PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT
– DISCRETION - where defendant was successful in
its security for costs
application – where plaintiffs were successful in the significant issues
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT– DISCRETION - where defendant was successful inits security for costsapplication – where plaintiffs were successful in the significant issuesto be litigated - whether costsof the application should be reserved
Judgment (1 paragraphs)
[1]
[1] Pursuant to my judgment of 1 February 2019, the parties have provided written submissions as to the form of the orders. I will mark the submissions of the plaintiffs as Exhibit 1 and the submissions of the defendant as Exhibit 2.
[2] The defendant accepts that the order proposed by the plaintiffs is appropriate with two exceptions.
[3] The first exception is that the defendant submits there is no need for paragraph 6 of the plaintiffs' draft order as those amendments are, in any event, contained in categories 9 to 12 of the amended proposed document plan.
[4] As by paragraph 5(a) of the order, disclosure is made in accordance with the document plan that is Schedule 1 to the order, and as the counsel for the defendant submits, the amendments the subject of paragraph 6 of the plaintiffs' order are already incorporated into the document plan, it is not necessary to make the orders in terms of Paragraph 6. Indeed, there is an inconsistency in ordering disclosure in accordance with the document plan which has already been amended to reflect the judgment of 1 February 2019, and including the further paragraph 6. Accordingly, I would delete paragraph 6 of the plaintiffs' draft order.
[5] The second issue relates to the costs of the security of costs application filed by the defendant on 16 November 2018. The defendant seeks an order that costs be reserved. The plaintiffs seek an order that the defendant pay their costs of and incidental to the application. The plaintiffs seek their costs because the issue, namely whether security in the form offered by the plaintiffs was adequate or not, was resolved in favour of the plaintiffs, so that costs should follow the event, as is required by the general rule set out in r 681 of the Uniform Civil Procedure Rules1999.
[6] The plaintiffs further submit that the security application could have been conducted as part of the case management hearing dealing with the disclosure issues, but it was not because the defendant was not then in a position to address the disclosure issues on 30 November 2018, despite the earlier case management hearing on 12 November 2018, setting a date for hearing of both security issues and the disclosure issue.
[7] The defendant seeks an order that costs be reserved to the trial because its application seeking security for costs in fact succeeded albeit in a form of a deed of indemnity from AmTrust and the $30,000 paid into court.
[8] The application for security of costs was filed on 16 November 2018 and it was not until 23 November 2018 that the plaintiffs agreed to important amendments to the originally proposed security, that is, they were provided on that day a redacted copy of the retainer agreement and confirmed the plaintiffs would pay the sum of $30,000 into court as security for the defendant's costs of enforcing the deed of indemnity in England.
[9] Indeed, in respect of the final form of the deed, it was not until 28 November 2018 (that is two days prior to the hearing) that the plaintiffs confirmed that the plaintiffs and AmTrust were agreeable to the amended deed of indemnity provided on 18 September 2018.
[10] Accordingly whilst it is true the plaintiffs succeeded on the significant issue to be litigated, important provisions of the deed of indemnity were not agreed upon by the plaintiffs until two days prior to the hearing.
[11] In those circumstances, the plaintiffs ought to receive some of their costs, but not all of their costs, and there is insufficient information currently available to enable the issue of proportion of costs the plaintiffs ought to receive in respect of the security for costs application to be properly determined.
[12] It is appropriate therefore that the costs of the security application be reserved.
[13] I will make an order therefore in terms of the draft proposed by the defendant, which has been initialled and placed on the file.