Security

Jones v Environcom [2008] ALL ER (D) 115 (Jan); NLJ 6 February p191

Generally, an order for security for costs against the defendant will not be made if the defendant is simply defending itself, in other words has served a ‘mere defence’. Accordingly, the court must decide whether the defendant is simply defending itself or really has a counterclaim. A counterclaim is more than a mere defence to a claim: it is a claim that has a ‘vitality of its own’. The inference can be drawn that the defendant has a claim which has a vitality of its own where (i) the defendant would have issued proceedings itself and it was a matter of chance which party issued proceedings first and (ii) the defendant would continue with the proceedings pursuing its own claim if the claimant discontinued its claim.