Civil Procedure and Practice 11 including Corporate

2016-2017

Appeals
Court of Appeal Act Cap. 3:01 High Court Act Cap. 3:02 Order II of the Court
of Appeal Rules Order 46 of the High Court Rules

Lecture I: Judgments and Orders

Definitions
A judgment is a final decision of the court obtained in an action, including a
decree: s. 225 of the Supreme Court of Judicature (Consolidation) Act, 1925
(UK); while an order is a decision of the court made interlocutory (or
procedurally).

Lord Esher MR in determining what is meant by an order and a judgment

stated thus
“a final judgment, in its strictest sense is a judgment obtained in an
action by which a previously existing liability of the defendant to the
plaintiff is ascertained or established, unless [a contrary intention is
shown]…a judgment is a decision obtained in an action, and every other
decision is an order….It is doubtful whether the distinction between a
judgment and an order still exists”: Onslow v Commissioner of Inland
Revenue 25 QBD 465, 466.

Judgments and orders take effect from the time of their pronouncement in
court: O.35 r. 2 (1),(2) Rules of the High Court (HCR), Cap 3:02; Holtby v
Hodgson [1889] 24 QBD 103; however, they must first be perfected –
approved by the Registrar and reduced into writing- before they can be
enforced. Once the judgment/ order has been drawn up and perfected the
judge / court has no jurisdiction to rehear the matter nor vary or discharge it:
In re St Nazaire Company [1879] 12 Ch.D 88; however a judgment / order

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may be altered at any time before it is perfected: In re Suffield v Watts
[1888] 20 QBD 693

The Registrar is required to minute every judgment or order, and may draft,
settle or pass a judgment or order with or without notice to either party to
the matter: O.35 rr. 1,3(1) HCR. Orders giving leave or extension of time-
e.g. the issuance of a writ, amendment of leadings, filing of documents, etc. -
need not be drawn up. A note or memorandum signed by the judge or
Registrar will suffice as authority in these circumstances: O.35 r. 4(1).

The judgment/order is to be prepared by the party having conduct of the suit

(plaintiff) or carriage of the order (plaintiff/defendant) and lodged with the
Registrar within fourteen (14) days of the date of judgment. The draft order
must be dated as of the date of pronouncement of judgment and left with
the Registrar to be settled before signature and sealing of same: O35 r. 2 (1)
- (3) HCR. Where the judgment/order requires that an act be done by either
of the part, it must also state the time period within which the act is to be
done, following the service of the judgment/order: O.35 r. 5.

Classifications
Judgments and orders may be classified as either a
a) Judgment in rem;
b) Judgment in personam;
c) Final and/or interlocutory judgment and order;
d) Declaratory judgment/ order;
e) Consent order
a) Judgment in rem determines the status or the disposition of a thing,
as distinct from the particular interest in it of a party to the
litigation.
b) Judgment in personam determines the rights of the parties, among
themselves, to or in the subject matter in dispute. Such judgment
but does not affect the status of either the persons or the things,

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nor make an disposition of property, nor declare or determine any
interest in it except as between the litigants.
c) Final & interlocutory judgments/orders - The decisions of the Court
may be final or interlocutory. There is no definition for either terms
in the Supreme Court legislation or Rules of Court but case law has
sought to define or distinguish same. The question of final and
interlocutory is so uncertain that the only thing for practitioners to
do is look up the practice books and see what has been decided on
the point: Lord Denning MR in Salter Rex & Co v Ghosh [1971] 1 All
ER 865, 866.

Definition: A final decision was defined as one where the rights of the
parties in litigation are finally determined. Where the decision of the court
cannot, in any way, necessitate the entering of final judgment for
either party, the decision is interlocutory: Shubrook v Tufnell [1882] 9
QBD 621, 623. However the courts later noted that in matrimonial matters
the rights of the parties are determined by orders even though the order is
not final.

The test for determining whether an order is final or interlocutory as, laid
down by Lord Esher MR, is to consider “what would be the result of the
decision of the Court, assuming it be given in favour of either of the
parties. If the decision, whichever way it is given, will, if it stands, finally
dispose of the matter in dispute….it is final….if the decision if given one
way will finally dispose of the matter in dispute but if given the other
way will allow the matter to go on, it is not final”: Salman v Warner &
Ors. [1891] 1 QBD 734, 735.

Approaches: Resultantly, two approaches were developed to help

distinguish a final order from an interlocutory one. These are the (i)
order approach and (ii) Application Approach.

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(i) The Order Approach – looks at the nature of the order. Lord Alverstone
CJ posited that the real test under this approach therefore is “does the
judgment or order as made finally dispose of the rights of the parties?” If
the order finally determines the rights of the parties and brings an end to
litigation then it is final; if it does not then it is interlocutory: Shubrook v
Tufnell; Bozson v Altrincham Urban District Council [1903] 1 KB 547,548.
(ii) The Application Approach – looks at the nature of the application
made to the court and not the nature of the order which the court
eventually makes. This approach was established by Lord Esher MR in
Salman v Warner and is the one most commonly used in practice:
Salter Rex & Co. v Ghosh. Where a judgment / order given on an
application would finally determine the matters in litigation it is a final
judgment/order.: White v Brunton [1984] 2 All ER 606. The court is
committed to the application approach, as a general rule and the
order approach (Bozson case) as an exception to the general rule:
Donaldson MR in White v Brunton @ 608. The test in the application
approach is whether the judgment /order would have a different effect
if decided differently. If yes then it is an interlocutory judgment/order,
if no it is a final judgment /order: Water & Sewerage Authority v Lilian
Waithe (1972) 21 WIR 498, 500

The distinction in the approaches is also necessary for the determination

of whether there is need for leave to appeal to the Court of Appeal. Leave
of the court is required to appeal all interlocutory judgments/orders: White
v Brunton, save and except where (i) the liberty of the subject is at stake,
and (ii) an injunction is granted or refused. There is an unfettered right
to appeal a final judgment/order and this right to appeal also extends to
the determination of a preliminary issue emanating from a final hearing:
White v Brunton.

Effect: An interlocutory judgment or order is one which is made before

final judgment, gives no final decision on the issues / matters in dispute,

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and is merely a matter of procedure. It should however be noted that an
interlocutory judgment /order may also be made after final judgment;
such judgments/orders merely direct how the declarations of the right
already given in the final judgment are to be worked out.

Appeal: The determination of whether a judgment/order is final or

interlocutory will also guide the time for appeal. The time for appealing a
judgment/order- whether interlocutory or final, not commenced by
originating summons or writ of summons, in Guyana is within fourteen
(14) days of from the date of judgment. Where leave is required to
appeal, the time for appeal is fourteen (14) days from the date of grant of
leave: O.46 r. 5(1) Cap 3:02.

Notice of appeal must be served on all parties directly affected by the

appeal within seven (7) days of the filing of the original notice at the
parties’ last known place of residence or business, either personally or by
registered post: O 46 r. 8.

Extension of Time for Appeal: Where the application for leave is not made
at the time when the judgment/order is given/made; application must be
made to the Judge whose order is being appealed, by way of ex parte
summons. This application must be made within four days after the
judgment and must state whether the complaint is to the whole or part of
the judgment/order, specifying the part and setting out briefly the
grounds for the application: O. 45 r. 6.

Examples of interlocutory orders include summary judgments, interim

orders of custody and maintenance; interim orders for property allocation;
judgments on admissions: Technistudy Ltd. v Kelland [1976] 3 All ER 632,
634; an application to commit for contempt ancillary to the issues or
arising out of an order already made, irrespective of the penal
consequences: Savings & investment Bank Ltd. V Gasco Investments etc.

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[1988] 1 All ER 975; an order nisi of certiorari made during proceedings:
Re Williams and Salisbury (1978) 26 WIR 133.

It should be noted that there are instances where the decision of the court
is final with respect to some issues and interlocutory as regard another.
For example where the rights of the parties are finally determined but the
court directs further proceedings for the determination of costs: Light v
William West & Sons Ltd [1926] 2 KB 238, 241.

d) Declaratory Judgments / Orders – “any person claiming to be interested

under a deed, or will, or other written instrument or claiming any legal
or equitable right, may apply by originating summons for the
determination of any question of construction arising under the
instrument and for a declaration of the rights of the persons
interested.”: O. 42 rr. 1, 2 Cap 3:02.

Definition: An action for a declaration is a procedural device for

ascertaining and determining the rights of parties or for the
determination of a point of law. No action or proceeding shall be open
to objection on the ground that a merely declaratory judgment / order
is sought. The court may make binding declaration of rights whether or
not consequential relief is or could be claimed: Lindley MR in Ellis
(Duke of) v Bedford [1899] 1 Ch 494, 515.

The court’s power to make binding declarations of right is

discretionary, in so much that even if the Plaintiff proves his right, the
court, taking into account a variety of considerations, may still refuse
to make the declaration sought. The court uses its discretionary power
sparingly: Guaranty Trust Co. of New York v Hannay & Co. [1915] 2 KB
536.

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Effect: A claim for a declaration of a Plaintiff’s rights will not operate as
a bar to a prospective Defendant’s immunity from liability in tort:
Trawnik v Ministry of Defence per Megarry VC;
The High Court may make a declaration, even where it refuses to grant
an injunction or to give any other relief, provided there has been a
disturbance of the right which the court is asked to declare: Dysart v
Hammerton.

Declaratory judgments must be differentiated from executory

judgments. Declaratory judgments/orders merely proclaim the
existence of a legal relationship, and do not contain any order which
may be enforced against a defendant. An executory judgment, on the
other hand, declares the respective rights of the parties, and then
proceeds to order the defendant to act in a certain way, e.g. to pay
damages or refrain from interfering with the plaintiff’s rights.

Procedure & Application: Declaratory judgments or orders are simple,

speedy and inexpensive, and can be limited merely to the right in
issue. The court must be satisfied that a real dispute exists as to the
right though there need not be any infringement of the said right.
While declaratory judgments/orders do not involve a cause of action
per se, there are six (6) factors which must be present to necessitate
the grant of a declaratory order. These are:
i) the existence of a controversy of a justiciable nature between
the parties: Guaranty Trust Co. of New York v Hannay & Co;
ii) the existence of a legally enforceable right or responsibility for
determination of the court: Anisminic Ltd v Foreign
Compensation Commission [1968] 2 QB 862; a declaration in
regards to whether or not conduct is contrary to professional
ethics will not be granted: Cox v Green [1966] Ch 216
iii) plaintiff’s locus standi – the plaintiff must have proper or
tangible, substantial interest in obtaining the order: Wilson,

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Walton Int’l (Offshore Service) Ltd. v Tees & Hartlepools Port
Authority [1969] Lloyd’s Rep 120; Thorne RDC v Bunting [1972]
Ch. 470;
iv) the controversy must be the subject of the court’s
jurisdiction- both as the charter and within private int’l law rules:
British South Africa Co. v Companhia de Mocambique [1893] AC
602;
v) defendant’s locus- it must be against a properly interested
person i.e. the defendant must have a proper or tangible interest
in opposing the plaintiff’s claim: Russian Commercial & Industrial
Bank v British Bank of Foreign Trade [1921] 2 AC 438; London
Passenger Transport Board v Moscorp [1942] AC 332
vi) Issue must be ripe and not merely hypothetical or of
theoretical interest: Bruce v Commonwealth Trademarks Labour
Association (1907) 4 CLR 1569.

Declaratory judgments are therefore not available where

(i) there is no dispute in existence;
(ii) the dispute is not related to facts or is based on hypothetical
facts;
(iii) the dispute has ceased to be of practical significance; or
(iv) on mere admission or in default of pleadings or by consent.
“The court does not make declarations just because the parties to
litigation have chosen to admit something. The court declares what it
has found to be the law after the proper argument, not merely after
admissions by the parties. There are no declarations without argument
and that is quite plain”: Metzger & Ors. v Department of Health &
Social Security [1977] 3 All ER 451.
e) Consent Orders are made by agreement of the parties on terms and
stay proceedings while keeping the action alive and operates to
compromise proceedings.

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A party to any proceeding may consent to judgment of either the
whole or part of a claim / counterclaim at any time after the service of
the writ of summons. The consent may be made before the Court or
the Judge or entirely private as between the parties or their legal
representatives. Where done privately between the parties or their
representatives such consent must be in writing and signed by the
party and his attorney or by the party in the presence of the registrar:
O. 35 rr. 16, 18 Cap 3:02.

Procedure & Application: The written consent must also be filed in the
Registry whereupon the Court or Judge, if satisfied, will give judgment
upon the terms of the consent: O. 35 r. 17 Cap 3:02.
“The words ‘by consent’ in an order [are] ambiguous and could
be taken to mean that the order evidenced a real contract between
the parties or merely that the parties did not object to the order
being made”: Siebe Gorman & Co Ltd v Pneupac Ltd [1928] 1 All ER
377.
A consent order may be interlocutory and may be set aside on the
ground that “there had been some significant change of circumstances
or he had become aware of facts which he could not reasonably have
known or found out by the time of the original hearing”: Chanel Ltd. v
FW Woolworth & Co Ltd [1981] 1 All ER 745.
Further, “where an interlocutory motion [is] adjourned generally rather
than merely stood over until trial, it [is], in terms, not dealt with or
disposed of as an interlocutory matter….therefore an application [can]
be made for the matter to be reopened and dealt with in some other
way before the trial, if such a course [is] appropriate”: Butt v Butt
[1987] 3 All ER 657.

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There are various ways in which an action can be disposed of when
terms of settlement are arrived before or during the course of a trial.
These are set out by Slade J in Green v Rozen [1955] to include
a) by making the terms of the compromise a rule of court and
including same as a term of the compromise (Re Hearn (1913) 108
LT 452). Failure to comply here can result in the aggrieved party
levying execution;
b) by securing an order of the court upon the terms of settlement
consented to by the parties as to what each party can and cannot
do. Such an order can be enforced by court in the event of non-
compliance;
c) by the Tomlin form suggested by Tomlin J and set out in Practice
Note (2) 1927, whereby request is made and approval granted for
further proceedings to be stayed following compromise by the
parties. Proceedings can be continued where either party fails to
comply with the terms of the compromise;
d) by order of the court made by consent of the parties, absolutely
and unqualifiedly staying all further proceedings in the action on
terms agreed on counsel’s brief. This order may have the effect of
a discontinuance or it may be removed on proof of proper grounds;
e) by informing the court of the consent of the parties to agreed
terms, without any order of the court being requested or made.
Here the new agreement supersedes the original cause of action,
as such failure to comply will necessitate new proceedings e.g. the
seeking of damages for breach of contract: Green v Rozen.

