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Fainga'a v Lelea [2004] TongaLawRp 59; [2005] Tonga LR 8 (22 January 2004)

IN THE SUPREME COURT OF TONGA

Fainga'a

v

Lelea

Supreme Court, Nuku'alofa
Ward CJ
C 38/03

22 January 2004; 22 January 2004

Civil procedure – security for costs – factors to take into account – order refused

The plaintiff, a married woman, first brought a claim for damages for unlawful arrest and imprisonment against three individual police officers, the Ministry of Police and the Kingdom of Tonga. After defences had been filed, the plaintiff applied to amend the claim by the addition of another police officer as the fourth defendant. The application was granted on 13 May, 2003 but the plaintiff was ordered to pay the costs incurred by the first, second, fifth and sixth defendants in drafting the defences to the original claim. The parties agreed costs of $400 and agreed that they should be paid in instalments of $50 per week. By 15 December, the plaintiff had only paid $150 and the defendants filed an application for security for costs on the basis that, if the plaintiff was unable to find this small sum, it was unlikely she would ever be able to pay the costs of a full trial. The plaintiff opposed that application and her counsel advised the court that a pig worth $300 was offered in settlement of $150 of the costs but counsel for the defendants did not respond to the offer.

Held:

1. Once the court determined that one of the factors in O17 r 1 was present, it must then decide whether to exercise its discretion to order security. It must, in so doing, have regard to all the circumstances and then decide whether it would be just to do so. That was a two-edged test as justice applied to both sides in an action.

2. Whilst the likelihood of the success of the claim was an important consideration, the court should not undertake an exhaustive analysis of the claim but take a broad view of the possibility of success.

3. Counsel appearing for the government should not, too readily, seek security for costs. The financial resources of many members of the public were such that even a modest order for security would be sufficient to prevent the case proceeding. The government, on the other hand, had far deeper resources and, in the general interest of allowing a matter of concern to be properly ventilated in the courts, could more easily bear the risk of not recovering its costs. In particular, where there were allegations against the police arising from an arrest or other interference with the liberty of the individual, the court should always consider that the justice of the case in those circumstances would point strongly to allowing the case to proceed to trial.

4. The court refused the application for security for costs.

Cases considered:

Porzelack KG v Porzelack (UK) Ltd [1987] 1 WLR 420