#4689 - Security For Costs - BPC Civil Litigation

SECURITY FOR COSTS Available where there is significant risk of Defendants suffering injustice of defending claim with no real prospect of being able to recover costs if they are successful. Order requires party in the position of a claimant to pay money into court as security for payment of costs order which may ultimately be made in favour of Defendant * discretion to retain security pending appeal. Usually claim stayed until Claimant makes payment. Test: 1. Is the Respondent in the position of a claimant? 2. Condition for the Order, 3. Having regard to all the circumstances of the case, would it be just to exercise discretion in favour of making the order? 4. How much should be provided? Respondent "In the Position of a Claimant" Includes: * Defendant counterclaiming * unless pure set-off (as this is only a defence) * Defendant against third party (additional claim) * can order Defendant to pay in security for Third Party's costs of defending the additional claim * Claimant cannot be ordered to provide security for Third Party's costs unless Third Party ordered to defend case jointly with Defendant. May also order against: * Party who (court is satisfied) assigned the claim to Claimant with view to avoiding possibility of being ordered to pay costs, or * Party who has contributed/agreed to contribute to Claimant's costs in return for a share of any money/property Claimant recovers in the claim. Conditions Order can only be made if one of the conditions is made out. 1. Foreign Claimant - Claimant is resident outside the jurisdiction, * but not in a Brussels contracting state / Lugano contracting state or Regulation State 2. Impecunious Company - Claimant is a company or other body and there is reason to believe Claimant will be unable to pay Defendant's costs if ordered to do so, * not partnerships 3. Changed address to avoid claim - Claimant has changed address since the claim