JERSEY Law and Practice Contributed by: Marcus Pallot, Eleanor Davies and Christopher Tan, Carey Olsen
Once convened, the third party may itself apply (as if it were a defendant) for an order conven- ing a further party not currently before the court (known as the fourth party) on the same basis as a defendant, as may that fourth party against a fifth party, and so on. 4.5 Applications for Security for Defendant’s Costs A defendant may apply for an order that the plaintiff must pay a sum of money as security for the defendant’s costs incurred in defending the action (a security for costs application). The court has complete discretion as to whether to grant an order for security for costs. How- ever, it will generally be more inclined to order the plaintiff to provide such security: • where the plaintiff is resident overseas and it is shown that it would be difficult to enforce a Jersey costs order against it by reason of its overseas residence; • where the plaintiff is a corporate plaintiff; or • where, in all the circumstances, it is con- sidered by the court to be in the interests of justice. In deciding whether to order a plaintiff to provide security, and the amount of security the plaintiff must provide, the court must balance the risks of: (i) stifling the plaintiff’s access to justice by ordering them to provide security beyond their means; against (ii) the injustice to the defendant should they defeat the plaintiff’s claim but have no recourse against them for the costs they have incurred. This balancing exercise is normally car- ried out by reference to: • the prospects of success of the plaintiff’s claim;
• the amount of security required by the defendant (noting that the court has discre- tion to order security of any amount, and need not order substantial security; further, it is to be noted that an appropriate “after the event” insurance policy may be treated as equivalent to security for costs); • the stage of the action at which the security is sought, and whether the defendant has been guilty of any unacceptable delay in making their application; and • the balance of risks to the plaintiff and defendant respectively. The burden lies with the plaintiff with regard to satisfying the court that an order for security would unfairly stifle its claim, and that its claim is genuine. The court must then be satisfied that, in all the circumstances, the claim would prob- ably (and not just possibly) be stifled. 4.6 Costs of Interim Applications/ Motions Please see 4.1 Interim Applications/Motions in respect of the rules concerning interlocutory applications. The court has complete discretion as to the award of costs in litigation generally, including in relation to the costs of interlocutory applica- tions and the time of their payment. 4.7 Application/Motion Timeframe A party making an application to the court dur- ing the course of proceedings must do so by way of an interlocutory summons. The appli- cant must prepare its summons and arrange a listing appointment in respect of the summons before the judicial secretary of the Greffier or the Master (one of the full-time judges of the Royal Court who tends to sit as judge on interlocutory and case management hearings) or Bailiff (if the
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