Junejo v New Vision TV Ltd

A failure to pay an interim costs order may justify debarring relief, but strike-out is discretionary and must remain proportionate. The court must consider all relevant circumstances, including the policy supporting interim costs orders, the availability of enforcement alternatives, Article 6 rights, and the quality of evidence concerning inability to pay.

Article 6 protection may be engaged where a person has assets or normally has means but cannot access sufficient funds at the relevant time. Where genuine cashflow difficulties would make immediate strike-out stifle a potentially meritorious claim, an unless order will ordinarily be appropriate. Strong reasons are required before immediate debarring relief is imposed.

The claimant brought a libel claim concerning broadcasts alleging fraud, theft and money laundering. After a preliminary issues hearing, Nicklin J ordered him to pay the defendant £15,000 on account of costs by 6 November 2020.

The claimant failed to pay in full and made only a late payment of £2,000. The defendant applied under CPR 3.4(2)(c) and the court’s inherent jurisdiction to strike out the claim. The central issues were whether the claimant had proved genuine inability to raise the money, whether immediate strike-out would breach access-to-court rights, and what proportionate sanction should follow.

1. Application and governing approach. The application for immediate strike-out was refused. The court adopted the principles summarised in Michael Wilson and Partners Ltd v Sinclair and others [2017] EWHC 2424 (Comm). The court also applied the proportionality approach in Denton v TH White Ltd [2014] EWCA Civ 906.
2. Article 6 and means. A person who generally has means may still invoke Article 6 where specific cashflow difficulties prevent access to funds at the time of payment. The claimant’s witness and documentary evidence was sufficient to establish difficulty raising the outstanding £13,000. Immediate strike-out would effectively stifle a potentially meritorious claim and would be disproportionate.
3. Proportionate sanction. The court considered the policy behind interim costs orders, alternative enforcement mechanisms, and the fact that the original costs order had been made after representation before Nicklin J. The breach required a sanction, and fairness to the defendant required protection against further unrecoverable costs. However, the circumstances did not provide strong reasons to bypass the usual course identified in Michael Wilson and Partners Ltd v Sinclair and others.
4. The claimant was therefore debarred from pursuing the claim unless he paid £4,000 by 5 March 2021, £3,000 by 19 March 2021, and the remaining £6,000 in two instalments due on 16 April and 14 May 2021.
5. Costs. Applying the approach in R (Scott) v London Borough of Hackney [2009] EWCA (Civ) 217, the court found no real winner or loser and made no order for costs.