The claimant, a foreign resident, alleged that her jewels had been stolen from a deposit box while in possession of the defendants. The defendants sought security for costs.
Held: An order for security may not legitimately be based on the bare fact of residence abroad, which would amount in most cases to discrimination on grounds of national origin, but requires an established difficulty of enforcement there. There may be a need for caution about treating the four Michalak questions as a series of hurdles, to be surmounted in turn. The court observed, in effect, that questions (iii) and (iv) set out in Michalak tend to merge into another. ‘The new arrangements for funding litigation certainly appear capable of throwing up possible imbalance, in so far as they permit contingency fee arrangements with uplifts potentially recoverable from losing defendants but enable claimants to pursue litigation without insuring or securing the defendants’ fees.’
Mance LJ said: ‘The exercise of discretion conferred by rule 25.13.1(2)(a)(i) raises, in my judgment, different considerations. That discretion must itself be exercised by the courts in a manner which is not discriminatory. In this context at least I consider that all personal claimants or appellants before the English courts must be regarded as the relevant class. It would be both discriminatory and unjustifiable if the mere fact of residence outside any Brussels/Lugano Member State could justify the exercise of discretion to make orders for security for costs. But the purpose of protecting defendants or respondents to appeals against risk to which they would be equally subject in relation to which they would have no protection if the claim or appeal were being brought by a resident of a Brussels or Lugano State. Potential difficulties or burdens of enforcement in States not parties to the Brussels or Lugano Conventions are the rationale for the existence of any discretion. The discretion should be exercised in a manner reflecting its rationale, not so as to put residents outside the Brussels and Lugano sphere at a disadvantaged compared with residents within. The distinction in the rules based on considerations of enforcement cannot be used to discriminate against those whose national origin is outside any Brussels and Lugano State on grounds unrelated to enforcement.’
Judges:
Mance, Simon Brown LJJ
Citations:
[2002] 1 All ER 401, [2002] 1 WLR 1868, [2001] EWCA Civ 556
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Michalak v London Borough of Wandsworth CA 6-Mar-2002
The appellant had occupied for a long time a room in a house let by the authority. After the death of the tenant, the appellant sought, but was refused, a statutory tenancy. He claimed to be a member of the tenant’s family, and that the list of . .
See also – Nasser v United Bank of Kuwait CA 21-Dec-2001
The claimant appealed against a decision to strike out her claim for want of prosecution, and a failure to pay a sum ordered as security for costs. She had put jewelry with the defendants for safe keeping, and alleged it had been stolen. The lock on . .
Cited by:
Cited – Regina on the Application of Clift v Secretary of State for the Home Department Admn 13-Jun-2003
The claimant had been sentenced to 18 years imprisonment. He challenged the differing treatment for parole purposes of those sentenced to more than 15 years, as infringing his human rights, insofar as the decision was retained by the Home Secretary. . .
See Also – Nasser v United Bank of Kuwait CA 21-Dec-2001
The claimant appealed against a decision to strike out her claim for want of prosecution, and a failure to pay a sum ordered as security for costs. She had put jewelry with the defendants for safe keeping, and alleged it had been stolen. The lock on . .
Cited – Carson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL 26-May-2005
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
Cited – Al-Koronky and Another v Time-Life Entertainment Group Ltd and Another CA 28-Jul-2006
The claimants sought damages after publication of articles alleging severe mistreatment of a servant. One defendant had settled and apologised, but the defendant publisher and author had persisted with the allegation. The claimants who lived in . .
Cited – Somerset-Leeke and Another v Kay Trustees and Another ChD 1-May-2003
The defendants sought to challenge a refusal of the court to order security for costs to be made by the claimants on the basis that they had hidden assets to protect themselves against costs if the case did not succeed.
Held: The appeal . .
Cited – Allen v Bloomsbury Publishing Ltd and Another CA 14-Jul-2011
The claimant appealed against an order requiring him to deposit a substantial sum as security for costs for the bringing of his action for copyright infringement in respect of the Harry Potter series of books.
Held: The appeal failed. The . .
Lists of cited by and citing cases may be incomplete.
Civil Procedure Rules, Human Rights
Updated: 11 June 2022; Ref: scu.200986