England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
THE HONOURABLE MR JUSTICE EADY

		Royal Courts of Justice Strand, London, WC2A 2LL
		1st February 2011

Lord Justice Sedley:

1. This is an application for security for the costs of an appeal for which permission was given on renewal by Smith LJ.
2. The appeal is an interlocutory appeal in a libel action brought by the claimant, whose full title on the proceedings is His Holiness Sant Baba Jeet Singh Ji Maharaj. The claimant is the present leader of a sect of Sikhism. He has opponents and critics within the Sikh community, in this country and no doubt elsewhere.
3. Some of the dispute revolves around whether he is indeed the duly chosen and anointed leader of the sect in succession to its founder, but Eady J on an application to strike out held that this was not a justiciable question. No attempt is now made to appeal against that decision.
4. The action was brought against the Eastern Media Group, with whom the claimant has now settled, and against the journalist who wrote an article published in this country in a newspaper published by the Eastern Media Group for the benefit of the Sikh community, Mr Hardeep Singh. It is he who seeks the present order because, although no attempt was made to restore as much as of the action as related to theological matters, permission to appeal has been given in relation to certain other allegations, or (if I can put it this way) alleged allegations in the article, particularised in Smith LJ's order as grounds 2 and 3. There is no need for me to recite these in any detail, but they amount now to an attempt on the pending appeal to restore the action in relation to the suggestion that the claimant is a cult leader, that he has been responsible for disturbances of the peace, that he has promoted the sexual exploitation of women, that he has dishonestly produced counterfeit trust deeds and that he has acted contrary to the interests of the Sikh community.
5. How much of that the appeal will succeed in restoring for trial we do not know. The appeal, however, is due to be heard in 28 days' time and the application before us is to secure the costs should that appeal go against the claimant. It is supported by a witness statement of Mr Yell, the defendant respondent's solicitor, which in turn exhibits the evidence of an Indian lawyer, Mr Shah.
6. The upshot of the application is that any costs awarded against the claimant will be subject to many years of delay, probably about six, in recovery, assuming that recovery is possible, but also that Indian law is inimical to the recovery of costs given upon a judgment that has not been given on the merits of a case. The latter is a two-edged point, since it is the very endeavour to secure judgment without trial of the merits that has brought about the present stage of litigation; but it does not seem to me that this is any way fatal to the application.
7. The claimant is not represented before us today. He has been represented until very recently by Ford and Warren of Leeds, but they have written on 31 January to say:

"We regret to report that we are without instructions from our client in respect of the defendant's application, which is returnable tomorrow. We should also add that we are without instructions with regard to the appeal hearing, returnable on either 28 February or 1 March. In these circumstances it is a matter of courtesy to the court that we must report that neither we nor counsel will be in attendance at Tuesday's hearing. We can confirm that, given the absence of instructions from our client, we are now in the process of making application to come off the court record as acting for the defendant."

8. The power to order security for costs of an appeal is given by Part 25.15 of the Civil Procedure Rules. It refers the reader directly back to Part 25.30 for the conditions which must obtain if the court is to make such an order. 25.13(2)(a) sets out as the first such condition that the claimant is:

"i) resident out of the jurisdiction, but ii) not resident in a Brussels contracting state or state found by the Lugano Convention or a regulation state... "

That description, on the information before the court, fits the claimant and makes it possible though not obligatory for the court to order him to furnish security for the costs of the appeal.

9. While the exercise of the power remains a matter both of judgment and of discretion, it seems to me that this is very much the kind of case in which it is appropriate to order security for costs. This is not only because the claimant fits the criteria in the rules but because the content of the appeal is marginal in relation to the principal issues upon which this action was initially launched. They have gone and gone for good, and while what is left is not insignificant it was by no means at the heart of the action when it was brought. I do not think it is necessary to say more than this by way of reasons for requiring security for costs to be given.
10. The amount sought is little short of £300,000. While that is high, the trajectory of these proceedings is such that, for better or for worse, it may well be realistic. I would not order quite as much as is asked, but it does seem to me appropriate that a sum of £250,000 should be brought into court within 14 days; that is rather more time than Mr Speker seeks and brings us closer than one would like to the date of the hearing of the appeal, but anything less would, it seems to me, be unfair to the claimant and give him insufficient time to put money in court, if he is able to.
11. The money is to be paid into the court funds office within the time that I have specified. I would propose to give liberty to apply to both sides because there are often slips between cup and lip when it comes to bringing money across the world. Any application will, if possible, be listed before me on short notice, but precisely because short notice may be necessary it may not be possible for me to take it.

Lord Justice Pitchford:

12. I agree.

Order: Application granted