Court of Appeal rejects "sliding scale" test in
assessing quantum of security for costs
The first instance decision in this case was reported in our
last Newsletter. The Defendants sought security for costs against
the Claimant on the basis that she was an individual resident
outside of the EU/EEA (CPR r25.13(2)(a)). The judge found that
there was a real risk of non-enforcement in Russia, but the greater
probability was that enforcement would be possible but take longer
and be more difficult. The judge held that in such circumstances, a
"sliding scale" should be applied to the costs claimed.
The Court of Appeal has now upheld an appeal from that
decision.
Prior case law has held that where there is a risk of
non-enforcement, the court may order security to cover the full
likely recoverable amount of costs to date and then later to trial,
but where the risk is limited to additional costs or delay,
security should usually be ordered by reference to that extra
burden