Consent orders must be distinguished from instances of consent to

withdrawal from or discontinuance of an action which also require the
production to the Registrar of the consent in writing, signed by the
parties or their attorneys: O. 24 r.3 Cap 3:02. Consent to withdrawal or
discontinuance do not operate to stay the proceedings so withdrawn or

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discontinued but can operate to stay subsequent proceedings on the
same claim, where costs have not be paid on the discontinued action:
O.24 r.5 Cap 3:02.

The Tomlin Order is a type of consent order that operates to stay

proceedings on terms as agreed by the parties. This order enables the
parties to enforce the judgment or orders obtained rather than having
to institute proceedings under the agreed terms: Green v Rozen [1955]
2 All ER 797; Tomlin v Standard Telephones & Cables Ltd (1969) 1 WLR
1378.
The Order is written up as follows:
“And, the Plaintiff and the Defendant having agreed to the terms
set forth in the schedule hereto, it is ordered that all further
proceedings in this action be stayed, except for the purpose of
carrying such terms into effect. Liberty to apply as to carrying such
terms into effect.”
If there is a breach of the agreed terms the party affected may return
to the court under the “liberty to apply” clause to seek an order on the
basis of the agreed terms or may choose to bring a fresh action on the
breach of the agreement: Green v Rozen.

Amendment of Judgments / Orders

The Slip Rule

The court has no power under any application in the action to alter or vary a
judgment or order after it has been entered, filed and/or otherwise
perfected: In re St Nazaire Company, except so far as it may be necessary to
correct errors in expressing the manifest intention of the court. This power to
amend under the slip rule is in the inherent jurisdiction of the court though it
is limited to correcting ambiguity in expression of an ambiguous decision: R
v Cripps ex p. Muldoon [1984] 3 WLR 53.

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“Clerical mistakes in judgments or orders, or errors arising therein
from any accidental slip or omission, may at any time be corrected
by the Court or a Judge on motion or summons without an appeal”: O. 26
r.11 Cap 3:02.
Application: Any judge is fully entitled to reconsider and vary any decision at
any time before the order has been perfected although in some
circumstances he may be under an obligation to give the parties a further
opportunity to be heard. At that stage no slip rule power is needed. However
once the order has been perfected, the trial judge is functus officio and has
no further power to reconsider or vary his decisions whether under the
authority of the ‘slip rule’ or otherwise…the slip rule is akin to rectification,
namely to allow the court to amend a formal order which by accident or error
does not reflect the actual decision of the judge: R v Cripps ex p. Muldoon.

The rule does not apply to grant a re-hearing where proceedings are struck
out after the plaintiff has argued his/her case and satisfied the court that he
was right, even if same is done in the absence of the defendant properly
notified. The Court of Appeal here has no jurisdiction to order a re-hearing of
the matter: Hession v Jones [1914] 2 KB 421.

Operation & Effect: The Supreme Court has an inherent power to amend its
own orders so as to carry out its own meaning and to make its meaning
plain. This power is in addition to the power to correct a slip order. However,
there is no power to apply the slip rule to amend an order so as to vary its
meaning or construction or fundamentally change its order: Re Hanooman,
Hanooman v Alli (1965) 8 WIR 103; Re Harrison’s Settlement (1955) Ch. 260.

In Re Harrison’s Settlement Roxburgh J considered the power of a judge to

review or reconsider his decision at any point in time before the order is
drawn up. As a result, “where an order had not been drawn up, whether
made in chambers or in open court, the judge has a right to stay the drawing
up of the order where something is brought to his attention that which had

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not been sufficiently considered”. This power of recall is not appellate in
nature but exists by virtue of the fact that the jurisdiction invoked by the
parties is continuing and is exercised primarily on the initiative of the judge.

Undue delay is not itself a ground for refusing to correct a judgment under
the rule (or the inherent jurisdiction of the court) where the delay has not
caused the opposite party to omit to take or to take steps which he
otherwise would have taken or refrained from taking.

The court has the discretion to refuse to correct an error in a document or an

order whenever something had intervened subsequently which rendered it
inexpedient or inequitable to make the correction: Moore v Buchanan (1967)
WLR 1341.
The slip rule when applied has retrospective effect as the purpose of the slip
rule is to amend clerical mistakes so as to reflect the true decision of the
court at the date when the order was made: Scott-James v Bass Chabab
(1988) The Times Mar 9.

Lecture II: Case Management Conference- Pre-Trial Applications /

Determination or Disposal of Proceedings without Trial
Parties to an action may dispose of proceedings without recourse trial, by
employing certain procedural devices and techniques as prescribed in the
High Court Rules, Cap 3:02. These techniques and devices are accessed
through application at the pre-trial / case management stage of the
proceedings. Applications that can be made at the pre-trial / case
management stage either for the settlement of proceedings outside of court
or for the effective management of the case include application for:
a) Judgment on Admissions: O. 17 r.13, O. 28;
b) Striking out of Pleadings /Action: Orders 17 rr.31, 32; 54 r.1; 26 r.8,
and 28 r.6;
c) Stay of Proceedings: Orders 17 rr.31, 32; 45 r.6; 37 r.3, and 30 rr.2, 6,
10.

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d) Security for Cost: Orders 27 r.30; 46 r.3, and 46 rr.3-6;
e) Withdrawal from or Discontinuance of Proceedings: O. 24;
f) Settle or Compromise Proceedings – either through ADR, by Consent of
parties or by Payment into court. Orders 14 r. 9; 20; 32 r.12, and 43
r.20;
g) Interim payments;
h) Amendment / Recall or Variation of an Order: O.26 r.11;
i) Unless Order;
j) Sanctions / Relief from Sanctions;
k) Search Orders – Anton Pillar;
l) Freezing Orders – Mareva Injunction; and
m) Judicial review

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a) Judgment on Admissions – Where admission of fact is made, any
party to the cause/action/matter may, at any time, apply to the
Court/Judge for a judgment/order upon such admission: O 28 r.7. The
application is made by way of interlocutory summons supported by
affidavit and is usually heard on the summons for directions. The
court’s power to grant judgment on admission is discretionary.

Method: Admissions may be made i) on pleadings: O28 r.1; ii) on notice

to admit: O.28 rr. 2, 5; iii) on failure to traverse an allegation of fact in
a statement of claim: O 28 rr. 2(2), 5; iv) on default of a defence; v)
where defence is struck out; vi) in a letter before or since action: Ellis v
Allen [1914] 1 Ch 904; vii) orally: Re Beeny [1894] 1 Ch 499.
Admissions must be clear and unambiguous and must speak to the
facts pertinent to the claim: Claude Denbow v AG of T&T CV2005-
00740.

Procedure: Any party to a cause may give notice in writing, by

pleadings or otherwise including affidavit evidence, admitting the truth
of the whole or any part of the other party’s case: O. 28 r.1, 8; Ellis v
Allen (letter); Re Beeny (affidavit evidence); Guinness PLC v Saunders
(1990) 2 WLR 324 (pleadings) . A party may, by notice in writing, also
call upon the other party to admit any document or specific fact(s);
and the other party may challenge the authenticity of the said
document or fact(s).

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Notice to admit must be given at least 14 days before the date set for
hearing of the matter; and notice in writing of non-admission and/or
challenge must be given within 10 days after service of such notice.
Where upon challenge the document or fact is proved to be authentic,
the party challenging same will be required to pay the costs of proving
the document or fact(s) unless reasonable grounds can are shown for
non-admission. However, where no notice to admit is given and the
document is proved, no costs will be attached to the other party for the
proving of same. Failure to give notice of non-admission within the
specified time will result in the assumption that the other party admits
the document: O 28 rr.2- 5. Further, where the notice to admit/produce
comprises documents which are not necessary, the costs occasioned
thereby is to be borne by the party giving notice: O 28 r.10.

Effect: Any admission made pursuant to a notice to admit specific

fact(s) is deemed to be made only for the purposes of the particular
action/cause/matter/issue and cannot therefore be used against the party
so admitting in any other matter: O 28 r.5. Parties may, at the
instance of the court or Judge, be allowed time to amend or withdraw
any admission made, on just terms: O 28 r.6.

A judgment or order on admission may also be sought in respect of an

oral admission once it is clearly proved, on the evidence, that the
admission has been made: Re Beeny. The oral admission (as to the
defendant’s possession of monies to pay into court) was here reduced into
writing and contained in the affidavit drafted by the plaintiff’s solicitor.

b) Security for costs is a procedural device accessible by a defendant

that in the event he is successful, he can recover his costs against the
plaintiff: O 27, r.30 Cap 3:02. Thus, it protects the defendant’s
interests should a financial award be made in his favour ensuring his
costs are recoverable: Re Hall [1994-95] CILR N4, Grand Court,

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Cayman Islands. Further, there is a stay of proceedings until such time
that the order is complied.

Purpose: The purpose is to ensure that a successful defendant will

have a fund available within the jurisdiction against which he can protect
his position as regards his costs. It is not a device to provide a defendant
with security for costs against a plaintiff who lacks funds unless he also
falls under one of the ‘grounds’.

Locus: The persons eligible to apply for security for costs include
(a) the defendant in an action or other proceedings.
(b)
(c) .the plaintiff in a cross-action, e.g. where the claim and the
counterclaim arise out of different matters;
(d)the plaintiff in a counter-claim, where the counterclaim arises out
of the same matter and thus operates as a defence, e.g. in
personal injury action where the defendant alleges negligence by
the plaintiff arising out of the same set of facts and
circumstances.

Effect: Once the court grants security for costs, it would direct the
amount to be paid by the plaintiff, the manner and the form of the same:
O49 r.3; and the amount is to be determined by the Court: Procon (Great
Britain) Ltd. v. Provincial Building Ltd. [1984] 2 All ER 368. The Court
however, is not bound to make an order of a substantial amount:
Roburn Construction Ltd v William Irwin (South) and Co. Ltd [199] 1
BCC 726.

Procedure & Application: A defendant may, at any stage of the

proceedings, make an application by summons, supported by affidavit, to a
High Court judge, for the plaintiff to be ordered to give security for
costs in any of the following situations:

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i) where the plaintiff is ordinarily resident out of the jurisdiction and
has no substantial property within the jurisdiction he may be ordered to give
security for costs: O 49 r.4. A company’s ordinary residence is where the
business’s habitual or central authority and control resides: Union
Corporation Ltd v Inland Revenue Commissioners [1952] 1 All ER 646.
Furthermore, courts often order a foreign plaintiff to give security for costs as
it is just to do so: Aeronave SPA v Westland Charters Ltd [1971] 3 ALL ER
531. The court will look to see where its ordinary residence reside and where
its business affairs are actually managed and controlled: Wood and another v
Holden (Inspector of Taxes) [2005] EWHC 547.
ii) where the plaintiff (not being one who is suing in a representative
capacity) is a nominal plaintiff who is suing for the benefit of some other
person and there is reason to believe that he will be unable to pay the costs
of the defendant if ordered to do so: Sir Lindsay Parkinson & Co. v. Triplan
Ltd [1973] 2 AER 273,CA; or
iii) where the plaintiff’s address is not stated in the writ or other
originating process, or is incorrectly stated therein; or
iv) Where the plaintiff had changed his address during the course of
the proceedings, with a view to evading the consequences of the litigation.
Before an application is made, the Defendant requiring security for
costs must write to the Plaintiff requesting security in a reasonable
amount: O 46 r.3(2). Where defendant intends to apply for security for
costs at the hearing of the summons for directions, s/he must give
notice to the plaintiff of his/her intention to apply and send a copy of
the affidavit in support before the date of the hearing.
If no satisfactory response is received, the Defendant can apply to the
Court for Security for costs, by way of interlocutory summons: O 41 r.1
supported by affidavit stating the special circumstances in which it is
made to a High Court Judge. The affidavit sets out the
a) grounds for the application (e.g. ordinary residence outside
jurisdiction),

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b) means of the deponent’s knowledge,
c) allegation as to the defence (Steven v Walker [1936] 2 KB 215 /
1 All ER 892, CA),
d) amount of security being sought (costs),
e) stage of the proceedings up to which it is to be given,
f) detailed estimate of the likely costs for which the security is
sought. (Skeleton bill of costs is usually helpful- Bennett v Digby [1982]
LS Gaz r75, CA; Sloyan & Sons Building Ltd. v Brothers of Christian
Instruction [1974] 3 AER 715.)
Moreover, as a matter of good practice the defendant should also
include a draft order in the documents and a bill of costs to determine
the amount of security:.

Upon hearing and determination of the matter, the court will consider
the work done as well as future work to be done. If amount ordered is
insufficient, further application can be made to the court.

The court exercises a discretionary power to direct a plaintiff requiring

him to give the defendant security for costs of an action. The payment of
security for costs under the rule is without prejudice to the provisions of
any other enactment which empowers the court to require security to be
given for the costs of proceedings.

Factors/Considerations: Even if one or more of the above grounds is

satisfied, the court is not bound to make an order for an award of security
for costs as it is always at the discretion of the court. The factors
which the court should take into account in exercising the discretion of
the court were listed in Sir Lindsay Parkinson and Co. Ltd v. Triplan Ltd,
thus;
(i) whether the plaintiff’s claim is bona fide and not a sham;
(ii) whether the plaintiff has a reasonably good prospect of success
(though the court should not normally embark upon a detailed

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examination of the merits of the case unless there is a high
degree of probability of success or failure of the claim: Porzelack
K.G. v Porzelack (UK) Ltd [1987] 1 ALL ER 1074;
(iii) whether the defendant has made any admissions of the
plaintiff’s claim on the pleadings or elsewhere;
(iv) whether the defendant has made any payment into court
or open offer of payment or settlement;
(v) whether the plaintiff’s impecuniosity has been caused by the
defendant’s conduct;
(vi) whether the application for security is being made
oppressively and in order to stifle a genuine claim - The Court
must be satisfied that the claim is genuine, by carrying out a
balancing exercise to ensure that the plaintiff does not suffer any
injustice by this application on one hand and that the defendant
is not prevented from being able to benefit from an award of
costs on the other: Keary Developments Ltd v Tarmac
Construction Ltd [1995] 3 ALL ER 534.
(vii) whether there has been a delay in making the application
(which should be made as early as possible) - this application
should be made as early as possible to negate any doubt by the
court of its genuineness: Hartnett, Sorrell and Sons Ltd v
Smithfield Foods Ltd [1987] High Court, Barbados, No. 605 of
1986 (Unreported). However, it can be made even after a
defence has been filed: Re Smith [1896] 75 LT 46.

