Slazengers Ltd v Seaspeed Ferries International Ltd (Seaspeed Dora)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,LORD JUSTICE BINGHAM |
| Judgment Date | 28 October 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J1028-11 |
| Docket Number | 87/1052 1978 A. No. 1657 1978 G. No. 2048 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 October 1987 |
[1987] EWCA Civ J1028-11
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL(CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(COMMERCIAL COURT
(MR. JUSTICE WEBSTER)
Royal Courts of Justice.
Lord Justice Dillon
and
Lord Justice Bingham
87/1052
1978 S. No. 2504
1978 A. No. 1657
1978 G. No. 2048
MR. D. KENDRICK (instructed by Messrs. Clyde & Co.) appeared on behalf of the (Plaintiffs) Appellants.
MR. CHRISTOPHER RUSSELL (instructed by Messrs. Ince & Co.) appeared on behalf of the (Defendants) Respondents).
This is an appeal by the plaintiffs in the action against an order of Mr. Justice Webster of the 20th March, 1987 whereby he ordered that the plaintiffs, or alternatively those of them who are resident outside the jurisdiction, do provide security for the defendants' costs of the action in the sum of 51/115ths of £250,000. Leave to appeal was granted by Lord Justice Kerr, sitting as a single judge of this court. The important factor in the case is that of the large number of plaintiffs many are resident within the jurisdiction of this court; many others are not.
The basic facts out of which the claims arise are simple. The defendants, a Liberian company, were the owners of the "Seaspeed Dora", a roll-on roll-off container-carrying ship. In the early summer of 1977 she loaded a cargo partly at Felixstowe, partly at Antwerp and partly at Rotterdam, which she carried to the port of Jeddah. In the course of unloading at Jeddah in June 1977, when a part of the cargo had been unloaded but the greater part had not, things were so managed that the ship capsized and went to the bottom, taking with her all the cargo that was still on board. Three actions were therefore started in 1978 and have been consolidated. The plaintiffs claim to represent the cargo interests, being the shippers and the consignees of all the parts of the cargo that were lost. The defendants were the owners of the ship.
Although the action was started so long ago, and there seems to have been a good deal of sound and fury ever since, progress has been remarkably slight and the parties apparently remain at odds over virtually every issue of fact that could be imagined. Indeed, it goes so far that on the documents before us there is a conflict of evidence between the plaintiffs' solicitor and the defendants' solicitor as to whether there are 116 or 117 plaintiffs. Of that total, whichever figure be correct (a figure of 115 has also been mentioned), it seems that 50 or 51 are resident outside the jurisdiction. Those resident outside the jurisdiction are predominantly the consignees of the various consignments of cargo and the shippers of most of the consignments loaded at Antwerp and Rotterdam.
The defendants also dispute the title to sue of all the plaintiffs, so that, as matters stand, if everything continues in the present highly contentious manner, they are seemingly seeking to assert that they have been brought before the court by 116 or 117 parties claiming to be the cargo owners, no one of whom has any right to claim. Be that as it may, what is common ground is that all the cargo interests were insured and the action is brought in the names of the plaintiffs, be they 116 or 117 or any other number, by underwriters claiming by subrogation. Many of the underwriters are resident within the United Kingdom, but they are not of course parties to the action. Others are resident abroad. It is claimed that they are first-class underwriters, and I do not know that that is disputed.
The essential issues which are likely to be the primary issues when the action comes on for trial are whether the defendants are liable, whether they are entitled to limit their liability, and what the effect is of package limitation of liability under the Hague Rules relevant to the particular contracts of carriage.
The position so far as security of costs is concerned where there are some plaintiffs resident within the jurisdiction and others resident out of the jurisdiction is that it has for a very long time been categorically stated in the Supreme Court Practice in the note which is now numbered 23/1–3/3 as follows:
"No order will be made if there are co-plaintiffs resident in England…; but they must be genuine co-plaintiffs and not merely the English attorney joined to avoid giving security".
Here there is of course no doubt that the co-plaintiffs resident in England are genuine co-plaintiffs.
The authorities given in the White Book for the proposition that no order will be made if there are co-plaintiffs resident in England are Winthorp v. Royal Exchange Assurance Co. [1755] 1 Dick. 282 and D'Hormusgee v. Grey [1882] 10 Q.B.D. 13. The practice as stated in the 1901 edition of the White Book, to which we have been referred, is as follows. After referring to the then Order 16 rule 1, it is said:
" Security for costs.—The Rule does not alter the practice existing before the Judicature Act, that where one of two joint-plaintiffs is a foreigner out of the jurisdiction and the other resides in England, there can be no order for security for costs".
Reference is made to D'Hormusgee v. Grey.
The first point, therefore, which was taken before Mr. Justice Webster was that there was, if not no jurisdiction, at any rate a binding rule of practice that security should never be granted where there was a plaintiff resident in England even though there were others who were foreigners. Mr. Justice Webster held that that was not now a binding rule, and he ordered security on the basis of fixing as security an aliquot share roughly attributable to the number of foreign plaintiffs of a sum of £250,000, which he took (and as to that there has been no dispute) as an appropriate figure for the defendants' costs.
Until relatively recently the practice of the courts to awarding security was not laid down in detail in the Rules of the Supreme Court but rested on the general practice of the courts before the Judicature Act. That practice seems to have been enforced with some rigidity, as appears from the judgments in the decision of this court in Crozat v. Brogden [1894] 2 Q.B. 30, and the exceptions characterised by D'Hormusgee v. Grey seem equally to have been applied with rigidity. However, the present rule (Order 23 rule 1) deals with the matter in wording which makes it plain that the court has a very wide discretion over ordering security. Leaving out alternatives which are not relevant to this case, Order 23 rule 1 provides as follows:
"Where, on the application of a defendant to an action or other proceeding in the High Court, it appears to the Court—
(a) that the plaintiff 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 of the action or other proceeding as it thinks just."
I have no doubt that on that wording there is jurisdiction at the discretion of the court to order security where some of the plaintiffs are ordinarily resident out of the jurisdiction but others are not, if, having regard to all the circumstances of the case, the court thinks it just to do so. The discretion is, therefore, one to be applied to all the circumstances of the case, and the general statement in the White Book that no order will be made if there are co-plaintiffs resident in England must be qualified by the existence of that general discretion.
It has been recently laid down by the House of Lords in Aiden Shipping Co. Ltd. v. Interbulk Ltd. [1986] 1 A.C. 965 that the discretionary power of the court to award costs in section 51(1) of the Supreme Court Act 1981 is expressed in very wide terms. It appears that it may well be that in cases where large numbers of plaintiffs join in one action or in one appeal and fail, the court may take the view that only an aliquot share of the total costs should be awarded against each of the unsuccessful parties, instead of making an order for all the costs against all the parties. Thus, in a case where it was just to make such an aliquot order, there would be no risk of one plaintiff being pursued for more than his fair share of the costs and being left to endeavour to recover it from his co-plaintiffs.
Instances where such a result might be arrived at can be seen from the Opren case, Davies v. Eli Lilly & Co. [1987] 1 W.L.R. 1136 and the case of the Liverpool Councillors, Lloyd v. McMahon [1987] 2 W.L.R. 821.
If therefore the case in which security is...
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