Moore v Moore

Security for costs may be ordered where the claimant is resident outside the jurisdiction and, having regard to all the circumstances, it is just to require security. The claimant’s own non-residence does not of itself prevent an order. Relevant circumstances include substantial unpaid maintenance and costs orders, the apparent insufficiency of available assets, the respondent’s financial position and the realistic costs likely to be incurred. The amount must be proportionate to the respondent’s likely costs burden. Security was therefore ordered, but limited to £15,000 rather than the £20,000 sought.

The applicant sought security for costs in proceedings arising from a proposed appeal from an order made by Bodey J in the Family Division. The respondent, resident in Nigeria, sought permission to argue that a maintenance-pending-suit order was unenforceable because the court later determined that it had never had jurisdiction. Following warnings about the risks and costs of pursuing the proposed appeal, the applicant issued the security application.

The central issue was whether the conditions and circumstances required by CPR 25.13 justified security and, if so, what amount was appropriate.

1. Application granted. CPR 25.13 permitted an order for security where the claimant was resident outside the jurisdiction, provided that, having regard to all the circumstances, the court was satisfied that making the order was just.
2. The respondent’s argument that the applicant was also non-resident did not take the case outside the rule. That fact could be relevant, but it did not prevent security being ordered.
3. The circumstances made an order just. The respondent had ignored orders for maintenance pending suit and previous costs, with the outstanding liability estimated at about £290,000. The applicant’s available property was likely to realise less than that amount after sale costs. The respondent’s asserted lack of means was weakened by indications of affluence and by the rejection of his evidence concerning beneficial ownership of property.
4. The court did not determine whether the respondent’s solicitors were taking a risk by allowing litigation on credit. That issue did not affect the question to be decided.
5. The amount sought was excessive. The court assessed the likely future costs burden on a respondent in an appeal raising a point of legal principle but expected to last between half a day and one day. Security was fixed at £15,000.
6. The sum was to be paid into court in cleared funds by 1400 hours on 23 March 2009.

• Court of Appeal (Civil Division): On an application arising from proposed permission-to-appeal proceedings, security for costs was ordered against the respondent. The proposed appeal concerned an order made by Bodey J in the Family Division; no citation for that order is stated in the judgment.