Waller LJ doubted whether it was appropriate to make an order in the unless form. An order for security is intended to give a claimant a choice as to whether they put up security and continue with their action or withdraw the claim. That choice is meant to be a proper choice. An order to raise a large sum of money should not be made subject to the unless sanction until the claimant has been given a real opportunity to find the money. Waller LJ considered it preferable to adopt instead the practice of the Commercial Court. There, orders for security do not usually provide for the claim to be struck out without further order. Instead, the other party is given liberty to apply to the court in the event of default. This enables the court to put the paying party to their election to pay or not to pay, and then if appropriate to dismiss the claim.
Waller LJ was clear that if an unless order was made, the period for complying with it should be generous. He stated: ‘The making of an order for security is not intended to be a weapon by which a defendant can obtain a speedy summary judgment without a trial.’
Waller LJ
[2006] EWCA Civ 1700
Bailii
England and Wales
Cited by:
Cited – MG v AR FD 16-Nov-2021
Family Case: Costs Security depends on Case Merits
Application for security for costs in family cases.
Held: In contrast to civil cases generally, in a family case the merits of the application and the strength of the defence necessarily have to be carefully considered. It is only by . .
Lists of cited by and citing cases may be incomplete.
Costs
Updated: 22 November 2021; Ref: scu.247421