Darlington v Mitchell Construction Company Ltd [1966] ZMHC 2 (24 January 1966)

DARLINGTON v MITCHELL CONSTRUCTION COMPANY LIMITED (1966) ZR 10 (HC) HIGH COURT EVANS AGJ 24th JANUARY 1966 Flynote and Headnote [1] Civil procedure - Appeal - Duty of judge on appeal from registrar. A judge who hears an appeal from a registrar must exercise his judgment and discretion anew. [2] Civil procedure - Security for costs - Where defendant admits liability but makes a counterclaim. A plaintiff who is out of the jurisdiction can be ordered to give security for costs where a defendant admits liability if the defendant counterclaims for a larger sum than that for which he admits liability. Cases cited: (1) Evans v Bartlam [1937] AC 473; [1937] 2 All ER 646. Desai, for the plaintiff Kemp, for the defendant Judgment Evans AGJ: The plaintiff in this action lives in South Africa. On the 27th October, 1964, the then Deputy Registrar ordered the plaintiff to furnish £250 security for the defendant's costs, and that sum of money was paid into Court on the 27th January, 1965. In October, 1965, the defendant applied by summons for further security in the sum of £750, and, on the 21st December, 1965, the Deputy Registrar dismissed the application. The defendant now appeals against that dismissal. In his decision, the learned Deputy Registrar took the view that there had been no material change in the proceedings and no new information concerning the conduct of this action since October, 1964, when the original order was made, and he therefore declined to order further security. [1] Upon the authorities, in particular Evans v Bartlam[1], I am satisfied that, on an appeal to a judge from a registrar, the former must exercise his judgment and discretion anew and independently as though the matter came before him for the first time, though he must give the weight it deserves to the Registrar's decision. Having read all the pleadings and documents filed in this action and having heard counsel for both parties, I am satisfied that not only was the original order for £250 security for costs very much too low, but that, since the date of that order, the action has become more complex in its issues, requiring the attendance of more witnesses (four of whom, I am assured, the defendant is calling from the 1966 ZR p11 EVANS AGJ United Kingdom) and very lengthy discovery proceedings. Further, it is agreed that the defendant's costs will be in the region of £2,000 to £3,000. [2] Mr Desai has drawn my attention to the note on page 502 of The Annual Practice, 1966, to the effect that, where a defendant admits liability (as it has here to the extent of £1,035 odd), a plaintiff will not be ordered to give security even where he counterclaims. However, this defendant pleads a set - off and counterclaim in a larger sum, and Mr Desai has been unable to quote any authority for the proposition that, in these circumstances, security or further security should not be ordered. In all the circumstances and in the exercise of my undoubted discretion, I allow this appeal and order the plaintiff to furnish further security in the sum of £750 (making the total security £1,000). I rather doubt the adequacy of this amount (two - thirds of the total party and party costs is sometimes ordered), but Mr Kemp has signified his satisfaction with it. Since this action is set down for trial on the 9th February, before when the defendant's witnesses must leave the United Kingdom by air, I order the plaintiff to pay the said sum of £750 into court by 9 a.m. on Monday, the 31st January, 1966, failing which this action will be stayed. I delivered the gist of this judgment on the hearing of this appeal, and Mr Desai then conceded the costs of the appeal and of the proceedings for further security before the learned Deputy Registrar. I therefore award the costs of this appeal and of the said proceedings to the defendant in any event. 1966 ZR p12