Effect of Order: After the defendant obtains the order, notice must be
given to the plaintiff. The plaintiff can then either give the security for
costs by paying the required sum into court (original order must be
produced at this point in time), and then gives defendant notice of
such payment into the court. The Plaintiff may also give security for
costs by giving a bond and giving defendant notice of the surety/bond.

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At the conclusion of the action, the successful party will apply to the
court for payment out of court.

Change of Circumstances and Enforcement: Where there is a change of

circumstances the order may be discharged. Until compliance
proceedings may be stayed, alternatively the plaintiff’s
action/counterclaim may be dismissed. A further application may result
in an increase in quantum.
Sir Lindsay Parkinson & Co Ltd v. Triplan - Triplan, a small limited
company, had done work for Parkinson, a large public company, as
sub-contractors. Subsequently Triplan claimed that Parkinson owed
them some £25,916 under the contract. Parkinson looked into the
financial position of Triplan and, applied to the master for an order that
Triplan give security for Parkinson’s costs under s 447 of the
Companies Act 1948. Parkinson adduced evidence that Triplan’s
financial position was precarious and that they would be unable to pay
Parkinson’s costs if Parkinson were successful. On that evidence the
master held that he paid money for security of costs. On appeal the
judge held that he had a discretion whether or not to order security to
be given and discharged the master’s order.

Porzelack K.G. v. Porezelack (U.K.) Ltd- The plaintiff was a West

German organisation carrying on business in the manufacture and
supply of car care products. B, its sole promoter and director, set up
and controlled a limited company, PIL, in the United Kingdom trading in
car care products sold under a particular brand name. In 1986, when
PIL was wound up, the defendant company was set up by former
distributors of its products and a former executive of PIL to sell car
care products of the same kind under the same brand name. The
plaintiff sought an injunction against the defendant restraining it from
passing off its car care products as being products of the plaintiff. The
defendant applied under RSC Ord 23, r 1(1)(a) for security for costs to

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be given against the plaintiff on the ground that the plaintiff was
ordinarily resident out of the jurisdiction. In the circumstances, it would
not be right to grant security for costs after considering the different
factors. The application would therefore be dismissed.

c) Withdrawal from or Discontinuance of Proceedings

The general rule is that a plaintiff may discontinue his claim without
the permission of the court. However, in Guyana he can only do so at
any time before receipt of the defendant’s defence or if he has taken
no further action after receiving the defence: O 24 r.1 Cap 3:02.
Application: The plaintiff may discontinue an action before trial where
i) s/he decides that s/he has a weak case and wants to avoid
further costs;
ii) s/he settles the action, by agreement or acceptance of payment;
iii) s/he thinks s/he has better chances of success elsewhere;
iv) s/he is a co-plaintiff suing in respect of a different cause of
action (withdrawal can be done without leave of the court): King
v Sunday Pictorial Newspapers Ltd. (1924) 41 TLR 244.
Procedure & Requirement of Leave: At common law where the action is
commenced by writ, leave is not required provided the action is
discontinued within 14 days of the service of the defence. Leave of the
court to withdraw from or discontinue an action is required where
i) the court has granted an interim injunction; or
ii) any party to the proceeding has given an undertaking to the
court; or
iii) either party to the proceeding has received an interim
payment; or
iv) the defendant has, by the proceedings obtained an
advantage and the grant of leave would be unjust or prejudicial;
or

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v) there are several plaintiffs (here one or more plaintiffs may
withdraw with the written consent of the others, but the action
cannot be discontinued. Also where a co-plaintiff suing in respect
of the same cause of action withdraws, s/he may be named as a
defendant on the terms of security being given for the original
defendant’s cost: Re Matthews [1905] 1 Ch 460; King v Sunday
Pictorial Newspapers Ltd.
However, in Guyana, the plaintiff in a claim or defendant in a counter-
claim requires leave of the court to discontinue an action: O 24 r.2. The
plaintiff must file and serve a notice of discontinuance on the
defendant and/or every other party to the proceedings by way of
interlocutory summons.
The court has a discretionary power to grant leave to withdraw from or
discontinue an action and will exercise this power based on the
circumstances of the particular case: Hess v Labouchere14 TLR 350.
The Court may therefore order the withdrawal of any part of a cause of
action or the discontinuance of the whole action at any time before,
during or after a hearing or trial as may be just upon terms as to costs:
O 24 r. 2. The power being discretionary, the court may well refuse to
grant leave to discontinue an action: Fox v Star [1898] 1 QB 636.
Where any party withdraws part of his/her claim or counter-claim or
discontinues any action, s/he must pay the other party’s (ies’) costs of
the action, which costs shall be taxed: O 24 r.1. Where costs are not
paid within four days after taxation, the plaintiff in a claim or
defendant in a counter-claim may make ex parte application for such
costs occasioned by the matter so withdrawn or discontinued: O 24 r.4.
An action may also be discontinued or withdrawn from the court,
without leave, by consent of the parties which should be in writing,
signed by the parties or their attorneys on their behalf, and submitted
to the Registrar: O 24 r.3.

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Effect: Discontinuance against a defendant takes effect on the date
when the interlocutory summons of such discontinuance is served on the
defendant and operates to effectively bring an end to the proceedings.
Discontinuance does not however affect the defendant’s right to have the
summons set aside or to take proceedings relative to costs.
Discontinuance does not operate as a bar to the bringing of future
proceeding on the same claim nor will the fact of discontinuance of the
prior proceeding operate as a defence to subsequent proceedings: Reid v
London & N. Staff Insurance Company 49 LT 468. Where however the cost
of discontinuance or withdrawal in the previous matter have not been paid,
such non-payment will operate to stay subsequent actions until such time
that payment is made: O 24 r.5.

When an action is discontinued any appeals filed in those proceedings

are ipso facto vacated and the summons of discontinuance is sufficient.
Further notice of discontinuance brings an appeal to an end and no
further action is required for the purpose of the appeals but to strike it
out of the paper: Conybeare v Lewis (1880)13 Ch. D. 469.

d) Settlement and Compromise of Proceedings (Payment into

Court) -
An offer to settle may be made by a defendant (or plaintiff or third
party in a counter- claim) in any proceedings for debt or damages by
way of payment into court of a sum of money in satisfaction of the claim:
O 20 rr.1 (1), 5.

An offer to settle proceedings followed by a payment into court is a

procedural device that has two objectives; it encourages a speedy resolution
of the dispute; and saves costs.

Procedure: The defendant (party desirous of settling by this method)

must first give the plaintiff notice of his intention to pay into court

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a sum of money in satisfaction of the claim or several causes of actions,
as the case may be. Such notice and payment may be made at
any time after the entry of appearance by the parties and, in the case of
several causes of action, must specify the amount of the payment being
made and the cause of action in respect of which same is being made: O
20 r.1(2). This notice may, with leave of the court, be modified, delivered
in an amended form or withdrawn upon such terms as may be just. The
defendant may however give notice to the defendant of an increase in the
sum being paid into court without prior leave of the Court: O 20 r.1 (3);
Peal Furniture Co. Ltd. v Adrian Share (Interior) Ltd . (1977) 2 All ER
211.

The plaintiff is required to give written acknowledgement of receipt of

the notice within three (3) days of receipt of same. The offer is left open for
seven days within which time the plaintiff must elect whether to accept or
refuse the whole sum or any of the specified sums within seven days of
receipt of notice, except where the defendant enters the defence of tender
before action: O 20 r.2(1), (4). Where the plaintiff accepts the whole or any
of the specified sums paid into court, s/he must first give notice of
acceptance to the defendant, without which s/he will not be entitled to
receive same: O 20 r.2 (1).

Payment may be made to the plaintiff or his attorney, upon his written
authorization and upon the acceptance of same: O 20 r.2 (2). The
plaintiff may give notice of his abandonment of other causes of action
and within four days of receipt of payment, tax his costs incurred up to the
time of payment into court. The plaintiff may thereafter apply to the Bail
Court for judgment for his taxed cost, unless the court orders otherwise. This
application must not be made until the expiration of at least two full
days (48 hours) following taxation, unless the court orders: O 20 r.2 (3).

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If the plaintiff fails to take the whole of the money, the money
remaining in court after the receipt of payment by the plaintiff will not be
paid out except in satisfaction of the claim for which it was made or in
pursuance of an order of court made at any time before, at or after the
trial: O 20 r.3.

Where several defendants are joined in a claim, one defendant may

make payment with notice to the other defendants; or payment into court
may be made by more than one of the defendants. Where the plaintiff here
elects to accept payment, s/he must give notice of same to each
defendant in the matter and monies shall be paid out only by order of the
court: O 20 r.4.

Effect: The plaintiff’s (party’s) acceptance of payment made into court

operates to effectively stay proceedings in respect of that cause of
action: O 20 rr.2 (2), 4 (3).

Non-disclosure to the Court of Payment: The defendant or party paying

into court is prohibited from making any statement of act in pleadings
as to the payment into court, except where
i) the defence of tender before action is pleaded: O 20 r.6;
ii) the claim is brought on behalf of or for the benefit of an infant or
person of unsound mind: O 20 r.8;
iii) there are several defendants to the claim and the money is paid
in by one or more but not all of them: O 20 r.4 (3)
Ordinarily, evidence of payment into court also ought not to appear on
the record of court neither should there be any communication in
relation to same until after the Court has determined the issues of
liability and the amount of the debt / damages: O 20 r.6; Millensted –v-
Grosvenor House (Park Lane) Ltd. (1937) 1 KB 717, CA.

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However, where the money is paid into court pursuant to an order of
the Court (as applies to the circumstances listed above), it cannot be
paid out except by order of the Court: O 20 r.7.

Non-acceptance of Payment: Where the defendant makes an offer to

settle that is not accepted and the court awards a sum to the Plaintiff
which is equal to or less than the offer made by the defendant the
Plaintiff must pay any costs incurred by the defendant after the latest
date on which the offer could have been accepted: Findlay –v- Railway
Executive (1950) 2 AER 969, CA. On the other hand if the court makes
an award which is more than the offer made by the defendant then the
Plaintiff is entitled to recover from the defendant the entire costs of the
proceedings.

e) Interim Payments- payment made on account by one party to an

action, consequent upon a claim or counter-claim, to or for the benefit
of another party in the action. Such payment is made for damages in
respect of personal injuries for which one party may be held liable
under the final order.

A plaintiff may only make application for interim payment after the
filing and service of a writ of summons and the time for entry of
appearance (14 days) has expired. The plaintiff may make more than
one application for interim payment, even where an earlier application
is refused. Notice of the application must be served at least 14 days
before the hearing of the application; and must be supported by
affidavit evidence stating, inter alia,
i. the plaintiff’s assessment of damages or other monetary
judgments likely to be awarded;
ii. the grounds upon which the application is made;
iii. any documentary evidence upon which the plaintiff is relying,
and exhibiting same;

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iv. whether the claim is brought under the Compensation for
Injuries Act. If yes, the application must contain the full particulars of the
person on whose behalf the action is being brought and the nature of the
claim.
The plaintiff’s affidavit should also include details of the reasons for the
application for an interim payment, e.g. that the money is needed for
education or medical purposes: Wittich v Twaddle (1983) 32 WIR 172.
Any objection by the defendant that the plaintiff may use the interim
payment awarded for wrongful or extravagant purposes will be
irrelevant to the grant of the payment: Stringman v McArdle [1994] 1
WLR 1653.

Where the defendant wishes to respond to the plaintiff’s application

and the plaintiff wishes to reply thereto, they must file their respective
affidavits and serve it upon the other party within seven days prior to
the hearing of the said application.

Considerations of the Court- The court has discretionary powers to

make an application for interim payments and will only do so where:
a) the defendant has admitted liability to pay damages or some
other sum of money to the plaintiff;
b) an order has been made for an account to be taken between
the plaintiff and the defendant, and judgment for any amount
certified due on taking the account to be paid;
c) the claimant has obtained judgment against the defendant for
damages to be assessed;
d) the court is satisfied that if the action went to trial, the plaintiff
would obtain judgment against the defendant: British and
Commonwealth Holdings plc v Quadrex Holdings Inc. [1989] 1
QB 842 @ 865

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While the burden of proof herein lies upon the party making the
application; the Court will not make an order for interim payments
where the defendant is not
a) a person who is insured in respect of the plaintiff’s claim;
b) a public authority; or
c) a person whose means and resources are such as to
enable him to make interim payments.
In personal injuries claims where there are two or more defendants the
court will make an order for interim payment against a defendant
where it is satisfied that -
a) if the matter goes to trial, the plaintiff would obtain
judgment for substantial damages against at least one
of the defendants; and

b) each defendant is insured, or is a public authority or has

the means and resources to make the payment in relation to
each of the defendants.

The Court in making any order for interim payment ought not to
exceed a reasonable proportion of the damages which is likely to be
recovered by the plaintiff. The court should here give consideration to
any relevant contributory negligence, defence, cross-claim or
counterclaim on which the defendant might be entitled to rely.

Manner of Payment: interim payments are to be paid to the plaintiff

but may be paid into court by order of the Court. Where the amount is
paid into court, the plaintiff must make ex parte application to the
Court whereupon the court will determine the amount of the payments
to be made and the time period with which such is to be made.

Powers of Court to following Order: Where, upon hearing any

application, the Court makes an order for interim payment, the Court has
powers to

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a) adjust the interim payment; or
b) order the repayment of such payments in part of in whole; or
c) vary and/or discharge the order; or
d) order one defendant to reimburse the other; or
e) exercise any of its case management powers, and give
directions for an early trial of the action or any part thereof.
Non-disclosure: The parties are prohibited from disclosing to the Court
the fact that an order for interim payment has been made until after
the determination of questions of liability and quantum i.e. after final
adjudication. On the final determination of any action in which an
interim payment was ordered, the Court may
a) deduct the amount of the interim payment from the final
award; or
b) if the interim payment exceed the amount of the final award,
order that the plaintiff repay the balance.

f) Sanctions (Relief from Sanctions and Unless Orders):

Commercial Court Rules Order 12A-D)
A sanction is a penalty for disobedience to an order of the court, which
the court has the power to impose to encourage obedience to its Rules,
Practice directions and Orders and Directions.

