Professional Documents
Culture Documents
2 Security For Costs
2 Security For Costs
2 Security For Costs
Introduction
Defendant in any proceedings
may apply for an order
requiring C to give
security for D's
costs of the proceedings
Order for Security
for costs usually requires
the Claimant to pay
money into court
as security for the
payment of any costs order
that may eventually be made
in favour of the defendant
Order is never made
against the
defendant unless
counterclaiming - the
fact that he is resident
abroad is irrelevant
CPR Part 24
[governs security for costs]
Introduction
Procedure
Enforcing
Procedure
Order will
not be granted
unless it is just
and at LEAST ONE
of the factors
listed is satisfied
CPR Rule 24.3
Security
for Costs
Examples of Grounds
Grounds
C ordinarly resident
OUTSIDE of the jurisdiction
C is a company incorporated
OUTSIDE of the jurisdiction
C failed to give his/her
correct ADDRESS, gave
an incorrect address
in the claim form or
has changed address
since claim
was commenced WITH A VIEW to evading the
consequences of the
litigation
C is acting as a NOMINAL
claimant, other than
as a representative claimant
under part 21 and
reasons to believe C will be
unable to pay D's costs
if ordered to do so
C is an ASSIGNEE of the
right to claim and the
assignment has been made
with a view to avoiding
possibility of a costs order
against assignor
Some person OTHER
than C
has CONTRIBUTED or
agree to contribute to
C's costs in return
for a share of any money
or property which C
may recover
C has taken STEPS with a view
to placing C's assets beyond the
Jurisdiction of the court
Good practice to
request by letter first
[in CA it is a requirement
though not in Supreme
Court]
Notice of application
for Court Order +
Draft Order + Affidavit
in Support
CPR Rule 24.2
Determining the
amount
Impecuniousity
When to apply
Impecuniousity
Impecuniosity
Where C is an
individual and Impecunious
the Court may
refuse to grant the order
[at Common law]
Where C is a company
and impecunious
legislation allows a judge
at his discretion
to require security for costs
if he feels it necessary
to protect D
Where a limited company
is plaintiff in any action
or other legal
proceeding, any judge
having jurisdiction in the
matter may, if it appears
by credible testimony that
there is reason to believe
that the company
will be unable to pay the
costs of the defendant
if successful in his
defence, require sufficient
security to be given for
those costs, and may
stay all proceedings
until the security is given.
The Companies Act, 2004
Section 388
Determining the
amount
A draft bill of costs
will assist the court in
determining the amount
to be granted
Court applies the amount
it thinks just considers - the stage, future
events, delay in applying, costs
which D may incur.
Old rules - 2/3
of what was requested
however Brooks J
in Manning gave full
amount. It depends
on who you represent
as law is not settled
Corfu Nagivation
v Mobil Shipping
Co Ltd
[...basic principle
underlying orders
is that it is
prima facie unjust that
a foreign C
who by virtue of foreign
residence is more
or less immune to the
consequences of
an order for costs..
without making funds
available w/i jurisdiction..]
Maragh v Comptroller of
Customs
[B'dos case - T&T claimant,
had no assets in B'dos
- order was given in action
to retrieve quantity of
US currency seized
by customs officer]
JMMB case
[even though local
party present in the jurisdiction,
depends on the expected
order for costs that the
court is expected to make]