Security outside CPR Part 25

Olatawura v Aviloye (CA TLR 24 July)

The district judge, who had taken ‘a dim view of the claimant’s chances of success’ made no order on the defendant’s application for the summary dismissal of the claim except that the claimant gives security for costs in the sum of £5,000. The circuit judge dismissed the claimant’s appeal and so did the Court of Appeal. The first question of principle was: ‘Is there now jurisdiction under the rules to make orders which are tantamount to orders for security for costs outside the provisions of section II of Part 25?’ The answer was clearly ‘Yes’. Paragraphs 4 and 5 of the Practice Direction to rule 24 necessarily contemplates an order akin to that for security for costs, while rule 3.1(3) allows the court to make any order conditionally on payment into court. The more difficult question which arose was: ‘What should be the court’s approach to the exercise of its wider new jurisdiction to order security for costs?’ Under the new rules it was not just the claimant against whom an order for security for costs could be made; it could also be made against the defendant. If, as a condition of pursuing an unpromising defence, it was appropriate to secure the claim, why not also the claimant’s costs of advancing the claim? And if that, why was it not at least as appropriate to require someone advancing an unpromising claim to secure the defendant’s costs? In the present case not only did the district judge perceive the claim had only limited prospects of success, the claimant had been conducting the case in a wholly unreasonable way and was not permanently resident in this country so that enforcement of any adverse costs order was likely to prove more than usually difficult. Those considerations in combination amply justified and supported the order which the district judge made.