Bull v Desporte

A court may make continuation of a claim conditional on the provision of security for costs where the claims are sufficiently connected and the order does not disproportionately interfere with access to a court under Article 6(1) of the European Convention on Human Rights. A requirement to pay outstanding costs as a condition of pursuing a claim may unfairly stifle litigation and should not be imposed. Security by way of a charge over property is different where the claimant can provide it and it does not prevent the claim from proceeding. A limited civil restraint order may require permission before further applications and provide for automatic dismissal of applications made without permission, while separately addressing repeated totally without merit permission applications.

Donna Desporte appealed, with permission, against paragraphs 10 to 12 of an order made by Master McCloud on 10 January 2019. The order required her either to provide a draft charge over property securing costs orders or to pay those costs, failing which her libel claim would be struck out. It also imposed a limited civil restraint order in the related privacy proceedings.

The privacy claim concerned publication of a book about the parties’ relationship. The libel claim concerned a letter from Mr Bull’s solicitors to the book’s publisher. The central issues were whether the costs condition unlawfully stifled the libel claim and whether the terms of the restraint order were impermissibly restrictive.

1. Costs condition. The court accepted that requiring payment of outstanding costs as a condition of continuing the libel claim should not be upheld, because such a condition could unfairly interfere with access to a court under Article 6(1) of the European Convention on Human Rights.
2. Security by charge. Under CPR r 3.1(3), the court had power to require security for future costs. The privacy and libel claims were interlinked, and the claimant had incurred substantial unpaid costs in the connected litigation. A requirement to provide a draft charge over property was warranted in the circumstances.
3. The charging requirement did not stifle the claim. The appellant was able to provide security, and the possibility of a charging order had previously been raised by her. The order therefore represented a proportionate interference with access to justice.
4. Limited civil restraint order. The terms of the order were logical and workable. The requirement to obtain permission before making further applications, automatic dismissal of applications made without permission, and the separate provision concerning repeated totally without merit applications were not inconsistent.
5. The appeal was dismissed. The challenge to the payment alternative was conceded, but the charging requirement and limited civil restraint order were upheld.

• High Court (Queen's Bench Division): Master McCloud made the order dated 10 January 2019. On appeal, the High Court dismissed the challenge to the charging requirement and the limited civil restraint order.