Failure to comply with a rule, practice direction or with an order or

direction given by the court in the proceeding may lead to proceedings
being set aside wholly (struck out) or partially on the ground of
irregularity or on grounds that the action is frivolous, scandalous,
vexatious, an abuse of process or does not reveal any cause of action:
O54 r.1; O 17 rr. 31, 32; O 12C r.3.

Relief from Sanctions: Where a party fails to comply with any of

these Rules, a direction / order / sanction for non-compliance imposed

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by the Rules or a court order has effect unless the party in default
applies for and obtains relief from the sanction.
Application for Relief: The application for relief from sanctions must be
made promptly. Relief is sought by way of interlocutory summons
supported by affidavit.

Court’s Power to Grant Relief: The court may grant relief only if it is
satisfied that-
a) the failure to comply was not intentional;
b) there is a good explanation for the breach;
c) the party in default has generally complied with all relevant
rules, practice directions, orders and directions.
Consideration of the Court (O 12C r. 8(3)): In considering whether to
grant relief the court must have regard to-
a) the interest of the administration of justice;
b) responsibility for the non-compliance i.e. whether failure to
comply was due to the party or his attorney;
c) whether the failure has been or can be remedied within a
reasonable time;
d) whether the trial date or any likely trial date can still be met
if relief is granted; and
e) the effect which the granting of or refusal to grant relief
would have on each party.

Power to rectify Errors: Where there are no consequences expressly

stated for failure to comply with a rule, practice direction or court order
the court may under its general powers of case management make an
order to rectify the error or failure: O 12C r.9.
An error of procedure or failure to comply with a rule, practice direction
or court order does not invalidate any step taken in the proceedings,
unless the court so orders.

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Unless Order: O 12C r.3 provides that where a party has failed to
comply with any of these Rules or any court orders in respect of which
no sanction for non-compliance has been imposed the other party may
apply to the court for an “unless order”.
Where there is such a failure any other party may move the court on
notice for an order that the step in the proceedings be taken within the
time limited in that order or for relief of a kind referred to in sub-rules:
O 12C r.4.
Application for Unless Orders: An application for an unless order is
made by way of interlocutory summons supported by affidavit.

g) Search Order / Anton Piller: O 38 r.5 Cap 3:02

The Anton Piller is an order instituted to preserve evidence (whether
documentary or otherwise), in order to successfully prosecute a claim
against an intended defendant. It is an equitable relief that concerns
intellectual property rights and offers protection against piracy. The
court has the power to grant such an order (referred to as a “search
order”) by virtue of its inherent jurisdiction to ensure the ends of
justice are met and that matters of controversy are completely and
finally determine: ss. 24, 25 Cap 3:02. Further, O 38 r.5 of Cap 3:02
allows any party in a matter to apply to the court for an order for the
detention, preservation or inspection, search and seizure of any
property or thing the subject matter of the particular cause of action.
The order is most time applied to cases of intellectual property rights.

In Anton Piller KG v Manufacturing Processes Ltd & ors. [1976] 1 All ER

779, it was clearly distinguished that the order was not a 'search
warrant'. It is a long established principle of the law that 'no court in
this land has any power to issue a search warrant to enter a man's
house so as to see if there are papers or documents there. Denning LJ
ruled that these orders only 'authorises entry and inspection by the
permission of the defendants'. However, failing to give permission to

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the search would put the defendant in contempt of court. This may
seem to be a search warrant in disguise'. The distinction between the
Anton Piller (AP) order and a search warrant can be clearly seen in the
execution process.

When AP orders are executed outside of business hours, the

availability of legal advice for the defendant is limited. As the
availability of legal advice was considered crucial in distinguishing AP
orders from search warrants, allowing the defendant to make an
informed consent to search; should such orders be executed when
such legal advice may be unavailable? To place such a restriction
would create 'some cases where it would be impossible to levy
execution'. 'At the very least, it must be right, and in the plaintiffs
interests to allow execution before or after business hours on giving a
full explanation of the circumstances and the necessity for allowing
execution at such times'

Pre-Conditions: The Anton Piller Order can be applied for before the
proceedings are initiated by way of ex parte application, but the
applicant must satisfy the conditions established by Omrod J in EMI Ltd
v Panday [1975] 1All ER 418
a) that he has a strong prima facie case and he is likely to
succeed in action;
b) that he would be seriously affected by the damage, whether
actual or potential and there is great risk the normal process of
the law would be rendered insignificant to address the actual or
potential damage;
c) that the defendant is in possession/custody/control of
incriminating evidence - evidential documents, goods or articles
in support of the plaintiff’s case of infringement or likely
infringement by the defendant of his (the plaintiff’s) rights-; and

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there is a real possibility that he would destroy same if the
application is made inter-partes; and
d) the court must have jurisdiction over the claim in the main
action: Allertext v Advanced Data Communications [1985] 1 All
ER 395.
The legitimacy of this remedy was confirmed in Anton Piller KG v
Manufacturing Processes Ltd & ors.

Procedure: at the time of making of the application for the Anton

Piller Order, the applicant must have prepared the following
documents and have same in his/her possession:
 Writ of Summons;
 Statement of Claim;
 Affidavit in Support;
 Interlocutory summons (need not be served on Deft but must
be filed); and
 Draft order
The applicant is not required to file these document at the application
is made in the interest of preserving confidentiality though it is prudent
to so do. The judge may however order the applicant to file action
along with the interlocutory application or may hear the interlocutory
application contingent on the applicant filing the action within a
specified time.

The applicant is required to give full and frank disclosure in the

documents to be filed as the order is an equitable remedy to which
equitable maxims like “he who comes to equity must come with clean
hands” apply: R v Kensington Income Tax General Comrs, Ex p Princess de
Polignac [1917] 1 KB 486.

The judge, upon receipt of the documents, usually peruses same

before meeting with the applicant’s lawyer. At the hearing, the judge

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also gives a date and time for the applicant to return to court for an
inter partes hearing, same of which is inserted on the interlocutory
summons to be served to the defendant.

Where the court is satisfied upon perusal that it is just and equitable to
grant the order and grants same, the applicant must give an
undertaken to file the documents by a stipulated time and serve same
upon the defendant together with the order to which a penal notice is
attached. The penal notice stipulated the sanctions for non-compliance
with the order within the time specified and allows for the bringing of
contempt proceedings: O 38 r.9.

Applicant’s Undertaking: The applicant is required to provide notice

of the order to any party that would be affected by same, especially if
that third party has possession of the defendant’s assets.
The applicant must also undertake:
 not to use the evidence gathered for a purpose other than
that asked for, unless permission from the court is granted
(implied);
 to pay damages to the other side in the event that it is
found that the order should not have been granted
(expressed);
 to indemnify all third parties who may suffer as a result of
the injunction being granted.
These undertakings should be supported by a bond or other adequate
security: Rank Films Distributors Ltd v Video Information Centre [1982]
AC 380; [1981] 2 All ER 76.

Effecting the order: The Anton Piller order should not be used as a
pillar of injustice: UniversalThermosensors Ltd v Hibben & ors [1992] 2
All ER 257. This case also established the guidelines for the execution
of the Order.

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 Firstly, the search must be supervised by the independent
attorney, i.e on having no personal connection with or interest in
the plaintiff, who is skilled in the nature of the order and must be
able to explain, in simplest terms, the implications of the order:
Manor Electronics v Dickson, Interserv v. Kong [1997] HC TT No.
5291/1996. If a woman is likely to be alone at the house to be
searched then a female attorney should supervise the search or
be present at all times. The attorney must be familiar with APO
and must give undertakings to the court.
 The consent of the defendant must first be obtained to effect
the order. The defendant should be given a copy of the order
and affidavit in support before the search and the effects of the
order must be explained to him correctly (in the simplest of
language so that the defendant may understand, the attorney
must inform him that he is required to give consent). If the
defendant refuses to allow the plaintiff to enter, the plaintiff does
not have the authority to barge in or go through a window, but
the right course of action is to bring contempt proceedings:
Bhimji v Chatwani [1991] 1 All ER 705.
 However, Scott J in the Bhimji v Chatwani said that the
defendant would not be in contempt if he is acting reasonably,
e.g. He had not gotten time to obtain legal advice before
permitting entry and allowing the search to proceed. The case
stipulated that 2 hrs is reasonable time to give to the defendant.
 Further, the court may not always allow contempt proceedings
where the defendant fails to grant the independent attorney
entry but may draw adverse inferences at trial from that party’s
actions. Further according to Ventour J where the plaintiff took
away more than he was authorized to take, such act exposes him
to an action in law for damages for trespass to goods; and

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damages for the infringement of intellectual property rights:
Interserv v Kong (1997).
 The order should therefore be executed within usual office
hours where the defendant can actually obtain advice. A
representative of the Defendant Company or firm should be
present throughout the search of any business premises.
 A full list of the items to be taken should be prepared before
the plaintiff leaves the premises and the defendant should be
given an opportunity to check it: Columbia Pictures Industries
Inc. v Robinson [1987] Ch. 38.
 Only those items clearly within the order should be taken.
Where the applicant seizes more than what is ordered by the
court, then it would not amount to contempt, but may amount to
theft on a separate action.
 The judge may order that a report of how the search was
conducted be prepared, served on the defendant and presented
at the inter partes hearing within a few days of the execution.
An applicant may ask to search in alternative places if items not found
at the initial places. Moreover, the order should be effected on the
premises of any party who may in some way be connected. An
innocent/aggrieved party may come to the court on the return date
and claim relief.

Inter-partes Hearing: At the inter partes hearing the defendant is

allowed an opportunity to be heard and the Court, upon hearing the
submissions, will make the necessary orders. Any attempt by the
defendant, at this stage, to have the injunction discharged based on
the plaintiff’s material non-disclosure is misconceived: Dormeuil Freres
SA –v- Nicolian International (Textiles) Ltd. (1988) Ch. D 197.

The defendant can claim privilege against self-incrimination for himself

and spouse where disclosure would put him at risk of criminal

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prosecution. However, there is no absolute privilege against answering
incriminating questions in civil proceedings and a defendant is only
entitled to rely on the privilege if and so far as compliance with a
disclosure order would provide evidence against him in a criminal trial.:
AT&T Istel v. Tully [1992]. The courts are entitled to substitute a
different protection in place of the privilege against self-incrimination
when requiring a person to comply with a disclosure order, if the
person required to divulge information can be adequately protected
against being exposed to the reasonable risk of such information being
used in a criminal prosecution.

Options available to the Defendant at Inter Partes Hearing: At the inter-

partes hearing the Defendant may seek to
 Discharge the order - Defence Attorney should prepare
affidavit, documents as to evidence to contradict and compelling
evidence to justify discharging the order such as P lied to the
court. This can be done ex parte.
 Consent to the continuance of the order i.e. submit to it and
arrange for an early trial to determine the issue.
 Vary the order- A third party affected by the order may also
approach the court for relief on the return date.
The Court cannot make findings of fact because there is no evidence
to do so. It looks at the evidence as a whole and decides whether the
injunction should continue.
Conclusively, it is advised that if he adopts the above course of action,
he can rest assured that the evidence would be preserved in order to
successfully prosecute the claim.

Costs: An order that cost be ‘costs in the cause’- so that whoever

wins trial gets the costs of the preliminary/interlocutory matters even
if that party lost the preliminary/interlocutory matters- may be
requested at the inter-partes hearing. The judge may however order

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that costs be reserved- to be decided upon the final determination
of the substantive matter-, or that costs follow the event –so that
the party in whose favour the order is made will be entitled to the
costs of the interlocutory application no matter what the ultimate
decision is at trial-.

e) Freezing Order (Mareva Injunction)

A Mareva or freezing injunction is a discretionary injunction made in
personam against a defendant which operates as an interim order
temporarily freezing assets required to satisfy- or allow for the
enforcement of- a judgment or expected judgment in order to prevent
their dissipation within or removal from the jurisdiction of the court. The
mareva injunction gives the plaintiff neither security until judgment
over the property frozen nor any right analogous to a lien: Z v. AZ and
AA-LL (1982) QB 558; Mareva Compania Naviera SA v International Bulk
Carriers SA [1980] 1 ALL ER 213.

Where there is a strong prima facie case that a Plaintiff is entitled to

money from a defendant who has assets within the jurisdiction and the
Plaintiff has reason to believe that the defendant may remove those
assets from the jurisdiction, or otherwise deal with it (e.g. sale or
disposal), the Plaintiff may seek an interlocutory injunction to prevent
such handling of the assets: Nippon Yusen Kaisha -v- Karageorgis
(1975) 3AER 282; Mareva Compania Naviera S.A. -v- International Bulk
Carriers S.A. (1980) 1AER 213; Allen v Jambo Holdings Ltd. (1980) 1
WLR 1252.

By virtue of s. 23 of the High Court Act of Guyana, Cap 3:02 the court
has jurisdiction to grant an order mandamus or an injunction. The only
restriction there is on the granting of an injunction is that it must appear
to the court to be just and convenient to do so: Beddow v Beddow
[1878] 9 Ch. D 89. The court will not grant an injunction to protect a

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person who has no legal or equitable right. Thus, this principle would
apply in instances where a creditor has a right to be paid the debt owing
to him, even before he has established his right by getting judgment for
it. If it appears that the debt is due and owing, and there is a danger
that the debtor may dispose of his assets so as to defeat it before
judgment, the court has jurisdiction in a proper case to grant an
interlocutory judgment so as to prevent him disposing of those assets.
The decision of whether to exercise jurisdiction to grant an injunction is
therefore in discretion of the judge based on the circumstances of each
case.

An injunction may be interlocutory, interim, mandatory, permanent or

otherwise depending on the nature of the case e.g. commercial,
matrimonial, real property, company proceedings, etc. An interlocutory
injunction is a temporary and discretionary remedy, usually granted in
commercial matters, which preserves the status quo until such time
that the rights of the parties are determined in the action.

The Application: The mareva injunction may be granted pending trial

irrespective of whether a liquidated sum is determined or the claim is
not established: Barclay-Johnson –v-Yuill (1980)3 AER 190, 193; Faith
Panton Property Plan Ltd v Hodgetts [1981] 2 AllER 87. Before the
application is made, steps must be taken to assess the assets in the
possession of the Defendant / Defendant Company; confirm that they
are owners of the assets and that they intend to dispose of same. This
will be ascertained by research and investigation, vis-a-vis checks with
the business registry, newspaper notices, etc. and with the court to see
if the defendant company has commenced winding up proceedings.
This information will be used as evidence in support of the application.

