Chilab v King's College London & Anor

For an order requiring a third party to give security for costs under CPR 25.14(2)(b), the third party must have contributed, or agreed to contribute, to the claimant’s costs in return for a share of money or property recovered. A spouse’s financial support, shared family resources, or expectation of a better family lifestyle does not establish that condition. An agreement need not be legally binding, but the contribution must be linked to the expected share. Where contributions are motivated by natural love and affection and no agreement to share the proceeds is evidenced, the application must be refused.

Dr Chilab had permission to appeal against HHJ Knight QC’s dismissal of his claim against King’s College London concerning his failure to obtain or be awarded a Master of Science degree. While the appeal was pending, the college applied to join his wife, Amira Sewan, as a party and require her to provide security for costs. She had contributed substantially to his legal costs after receiving compensation and disability-related income. The central issue was whether the evidence established the condition in CPR 25.14(2)(b) that she contributed in return for a share of any recovery. The court assumed, without deciding, that it had power to make the order.

Application refused. Lord Justice Hughes gave the reasons, and Lord Justice Tomlinson agreed.

1. The court assumed, without deciding, that CPR 25.14 empowered the Court of Appeal to order security for costs against a third party during a pending appeal. The jurisdictional issue was left open because the application failed on the statutory condition.
2. Under CPR 25.14(2)(b), the contribution or agreement to contribute must be made in return for a share of money or property recovered by the claimant. A spouse’s hope that the family will enjoy a better lifestyle from damages is insufficient. An agreement between spouses need not necessarily be legally binding, but the required link between contribution and expected recovery must be established. A later promise alone cannot satisfy the wording, although it may support an inference that an antecedent agreement existed.
3. The evidence did not support the college’s proposed inference. The more natural explanation was that the wife supported her husband out of natural love and affection. References to family income and shared matrimonial resources did not show an expectation of payment from damages. Nor did the payments to solicitors, missing bank-account documents, or an unexplained loan establish an agreement to share the proceeds.
4. Thompson v Berkhamsted Collegiate School [2009] EWHC 2376 QB was distinguishable. It concerned a post-trial costs claim under section 51 of the Senior Courts Act 1981, where the precondition applicable to anticipatory security for costs did not apply. Its general principles on recovery of costs from third parties therefore did not assist.

There was no evidence of an agreement entitling the wife to a share of the proceeds. The statutory condition was unmet, so the court did not need to consider whether an order would otherwise be just or the prospects of the appeal.

• Court of Appeal (Civil Division): Refused the first respondent’s application to join the appellant’s wife and require her to provide security for costs in the pending appeal.
• Central London County Court, Queen’s Bench Division: HHJ Knight QC dismissed the appellant’s claim concerning the failure to obtain or be awarded a Master of Science degree.