Tsimafei Lyndou & Anor v Dmitry Lazarichev & Ors

Security for costs under CPR Part 25 involves two stages. The applicant must first prove, on the balance of probabilities, that a statutory gateway applies. Only then does the court exercise its discretion to decide whether an order is just.

Residence for the purposes of CPR r. 25.13(2)(a) is principally a question of fact. It ordinarily requires habitual and normal residence with sufficient permanence, continuity or expectation of continuity. Lawfulness may be relevant, particularly where there is clear evidence of imminent deportation or removal, but the court should be cautious before determining disputed foreign immigration issues on an interim application.

An address gateway under CPR r. 25.13(2)(e) requires proof of a probability that the address was incorrect, not merely a risk. Both gateways failed on the evidence.

The defendants applied for security for costs against the first claimant under CPR r. 25.13(2)(a) and (e). They alleged that he was resident in Belarus, a non-Hague Convention state, rather than Poland, and that he had given an incorrect Polish address when amending the claim form.

The claimant maintained that he had moved from Belarus to Poland for business reasons, had obtained a Polish temporary residence permit, and had lived at the address stated in the amended claim form. The evidence included immigration material, tenancy documents, surveillance reports and witness statements. The central issues were whether the claimant was resident in Poland and whether the address on the claim form was incorrect.

1. Applicable test. The defendants bore the burden of proving, on the balance of probabilities, that one of the gateways in CPR r. 25.13(2) applied. The court would then have to decide whether security was just, balancing the potential injustice to the claimant against that to the defendants.
2. Residence gateway. Residence is an ordinary factual concept involving a settled or usual abode and some degree of permanence, continuity or expectation of continuity. The question is not ordinarily whether the residence is lawful. Lawfulness may nevertheless be relevant where, for example, there is clear evidence of imminent deportation or removal, because that may undermine the permanence or continuity required for residence.
3. The court should be cautious about deciding disputed questions of foreign immigration law on an interim security application. Allegations that a foreign residence permit was obtained by misleading conduct were serious and should ordinarily be left to the relevant foreign authorities. Even if the Polish permit were liable to be revoked, that would not automatically establish residence in Belarus.
4. The evidence showed that the claimant had moved to Poland, rented accommodation there, registered his address, obtained a temporary residence permit, intended to remain, worked through a Polish company and was supported by surveillance and witness evidence. The defendants therefore failed to prove that he was resident in Belarus or not resident in Poland.
5. Address gateway. The defendants also failed to prove that the Polish address inserted in the claim form was incorrect. The evidence established a probability, rather than merely a risk, was required. Tenancy and payment records, official registration, correspondence and corroborating witness evidence outweighed the limited surveillance evidence.
6. The application for security for costs was dismissed on both grounds. The court declined to determine the defendants’ hypothetical discretion arguments. The parties were to seek agreement on the consequential order, with further submissions to be heard if necessary within 28 days.