If comprehensive information on the extent of defendant’s assets is not

obtained, following investigations, it will be difficult to ascertain

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whether the assets are sufficient to satisfy the amount of the claim
inclusive of interest and costs. A mareva injunction would prove
useless in the absence of information as to the defendant’s ability to
satisfy the claim; as such it will be necessary to compel the defendant
to disclose its assets and their exact location. The application should
therefore also require the defendant to disclose all the assets they
possess and their location, inclusive of bank accounts and the value of
those accounts, other motor vehicles, works of arts, etc.: Lawton LJ in
CBS UK Ltd v Lambert anor [1982] 3 All ER 237, CA.

The application should be made ex parte, without notice to the

defendant, by way of interlocutory summons to facilitate swift
execution of the proceedings. It also safeguards against the defendant
taking steps to rapidly dispose of his assets in an effort to evade
litigation.

Pre-Conditions: There are certain pre-conditions attached to the

application, which must be satisfied in an effort to minimize the
potential harm to the defendant occasioned by the ex parte nature of
the application.
The application should be supported by evidence outlined on affidavit
to
 show that the plaintiff has a good and arguable case;
 prove the particulars of his claim against the defendant by stating
the grounds of the claim, the amount claimed plus interest, and
fairly stating the points that may be made against the plaintiff by
the defendant;
 ensure all material facts are fully disclosed to the judge– e.g.
business transaction, nature of the agreement, when defaulted,
knowledge of the defendant’s plans to relocate / remove the assets
and the basis of same, etc.

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 show that the defendant has or is believed to have assets within
the jurisdiction and the basis for such knowledge/belief: Third
Chandris Shipping Corporation v Unimarine [1979] 1 AllER 972;
 show that the assets are in the legal or beneficial ownership of the
defendant: The Theotokos (1983) and the basis of such knowledge
(research & investigation);
 show that the assets stand to be dissipated before judgment is
obtained: Rahman v Abu-Taha (1980) 1 WLR 1268; and
 show the plaintiff’s willingness to enter an undertaking to cover the
damages that may be suffered by the defendant on account of the
injunction being ordered and imposed, the proof of such damages
suffered lies strictly in the hands of VCS: Barclay’s Bank Ltd. v
Rosenburg (1985) NLJ 633.

An injunction will not be granted if the court believes that it would

interfere with the trade of any other company with which defendant
has contractual relations and whose business dealings is dependent
upon the relocation: Galaxia Maritima SA v Mineral Importexport (The
Eleftherios) [1982] 1 AllER 796.

The interlocutory summons and affidavit should also be accompanied

by Specially Indorsed Writ pursuant Order 4 of the Rules of the High
Court (HCR), Cap 3:02 which will constitute a formal demand for the
monies due and owing whether in local or foreign currency: Joachimson
v Swiss Bank Corporation [1921] 3 KB 110, CA; Miliangos v George
Frank (Textiles) Ltd.
The Specially Indorsed Writ will contain a summon calling upon the
defendant to appear before the court at a day and time as therein
specified, usually six (6) clear days from the date of service: O 3 r.4
HCR. It will also contain a full statement of claim setting out the basis
of the claim and the relief(s) sought –payment of the outstanding
balance, interests, costs, etc. It is not however necessary that the writ

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be filed and served upon defendant at that point in time. A draft order
for the grant of the mareva injunction will also be prepared and
accompany the interlocutory summons and affidavit in support.

The Hearing: Following the application, arrangements are made with

the Registrar of the Supreme Court, who fixes the time for appearance
before a Chamber Court Judge for the hearing and determination of the
application utilizing trial guidelines. Upon satisfaction that the plaintiff
has adhered to all pre-conditions and that without the mareva
injunction the defendant would dispose of the assets in a manner
contrary to any further award, the court grants the order.

Service of the Order & the Writ: Once the Order is granted, the judge
will indorse notice of same upon the summons with a penal notice
warning the defendant of the effect of non-compliance i.e. committal to
prison of the company’s directors. A certified copy of the summons will
be obtained and arrangements made to effect personal service of
same on the defendant and any other parties who will be affected by
the order. At the same time, the Specially Indorsed Writ will be filed
and personally served upon the defendant by a court marshal, at his
last known business address (or any adult person residing there) as a
means of formally instituting proceedings for the recovery of the debt
owed: O 7 r.2 HCR. Delivery of the writ to a secretary or director or
receptionist or any employee of the defendant company will be
sufficient to effect service: O 7 r.4 HCR.
The marshal will indorse upon the writ that same has been delivered,
the date and time delivered and how service was effected and sign
same as proof of the facts therein: O 7 r.5(1), (3) HCR. Alternatively,
service can be done by the defendant personally or through an agent
and an affidavit of service stating the date and time delivered and how
service was effected will be prepared, sworn to, stamped and filed as
proof of same: O 7 r.6 HCR.

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Inter-partes Hearing: At the expiration of the six (6) days stated on the
writ and/or the return date on the order, both parties must enter an
appearance before the Bail court and/or attend an inter partes hearing.
The defendant may here make application to the court to vary or
discharge the injunction if it feels that it is prejudiced by the injunction
or that its financial transactions are affected. The defendant must show
proof of the disadvantage caused by the injunction. Where the court is
satisfied that the injunction is either
i) reducing the defendant to a state of poverty; or
ii) preventing the defendant from payment of its debts or business
and/or certain payments in good faith, in the ordinary course of
its business / relocation; or
iii) preventing the defendant from conducting its business in general
-the relocation being likely to be stalled, and time being lost, the
business operations being likely to be affected
the court will grant the defendant a variation in the injunction order,
only to the extent as necessary to reduce such hardship: PCW
(Underwriting Agencies)Ltd. v. Dixon[1983] 2 All ER 158, CA; Iraqi
Ministry of Defence v Arcepy Shipping Co. SA (1981) QB 65.
Alternately, if the defendant breaches the order, notice of such will be
brought to the attention of the court. Where the court is satisfied that
the defendant is in breach of the order without suitable reason, a
committal order may be made against the defendant (or directors as
representatives of the company). At the inter partes hearing
application will also be made that the costs be the plaintiff’s cost in the
cause, which means that once the action is successful the defendant
will pay the cost of the mareva injunction as well as the cost of the
action on the plaintiff’s behalf.

If both the defendant and the plaintiff or the defendant fail to appear
the matter may be struck off the list or the plaintiff can make an

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application for final judgment and costs to be entered against the
defendant upon proof that the defendant has no cause of action or no
good cause of action: O 12 rr. 10, 2.

f) Judicial Review
The High Court has jurisdiction to supervise and control the work
and activities of lower courts, tribunals and other public authorities:
s. 17 Cap 3:02. This is done principally through an application for
judicial review (where the procedure is available) or for one or more
of the prerogative orders of certiorari (quashes a decision of an
inferior tribunal), mandamus (compels an inferior tribunal to carry
out its duties) and prohibition (prevents an inferior tribunal acting
unlawfully or in excess of jurisdiction): O’Reilly v Mackman, Forbes v
AG of Jamaica 75 WIR 406. JR is only available where the applicant
has sufficient interest in the matter to which the application relates :
Attorney General of the Gambia v N Jie.

Judicial review can only be granted against a public authority –

whether an individual or a body- and not a private one: Williams v
Smith, R v BBC ex p Lavelle. Before judicial review can be sought, it
must be established that the decision was made by a public
authority and that decision of a public body violates the rights of an
individual to which he has an entitled protection against in public
law; or was unfair in its decision making process: Cocks v Thanet
District Council, Preston v IRC. Judicial review creates a conflict
between the executive and the judiciary, as governments usually
object to the control of their power by judiciary. However, the
judges are custodians of the people’s rights.

Test to be applied: The court must therefore determine whether

there an act or omission of the defendant has a public law element
by determining the nature and purpose of its function, the source of

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its power, and the consequences of act/omission: Re GT&T Ltd HC of
Guyana No. 4491/1995; R v Panel on Take Overs and Mergers ex p
Datadin [1987] 1 All ER 564.

Procedure: Judicial Review is a two-stage process: The first stage of

the proceedings requires that the applicant obtain leave of the court
wherein the court examines the application with a view to
eliminating frivolous, vexatious or untenable applications for judicial
review with a view to preventing the wasting of the court’s time
(abuse of the process of the court): IRC v National Federation of
Self-Employed and Small Business Ltd (NFS& SBL) [1981] 2 All ER
93.

The Application for Leave: Leave of the court is sought via an ex

parte Motion supported by Affidavit containing
 the name and description of the parties;
 the grounds of the application- e.g.
o administrative act/omission was unauthorised or
contrary to the law; or
o excess of jurisdiction, or
o failure to satisfy or observe conditions/procedures
required by law;
o breach of principles of natural justice or proportionality,
or
o deprivation of legitimate expectation, or
o unreasonable/ irregular/ improper exercise of
jurisdiction, or
o abuse of power, or
o fraud, or
o bad faith/ improper purposes/ irrelevant considerations,
or

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o breach of / omission to perform duty or failure to
observe conditions/procedures required by the
Constitution;
 the relief sought;
 the name of the applicant’s attorney and the applicant’s
address for service;
 availability of alternative forms of redress and the reason for
seeking judicial review instead of the alternative – this does
not however bar judicial review: Re GT&T;
 details of any consideration given by the respondent in
response to the complainant;
 whether the time limit has been exceeded and if so, the
reason(s) for same;
 effect of the decision on the applicant- whether
direct/personal or indirect; or
 the nature of the applicant’s interest in the matter.

The court upon considering the application may choose to

 adjourn the application; or
 grant the pre-emptory relief; or
 refuse leave- where in its view, the granting of leave is likely to
cause substantial hardship or substantially prejudice the rights of
any person or would be detrimental to good administration:
Durity v Judicial Legal Service Commission (1994) 47 WIR 424; or
 grant leave to apply - once satisfied that the application is genuine and
founded.

Application for Substantive Hearing: Upon the grant of leave the

applicant can proceed to the second stage of proceedings- the hearing
of the substantive application by way of originating motion supported
by affidavit. These documents should be accompanied by the
document used in the application for leave (The Motion and

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supporting Affidavit which must be served upon the defendant) and an
Affidavit of Service. Upon filing of the originating motion, the court will
fix a date for hearing.
The defendant may, at any time after service, file an affidavit in
opposition. Either party may make interlocutory applications seeking
orders for discovery of documents, or interrogatories, or for cross-
examination, which orders may be granted before the substantive
hearing.
Further affidavits may be allowed if they address new matters arising
out of an affidavit of the other (or any other) party.

Remedies: The remedies available for Judicial Review in Guyana, one

or more of which the Court may are
 an order certiorari- quashing unlawful acts;
 an order of prohibition- prohibiting unlawful acts;
 an order mandamus- requiring specific performance of a public
duty (including the duty to make a decision or to hear a case;
 damages /an injunction / declaration;
 conservatory order – in respect of the State;
 order for the return of property; or
 such other orders, directions or writs the Court thinks fit. .

Prerogative Orders (Certiorari & Mandamus)

Nature and Scope - These orders are concerned with reviewing not the
merits of the decision in respect of which the application for judicial review is
made but the decision making process. It is not part of the judiciary’s
function to substitute its opinion for that of a judge, as judicial review is not
an appeal against a decision but a review of the decision-making process:
Chief Constable of North Wales Police v Evans.

Certiorari- The decision of an inferior court may be quashed by certiorari

where it:

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 exceeds its power or acts without jurisdiction: Anisminic Ltd v Foreign
Compensation Commissioner;
 commits an error of law on the face of the record: R v Northumberland
Compensation Appeal Tribunal Ex p Shaw;
 an abuse of power;
 acts in bad faith;
 commits a breach of the rules of Natural Justice (NJ): R v General Medical
Council ex p Gee;
 fails to act with procedural fairness or observe procedural rules laid down in
statute conferring its jurisdiction, e.g. unexplainable / unwarranted delay in
instituting disciplinary proceedings: R v Chief Constable of Merseyside Police
ex p Clavely;
 reaches a decision which no responsible tribunal could reach.

As a general rule the Court will not grant an application where there is an
alternative remedy available to an applicant, save in exceptional circumstances:
Associated Provincial Picture Houses Ltd v Wednesbury Corporation. However, in
Guyana, the Court will not refuse judicial review of a decision merely on the ground
that an alternative remedy is available: Re Hanoman, Re GT&T.

Mandamus - An order of mandamus is appropriate where the inferior tribunal or

authority has jurisdiction but wrongfully refuses to exercise the jurisdiction, or
applied the wrong principles in deciding whether or not to exercise it. It essentially
directs the tribunal/authority to perform some specific act in the nature of a public
duty pertaining to his office and not merely the exercise of a discretion: R v
Highgate Justices ex p Lewis.
There must be a clear demand for the performance of a duty that is a public nature
and a deliberate non-compliance thereto, before the order mandamus can be
granted: R v Northumberland Quarter Sessions ex p Williamson.

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Mandamus is discretionary and so may not be granted if an equally
beneficial, convenient and effective legal remedy is available.

Prohibition – Is a discretionary order/ remedy which prevents the inferior

tribunal or authority from acting or continuing to act in excess of or without
jurisdiction, e.g. conducting committal proceedings: R v Hatfield Justices ex p
Castle.

Specific Procedure: While there is a Judicial Review Act, Cap 3:06 in Guyana,
which came into being in 2010, the act is not yet enforced. In the absence of
enforcement of this Act, there are no legislative provisions or rules of court
that provide specifically for the application for Judicial Review. The High
Court Act and Rules, Cap 3:02 does however provide for applications for the
prerogative orders.
 O38 r 1: provides that the application for mandamus or injunctions (by
way of interlocution motion/summons) is to be made to the
Court/Judge ex parte or with notice, the determination and grant of
same being in the jurisdiction of the Court per s. 23 Cap 3:02;
 O 44 r 1: where plaintiff seeks mandamus he shall indorse the claim on
writ of summons
 ss. 24, 25: the High Court also has powers to make an order as to the
procedure to be followed in these and other matters; and to grant the
appropriate remedies.

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Refusal to Grant Certiorari & Mandamus – The Court will refuse to grant
wither remedy where
 the right to object to lack of jurisdiction or illegal conduct was waived
expressly or by acquiescence;
 there is undue delay;
 the matter becomes the subject of an appeal;
 the act is justiciable or non-remediable, e.g. where the authority
acts in the interest of national security: Council of Civil Service Unions
v Minister for the Civil Service.

