Dmitry Lazarichev & Ors v Tsimafei Lyndou

For CPR r. 25.13(2)(a), “resident” has its ordinary factual meaning unless the rule’s purpose requires a different construction. Lawfulness is not generally an additional requirement. It may be relevant only insofar as the circumstances show that the person’s presence is insufficiently settled to amount to residence, such as where removal is imminent. The wrongdoing principle is not a universal rule preventing reliance on a situation caused by unlawful conduct. Its application depends on the purpose of the relevant provision and the connection between the conduct and that purpose. Security for costs applications should be determined proportionately and should not ordinarily require the court to second-guess foreign immigration authorities.

The defendants appealed against orders of Master Pester dated 16 June and 18 July 2023 dismissing their application for security for costs and ordering them to pay the claimant’s costs. The claimant, a Belarusian national, had amended his claim form to give an address in Poland. The defendants contended that he was resident in Belarus, or unlawfully resident in Poland, and therefore satisfied CPR r. 25.13(2)(a). They also challenged the refusal to admit supplemental expert evidence concerning Polish immigration law and argued that the claimant could not rely on residence obtained through wrongdoing.

The central issues were whether “resident” meant “lawfully resident”, whether the alleged wrongdoing principle applied, whether the further evidence should be admitted, and whether the defendants had proved that the claimant was resident outside a Convention State.

1. Appeal dismissed. The Master correctly held that the claimant was factually resident in Poland and that the defendants had not established the jurisdictional gateway in CPR r. 25.13(2)(a).
2. “Resident” is an ordinary English word. It ordinarily refers to dwelling permanently or for a considerable period, with a settled or usual abode. Residence is a question of fact. Lawfulness is not ordinarily part of the meaning. A lawful-residence requirement may be implied only where the context and purpose of the relevant provision require it.
3. The purpose of CPR r. 25.13(2)(a) is to protect defendants against enforcement risk in defined circumstances. It is not to confer a benefit on claimants. The rule therefore did not require “lawfully” to be implied. The claimant’s residence pursuant to a Polish temporary residence permit was sufficient, and allegations that the permit had been obtained by false representations did not alter that conclusion.
4. Lawfulness might affect the factual question where, for example, a person is at immediate risk of deportation and lacks a sufficiently settled presence. That was not this case. The claimant had lived in Poland for a substantial period without intervention by the Polish authorities. The court should not determine serious allegations of foreign immigration wrongdoing on incomplete evidence at an interim security-for-costs hearing.
5. The wrongdoing principle is not a universal rule. Its application depends on the purpose of the relevant provision and the nexus between the alleged wrongdoing and that purpose. CPR r. 25.13 did not create the type of state benefit involved in R v Barnet London Borough Council, ex parte Shah.
6. The refusal to admit the supplemental expert report was a case-management decision within the Master’s discretion. The report was served after the hearing, without permission, and would have required a response and probably a further hearing. It was properly excluded. The alternative application to admit it as fresh evidence also failed because it could have been obtained earlier with reasonable diligence and was unlikely materially to affect the result.
7. The defendants also failed to establish that the claimant was not resident in a Convention State. The burden rested on them, and the possibility that he was resident nowhere did not satisfy the rule.

• High Court, Chancery Appeals: Master Pester dismissed the application for security for costs on 16 June 2023 and ordered costs on 18 July 2023. Permission to appeal was granted.
• High Court, Chancery Appeals: the appeal against both orders was dismissed: [2024] EWHC 8 (Ch).