1123 set out 3 principles in relation to security for costs: 1) A claimant resident abroad whose case, at the moment of the interlocutory decision, appears highly likely to succeed at trial will not be required to lodge security for the defendant's costs: see Keary Developments Ltd v Tarmac Constructions Ltd [1995] 3 All ER 534, 540. 2) An order for security may not legitimately be based on the bare fact of residence abroad, which would amount in most cases to discrimination on grounds of national origin, but requires an established difficulty of enforcement there: see Nasser v United Bank of Kuwait [2001] EWCA Civ 556, §61. 3) The court must not order security in a sum which it knows the claimant cannot afford

In Kufaan Publishing Ltd v Al-Warrak Publishing Ltd [2000] Lexis Citation 2833 Potter LJ on the issue of whether or not the making of the order was likely to stifle a just claim by the claimant, considered that the court must balance the potential injustice to the claimant if security is ordered against the injustice to the defendant if no security is ordered

Consideration of the merits of a case in my view becomes a factor in determining whether security for costs should be ordered, where there appears to be a high degree of probability that the plaintiff will be successful. The main fear and mischief, security for costs was created to satisfy and cure is to ensure that a successful litigant will be able to recover their costs. And if such unsuccessful Plaintiff is resident out of the jurisdiction and has no assets in the jurisdiction, it then leaves the successful party with the difficult task of executing a judgment out if jurisdiction.

Before making any decision on security for costs an assessment of the strength of the claim can be conducted. If in consideration of the pleadings, the Plaintiff has no real prospect of success, then security for costs should be ordered. However, in the rare case where on the facts as pleaded, it is difficult to see how a Plaintiff would be unsuccessful or there is a high prospect of the Plaintiff succeeding, it is my view that security for costs should not be ordered.

The 1^st Defendant is sued as servant and/or agent of the 2^nd Defendant and as driver of the vehicle in which the Plaintiffs were passengers. An allegation of contributory negligence is also made by the Plaintiffs against the 1^st Defendant. The 2^nd Defendant is sued as employer and owner of the vehicle driven by the 1^st Defendant or in the alternative as the person who accepted the job to transport the Plaintiffs. The 1^st Defendant has not entered a defence. The 2^nd Defendant avers that the accident was caused solely by the 3^rd Defendant. He denies that there is any wrongdoing on the part of 1^st Defendant.

The 3^rd Defendant is sued as the driver of the other vehicle which came into contact with the vehicle driven by the 1^st Defendant. The 4^th Defendant is sued as the employer and/or principal of the 3^rd Defendant. The Plaintiffs claim that a Police report on the accident suggests that the 3^rd Defendant is liable for the accident.

It is not averred by any Defendants that the Plaintiffs are in any way liable for the cause of this accident, loss, or damages. This case falls into the category of cases where the Plaintiff is allowed to observe the proceedings after proving on a balance of probabilities that an accident did occur and they suffered damages as pleaded. In such a case liability can fall on either the 1^st and 2^nd Defendant or the 3^rd and 4^th Defendants or all with apportioned liability. It is therefore difficult to find, on a preliminary assessment of this case, on the pleadings, that the Plaintiffs have no real prospects of success. This also appears to be a claim where the unsuccessful defendant will bear the cost incurred by the successful defendant, by way of a Bullock or Sanderson order, or if the defendants are deemed to be contributorily negligent that costs will be apportioned. 

Where a finding of a reasonable prospect of success is made, it was stated by Sedley LJ in Al-Koronky supra that “A claimant resident abroad whose case, at the moment of the interlocutory decision, appears highly likely to succeed at trial will not be required to lodge security for the defendant's costs”. In my view, this is one of these rare cases where it can be said that the Plaintiffs are highly likely to succeed and therefore the Plaintiffs are not required to lodge security for costs. I therefore exercise my discretion and refuse the applications.