BVC Civil Procedure Security for Costs Consent Orders Discontinuance
Security for Costs • • • (CPR 25) – the court can grant it if: one or more of the grounds for granting it exists in all the circumstances it is just to make such an order
Security for Costs • Grounds- 25. 13(2) • (a)the claimant is -(i)resident out of the jurisdiction; but(ii)not resident in a Brussels Contracting State, a Lugano Contracting State or a Regulation State, as defined in section 1(3) of the Civil Jurisdiction and Judgments Act 1982 • ; (c)the claimant is a company or other body (whether incorporated inside or outside Great Britain) and there is reason to believe that it will be unable to pay the defendant's costs if ordered to do so; • (d)the claimant has changed his address since the claim was commenced with a view to evading the consequences of the litigation; • (e)the claimant failed to give his address in the claim form, or gave an incorrect address in that form
Security for Costs • ; (f)the claimant is acting as a nominal claimant, other than as a representative claimant under Part 19, and there is reason to believe that he will be unable to pay the defendant's costs if ordered to do so; (g)the claimant has taken steps in relation to his assets that would make it difficult to enforce an order for costs against him.
Security for Costs • Other factors - Sir Lindsay Parkinson & Co Ltd v • Triplan Ltd 1973] 2 All ER 273 at 286 • (Wimbledon Construction Company 2000 Ltd v Vago [2005] EWHC 1086 (TCC) • Slazengers Ltd v Seaspeed Ferries International Ltd [1988] 1 WLR 221 • Other considerations inc: human rights (Art 14 & 6) • Nasser v United Bank of Kuwait [2002] 1 WLR 1868
Security for Costs • Good practice to offer a voluntary payment • Form PF 43 – draft bill of costs • Vedatech Corpn v Crystal Decisions( UK) Ltd [2002] EWCA Civ 356 • Expert determination may be needed: Guinle v Kirreh (1999) Lawtel December 3 rd
Security for Costs • Kufaan Publishing Ltd v Al-Warrack Bookshop Ltd March 1 st 2000 • How much to pay – PF 44 • Gordano v Burgess [1988] 1 WLR 890 • Powers under 3. 1 - Ali v Hudson [2003] EWCA Civ 1793 • Summary judgment - Olatawura v Abiloye [2003] 1 WLR 275
Consent orders • • 40. 6 None of the parties is a litigant in person The court’s approval is not required The judgment or order is for: - the payment of money (including damages or the value of goods to be decided by the court • The delivery up of goods with or without the option of paying the value of the goods or the agreed value • The dismissal of proceedings wholly or in part
Consent orders • The stay of proceedings on agreed terms (a “Tomlin order”) • The stay of enforcement of a judgment, either unconditionally or on stipulated conditions • The setting aside of a default judgment that has not been satisfied • The payment out of money paid into court • The discharge from liability of any party • The payment, assessment or waiver of costs or such other provision for costs as may be agreed
Consent orders • • Can be referred to a judge(PD 40 B. 3. 2) Should contain all agreed terms “Tomlin orders” - [1927] WN 290 Court orders may be needed - PD 40 B. 3. 5 • Drafting manual p 270 -271
Discontinuance • Part 38 - Form N 279 • Consent or court’s permission may be needed (if interim payments have been made) • defendant can apply to set aside within 28 days (38. 4) • Castanho v Brown and Root (UK Ltd) [1980] 1 WLR 833 • Gilham v Browning [1998] 1 WLR 682
Discontinuance • Claimant is liable for defendant’s costs (38. 6) (not in small claims - (38. 6(3). • Everton v WPBSA Promotions Ltd 13/12/01 • Walker v Walker [2005] EWCA Civ 247 • Permission needed to recommence - 38. 7 • Sinclair v British Telecommunications plc [2001] 1 WLR 38
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