Golubovich v Golubovich

Where permission to appeal and the appeal are listed for a rolled-up hearing, security cannot be ordered under rule 25.15 before permission is granted. The Court of Appeal may nevertheless use its case-management powers under the CPR 1998 to stay proceedings on conditions requiring security for appeal costs and compliance with an existing costs order.

The discretion should be guided by rule 25.13 and exercised justly. Security must not objectively stifle an appeal or infringe article 6. A condition requiring payment of the substantive judgment debt will ordinarily be inappropriate where the proposed appeal challenges the appellant's ability to pay, because it prejudges that issue.

The wife applied in proposed appeals by the husband from two orders of Moylan J in the Family Division. The first granted her leave under section 13 of the Matrimonial and Family Proceedings Act 1984 to seek financial relief under Part III following a Russian divorce. The second ordered a clean-break lump sum of £2,485,000, child maintenance and costs.

The Court of Appeal had directed that the husband's applications for permission, and any ensuing appeals, be heard together. The wife sought security for her prospective appeal costs, for unpaid historic costs, and for the balance allegedly due under the substantive order. The central issue was whether, and to what extent, payment or security should be required as a condition of the proposed appeals continuing.

1. Application allowed in part. The court stayed the proposed appeals unless the husband paid £30,000 into court as security for the wife's costs and paid £10,000 directly to her solicitors pursuant to an earlier order of the court.
2. Following Great Future International Ltd v Sealand Housing Corporation [2003] EWCA Civ 682, rule 25.15 of the CPR 1998 did not permit security for costs before permission to appeal had been granted in this rolled-up setting. Rules 3.1(2)(f) and 3.1(3)(a), however, gave an analogous case-management jurisdiction to stay proceedings upon conditions, including payment into court.
3. The court exercised that jurisdiction for the £30,000 prospective costs. Although rule 25.13 was not directly applicable, its conditions should guide the discretion. The husband was resident outside the jurisdiction and the order was just. The amount was reasonable and would not objectively stifle the proposed appeal or infringe article 6 of the ECHR 1950.
4. The court refused to require security for the £1,675,000 said to be due under the substantive order. It had jurisdiction to impose such a condition, as orders of that kind illustrated, including Radmacher v Granatino [2008] EWCA Civ 1304. But the intended appeal challenged the finding that the husband had means to pay. Requiring payment would prejudge that issue and infringe article 6. Radmacher was materially different because ability to pay was not in issue there.
5. The court also refused security for most historic costs. The calculation was partly estimated and substantially depended on a costs order under appeal. However, the husband could not retain the benefit of the earlier order allowing the proceedings to continue while remaining in breach of its requirement to make a £10,000 interim costs payment.

• Court of Appeal (Civil Division): In [2011] EWCA Civ 528, the wife's application for conditional security in the husband's proposed appeals was allowed in part.
• High Court, Family Division (Moylan J): On 14 July 2010, leave was granted under section 13 of the Matrimonial and Family Proceedings Act 1984. On 16 August 2010, financial relief, child maintenance and costs were ordered. The husband proposed appeals from both orders.