Moore v Moore

An order for security for costs may be varied in the court’s discretion. The amount will ordinarily remain where the proposed security is not shown to provide a good and safe margin, particularly in light of uncertain property values, non-marketing, foreign residence or an adverse payment history. The court may distinguish between the amount of security and the deadline for providing it. Where the original deadline was linked to a hearing that has passed, an extension may be granted in the interests of justice without reducing the sum. Failure to provide security by the extended deadline may result in dismissal of the permission application.

The husband applied on 26 March 2009 to vary a Court of Appeal order made on 17 March 2009. That order required him to provide £15,000 security for the wife’s costs of his application for permission to appeal and any subsequent appeal by 23 March 2009, failing which the permission application would be dismissed.

He challenged both the amount and the deadline. The underlying proceedings arose from family litigation before Bodey J, who had treated property held by the husband’s company as, in reality, the husband’s property. The central issues were whether the property provided sufficient security, whether the amount should be reduced, and whether further time should be allowed for payment.

1. Discretion to vary. The court treated jurisdiction to reconsider its earlier security-for-costs order as available, but emphasised that variation was discretionary and that substantial justification was required before altering the amount.
2. Amount of security. The £15,000 figure remained appropriate. Relevant considerations included the husband’s failure to pay substantial maintenance liabilities, his substantial residence in Nigeria, and the uncertainty surrounding the only available property security. Estate-agent valuations suggesting a higher value did not establish a sufficient margin. The property was not being marketed, property prices were uncertain, and it was held through a company, although Bodey J had treated it as beneficially belonging to the husband.
3. Time for payment. The deadline was treated separately from the amount. It had originally been fixed because the permission application was due to be heard imminently, but that hearing date had passed. In the interests of justice, and having regard to the proposed six-week period for raising the money, the court extended the deadline. The approach was consistent with Experience Hendrix LLC v Purple Haze Records Ltd & Anr [2005] EWHC 249 (Ch), which was relied on for the distinction between extending time and varying the security figure.
4. Order. The order of 17 March 2009 was varied only by substituting 2:00pm on 30 April 2009 for 2:00pm on 23 March 2009. The £15,000 requirement and the consequence of dismissal for non-payment remained. The husband was ordered to pay the wife’s costs of the security application, subject to detailed assessment if not agreed.

• Court of Appeal (Civil Division)—On 17 March 2009, an earlier constitution ordered the husband to provide £15,000 security for costs, with dismissal of the permission application if payment was not made by 23 March 2009. On 3 April 2009, Wall LJ and Holman J varied that order only by extending the deadline to 30 April 2009.
• High Court of Justice, Family Division—The underlying proceedings were before Bodey J. The present judgment gives no citation for the High Court decision.