White Sea & Onega Shipping Company v International Transport Workers Federation

Under Civil Procedure Rules rule 25.13, the court must distinguish between its jurisdiction to order security for costs and the discretionary question whether such an order is just. The Convention-enforcement exception is confined to bodies which are nationals or residents of states covered by the Brussels or Lugano Conventions. A foreign claimant is not required to provide security as a matter of course. The practical availability, value and traceability of assets against which a costs order may be enforced are material to the discretionary assessment. Regular visits by unencumbered vessels to United Kingdom and Convention ports, coupled with reliable means of tracing them, may make security unjust.

The Russian claimant shipping company had appealed from the Commercial Court’s dismissal of its application for an interim injunction concerning alleged unlawful activities in Denmark. The Commercial Court had treated the exclusively Danish features of the dispute, and the respondent’s undertaking to submit to the Danish court’s judgment, as decisive; it granted permission to appeal.

Pending that appeal, an application was made for security for the respondent’s costs. The company owned a fleet of vessels which regularly called at ports in the United Kingdom and in states party to the Brussels or Lugano Conventions. The issues were whether rule 25.13 conferred jurisdiction to order security and, if so, whether an order was just.

1. Jurisdiction. Brooke LJ held that the condition in Civil Procedure Rules rule 25.13(2)(b) was satisfied. The phrase concerning a body against whom a claim could be enforced under the Brussels or Lugano Conventions was to be confined to bodies that were nationals or residents of Convention states. The Russian claimant did not fall within that exception. It was therefore unnecessary for the party seeking security to prove the location of a particular vessel at the time of the application.

2. Discretion. Jurisdiction did not determine the result. Rule 25.13(1)(a) required the court to decide, on all the circumstances, whether security was just. Security could not be ordered automatically merely because the claimant was foreign. The existence, accessibility, permanence and value of assets available for enforcement were potentially relevant and their weight depended on the facts.

3. Application of the discretion. It was not just to require security. The claimant’s ships made regular calls at United Kingdom and Convention ports; the evidence showed that their whereabouts could readily be tracked; they were said to be unencumbered; and their values substantially exceeded any likely costs award. An English costs judgment could therefore be enforced against a vessel when available. Brooke LJ emphasised that disputed evidence about the ability to locate vessels could justify a different result in another case.

4. The judgment concluded that security for costs was inappropriate. The transcript records the formal order as: application allowed.

• Court of Appeal (Civil Division): On an interlocutory application in the pending appeal, Brooke LJ determined the request for security for the respondent’s appeal costs. The merits appeal was not decided.

• Commercial Court: On 19 December 2000, Tomlinson J dismissed the claimant’s application for an interim injunction concerning alleged unlawful activities in Denmark, while granting permission to appeal.