HERMAN ISKANDAR v. BONADY LEO

IN THE COURT OF APPEAL

1987, No. 117
(Civil)

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JUDGMENT

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Silke, V.-P.:

1. I have before me an application made by the Plaintiff/Respondent for security for costs in an appeal and also a Notice of Motion requesting directions as to the dates upon which that appeal should come on for hearing.

2. The writ in the action was issued on 12^th December 1984. The defence was amended to allege an additional matter of forgery when the hearing first came on in 1986. The trial was then adjourned and it recommenced in June 1987, judgment being delivered on 13^th July of this year.

3. The issue in the action was a will executed on 27th November 1975 by a testator who died on 21st November 1978.

4. The Plaintiff is the sole remaining executor. The Defendant - now the Appellant - claims as a person entitled under an intestacy.

5. The appeal was set down on 27th August and - the usual letter had been sent - this application for security was filed on 4th September 1987.

6. The only issue contested at trial was the signature of the testator. This was the forgery alleged. The trial judge found for the Plaintiff on the issue of due execution and on the forgery.

7. The sole ground of appeal is the alleged improper ruling by the judge which had the effect of preventing the Defendant/Appellant from presenting the evidence of his expert witness in full, thus leading the trial judge to make a wrong finding based on insufficient evidence. A new trial is sought.

8. There have been proceedings in Singapore which have concluded. Reports were made to the Singapore and Indonesian police, the Singapore file is closed. In Indonesia the Plaintiff is on bail, having at one time been in custody, and is embargoed from leaving that country. The reports concerned the issue of forgery.

9. There were originally three defendants. Two have now dropped out leaving only the Appellant who resides in Indonesia and has no assets in this jurisdiction.

10. The basis for ordering security in this Court is three fold: residence outside the jurisdiction; poverty; a frivolous and vexations appeal. This last matter is not pressed here.

11. The jurisdiction comes from O.59  r.10(5) which reads:

"The Court of Appeal may, in special circumstances, order that such security shall be given for the costs of an anneal as may be just."

12. It is accepted that residence outside the jurisdiction activates the application - the "trigger" as Mr. Stone has called it. But the order is within the discretion of the Court. It is that which is in contention here involving the issues of poverty and the general circumstances of the case.

13. On the issue of poverty, the Defendant/Appellant stated in the Court below that he was poor, he was unable to fund his previous solicitors so that he was in person at the start of the trial. There is now a rather faint suggestion that he can sell one-third of some property in Indonesia for some US$300,000. I say "faint" because there is no affidavit to this effect giving any details of the proposed sale or the proposed payment or the proposed purchaser.

14. When this matter came on ten days ago I adjourned it in order to allow the issue of poverty and the issue of vexatious and frivolous to be clarified. This in relation to paragraphs in the affidavit of Mrs. Liang grounding the application. She is the Plaintiff's instructing solicitor. But the position now is very much the same as it was then.

15. Mr. Spicer has submitted that the Plaintiff by failing to bring to the notice of the trial court relevant authorities at the time of the application to exclude, in part, the expert evidence brought this appeal in effect upon itself.

16. I accept that there was a somewhat unusual limitation imposed on cross-examination - this in respect of counsel for both parties - and I accept for the purpose of this hearing that the Defendant's expert evidence was truncated. Equally, I accept that I should now consider all the circumstances and that includes the circumstances of both sides.

17. But to base any ruling solely on that particular submission would, in my judgment, be to prejudge the appeal itself and this I am not prepared to do. Nor am I prepared to say that the only reason the Appellant is here is the conduct of the Plaintiff.

18. I have had a considerable number of affidavits and affirmations placed before me which had been opened to me and I have considered them. I do not think this to be a shutting out exercise. I had earlier indicated that I had decided to exercise my discretion and to direct that security be given. I think that that order is a proper one in all the circumstances of this case as I know them and I shall make it.

19. The next issue is quantum and the test as to quantum is set out, in part at least, in the sixth Cumulative Supplement to the Annual Practice – 59/10/20 - which reads:

"The normal practice of the Court (where grounds for awarding security have been established) is to award security of an amount which will cover the respondent's costs of the appeal estimated as accurately as possible, applying the standard basis."

And :

"That estimate should not show solicitor and own client costs, but should set out the costs which would reasonably be expected to be allowed on a taxation on the standard basis."

20. For the purpose of this jurisdiction, I take the standard basis to be party and party. The draft bill which had been properly placed before me based itself upon three counsel and Mr. Stone has conceded for the purpose of this application only, he reserves his position in respect of any future taxation, that the proper basis would be two counsel.

21. I have given indications when seeking the assistance of counsel in "rearranging" the estimated bill that I have in mind the following: those counsel should be Lord Irvine and his junior, Mrs. Clough, on the basis of brief and refresher; in respect of London silk, the hotel accommodation should not be allowed but travel expenses will be; that the appeal has been set down for a period of five days I think to be excessive; the estimation of attendance should be based on a four-day appeal hearing, attendance of seven hours per day would, in my view, be proper.

22. Mr. Spicer has asked that I consider a deduction from whatever sum I arrive at of one-third or whatever I might think proper. The costs of an appeal, not a costs of an original hearing are in issue Procon (Great Britain) Ltd. v. Provincial Building Co. Ltd. and another(1), which was a case concerning the initial trial, make it clear that any purported practice of making an arbitrary deduction of one-third of the estimated party and party costs was unsupported by either statutory provision or authority. It went on to say that where security for costs was sought at a very early stage, some allowance should be made for the possibility of settlement and it might well be proper to discount up to as such of one-third. I do not think that those considerations applied here.

23. I shall in the moment ask counsel to address me on the re-designed draft bill and will deal with the actual amount at that stage.

24. As regard to dates, a good deal of the argument has been directed to the availability of the Defendant's selected London silk. This is a case where the presence of counsel who appeared at the trial would be of assistance to the Court of Appeal. The selected London counsel of the Defendant was not present at trial. There are at least twelve Hong Kong leaders who are available throughout a great deal of 1983. November 1988 was the original date suggested as being the first day available to the Defendant's London counsel. This date has come down now to a possible day in July.

25. The whole issue here has been in contention for a very considerable period of time and the sooner it is finalised the better. I am aware that, as far as possible, the Court will attempt to assist parties in having the counsel of their choice. But there are other considerations which must also be borne in mind. Delay, and gross delay, is one of them.

26. I direct that the appeal be listed for hearing no later than four months from today, consultation should be made of counsel's diary in respect of a day within that period.

(Having heard counsel)

27. As to quantum, there are three matters which is necessary for me to consider. First: the standard basis of party costs: second: to attempt to estimate as accurately as possible what those costs would be third: to reach a figure which seems just. The figure counsel have arrived at is $670,000 on the rearranged bill. I think that the leaders brief fee on the standard basis is higher than the taxing master would necessarily allow. Also, doing my best: to estimate as I am required to do what the taxing master acting on the standard basis would do, given the overall bill with its reduction of brief fee, I think that the security should be in the amount of $570,000 and I so order. To be paid in within 28 days or the appeal shall stand dismissed.