ON APPEAL FROM QUEEN'S BENCH DIVISION
TECHNOLOGY & CONSTRUCTION COURT
HIS HONOUR JUDGE WILCOX
Strand, London, WC2A 2LL
B e f o r e :
| Rajvel Construction Limited
|- and -
Bestville Properties Limited
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Kenneth Hamer (instructed by Messrs Desor & Co) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Rimer:
"…a detailed and itemised account of the costs, including counsel's fees and expert's fees which have been incurred to date and which are estimated will be incurred in the future conduct of the action on behalf of the Defendant."
"25. Mr Hamer asks for £146,000. In the course of submissions before me, I have made reference to proportionality. This is a case that involves, at top value, some £200,000 or thereabouts. Costs of £146,000, were it to proceed to trial, sadly and not unheard-of in this Court, border upon the wholly disproportionate. This is a case that has been bedevilled with this satellite litigation. It has already been to the Court of Appeal once. There have been cross-applications for security for costs. They continue to mount.
26. I am going to give security in the sum of £90,000. It will be in a staged way. There will be £50,000 paid within 28 days and £40,000 28 days thereafter. Should the claimant offer alternative security by way of charge or otherwise that is acceptable to the defendants then, of course, they would be at liberty within the terms of this order to accept that security. I have in mind, for instance, the uncharged property at 48 Sapcote that could be charged with the whole sum within a limited amount of time. That is a matter for the defendants and their choice in the matter to accommodate the ease with which the claimant may give security in terms of my order."
"Section 51 is a wide discretion. I accept that such an order would only be made under exceptional circumstances. I accept that some degree of impropriety must be demonstrated before the Court can consider making an order in these circumstances."
"There is a distinction between that and being dishonest. That has not been a submission made by Mr Hamer or relied upon by Mr Hamer. Insofar as impropriety is concerned, I regard this as being at the high end."
"However, the court should consider not only whether the plaintiff company can provide security out of its own resources to continue the litigation but also whether it can raise the amount needed from its directors, shareholders or other backers or interested persons. As this is likely to be peculiarly within the knowledge of the plaintiff company, it is for the plaintiff to satisfy the court that it would be prevented by an order of security from continuing the litigation …."
"It is a truism that, in principle, the power to require security for the costs of an appeal, and even more the power to impose financial conditions on an appeal, should not be used to stifle a meritorious appeal. However, an appellant who urges the Court to conclude that its appeal will be stifled if any such conditions are imposed must put before the Court full and frank evidence as to its means."
Order: Application granted on ground 11 only