Somerset-Leeke & Anor v Kay Trustees & Anor (2004)
In an application for security for costs, the relevant ground on which the applicant relied under the CPR r.25.1.3 should always be identified and the relevant evidence should be clearly aimed at that ground. Factors had to be shown which justified the grant of security.
The defendants (K) appealed against a decision refusing to order security for costs against the two claimants, an individual (S) and a company (B) which was trustee of a pension fund of which S was the sole beneficiary. S had been resident in Monaco since 1994 and had moved there for tax purposes. A condition of his residence was that he proved every three years that he was worth at least €250,000. K's application for security for costs had not identified the grounds that were being relied upon under the CPR r.25.1.3 and was accordingly dismissed. On appeal K sought to rely on ground (a) that the claimant was resident out of the jurisdiction but not resident in a Brussels or Lugano state, and ground (g) that the claimant had taken steps in relation to his assets that would make it difficult to enforce a costs order against him.
(1) K's original application had been unsatisfactory as it had failed to identify the grounds on which it relied and simply said that it sought security for costs. The witness statement in support also failed to refer especially to any grounds. In an application for security for costs, the relevant ground should always be identified and the relevant evidence aimed at that ground. K appeared to be running an amalgamation of the grounds. Under ground (a) it was not enough simply to show that the condition was satisfied in order to get an order for security. Factors had to be shown which justified the grant of security. It would be discriminatory if the mere fact of residence outside any Brussels or Lugano member state could justify the exercise of discretion to make orders for security for costs: Nasser v United Bank of Kuwait (2001) EWCA Civ 556 applied. The evidence showed that it was possible to have an order for costs against S enforced in Monaco upon payment of a fee. The application for a security order against S was therefore discriminatory. There was evidence that B's pension fund was worth £250,000. B accordingly had recourse to that fund which was in the United Kingdom. There was no case for security against S or B. (2) As to ground (g), there was no evidence to suggest that S had moved his assets out of the jurisdiction to make it difficult to enforce a costs order against him. S had moved to a country where judgments were recognised as of course.
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01 May 2003
(2004) 2 All ER 406;  EWHC 1243 (Ch)
Catherine Newman QC