Kanokporn Natthachai v Simon Burrage & Anor

An order for security for costs requires the court to be satisfied that it is just in all the circumstances and that a specified condition is met. Where stifling is alleged, the claimant bears the burden of proving, on the balance of probabilities, that the order would prevent continuation of the claim. The evidence must be full, frank, clear and unequivocal.

The amount is discretionary. The court should consider the defendant’s costs budget, proportionality, the balance of prejudice and the claimant’s ability to raise funds. Security should not be fixed at a level which the claimant cannot meet.

The claimant brought proceedings concerning the estate of Roger Burrage. She sought provision under the Inheritance (Provision for Family and Dependants) Act 1975, repayment of a loan, a proprietary estoppel interest and orders concerning the administration of the estate.

The defendants, the deceased’s sons and executors, applied for security for costs under CPR 25.13. The claimant accepted that security should be ordered but contended that any sum above £30,000 would stifle the claim. The issues were whether security above that amount would stifle the claim and, if not, the appropriate amount.

1. The application fell within CPR 25.13(2)(a), and the claimant accepted that security should be granted. The remaining issues were whether security above £30,000 would stifle the claim and, if not, the amount.

2. Stifling is determined on the balance of probabilities. The claimant must show that security cannot be provided and that appropriate assistance cannot be obtained. Full, frank, clear and unequivocal evidence is required.

3. The claimant’s evidence was inadequate. It did not explain substantial payments into one bank account, the funding of the claim to date, how future costs would be met, or the omission of statements for another account. The court was therefore not satisfied that security above £30,000 would stifle the claim.

4. The starting point for quantifying security was the defendants’ costs budget. The court had to make a best estimate of what the claimant could afford, including the value of her house. The assessment was discretionary and broad-brush. Proportionality mattered, and the defendants’ budget was considered disproportionate to the value of the claims.

5. Security greater than £30,000 was required, but the precise amount was reserved for the forthcoming costs and case management hearing. The claimant was directed to pay £30,000 within a short period after judgment. The defendants were permitted to respond to the additional valuation evidence.