Ahmed v Blackburn & Co & Ors

On an application for security for costs in an appeal, the jurisdiction under the Civil Procedure Rules Parts 25.13 and 25.15 extends to the estimated costs of the appeal. It does not extend to costs incurred before the proceedings became an appeal or to a judgment debt on a counterclaim. In deciding whether security is just, the court assesses the material relevant to the appeal, including its prospects and any proposed fresh evidence. Permission to appeal establishes a real prospect of success, not that success is likely. Fresh evidence cannot be assumed admissible without permission. Where security is justified, the sum may be moderated for contingencies and general justice, and payment into court may be required.

The claimant appealed from an order of Sachs J dated 16 June 2000 dismissing his appeal against District Judge Talbot’s strike-out of his negligence claim against his former solicitors. The second defendant’s solicitors applied for security for the costs of the appeal.

The claimant was ordinarily resident in Pakistan, outside the jurisdiction and outside the operation of the Brussels and Lugano Conventions. He relied on the appeal’s prospects, recently discovered documents in separate proceedings, and the prolonged personal and financial burden of litigation. The central issues were the proper scope and amount of security and whether, in all the circumstances, an order was just.

1. Application allowed. The jurisdiction under the Civil Procedure Rules Parts 25.13 and 25.15 extended to security for the costs of the appeal. It did not extend to costs incurred in the underlying action before it became an appeal, for which an order had already been made, or to the judgment and interest on the counterclaim.
2. In deciding whether security was just in all the circumstances, the Court proceeded on the assessment made when permission to appeal was granted. The appeal had a real prospect of success, but that did not mean that it was likely to succeed.
3. The newly discovered documents might be admitted and might strengthen the claimant’s case, but their admission required permission from the Court of Appeal and could not be assumed. Even if admitted, the material showed no more than a case with some real prospect of success. The claimant’s long and burdensome litigation history was taken into account, but the application had to be decided on material relevant to this appeal.
4. The estimated appeal costs were approximately £7,600. Allowing for contingencies and general justice, the appropriate security was £6,000. A charge over property was unsuitable, particularly because earlier costs orders and the counterclaim judgment remained unpaid and had not been stayed. The claimant was ordered to pay £6,000 into court within 42 days. Failure to do so would result in the appeal being struck out without further order. The costs of the application were payable by the claimant.

• Court of Appeal (Civil Division): Allowed the second defendant’s application for security for the costs of the pending appeal and ordered payment of £6,000 into court within 42 days.
• Queen’s Bench Division: Sachs J dismissed the claimant’s appeal on 16 June 2000 and gave judgment for the second defendants on their counterclaim.
• District Judge Talbot: Struck out the claimant’s claim against the second defendants on 14 March 2000.