Security For Costs

Question 1

What/Who

1) CPR 25.12(1) – Remedy

2) A legal order that requires ….

• CPR 3.1(3) and CPR 3.1(5) set outs that
• Premier Motors v PWC & Lloyds (2017) - can include

3) MA Lloyd v PPC International (2016) – ANCILLARY - set out that an application for costs (which includes soc) cannot be viewed as substantive proceedings, it is ancillary to proceedings.

4) If granted, Claimant will not be able to proceed with claim until the security has been paid into court?? - check this

Answer 1

What/Who

1) CPR 25.12(1) – DEFENDANT’S REMEDY - A remedy the Defendants can use when they believe the other party won’t be able to pay legal costs if they lose the case.

2) A legal order that requires a party to pay money into court or provide a bond or guarantee to cover their opponent’s legal costs.
- CPR 3.1(3) and CPR 3.1(5) set out that the Court may order a party to pay a sum into Court and CPR3.1(6A) sets out that this money shall be security for costs.

• Premier Motors v PWC & Lloyds (2017) - Payment, bank guarantee, ATE can be a form of SFC so long as this satisfies the test of contractual liability for costs by way of insurance and it afford sufficient protection

3) MA Lloyd v PPC International (2016) – ANCILLARY - set out that an application for costs (which includes soc) cannot be viewed as substantive proceedings, it is ancillary to proceedings.

4) If granted, Claimant will not be able to proceed with claim until the security has been paid into court

Question 2

The Application
5) CPR 25.12(2) Must be….

6) b4 apply to court try to….

7) Radu v Houston (2007) –

8) RBIL v Ryhurst (2011) –

9) Mclennan Architects v Jones (2014) –

Answer 2

The Application

5) CPR 25.12(2) Must be supported by written evidence. Made on N244 with draft Order.

6) CONSENT B4 - Prior to making the application, they must first seek the consent of the opposing party

7) Radu v Houston (2007) – PURPOSE/NO THREAT - states purpose of an order for security costs is to provide the Claimant with two choices, to provide the security ordered or to discontinue the claim. – A proper choice is required not a threat

8) RBIL v Ryhurst (2011) – ASAP - Must be made as soon as apparent or penalties

9) Mclennan Architects v Jones (2014) – DELAYS/STRICTNESS - If delays but neither party at fault, court will view less strictly

Question 3

Court’s decision/discretion

10) General position ….

11) CPR 25.12(3) Court will determine the following when considering an Order
a)

b) (i)the  and (ii) the

Answer 3

Court’s decision/discretion

10) General position court has discretion

11) CPR 25.12(3) Court will determine the following when considering an Order
a)the amount of security
b) (i)the manner and (ii) the timing in which security must be provided

Question 4

Factors relevant to exercise of discretion

12) CPR 25.13 (1) – The Court will make an order if:
(a) –
and
(b) (i) one or more of the following conditions are met

13) Parkinson (Sir Lindsey) v Triplan (1973) – ADDITIONAL FACTORS - Court will consider when making a exercising discretion.
o B
o G
o A
o W
o C
o L

Answer 4

Factors relevant to exercise of discretion

12) CPR 25.13 (1) – The Court will make an order if:
(a) – it is Just in the circs of the case and
(b) (i) one or more of the following conditions are met
C resident outside of Juristiction
Company or other body with reason to believe they will
be unable to pay
Evasion (eg.changed address)
Failed to give correct address
Hides assets

13) Parkinson (Sir Lindsey) v Triplan (1973) – ADDITIONAL FACTORS - Court will consider the following factors when making a exercising discretion.
o Bona Fide not a sham
o Good prospects of success
o Admission by Defendant that money is due
o Whether the act is used to stifle a claim
o Claimant’s wants and means
o Late stage of proceedings

Question 5

Security for Costs from someone other than from Claimant

16) CPR 25.14 – Can be ordered against someone other than the Claimant if
(a)
and
(b) One of the more conditions in paragraph 2 apply
a. 2a –
b. 2b –

17) CPR 20 –

18) = SAME ISSUES -

19) Jones v Envirocom (2009) –

20) Hutchinson Telephone v Ultimate Response Ltd (1993)

Answer 5

Security for Costs from someone other than from Claimant

16) CPR 25.14 – Can be ordered against someone other than the Claimant if
(a) It is satisfied after considering circumstances that it is just to make an order and
(b) One of the more conditions in paragraph 2 apply
a. 2a – if the person has assigned the right to the claim to the claimant with a view to avoiding the possibility of a costs order being made against him
b. 2b – If the person has contributed to Claimant’s costs with a view to sharing the money recovered in proceedings
17) CPR 20 – COUNTER CLAIMING DEFENDANT - A security for costs Order may also be made against a counter claiming defendant, i.e. a claimant to an additional claim because CPR 20.3 - An additional claim is a separate claim
18) = SAME ISSUES - The general rule is the Court will not exercise discretion if the main issues in counterclaim are the same as the main action.
19) Jones v Envirocom (2009) – INDEPENDENT VITALITY - The counterclaim must have a “independent vitality of its own” as opposed to the Defendant bringing an additional claim that acts to set off the Claimant’s action.
20) Hutchinson Telephone v Ultimate Response Ltd (1993) – SIZE - the Court will consider the size of the counterclaim when considering whether it has a “independent vitality of its own”