Exporien Mining Private Limited Company v Aggreko International Projects Limited

The power under Civil Procedure Rules 1998, rule 3.1(7), is broad but must be exercised consistently with finality, the avoidance of a second attempt on the same issue and the appellate process. Variation will normally require a material change of circumstances, a material misstatement or an obvious error, although the categories are not exhaustive. Promptness and prejudice are important. An after-the-event insurance policy may provide sufficient security for costs, but the court must examine its terms and any realistic risk that cover may be avoided, reduced or rendered ineffective. Where a party has failed to comply with a costs or security order, immediate strike-out may be disproportionate. The usual course is an unless order giving a final opportunity to comply.

Exporien, a Zimbabwean company, brought a commission claim arising from consultancy agreements with Aggreko concerning business and product introductions in Zimbabwe. Aggreko obtained an order requiring Exporien to provide £76,000 security for costs and to pay £27,398 in costs. Exporien failed to make either payment and sought more time and permission to provide security through an after-the-event insurance policy.

Aggreko applied to strike out the claim for non-compliance. The issues were whether Exporien’s applications could be entertained, whether the proposed policy provided sufficient protection, and whether the defaults justified immediate strike-out.

1. The court permitted Exporien to pursue its applications despite the constraints on revisiting orders under Civil Procedure Rules 1998, rule 3.1(7). The policy was not, in itself, a material change of circumstances because it could have been sought before the November 2023 order. The evidence about Exporien’s inability to provide security had also been, or could have been, raised previously.

2. Exceptionally, the application could be entertained. No payment into court had been made, the proceedings had remained stayed, no material prejudice had been shown, the application was made before the relevant deadline expired, and the earlier judgment appeared to contemplate that after-the-event insurance might be explored. The liberty to apply provision could therefore reasonably be understood as allowing the issue to be raised.

3. An after-the-event policy can in principle constitute security for costs. The court must assess whether it provides sufficient protection, having regard to its terms. Concerns about avoidance must be realistic rather than theoretical or fanciful, but anti-avoidance provisions and exclusions must be examined carefully.

4. The proposed policy required clarification or amendment concerning costs arising from the earlier security application and amendments, the requirement for a signed damages-based or conditional-fee agreement, and confirmation that the relevant cover would not be reduced by the costs orders. The prospects-of-success condition was not objectionable if immediate notice was required, accrued costs remained covered, and termination could not occur before the first case management conference.

5. Immediate strike-out was refused. For the unpaid costs order, the usual course was a peremptory unless order. The same approach applied to the security default because Exporien had applied for further time before the deadline and immediate strike-out would be disproportionate. Both the outstanding costs and the security issues had to be resolved within 21 days.

Not stated in the judgment.