Olakunle O Olatawura v Alexander O Abiloye: CA 17 Jul 2002

The claimant challenged an order requiring him to give security for costs before proceeding. The judge had felt he was unreasonable in the way he was pursuing his claim. He appealed saying the order was made outside the scope of Part 25.
Held: The rules now allowed orders akin to orders for security for costs in a wider range of cases. Before making such an order the court must be sensitive to the possibility of injustice, and the court should always be on its guard against ‘exorbitant applications for summary judgment . . in a misguided attempt to obtain conditional orders for security for costs’. Orders might now also be made against defendants on the basis that the defence had a limited chance of success, and therefore a similarly based order must be available against a claimant. The court may approach an application for security on the footing that there is ‘something that may not be bona fide’ about the conduct of the claim, in which case the court may come to the conclusion that ‘the other side should have some financial security or protection’.
Simon Brown LJ said: ‘That, however, is by no means to say that the court should ordinarily penalise breaches of the rules and the like by making orders for payment into court under rule 3.1(5). Quite the contrary. The one case drawn to our attention in which this question has been considered – Buckley J’s judgment in Mealey Horgan plc -v- Horgan (transcript 24 May 1999, briefly reported in The Times, 6 July 1999), to which reference is made in paragraph 3.1.5 of the Annual Practice – held that it would be inappropriate to order a defendant to give security as a penalty for failure to serve witness statements in time when that had prejudiced neither the trial nor the claimant. Buckley J suggested, however, that such an order might be appropriate if ‘there is a history of repeated breach of timetables or of court orders or if there is something in the conduct of the party which gives rise to suspicion that they may not be bona fide and the court thinks the other side should have some financial security or protection’. That seems to me to point the way admirably: a party only becomes amenable to an adverse order for security under rule 3.1(5) (or perhaps 3.1(2)(m)) once he can be seen either to be regularly flouting proper court procedures (which must inevitably inflate the costs of the proceedings) or otherwise to be demonstrating a want of good faith – good faith for this purpose consisting of a will to litigate a genuine claim or defence as economically and expeditiously as reasonably possible in according with the over-riding objective.’


Lord Justice Dyson


Times 24-Jul-2002, Gazette 19-Sep-2002, [2002] EWCA Civ 998, [2003] 1 WLR 275




Civil Procedure Rules 25


England and Wales


ApprovedMealey Horgan Plc v Horgan QBD 6-Jul-1999
The failure to serve witness statements in time could be used disallow additional evidence to be served only in extreme circumstances. Such a failure can be marked in costs. An order to a party to make a payment into court should be used only in the . .
See AlsoOlatawura v Abiloye CA 14-Mar-2002
Appeal from strike out of claim for failure to pay sum into court. . .

Cited by:

CitedCIBC Mellon Trust Company and others v Mora Hotel Corp Nv and Another CA 19-Nov-2002
A party had been ordered to pay into court as a condition of an application to set aside a judgment, a substantial sum in respect of past costs, and also as security for costs to be incurred. The defendant appealed.
Held: The judge had not . .
CitedKing v Telegraph Group Ltd CA 18-May-2004
The defendant appealed against interim costs orders made in the claim against it for defamation.
Held: The general power of cost capping measures available to courts were available also in defamation proceedings. The claimant was being . .
CitedAl-Koronky and Another v Time Life Entertainment Group Ltd and Another QBD 29-Jul-2005
The defendant to the defamation claim sought security for costs. There had been allegations of dishonesty on either side.
Held: The court should not, upon such an application, enter into the merits of the case in any detail, save in the . .
CitedAllen v Bloomsbury Publishing Plc and Another ChD 14-Oct-2010
The claimant sought damages alleging breach of copyright by the defendant author saying she had copied large parts of the claimant’s work in her book ‘Harry Potter and the Goblet of Fire’. The defendant now sought summary judgment, saying the action . .
CitedAllen v Bloomsbury Publishing Plc and Another ChD 18-Mar-2011
Further applications in defendant’s application for summary judgment and or security for costs in the claimant’s claim alleging copyright infringement.
Held: The claimant was ordered to pay a sum of andpound;50,000 as security for costs.
CitedAllen 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 . .
CitedHuscroft v P and O Ferries Ltd CA 21-Dec-2010
Second appeal against order requiring sum for security for costs to be paid into court and in default for the claim to be struck out.
Held: The Court considered its jurisdiction to make an order for security for costs under rule 3.1 and, . .
CitedS v Suren and Another QBD 10-Sep-2004
. .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Updated: 22 September 2022; Ref: scu.174335