Allen v Bloomsbury Publishing Plc & Anor

A conditional order requiring security for costs may be made under CPR r.24.6 where a claim has some prospect of success but is improbable to succeed. The jurisdiction is not confined to cases satisfying the conditions in CPR r.25.13 or involving procedural default or want of good faith.

The court must consider access to justice, the claimant’s ability to provide security, the conduct of the proceedings and the apparent strength of the claim. Rule 3.1 must not be used to circumvent Part 25. Security should not ordinarily be ordered merely because a claim is weak, but exceptionally poor prospects may justify it. The claimant must give full and candid information about resources available from the claimant and those backing the litigation.

This was a further hearing of the defendants’ applications for summary judgment or, alternatively, a conditional order requiring Mr Allen to provide security for costs. The earlier judgment had found that the copyright claim was improbable to succeed, although not fanciful, and summary judgment had failed by a narrow margin.

The claimant acted as trustee and nominal claimant for an estate. The defendants alleged that he would be unable to meet a costs order and that those behind the claim had demonstrated a want of good faith. Mr Allen contended that the jurisdiction was unavailable without satisfaction of CPR r.25.13(2), and that security would stifle the claim.

1. Jurisdiction. The court rejected the submission that CPR r.24.6 permitted a conditional order only where a condition in CPR r.25.13(2) was satisfied and there had been procedural flouting or want of good faith. The court’s powers under rule 24.6 were wider, although the principles underlying CPR rr.25.12 and 25.13 remained relevant.
2. Applicable considerations. The court had to balance access to justice against protection from irrecoverable costs. Relevant matters included the claimant’s ability to pay or raise security, conduct of the proceedings, apparent strength of the claim, and whether the claimant had provided full and candid evidence of available resources. Rule 3.1 was not a less demanding alternative route around Part 25.
3. Application. Mr Allen was a nominal claimant because he sued for the benefit of others, including the estate’s sole beneficiary. There was reason to believe that he could not meet the defendants’ substantial costs. The claim was exceptionally weak in the relevant sense: it was improbable to succeed, although not fanciful.
4. The delay, repeated reformulation, pursuit of aspects already found unsustainable, and publicity campaign demonstrated a want of the will to litigate economically and expeditiously in accordance with the overriding objective. The evidence about available funding was also far from full or candid, and the court was not satisfied that security would stifle the claim.
5. Justice therefore required a conditional order for security. The claimant was required to provide security calculated at 65 per cent of the defendants’ estimated costs. If security was provided, there was no basis for requiring identification of the funders. The costs of the application were ordered to be costs in the case.

Not stated in the judgment.