Taiga v Ogbedo (Rev 1)

The court may set aside a default costs certificate where the circumstances make it unjust to deprive a party of a fair opportunity to dispute a substantial bill, even though the prescribed points-of-dispute procedure was not followed.

A Hadkinson order requires continuing contempt, an impediment to justice, no other effective means of securing compliance, and wilful non-compliance. Any condition imposed must be proportionate.

Security for costs may be ordered where the statutory or procedural conditions are met and, having regard to all the circumstances, it is just to do so. The court may stage the security and adjust it to avoid double recovery.

The proceedings arose from longstanding family litigation between the parties in England and Nigeria. The claimant sought recovery of substantial sums paid under earlier maintenance and costs orders, together with damages relating to freezing injunctions and disclosure orders. The defendant applied for security for costs and a Hadkinson order, and also sought to set aside a default costs certificate entered after the claimant commenced detailed assessment.

The applications concerned the court’s jurisdiction to set aside the certificate, the conditions for restricting a contemnor’s access to the court, and the exercise of the discretion to order security for costs under CPR Part 25.

1. Default costs certificate. The court had jurisdiction to set aside the default costs certificate. Although the rules contemplated service of points of dispute within the prescribed period, the defendant reasonably believed that the matter was protected by her pending application and the court’s indication that it would be dealt with at the hearing. Given the substantial sum involved and the possibility of disputes about quantum and conduct under CPR 44.11, it would be unjust to require payment without an opportunity to argue the case. The certificate was set aside, points of dispute were permitted within six weeks, and further assessment steps were stayed.
2. Hadkinson order. Applying Assoun v Assoun (No 1) [2017] 2 FLR 1137 and Mubarak v Mubarak [2004] 2 FLR 932, the court found continuing contempt, an impediment to the administration of justice, and no other effective means of securing compliance. The non-payment was wilful. The claimant’s proposed set-off was rejected because the relevant costs liability had not been fixed and payment had been an express condition of permission to amend the claim. Continuation of the claim was therefore made conditional on payment of £14,771.40 within 21 days. The condition was proper and proportionate.
3. Security for costs. CPR 25.13 required consideration of whether an order was just in all the circumstances and whether one or more specified conditions applied. The claimant was resident outside the jurisdiction and had given his solicitor’s address rather than his own address. The defendant had no effective means of recovering costs in England, lacked funding for representation, and faced serious enforcement difficulties. Security was therefore ordered in stages: £90,000 within 21 days and a further £60,000 within two months, subject to adjustment if the claim was struck out and reduced by the separately assessed costs of £28,000.
4. The court refused permission to appeal and refused a stay, leaving any application for a stay to the Court of Appeal.

First-instance decision. The judgment records that the claimant’s proposed malicious prosecution claim and the defendant’s strike-out application were to be determined at a later hearing.