ENFORCEMENT OF JUDGMENTS / ORDERS

The first step before attempting to enforce a judgment is to ensure that the
judgment is properly drawn up, dated, settled, signed, sealed and filed by
the Registrar and entered in the Judgment Register: O. 35 r. 2 Cap. 3:02. This
is essential to ensure that there is an official record of the judgment to
support any subsequent application for enforcement of the judgment. The
attorney-at-law for the judgment creditor should ensure that the judgment as
entered by the Registrar is the same as that ordered by the judge.

There are various modes of enforcement: O 36 Cap 3:02–

(1)Writs of execution –
(a) Writ of Fieri Facias (Fi-Fa)
(b)Writ of possession
(c) Writ of delivery –
i. specific, or
ii. with option to pay assessed value
(d)Writ in aid of writs of execution
i. assistance
ii. restitution
iii. venditioni exponas
(e) Writ of sequestration
(2)Garnishee Proceedings

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(3)Charge Orders, Stop Orders, etc.
(4)Appointment of a Receiver by way of Equitable Execution
(5)Judgment Summons
(6)Committal

Writs of Execution
Writs of execution are given a special place in enforcement proceedings.
Writs of execution include writs of fieri facias (Fi-Fa), capias, sequestration,
and attachment (garnishee proceedings) etc. The issuing of a writ of
execution contemplates the issuing of any of the aforementioned writs
against his person or property: O 36 r. 13.

Writs of execution remain in force for a period of 12 months after the date of
issue but should be renewed at about the 10 th month expiration for the same
period from the date of renewal. A renewed writ shall have effect and priority
according to the time it was originally filed: O 36 r. 24.
Ordinarily, leave of court is required for issuance of writs of & in aid of
execution, save the writ of fi-fa. However leave is required, for all writs of
execution in the following circumstances: O 36 r. 28
 where 10 years have elapsed since judgment;
 where there’s a change in parties entitled or liable;
 where judgment entitled one spouse to execute against the
other;
 where execution is in respect of a judgment on future assets
 where execution is against company shareholders

Procedure
The court will not grant leave to issue a writ unless the proper time has
elapsed: O. 36 rr. 16, 22(a). The application for the writ is made ex parte,
and must file with the Registrar a written request in the prescribed form
(Forms 1-5 Appendix M of the Rules), in respect of same supported by
affidavit: O.36 r. 17. The written request must contain:

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 the title and record reference of the action;
 the date of judgment or order; and
 names of parties or firm against whom the writ is to be issued.
Upon examination of the affidavit, the Court must be satisfied that:
 a demand has been made for judgment to be satisfied;
 the applicant is entitled to enforce the judgment; and
 the person against whom the writ is sought is liable for the
judgment.
Where satisfied, the Court will seal the writ with the seal of the Court,
whereupon it is deemed issued: O 36 r. 18.
Oral Examination of Judgment Debtor – Order 36: rules 38-41
Where a judgment /order is for the recovery of money and little or nothing is
known of the assets or means of the judgment debtor, the judgment creditor
may make an ex parte application to have the judgment debtor examined.
This application is supported by affidavit stating reasons for the application
and summons the judgment debtor to appear before the Registrar to be
orally examined as to his means. The judgment debtor may be required to
produce evidence as to his ability to satisfy the judgment: O 36: r. 38.

The order to appear must set out the date, time and place of hearing; notice
must be personally served upon the judgment debtor and must be provided
with conduct money (reasonable transportation and meals). Where the
judgment debtor fails to appear at the hearing, he will be liable to
imprisonment for contempt of court, save in instances where the judgment
creditor fails to tender conduct money.

The examination of a judgment debtor touching the debts due to him is

intended to be a cross-examination of the strictest character, and the debtor
when under such an examination is bound to answer all questions posed to
him relevant to the subject-matter, whether by the Registrar, or judgment
creditor / his attorney. The judgment debtor cannot insist on the examination

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being confined to the simple question "whether any and what debts are due
to him”: Republic of Costa Rica v. Strousberg [1880].

The information from the examination is recorded and the judgment debtor
is required to sign, failing which the person who conducted the examination
signs and certifies the statement as a true record of the examination.
The court makes no order following an oral examination; rather, the
information guides the judgment creditor in determining what method of
enforcement should be used to satisfy judgment debts and costs.

Writ of Fieri Facias (Fi-Fa)

The writ of fi-fa is issued for the enforcement of a money judgment against a
judgment debtor’s goods. It is issued by the Registrar upon the judgment
creditor’s production of:
 a draft writ of fieri facias;
 praecipe with the fee printed thereon; and
 a copy of the judgment

The writ of fi-fa impacts movable and immovable property and gives the
right to sell land. It may be executed in four parts: a) issuance of writ; b)
seizure; c) payment of debts; and, where debts cannot be satisfied from the
seizure, d) sale. (Procedure is set out in O 36 and is the same as applicable
in conveyancing to mortgages, statutory claims and judgment creditors) The
writ is issued in the prescribed Forms 1-5 as indicated previously: O 36 r. 18,
and is indorsed with a statement of the amount owed, interest on the sum
and instructions to the Marshal to levy for the satisfaction of said sums: O 36
r. 20.

Stay of Execution under Writ of Fi-Fa: O 36 rr. 22(b), 31 - The court may
grant a stay of execution in circumstances where it is inexpedient to enforce
the judgment; or the judgment debtor is unable to satisfy judgment. The
application for a stay is made by summons supported by affidavit stating the

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grounds for the stay and the evidence in support of such grounds. A copy of
the application must be served on the judgment creditor at least four days
prior to the hearing. Where a stay is granted, the judgment debtor may be
required to pay the debt in stated instalments.

Execution of Writ - The Marshall is responsible for executing the writ. Upon
the judgment creditor’s direction, the Marshall enters the premises of the
judgment debtor and seizes such movable assets owned by the judgment
debtor sufficient to satisfy the debt/judgment amount plus expenses.
The Marshall’s entry must be lawful. He must not break open outer doors nor
put his foot inside an open door and push his way in against the debtor’s
resistance: Vaughan v McKenzie.

Upon lawful entry, the Marshall may seize any type of goods the property of
the judgment debtor except clothes, bedding, household equipment forming
part of the basic needs of the debtor and his family. The Marshall should not
seize goods belonging to other family members and goods subject to a hire
purchase agreement, or goods of a third party. He may seize books,
equipment and tools of the judgment debtor’s trade but must leave such a
portion of such goods to the value of $100. The Marshall may seize goods to
the value of the judgment plus expenses.

Sale of goods seized: The goods must be sold by public auction: Hutchinson
v. AG [1993]. The purchaser will acquire a good title of the goods: Whittaker
v. Caribbean Sea Island Cotton Co Ltd [1991]. The proceeds of the sale will
be applied to:
 paying execution costs - ;
 paying off the money owed to judgment creditor; and
 any surplus will be given to judgment debtor

The Marshall must be paid for services rendered by way of a poundage fee
which becomes payable once goods are seized even if there is no sale:
Mortimer v Cragg [1878]; Bissicks v. Bath Colliery Co. Ltd [1877]. The

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Marshall is only entitled to poundage where the seizure is effected; such
seizure is lawful and the execution creditor is paid from such seizure (directly
from the funds or indirectly, by compromise) the he Marshall’s entitlement to
poundage as follows:

Claim by Third Party: O 45 r. 16 Cap 3:02- Following seizure and/or on

advertisement of the sale, a third party whose goods were seized, being, in
the possession may give written notice of same to the Marshall within 24
hours before the time advertised for sale: sub-rule (4). The notice should
contain the name and address of the third party and should identify the
goods thereby claimed, setting out grounds: sub-rule (1). The Marshall must
inform the judgment creditor by way of a Form 1 notice (Appendix P of the
High Court Rules) who must indicate (via Form 2 Appendix P notice) whether
the claim is admitted or disputed. The judgment creditor can give notice
immediately but response must be given within four (4) days of receipt of
the Form 1 notice: sub-rule (2).

Where the claim is admitted, the Marshal is instructed to withdraw from

possession and the judgment creditor is liable for fees and expenses incurred
prior to the time of Marshal’s receipt of the Form 2 notice admitting the
claim. The Marshal may here apply for an order protecting himself from any
action in respect of the seizure and possession of the said goods. Notice of
such application should be given to the applicant (third party) who may
attend the subsequent hearing, whereupon the judge may make such order
as is just and reasonable: sub-rules (3), (5).

However where the claim is disputed and the Marshal has doubts as to the
ownership of the goods seized; or receives no response from the judgment
creditor admitting or disputing the claim; and the third party claim is not
removed, he can protect himself by applying for an interpleader
summons: O 45 rr. 1,17.

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Interpleader Proceedings: O 45 Cap 3:02- The application is made by
ordinary summons supported by affidavit stating that the Marshall
 claims no interest in the property except charges and costs;
 that the Marshall is not colluding with either party; and
 is ready and willing to deal with the property as ordered by the
court (not applicable where he has withdrawn possession): r.2.
The summons must be served on all parties who have issued claims to the
property: r. 16 (4). The Marshal may also issue separate summons calling on
all claimants to appear at a time and date specified and state the nature and
particular of their claims and either relinquish or maintain them: r. 5.

Where the third party claimant(s) appear on the date specified, the judge
may order that such claimant be named a defendant in the commenced
action or may dispose of the matter summarily: rr. 7, 8. The judge may
make a declaration barring the claimant and his heirs/assignees from any
action against the Marshall, where the third party claimant fails to appear or
appears and neglects to or refuses to comply with the order of the order of
the court: r. 10.

Where the claim is withdrawn, or the judgment creditor serves an admission

of the claimant’s title on the Marshall and the claimant, in writing prior to the
date of hearing on the summons but after the expiration of the for day
period, the court may make such orders as to costs, fees, charges and
expenses at the hearing as it sees just and reasonable: r. 17(2).

Insufficiency of Assets to satisfy Claim: Where the assets seized are

insufficient to satisfy the value of the judgment or the goods are not sold for
want of buyers, the judgment creditor may apply to court for alternative
relief either by way of (a) a writ venditioni exponas (that you expose sale) or
(b) garnishee proceedings.

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a) Venditioni Exponas (That you expose for sale) – This writ operates as
an aid to the execution of a writ of Fi-Fa. The Marshall is not permitted
to undersell goods seized as such where the offers made to Marshall is
so small that it is considered an undervalue, the sale is prevented for
want of buyers. The Marshall must make a return to the Registrar
explaining the reason for not having the seized goods sold. Notice of
the want of buyers is also given to the judgment creditor, who can
thereafter make an ex parte application to the court for a writ
venditioni exponas. This application must be supported by affidavit
exhibiting the return. The Court’s grant of the writ of venditioni
exponas empowers the Marshall to sell the item at the best offered
price.
b) Garnishee Proceedings (called Attachment of Debts) – this proceeding
is not in aid of the writ of fi-fa but rather a separate method of
enforcement of judgment. It can therefore be accessed by a judgment
creditor irrespective of whether he pursued a writ of fi-fa or not. This
method of enforcement involves three parties- the judgment creditor;
the judgment debtor; and a third party (called the ‘garnishee’).

The Garnishee Order is applicable in situations where the judgment

debtor is owed money by the garnishee: O 36 r. 8(b). The debt must be
unconditional, legal or equitable and owed or accruing to the judgment
debtor though it need not be immediately payable: Webb v Stenton
[1883]. The effect of the Order is to transform the debt payable by a
third party (the garnishee) to the judgment debtor into an obligation to
pay the debt to the judgment creditor. The order can be made before
or after any oral examination.
For the purposes of garnishee proceedings, deposits held by a bank for
a customer are owed by them to the customer and therefore a bank
account can be made subject to garnishee proceedings: Joachimson v
Swiss Bank Corpration [1921]. However, salaries are not attachable

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except where future earnings are assigned or charged or a sum is
made payable out of them: Holmes v Millage [1893] 1 QB 551; Hall v
Pritchet [1878] 3 QBD 215. It should be noted however that salaries,
wages and debts are attachable to satisfy any order of maintenance: s.
10 (2) of the Maintenance Act, Cap 45:03.

Prerequisites for obtaining a Garnishee Order – Before a judgment

creditor can successfully apply for a Garnishee order the following
conditions must exist:
 the relationship of debtor and creditor must exist;
 the debt must be one that is enforceable by the judgment
debtor;
 the debt must be attachable, i.e. due or accruing, either legal
or equitable;
 the debt must exist as a debt due in law at the time when the
garnishee(s) order seeking to attach the debt is applied but not
necessarily immediately payable: Webb v Stenton; Dawson v
Preston [1955] 3 All ER 314. It can be payable in the future but
must not be a debt coming into existence in the future: O’
Driscoll v Manchester Insurance Committee [1915] 3 KB 499;
 the debt must be owed to the judgment debtor alone and not
jointly with anyone else: Macdonald v Tacquah Gold Mines Co .
[1884] 13 Q.B.D. 535; and
 the debt must be owed within the jurisdiction.

Procedure under Garnishee Proceedings- Garnishee proceeding is a

two stage process
Stage 1- the Application for a provisional order
The judgment creditor must make an ex parte application by
affidavit for a garnishee order nisi. The application must be

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accompanied by a draft order: O 36 r. 74. The affidavit sworn to
by the judgment creditor will state inter alia:
- the details of the judgment, including the fact that it
remains unsatisfied and the amount which is unsatisfied;
- the name and addresses of the garnishees within the
jurisdiction; and
- the judgment creditor’s belief that the garnishees are
indebted to the judgment debtor in a specified amount.
At the ex parte hearing the court may issue an order nisi,
requiring that all debts owing or accruing from the garnishees to
the judgment debtor be attached to the judgment, interest and
costs together with the costs of the application itself, is to be
served upon the garnishee(s). The order nisi is served upon the
garnishee(s) and the judgment debtor at their address for
service or usual place of residence or business, at least seven
days prior to the date set for hearing. Such service binds the
debt in the hands of the garnishee, barring him from paying the
money owed to the judgment debtor up to the amount stated in
the order nisi until the order is either discharged or made
absolute: O. 36 rr. 74, 75; Choice Investments Ltd v Jeromnimon
Midland Bank Ltd. [1981] 1 QB 155.
The court may also issue a summon upon the garnishee
ordering that he appear before the court to show just cause why
he should not pay the judgment creditor the amount due to him:
O 36 r. 74.

