Security of Costs in a court case

[pippie]

Hi everyone,

I need to do some brainstorming so see if there are any ideas, or if anyone has had a similar experience, about how I can get out of having to pay 'security of costs'.

I am currently taking a Turkish Cypriot guy to court for non-payment of cheques - it's been going on for over a year so far. His solicitor has tried every trick to delay matters and the latest thing is an application requiring me to lodge a sum of money with the court to cover his costs should I lose my case. The key is in the wording of the law - security of costs can be applied to someone who is NOT ordinarily resident in North Cyprus.

I made TRNC my home, I have a business, I have an accommodation rental contract, I have not left for a number of years other than to cross to the South and only ever for a day at a time, I have no assets in the UK now and had all my furniture shipped out here. What else can I do to prove that I am ordinarily resident here? The guy's solicitor is using the fact that stamps in the passports say temporary, visitor, or in the case of business or work permit have an expiry date.

I found the following page in North Cyprus Free Press http://northcyprusfreepress.com/cyprus- ... f-costs-2/ and I know it is predominantly to do with property issues but I wondered if anyone knows what happened in this case? My solicitor reckons if we can find any other case where a precedent has been set by rejecting a security of costs application, we may be able to refer to it for my case.

And before anyone says 'why don't you just pay it', I don't think I should, it's the principle. There's already a bond from the tax office blocking money in my bank relating to my business, so why should I have to have more money held up. What am I supposed to live on while they're all 'faffing about'? To my mind, it's a clear case, the guy bounced cheques, he's guilty. But, until we've argued our case regarding where I am resident, and the judge makes a decision on the security of costs application which appears to be dragging on and on, the main case will not be heard.

So, if you're still awake after reading all my ranting - thanks for any ideas ...

[sophie]

Pippie, I'm not a Lawyer in this country or anywhere else but I do consider it morally wrong that you and most of us are treated as Temporarly Residents. Probably like you, we have nothing in the UK but after all these years we're still considered Temporary. It's just not fair but then as most of us at some time or another have discovered, this isn't a fair country where foreigners are concerned. You have my sympathy and I do wish you luck.

[pippie]

Thanks for your support Sophie, it's very welcome.

[Dalartokat]

Hi Pippie, just stepping back, why was the Turkish Cypriot allowed to keep bouncing cheques when its a criminal offence and the Bank should have taken back his cheque book and any unused cheques for at least 12 months.

Cannot help you on the security of costs, but who helped you set up the business, can you not ask someone involved in that or go to a different area, say Lefkosia or Famagusta and pick someones brains there(too many people knowing one another in Girne) or go to your Bank and ask them to prove by way of Bank statements that you have been trading for x amount of years and then disagree with having to put up the money.

All too easy when I'm not in your shoes but I hope you find someone to lead you in the right direction. Have you tried Citizens Advice Cyprus?

Sylvie

[Art]

Why not get a residency permit.?

That should do the trick and you can achieve this within 4-5 weeks!

[bargainboozeandwines]

pippie

post your question to this man on his FB page.

https://www.facebook.com/hak.hukuk.3323

[Deniz1]

Art she has got one

[Lovelife]

Morning Pippie

Good luck with your case, Now, I am no lawyer but I feel your advocate does not appear to be very proactive on your behalf, it is not up to you to find out if there has been a case regarding security costs and the outcome of the cases, your advocate should be going to courts and stressing the fact that you are a resident, have a business here, pay your way and if anyone is going to 'do a runner' it will be the bloke who you have the case against. Your advocate should insist before the court that it is not necessary for the security costa and that this prolonged case is affecting your business and you have done nothing wrong.

Sounds simplistic doesn't it?

LL

[Lovelife]

Had another thought (amazing what pops into your head whilst cleaning your teeth) Sibel Seber declared that the government should be more accessible to the public there is a number you can ring to make an appointment (think I read it on Lemon grove news)to see the relevant minister, you could investigate this route and ask your advocate to accompany you. May be worth a try.
LL

[pippie]

Thanks for responses.

Dalartokat, the bank did eventually blacklist him - though that didn't do anything to help me. Apparently he'd been blacklisted about 7 years earlier too, I suppose once his name had cleared he was ready to strike again!

Art - to get a residency permit I would have to shut my business down, then I cannot work. But as I understood it you only get a temporary resident stamp in your passport and it's only after a number of years that you can then apply for permanent residency. So that's not an option I'm afraid, the biggest stumbling point is how to prove I am not temporary and that I 'ordinarily reside' in TRNC.

LL - in court yesterday the other side were not for budging on the 'temporary' issue so my advocate asked for it to go to a formal hearing but had that adjourned until next week so that he can go away and do some homework. He's certainly better than the last one I had who was all for me handing over any money asked for, including my car as collaterol! The thing is, I've come to believe you can't leave everything to everyone else to act on your behalf (partly because I don't trust most of anyone these days!), so if there's any ideas I can come up with or information I can dig up as well to add to whatever my advocate has then it can't do any harm can it. You're right in what you said in Msg8 and that's what we've got to argue with at the moment, but you never know what a judge is thinking do you and I want to make sure we've got everything we possibly could have with us next week to ensure the decision goes my way.
Not a bad idea about contacting the minister, I'll check it out - although I suspect none of them will know which minister will be the one to deal with this, and in my experience, even the ministers find it difficult to make decisions!! Sorry to sound negative but things (and some people) don't half wear you down!

[ozankoys]

Hi Pippie
What about taking a list of your 'ins & outs' this will officially prove how long you have been in the country?

