Visitor ordered to fork over $2m security ahead of lawsuit against hotel

A United States citizen, who is suing Fiesta Jamaica Limited for injuries she reportedly sustained while vacationing at Grand Palladium Jamaica Resort in 2014, has been ordered by the Supreme Court to pay nearly $2 million as security for cost or have the matter struck out.

The first defendant, Fiesta Jamaica Limited, operator of Grand Palladium, who filed the notice of application for a court order for security for cost was seeking approximately $5 million. However, the court reduced the amount on the basis that the sum was high and unreasonable.

The claimant, Rebecca Bowes, was however given six months in which to pay $1.8 million as security for the first defendant’s cost.

Acting puisne judge Tracey-Ann Johnson, in the judgment which was published earlier this month, also ordered that the claim be struck out if the security for cost is not paid.

The money is to be paid into an interest-bearing account in the names of the Law Practice of Daley Thwaites and Company and Nunes, Scholefield, DeLeon & Company at the Scotia Bank Jamaica Limited and is to be held in that account until the trial of this claim or until further orders.

The judge also ordered that all further proceedings be stayed until the security for costs is provided.

NEGLIGENCE CLAIM

Bowes, through her lawyer, filed a negligence claim against Fiesta Jamaica Limited in which she alleged that on or about February 7, 2014, she fell inside the hotel’s theatre and injured her ankle, face and forehead.

She claimed the theatre was not properly lit and that she fell while trying to find a seat to watch a movie which was in progress.

Bowes is contending that the first defendant was negligent in failing to provide a safe and proper environment for guests, failing to provide appropriate and proper lighting in the theatre and failing to place or provide sufficient barriers and signs.

Fiesta Jamaica Limited has however denied that it was negligent. Instead, the company blamed Bowes for failing to pay attention, while walking along the main aisle inside the movie theatre claiming she is the “author of her own misfortune”.

The first defendant further contended that the incident was solely caused by and/or materially contributed to by Bowes’ own negligence in failing to have adequate regard for her own safety.

Additionally, the company asserted that Bowes was also negligent in failing to take the necessary steps to ensure her safety while walking along the aisle in the movie theatre and attempting to sit on the chair without due care and attention.

Following the claim, Fiesta Jamaica Limited filed the notice for a court order in October 2018 on the grounds including that Bowes resided overseas and that her assets are held outside of the jurisdiction and there is no evidence or indication that she has any assets in Jamaica.

Rule 24.2 of the Civil Procedure Rules provides that a defendant in any proceedings may apply for an order requiring the claimant to give security for the defendant’s cost of the proceedings.

The first defendant, in its application, relied on the affidavit of Lowell Morgan, in which he contends that the company will incur significant expense to defend the suit and will also have to engage the services of medical experts to assist.

Morgan in the affidavit also estimated that the legal fee for the three-day trial is likely to cost (US$35,000) and indicated that the company was fearful that if it wins the case, it will be unduly prejudiced if it is not able to enforce any order for cost or secure payment for cost.

The first defendant also pointed to Bowes’ claim that she has been declared 100 per cent disabled because of her injuries and is no longer able to work.

SAFEGUARD

Counsel for the first defendant, Jaavone Taylor, argued that the application was to safeguard against any risk that the steps to enforce a judgment in the US would involve extra expenses and delays when compared to a similar process locally.

She also argued that Bowes has failed to provide any special reason to oppose the order for security for cost and had also failed to show that she is not in opposition to satisfy the claim for security for cost.

Bowes’ lawyer, Joseph Willis, however submitted that the claimant has lost her main source of income as a result of the injuries and is relying on social security benefits which are insufficient to cover her monthly expenses. As such, he contended that her ability to satisfy an award for security for cost is non-existent and that the court should refuse the application based on her circumstances.

Willis further posited that it would be manifestly unjust for the court to make an order in the amount that the defendant requested and further that the application was being made oppressive in order to stifle a genuine claim.

The judge, in her analysis, agreed that the amount that was being sought was too high and unreasonable in some instances and could deter Bowes from pursuing the claim. At the same time, she concluded that an order for security for cost would not generally stifle the claim and that in the circumstances it would be fair to substantially reduce the amount.

However Johnson, while noting that Bowes had not presented any evidence of her financial status, said, “I am of the view that the overall justice of the case demands that an order for security order for cost should be made albeit for a reduced amount.”

tanesha.mundle@gleanerjm.com