Stage 2- The Inter-partes hearing

At the inter partes hearing, the judge after considering the
evidence may grant an order nisi absolute ordering execution
to issue and levy the amount due from the garnishee. Such
order may be made where the garnishee does not dispute the

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debt, or fails to appear upon the summons to show cause O. 36
r. 76.

If the garnishee disputes his liability at the hearing, the judge

may determine the matter summarily, or he may give directions
for it to be tried: O. 36 r. 78. Further where the garnishee
claims that the debt sought to be attached belongs to another
(not being the judgment debtor) or that some person has a
lien /charge upon it, the Court may order such third person to
appear and state the nature & particulars of his claim.
After hearing the allegations of any third person or where such
person fails to appear the court may proceed to order execution
to levy the amount due upon the garnishee together with the
costs of the proceedings, as he thinks fit, having regard to the
lien/charge or may set aside the garnishee order: O 36 rr. 78 –
80; Moore v Peachey [1891] 2 QB 707.

Where the debt ordered to be attached is secured by a

mortgage or pledge given by the garnishee and vested in the
judgment creditor, the judge may order execution on the
property therein mortgaged or pledged, even if there were no
previous proceeding to enforce the mortgage or pledge: O 36 r.
77. All payment made under an execution order operate as a
valid discharge of the garnishee’s liability to the judgment
creditor: O. 36 r. 81. The judgment creditor can bring
enforcement proceedings against a garnishee who fails,
neglects or refuses to make the payment as required by the
absolute order as if the garnishee is a judgment debtor. The
judgment creditor retains the costs of the proceedings out of the
money recovered under the order and in priority to the
judgment unless ordered otherwise: O. 74 r. 83.

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The Registrar, after the issuance of the execution order, enters
the details of the garnishee proceedings in a Debt Attachment
Book: O. 74 r. 82.

Multiple Creditors and Writs: In the case where there are multiple writs
delivered against a judgment debtor, each shall be treated in order of
priority by the dates on which they were delivered to the Marshall. If the
Marshall neglects to follow this order and sells under a writ which did not
take priority, the sale is valid and the proceeds must go to the judgment
creditor named on the writ. The Marshall however, will be liable in damages
to the judgment creditor(s) whose writs were unjustly delayed if the
proceeds of the sale were not sufficient to satisfy those judgments. The first
writ ranks in priority even where there is a stay of execution on that writ as a
stay in relation to one judgment does not allow a subsequent judgment
creditor to execute his judgment: Whittaker v. Caribbean Sea Island Cotton
Co. Ltd [1991].

Writ of Possession: O 36 rr. 91 - 93

The Writ of Possession is used to enforce a judgment or order which gives
possession of land to a party. It is not applicable to enforce a mortgage nor
in proceedings for summary possession. To be effective, the writ must be
served on the defaulting tenant, by the Marshall.

The landlord or person seeking a writ of possession must first obtain leave of
the court on an ex parte application supported by affidavit showing that a
copy pf the judgment/order was served on the tenant/defendant/ person to
deliver up possession and that such person has failed to comply: O 36 r. 91.
Leave will only be granted where it is shown that all persons in actual
possession of the property to be delivered received sufficient notice of the
proceedings to enable them to apply to the court for relief: O 36 r. 91 (2).

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Upon being so satisfied as to the sufficiency of the notice, the court may
issue separate writs of execution in respect of the recovery of the
land/property and the recovery of costs or may issue on writ in respect of
both. Such writ is a direction to the Marshall to remove the occupier(s) and
place the party who obtained the judgment/order in possession: O 36 rr. 92,
93.

If the tenant refuses to vacate the premises after being served with the writ
of possession, the landlord can seek a writ of restitution which empowers the
Marshall to physically remove the unruly tenant. Further, where the ejected
tenant recovers possession by force or fraud after execution of writ of
possession, s/he is in contempt: Alliance Building Society v. Austen [1951].

Writ of Restitution– As stated above, this is a writ in aid of a writ of

possession, the issuance of which requires proof that all occupants were
served with the notice of writ of possession. The writ of restitution is the
preferred method of enforcement (as opposed to an order for contempt of
court) where there is non-compliance with the writ of possession: Alliance
Building Society v. Austen.
The application is made ex-parte supported by affidavit as to the facts and
production of the judgment.
The writ of restitution is a command to the Marshall to enter the land and to
cause the applicant to have restitution of it and is available
(a) to a person who has been deprived of lands by a previous execution
against him, or execution was wrongful or irregular, or took too much
land; or
(b) where, after the marshal/bailiff has taken possession of land and
given it to the plaintiff, the defendant has resumed possession by force
or craft: Harris v Bhagmania (1951-2).
(c) where judgment for possession of land is reversed or set aside on
appeal after possession had been obtained thereunder.

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Other Methods of Enforcement
a) Writ of Delivery: O 36 rr. 94, 95 – may be for specific delivery, i.e. to get
the item returned; or to recover the goods or assessed value thereof and
relates to property other than immovables and money.
If the court makes an order for the delivery of goods or payment of their
assessed value, the judgment creditor may apply to the court for permission
to issue an order for delivery of specified goods without the alternative of
payment of the assessed value.

The court is unlikely to issue a writ of delivery where the value of the goods
which is the subject of the writ was not previously assessed. The praecipe
must be duly completed before the issue of the writ. In some instances, the
writ of delivery may be combined with the writ of Fi-Fa.
Following the issuance of a writ of delivery, the plaintiff may levy for
damages, costs and interests by the same or separate writ: O 36 r. 95.

b) Writ of Sequestration: O. 36 rr. 98-101 - is used as a method of

enforcement where an order has been disobeyed. It is a writ whereby the
court seizes the property of the defendant and keeps it until the order is
obeyed. It is a punishment for contempt: O 36 r. 98, and is akin to committal
proceedings: Hulbert v. Cathcart [1894].
The following restrictions and conditions govern the writ of sequestration:
a) leave of the court is a necessary pre-requisite: O 36 r. 101;
b) the judgment to be enforced must have a time limit within which
the order must be complied with;
c) the time for compliance must have expired;
d) the judgment served on the defendant must have endorsed on it
a “penal notice”.
e) the property seized cannot be sold without leave of the court;
f) it binds both real and personal property in possession at the time
of its issue, including monies in a bank account: Re Pollard [1903].

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The writ once issued will be delivered to the Marshall who, by its virtue, will
enter unto the immovable property of the person against whom the writ is
issued and shall seize/ sequester all rents, profits and immovables belonging
to the person and keep same until judgment is complied with: O 36 r. 99.

c) Charging Orders: O 38 rr. 84- - The court has the power on an application
of the judgment creditor to charge the interest of the judgment debtor in
stocks and shares of a public company; or any money lying in the hands of
the Registrar or in the bank. The order operates to restrain the Secretary to
the Treasury/ Accountant General/ Registrar/ public company/ bank from
permitting any transfer of stocks, funds, money or other assets in the
judgment debtor’s name.
The application is made ex-parte supported by affidavit in which the
deponent identifies, inter alia, the judgment to be enforced, the stocks or
shares to be charged, the company and the person keeping the register of
the company.

Following the application, a provisional order is made, stipulating a date and

time and place is given when the provisional order is to be made final and is
to be served on the judgment debtor and other interested parties and the
company. Once served, the company cannot deal with the shares but place
them on hold. The judgment debtor or any interested party may object to the
charging order by way of ex parte application supported by affidavit and
stating reasons/ grounds.

d) Appointment of Receiver: O 38 rr 10-15- The judgment creditor may

consider the appointment of a Receiver in order to obtain payment of the
judgment debt and costs. The court will appoint such a person where it is
necessary for the preservation or better management of the property in
dispute. The judgment creditor may also apply for an injunction to restrain
the judgment debtor from assigning, charging or otherwise dealing with any
property referred to in the application.

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The Receiver may be required by the court to provide security for his
receivership.
The application for the appointment of a Receiver is made ex parte and must
be supported by affidavit evidence. If an immediate injunction is sought with
the appointment of the Receiver then the application is made without notice.
In deciding whether to appoint a Receiver the court must have regard to the
following:
i. amount likely to be obtained by the Receiver;
ii. amount of the judgment debt; and
iii. probable cost of appointing and remunerating the Receiver.
The Receiver must file accounts on the dates specified by the court and,
unless the court orders otherwise, the accounts must be verified by affidavit
and supported by vouchers.

e) Judgment Summons: s. 4 Debtors Act, Cap 6:04 -This is a last resort for
the enforcement of a judgment. The application to commit a judgment
debtor for failure to honour a debt is made by judgment summons and must
state:
1. Any payment that has been made by the judgment debtor;
2. The date and details of the judgment or order requiring payment of the
debt; and
3. The amount of interest claimed to the date of the application and the
daily rate thereafter
An order is usually made for a small portion of the judgment debtor’s
income. The court order must:
i. fix a date for hearing of the judgment summons;
ii. seal the judgment summons; and
iii. return the judgment summons to the judgment creditor for service.
The judgment creditor must file an affidavit of service before the hearing of
the summons.

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Examination of a judgment debtor, upon oath is conducted to determine
whether he has the means to pay the judgment creditor’s costs.

Once the court is satisfied on the evidence that the judgment debtor has the
means to pay, an order will be made for payment to be made by
instalments. Such order can be varied or rescinded by the court. An
application may be made to the court to guard the order. If the judgment
debtor defaults, he can be imprisoned but this will not extinguish the debt.

COSTS: Order 49
Costs represent the money one party is ordered to pay to another as
compensation for expenses incurred in litigation. Generally, costs follow the
event and will be awarded to the successful party, subject to the court’s
discretion as cost is neither an entitlement nor a right: r. 1; Kierson v
Thompson [1913] 1 KB 587. The Court’s discretion is not fettered but must
be judiciously employed: Sharpe v. Wakefield [1891]. Costs are directed on
the decision of the court; or the provisions of the rules of court; or by
agreement of the parties: Nurse v Campbell.
Where parties are unable to agree on costs, either party may request that
the matter be decided by the Tax Master (Registrar). The court also has the
power to order that costs be taxed where parties do not agree.

Costs are taxed on the following bases:

i. Party and Party – this is the usual basis for taxation unless
otherwise directed by the court. It is the meanest of all bases and a
party will be fortunate to recover more than half of the costs
incurred in the proceedings. It includes only such costs as were
necessary or proper for the attainment of justice or for enforcing or
defending the rights of the party whose costs are being taxed: O 49
r. 50;
ii. Common Fund – where costs are to be paid from an estate or sum
in which the party concerned has an interest in common with other

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parties, the court may direct that costs be taxed on a common fund
basis: O 49 r. 73. This is more generous than the party to party
basis and the beneficiary recovers a reasonable amount in respect
of all costs incurred;
iii. Attorney and Attorney/Attorney and Own Client – This relates to the
taxation of an attorney’s bill to his own clients. It covers all costs
incurred with the express or implied approval of the client once it is
a reasonable amount. Certain heavy expenses such as fees to
expensive or fashionable attorneys or to professional witnesses are
‘unusual expenses’ and unless agreed to by the client in writing, the
costs will not be allowed. The client must also be informed prior to
these costs being incurred, that they will not be allowed on a party
to party basis and may have to be borne by the client whatever the
result of the trial. An attorney has no control over costs and,
therefore, cannot indemnify a client;
iv. Trustee – Taxation is commonly ordered in favour of fiduciaries who
acted to protect the interests of the property under their control. It
is a fairly generous basis which gives complete reimbursement of
the costs liable to be paid to the attorney. No costs should be
disallowed, except for such costs as were wholly unnecessary and
not incurred in accordance with the fiduciary’s duties.

Review of Taxation – O 49 rr. 76-80

A party dissatisfied with the allowance or disallowance by the Registrar may
apply for a review of the taxation applied to the bill of costs. The application
must be made within four (4) days and to a judge in chambers.
The judge may appoint no less than two (2) assessors, including the
Registrar for the review. There is no appeal from this decision.
A review may not be permitted after the Registrar issues a certificate of
allocator.

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Determination of Cost: Costs are determined (payable) only after the issue of
liability and damages have been ascertained. However orders as to cost may
be made in respect of interlocutory proceedings.
Orders as to Costs in Interlocutory Proceedings
a) Cost in the Cause – whoever wins trial gets the costs of the
preliminary/interlocutory matters even if the overall winner lost the
preliminary/interlocutory matters;

b) Cost in any event - the party in whose favour the preliminary/interlocutory

matter is determined is awarded his costs regardless of the outcome of the
substantive matter;
Plaintiff/Defendant cost in the cause – if the party wins at trial, the party gets
the cost of the preliminary/interlocutory application. If the party loses at trial,
the party does not have to pay his opponent costs for the
preliminary/interlocutory application;

c) Costs Reserved – costs not determined at preliminary/interlocutory

hearing but left to the discretion of the trial judge;

d) Costs of the day – where a party is prepared to proceed with trial on the
day assigned, and opposing counsel seeks an adjournment, the prepared
party may make an application for costs incurred for the day’s preparation;

e) Costs thrown away – this is caused where there is a defaulting party

against whom a judgment in default has been entered. The party seeking to
set aside judgment may be made to pay all the costs of the other party,
including the costs of the application.

f) Wasted Costs - the court may make an order for wasted costs ordering an
attorney to pay any costs incurred by his client or by another party as a
result of any improper, unreasonable or negligent act or omission on the part
of the attorney. Wasted costs are not restricted to conduct at trial, but

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extend to advising, drafting and settling documents in relation to the
proceedings.
A wasted costs order may be made upon the application of a party or by the
court on its own initiative. Where an application is made, notice must be
forwarded to the attorney, supported by affidavit setting out the grounds for
the application. The notice must also state the date, time and place where
the attorney must attend to show cause why wasted costs order should not
be made against him.

g) Dismissal with cost: if the application has no merit the court may make
this order whoever made the application must pay the costs to the other
party.

h) No order as to cost: where the justice of the case demands, the court may
grant an application but make no order as to costs, meaning that each party
must bear his own cost for the interlocutory application.
Such an order may be made, for example, where the court is critical of the
behaviour of both parties, for instance, where due to a failure to co-operate
to agree directions, an unnecessary attendance is required at court.