[bargainboozeandwines]

Security of Costs Many people have problems understanding the need and reason for security of costs in a court case. I think that people should try to understand that this procedure or rule is not for a specific case and that security of costs can be obtained from a court in any case as long as the required elements for security of costs are met and a written application to the court for security of cost is made. In other words it is a general rule which can be applied to everybody. Of course like many orders given by the TRNC courts an order for security of cost can be granted if a written application is made to the court. Some Advocates forget about this procedure or don’t think about it and therefore wouldn’t be able to obtain such an order for their client which is a good thing for the opposing party. This rule is also applicable in the British legal system and has been used for many years both in the TRNC and the UK etc. I would explain the reason for security of costs in plain words. Like many rules of law this rule has been put to see that justice is done in other words the rule for security of costs is there to serve justice. How it serves justice is a question which will be understood when ı explain the elements required to obtain an order from the court for security of costs. But before I explain the essentials for security of costs I would like you all to know that the costs which are granted when the case has finalised or has had a court judgment, is granted to the winning party of an action and not to the winning parties Advocate (s).

[bargainboozeandwines]

Therefore, costs are not secured to pay Advocate fees but they are secured to make sure that if the plaintiff loses his/her case the defendant or winning side would be able to take back there court costs or be compensated in such a way etc. In practice it is usual that Advocates do receive the money at the end but that has more to do with the retainer agreement between the client and the Advocate etc. If you feel that your Advocate doesn’t deserve that money then that is totally a different subject. Briefly, a plaintiff (and in respect of a counter-claim which is not merely in the nature of a set-off, a defendant) ordinarily resident out of Cyprus may, at any stage of an action, be ordered by the court to give security for costs, though he may be temporarily resident in Cyprus. As you can see the primary element to be able to obtain a usual order for security of cost is that the person whom has a claim against you and has taken a legal action against you in court to ordinarily be resident out of North Cyprus. Also, there are other principal cases in which security for costs can be ordered but are very unusual in the TRNC, for example where the case is an abuse of the process of the Court, where there has been great delay in prosecuting the action, where the appellant has failed to pay the costs incurred in the lower Court, and generally where it can be shown that the opposing party, if unsuccessful, would be unable to pay the court costs. There are, inter alia, two very important exceptions to this general rule. The first is that the party which you have applied to obtain an order of security of cost against must not be a resident in a country which has a convention with the TRNC. Of course because the TRNC is not recognised and ratified internationally as a state and is a de- facto state and only recognised by Turkey the TRNC only has a convention with Turkey in this respect. The other important exception is for the person whom has a claim against you and which doesn’t ordinarily reside in north Cyprus to have ample assets in the jurisdiction. In other words, to have assets that would be able to cover the costs if they don’t succeed in the case. In an order for security of costs granted by a court you would notice other orders would be included for instance the time for giving the security. The order of the court would also include that in default of the party giving such security within the time limited, the court case stands dismissed without further order. Therefore, ı would say that an order for security of costs can be a very dangerous and important order which may finalise a court case without the court even hearing the main case. HAK

https://www.facebook.com/groups/261750050629811/files/

[£eagle]

in cases involving bounced cheques there is frequently no legal defence, because a cheque is a negotiable instrument. Of course, there might be a counterclaim - e.g. for poor service or goods but that would put you into the position of a defendant where, Huk suggests, no security for costs can be asked for.

It is therefore possible that you could apply for summary judgement. This means that because there is no real defence to your claim no trial is required and you get immediate judgement (plus your costs)..

Has your advocate considered this?

Whilst this is not any help on your security for costs issue it might blast the debtor out of the arena.

The £eagle

[pippie]

Thanks Ozankoys - I've got the 'in and outs' at the ready, but the other guys soli has already seen it and is still pursuing the fact that I'm 'temporary'.

BBW - I read all of this that you'd written bfor on another site but was having trouble fully absorbing it, but having re-read it again it only serves to cement my idea that I need to find a way to 'prove' that I am ordinarily resident in TRNC. If I don't live anywhere else, how can I be resident elsewhere? but it appears the onus is on me to prove it.

Thanks Eagle, this sounds a good angle. What do you mean when you say 'a cheque is a negotiable instrument', or do you mean 'is not a negotiable instrument'?
The defendant cannot claim poor goods here because he took goods from me and sold them to the supermarkets - for which he has been paid!
Do you know if there's anything written down anywhere regarding summary judgements that I can refer to? - knowing these people if I can't show them something in black and white, they won't believe it!

[Art]

Pippie.

-my neighbour was asked to pay Secuity of Costs and his solicitor argued that my neighbour had sufficient assets in the TRNC to cover the costs,if necessary-the judge accepted his argument.

-another freind was advised by his solicitor to take out residency and assured him that security of cost would not apply because he was a resident and again he had sufficient TRNC assets to cover the cost,if necessary.

Hope this helps!

[pippie]

That is great Art, thanks.

In the first case, is there any change you could PM me your neighbour's name and the judge, or a date, so I can get my soli to bring it up?

Thanks.

[£eagle]

The entitlement to ask for a "summary judgement" is covered by the Civil Proceedings Rules. I think that the relevant rule is number 18 but Google translate had trouble, as ever, with the Turkish-English translation. Your advocate should know the correct number.

A negotiable instrument, or bill of exchange, is one where the law deems that the consideration given for it has been paid in full so that there is no defence when the other party dishonours the bill. This applies to cheques so that the breach by the debtor of his promise to pay you (by bouncing the cheque) has no legal defence. You are therefore entitled to immediate judgement. Depending on the circumstances some restrictions can be attached to such a judgement. Based on the facts stated by you that would be unlikely in any normal court.

The £eagle

[pippie]

Thanks Eagle, that's very interesting.