Antonelli v Allen & Anor

An appeal may be made subject to security for costs where the appellant is resident outside the jurisdiction and enforcement of a costs order may be difficult. The discretion must be exercised proportionately and without discriminatory effect. Security may also be ordered where the appellant has dealt with assets in a way that would make enforcement difficult. The prospects of success are rarely determinative. The amount should reflect the evidence concerning likely and potentially irrecoverable enforcement costs.

The appellant had permission to appeal from an order of Neuberger J dated 29 November 2000 dismissing her claim against a solicitor concerning money paid to his former partner. The respondent applied for security for the costs of the appeal under rule 25, paragraphs 13 and 15 of the Civil Procedure Rules.

The application relied on the appellant’s residence outside the jurisdiction and on alleged dealings with assets that might make enforcement difficult. The issues were whether either ground was established and whether security of £10,000 was proportionate.

1. Application granted. Security for the respondent’s costs of the appeal was ordered in the sum of £10,000, to be provided by 4.00 pm on 30 October 2001. If not provided, the appeal would be struck out automatically. The appeal was stayed meanwhile.

2. Rule 25, paragraph 13 permitted security to be ordered where the appellant was resident outside the jurisdiction. Following Nasser v United Bank of Kuwait [2001] EWCA Civ 556, the discretion had to be exercised proportionately and without discriminatory effect.

3. The appellant fell within paragraph 13(2)(a). The court was not prepared to assume, without evidence, that enforcement in New York would be inexpensive or that its costs would be recoverable.

4. The appellant also fell within paragraph 13(2)(g). In the absence of rebutting evidence concerning the £70,000 recovered in Israel, the court was entitled to infer that assets had been dealt with so as to make enforcement difficult.

5. The prospects of success on the appeal were rarely determinative. On the evidence, £10,000 was not excessive. The respondent was awarded the costs of the application, subject to detailed assessment.

• Court of Appeal (Civil Division): the appellant had permission to appeal from an order of the Chancery Division made by Neuberger J on 29 November 2000. The Court of Appeal ordered security for the costs of the appeal.