Costs in respect of Multiple Defendants - For example, C is a passenger in a

vehicle driven by D1 which collides with another vehicle driven by D2. C, the
injured passenger might be unsure as to which of two potential defendants is
responsible for a tort, and therefore decides to sue both D1 and D2. At the
end of the trial D1 is found to have been wholly negligent but D2 is
successful in defending his claim. From whom must C recover his costs?
Sanderson Order
An attorney has a discretion to request a Sanderson Order. For this order to
be granted there must be more than one defendant in the matter. In
Sanderson v. Blyth Theatre Co [1903], it was determined that the court has
jurisdiction in a proper case to order the unsuccessful defendant to pay the
costs of the successful defendant.

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For example, if P sues D1 and D2 for an action in negligence and at the trial,
D1 is found to be the negligent party while D2 is exonerated, the court is
empowered to order D1 to pay the costs D2 incurred for the proceedings.

Bullock Order
Alternatively, the court may order the plaintiff to pay the costs of the
successful defendant and then to add those costs to the costs which the
unsuccessful defendant is ordered to pay to the plaintiff. This has come to be
known as the Bullock Order: Bullock v. London General Omnibus [1907];
Morgan v Belmont Taxi Car Ltd (1967) 10 WIR 519. The Bullock order is most
appropriate where the plaintiff is doubtful as to which defendant is
responsible for the negligent at which caused his injuries: Mitchell v. Mason
[1962].
For example, if P sues D1 and D2 for an action in negligence and at the trial,
D1 is found to be the negligent party while D2 is exonerated, the plaintiff
may be ordered to pay D2’s costs. This will be added to the total amount
which D1 will be require to pay to the plaintiff.

It would seem then that the Sanderson order is horizontally applied, while
the Bullock principle has a vertical application.

APPEALS

THE CARIBBEAN COURT OF JUSTICE (CCJ): Cap 3:09, Treaty of

Chaguaramas
The agreement establishing the Caribbean Court of Justice was entered into
by all member states of CARICOM.

The Caribbean Court of Justice has two jurisdictions:

1. an original jurisdiction which interprets and applies the Revised Treaty
of Chaguaramas;

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2. an appellate jurisdiction which is intended to replace the Privy Council
as the Region’s Apex court preparing final domestic appeals.

Some countries have entered reservations to making the CCJ their final
domestic court of appeal – Suriname, Antigua, St, Vincent; Grenada, meaning
they have not signed on to the appellate jurisdiction. Antigua and Grenada
need referenda in order to accede to the appellate jurisdiction. Other
countries which have not signed on to the appellate jurisdiction are currently
in breach of treaty obligations.

Original jurisdiction
This is compulsory and exclusive: Article 211 RTC. CARICOM members of
state have no choice but to bring matters of interpretation and application of
the RTC and resolve disputes arising under the treaty to the CCJ.

No state can question or decline the jurisdiction of the court to determine

actions properly brought before it. Each state is obliged to defend any suit
properly brought against it or failing to do so, must suffer the consequences
of judgment entered against it.

There is no other court that is authorized to interpret the RTC and therefore
none which can contradict CCJ’s decision.

Where a matter before a domestic court requires some interpretation of the

RTC, the domestic court is obliged to refer to the CCJ the issue of how that
part of the RTC is to be interpreted before it proceeds with the matter:
Article XIV Agreement establishing the Caribbean Court of Justice (CCJ
Agreement).

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The court polices the CSME. It provides a mechanism for ensuring that treaty
obligations are obeyed. A citizen, a state or a company can lodge a
complaint with the court which will return a judgment after addressing the
complaint made.

The establishment of CCJ has subjected the integration arrangements among

states to the rule of the law. The CCJ agreement clearly states that the
judgments of the court are to be obeyed promptly and fully: Article 215 RTC,
and a state will be in breach of its treaty obligations if it fails to obey, honour
and respect the court’s judgments: Article XV& XXVI (a) CCJ Agreement. The
judgments of the courts constitute binding precedents: Article XXII, CCJ
Agreement & Article221 RTC

This has created a regime where the rule of law is established so far as
integration and trade are concerned and there is a level of transparency in
the decision making of member states and the way in which those decisions
are enforced.

Sources of law in the Original Jurisdiction

1. Rules of international law and not on the common law- appropriate
precedents would therefore, include judgments from international
bodies such as, the International Court of Justice and the WTO
Appellate Body. The applicable system of law is not always identical
to common law.
2. The RTC provisions are a principal source of law to be applied by the
CCJ.
3. The agreement establishing the court is also critical to the
interpretation of the role of the court.
4. Rules of Procedure

Powers of the Court

The CCJ has the power to:

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1. formulate its own rules of procedure – these provide a source of the
jurisdiction of the court. These rules, however, cannot supersede
treaty provisions;
2. determine a matter ex aequo et bono, on the principles of
reasonableness and equity, where it is unable to find grounding in
any available source of law; and if the parties agree: Article XVII (3),
CCJ Agreement.

The court is however not entitled to bring a finding of non-liquet. A non-liquet

is the term for the inability of a court or tribunal to give a ruling because of a
lack of guidance from the available sources of law. The CCJ agreement and
the RTC dictate that the CCJ must not take this position: Article XVII (2), CCJ
Agreement.

Commencement of Proceedings
1. Filing of Action- a contracted party of CARICOM may commence an
action without more. An individual, however, needs special leave to file
an action pursuant to Rule 10.4 (1) Original Jurisdiction Rules (OJR).
Article 222 allows private entities to file actions in the original
jurisdiction of the court: r.24. In order for special leave to be granted
the individual must show that: r. 10.4

i. Caricom nationality- he is a national i.e., a citizen of a

CARICOM, a company registered in a CARICOM state. National is
given a broad interpretation and the court interprets national to
mean a person, registered company, or company doing business in
a Caricom state.

ii. right of benefit conferred by Treaty - to the state which shall

enure to the benefit of the individual directly: Shanique Myrie, for
example, espoused that the provision of the treaty that speaks to
the freedom of movement of people is to be interpreted as a right

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or benefit which accrued to her directly and which she can,
therefore, take advantage of. On this basis special leave was
granted for her to commence an action

iii. prejudice of right or benefit by some act on the part of the

State against which the action is being taken;

iv. Attorney General informed of the claim and violations

therein- he has written to his state’s Attorney General setting out
the claim of the violation of his right and requesting that an action
be filed against the state violating his right. The Attorney General
may omit or decline to bring the claim or expressly agree that the
private individual can espouse the claim himself: Shanique Myrie v.
The State of Barbados;

v. interest of justice- ultimately, the court must find that the

interest of justice requires that the person be allowed to espoused
the claim: Article 222 (d) RTC.
The Treaty is silent as to the standard of proof that an applicant must
attain at this stage of the proceedings where the applicant merely
seeks special leave to appear as a party in order to commence a claim.
The Court holds that, at this stage, it is sufficient for the applicant
merely to make out an arguable case that each of these two conditions
can or will be satisfied since they are substantive requirements an
applicant must in any event fully satisfy
in order ultimately to obtain relief. To require the applicant to meet a
threshold of proof greater than “an arguable case” could prolong the
special leave procedure unnecessarily and prejudice the submissions
that must be made at the substantive stage of the proceedings if the
application was successful and an Originating Application is ultimately
filed.

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2. Service of Special leave application- the Registrar will serve the
application for special leave on the contracting party and defendant in
case they want to be heard on the special leave application. If they do,
the must indicate same to the registrar. A contracting party or
proposed defendant who, having been served under sub-rule 30 fails to
file a request to be heard within the time stipulated in sub-rule (4),
shall not, unless the court otherwise ordered, be heard on the
application for special leave.

3. Holding of CMC- The court will have a CMC, within 49 days of the
application being filed, where it will determine whether the individual
state agreed that a claim can be filed. The court will fix a timetable for
the receipt of submissions and the date of hearing for the
determination of the application for special leave.
4. Hearing of Special Leave Application- At this hearing, the applicant
must show that he has a good arguable case that a right or benefit
exists and that same is being prejudiced. The defendant may oppose
the application for special leave or may not oppose the application and
reserve its position for the substantive hearing: Johnson v CARICAD. In
this case CARICAD opposed the application for special leave on the
ground that it was not the proper defendant. The court held that the
treaty allows for claims to be brought against Member States, the
Community and by extension, agents or organs of the community.
CARICAD being an institution of the Community, over which the
Community exercised no control, did not qualify as a defendant against
whom a claim could be sustained;

5. Granting of Leave & Filing of Action - If leave is granted, the applicant

must file an originating application setting out the relief sought within
7 days. Evidential documents upon which the claim relies must be
annexed.
Contents of originating application r. 10.2 OJR

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a) Particulars of parties to the dispute;
b) Address for service in accordance with rule 9.5;
c) Grounds for claiming Court’s jurisdiction;
d) Precise nature of the claim - together with a full statement of the
facts and contentions on which it is based;
e) Specify the remedy which the claimant is seeking;
f) List and annex copies of all documents which support the
claimant’s claim, and
g) Date and signature of the party’s attorney-at-law or agent
Right to make an application which includes two or more claims
An originating application may include two or more claims provided
they can conveniently be disposed of in the same proceedings: r. 10.5.
Once special leave is granted all the Contracting parties and the
Community must be notified by the registrar. The reason for this is so
as to allow these parties to be made aware that an originating
application has been filed. The case that has been file can create an
authoritative judgment that sets out a particular interpretation of the
treaty and it binds all the states of CARICOM. It creates binding
precedent and the states must know what cases are before the Court
and they maybe allowed them to intervene.
The Defendant must set out a defence to the claim and annex all
documents it intends to rely and the remedy they seek pursuant to
part 16.

6. Notice to Community of action: r. 10.3 – within 14 days of the

application being filed, the Registrar will notify the Community and all
Member of States of the application. This is important since every state
has an interest in how the treaty is being interpreted since the court’s
decisions are binding upon all states. In TCL v Guyana, notice was
given to all member states at the special leave stage. The CCJ invited
states to make submissions in the Court’s interpretation of Article 222
to determine whether a person can bring an action against his own
state;

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7. Opportunity to Intervene- upon receipt of notice of the application,
states may intervene in the matter within 7 days of the Notice: r.
10.3(3); Shanique Myrie v. The State of Barbados.

8. Publishing / Advertising of particulars- The Registrar will publicise

particulars of the application on the Court’s official website. Must
contain
 the date of filing of any originating application;
 the identities of parties;
 the subject matter of the proceedings, and
 the remedy sought.
9. Service of originating Application- the Registrar will serve the
originating application on the defendant who has 42 days after the
date of service within which to file a defence.

Enforcement of Judgments
Pursuant to Article 215 RTC, member states, bodies, entities or organs of the
Community and persons to whom a judgment applies must promptly comply
with the judgment.

Treaty provisions are deficient when it comes to enforcement in the original

jurisdiction. This is not the case in the appellate jurisdiction since judgments
are enforced in the same manner as a judgment in a domestic court. As
such, upon giving judgment in the original jurisdiction the court relies on the
integrity of the state and its commitment to the rule of law to obey the
court’s decision. In TCL v. CARICOM, judgment was promptly obeyed and
Council for Trade and Economic Development (COTED) went out of its way to
bring its processes into confirmation with the views of the court.

An incentive to obey is that there is reciprocity involved, in relation to trade

and tourism: TCL v. The State of the Co-operative Republic of Guyana.

Judicial Review

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It was held in TCL v. CARICOM that the court exercises the power of judicial
review over the organs of CARICOM and member states so far as they relate
to processes emanating from the treaty. The CARICOM Secretary General
and COTED (Council of Trade & Economic Development) must take certain
steps when a state seeks to obtain a waiver of tariffs set by the Heads of
Governments.

Damages
Can a state or private entity get damages?
Yes. But, the threshold for the determination of damages is higher. The
applicant must show:
i. seriousness of Treaty right: Shanique Myrie v. The State of Barbados;
ii. damages are quantifiable: In TCL v. The State of the Co-operative of
Guyana, the applicant claimed millions in damages for the loss of
cement. However, it was proved to the court that although the cement
was not sold in Guyana, it was sold elsewhere and as such, TCL had
suffered no real loss and no damages were warranted.

In some cases the pronouncement of a declaration may be enough to

vindicate the inherent value of the Treaty rights contravened: In TCL v.
Guyana, for example, the Court issued a declaration that Guyana was in
breach of the provisions of Article 82 of the RTC by failing to implement and
maintain the Common External Tariff (CET).

Appellate Jurisdiction of the Court

There is in the appellate jurisdiction that requires that judgement of the
court to be treated as judgments of the local courts for enforcement
procedures. Eg a writ of fi fa can be taken out on a judgement of the CCJ.
Appellate Jurisdiction (power of a court to review decisions and change
outcomes of decisions of lower courts:
i. Court of final appellate resort
ii. Advances Caribbean Jurisprudence

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iii. Promotes Democracy/Rule of Law
iv. Promotes regional court performance standards
v. Fosters harmonised approach to judicial training and judicial reform
vi. Point of interface with Caribbean Heads of Government

Basis of a Right of Appeal

Appeals to the CCJ may be brought:
a) As of Right;
b) With leave of the Court below;
c) With the Special leave of the CCJ;

a) Appeals As Of Right - Final decisions

 In civil proceedings where value in dispute exceeds EC$25,000;
 In proceedings for Nullity of Marriage;
 Constitutional interpretation;
 Fundamental Rights provisions;
 Such other cases as prescribed by local law.

b) Appeals with Leave of Court Below - The Court of Appeal may give
leave where in its opinion the question involved in the appeal is one
that by reason of its great general or public importance or otherwise,
ought to be submitted to the CCJ and in such other cases as prescribed
by local law

c) Appeals with Special Leave Of CCJ- The CCJ may give Special Leave
to appeal in any civil or criminal matter. Leave is discretionary and
requires that an arguable case is shown.
Note: Every criminal appeal that does not qualify for being treated as
an appeal as of right will require special leave.

Commencing Appeals

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If an appeal is as of right, the Appellant applies to Court of Appeal (CA) and
must -
a) identify the basis of the right, and
b) state facts to support same
Note: CA has no discretion to withhold leave on ground of lack of merit
but may impose conditions as to security for costs.
If appeal requires discretionary leave of CA, Applicant must state –
a) the point of law CCJ must determine, and
b) facts that will assist C/A to so determine
Even though there isn’t a corresponding provision in the original jurisdiction,
judgments have been obeyed in the original jurisdiction. The Court has
ensured that there is a certain measure of transparency and rule of law in
the application of the RTC.

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