HRH Princess Deema Bint Sultan Bin Abdulaziz Al Saud v Ronald William Gibbs

A debarring order preventing a defendant from defending proceedings does not necessarily prevent every form of participation before trial. The question is whether the proposed step amounts to defending the substantive claims, assessed in context.

Ordinary defence includes contesting the claims on their merits, including by pleadings, preparatory steps and participation at trial. Applications which directly or indirectly seek to defeat the claims, such as strike-out, summary judgment or a potentially permanent stay, ordinarily constitute defending. An application to realise an existing costs entitlement arising from discontinued claims may be pursued if it does not stifle or hamper the remaining claims. A security for costs application seeking to stay or strike out the claims was, on the facts, a means of defending and was therefore barred.

The claimant brought substantive proceedings against the defendant. Earlier orders granted the claimant summary judgment on liability for some claims and required the defendant to make payments and comply with disclosure directions. A subsequent order provided that, unless he complied, he would be debarred from defending the proceedings.

The defendant failed to comply and sought to pursue two outstanding applications: payment on account of costs awarded in respect of discontinued claims, and security for costs. At a pre-trial review, the court allowed the first application to proceed but refused to allow the second. The written judgment addressed whether either application amounted to defending the proceedings despite the debarring order.

1. The defendant was debarred from defending the proceedings, but the court retained a residual discretion to permit some participation or grant relief from the sanction.

2. The meaning of defending proceedings is context-sensitive. The primary rule is that a defendant debarred from defending cannot participate at trial in the normal way, including by adducing evidence, cross-examining witnesses or making submissions. Before trial, the court must assess whether the particular step contests the substantive claims on their merits.

3. Defending includes filing and serving a defence, taking steps required to prepare for trial, and participating at trial. It may also include applications intended directly or indirectly to defeat a claim without a trial, such as strike-out, summary judgment dismissing the claim, or a stay which might be or become permanent. The court left open the wider question whether every application capable of delaying final determination is a defensive step.

4. The application for payment on account concerned an existing costs entitlement arising from claims discontinued in 2022. It did not amount to defending the remaining claims, provided it did not by its nature or effect stifle or hamper their pursuit. The defendant was therefore entitled to pursue that application, although it was dismissed on its merits.

5. The security for costs application sought £5 million, together with a stay and possible strike-out of the claimant’s claims, and was plainly intended indirectly to defeat them. It amounted to defending the proceedings. The defendant was barred from pursuing it, and there was no sufficient discretionary reason to permit such a patently baseless application.