Claim No: CL-2023-000687 - [2025] EWHC 1157 (Comm)

I now turn to RSUK’s application for security for costs under CPR 25.27 in the sum of £6 million, the security to cover RSUK’s own costs of defending the Claimants’ claim, its costs of pursuing the Additional Claim and its potential liability for Barclays’ costs in the Additional Claim.

Putting the position of the Balance to one side, I accept that the jurisdiction to order security for costs under CPR 25.27(b)(ii) is made out, namely that the Claimants are bodies corporate and there is reason to believe that they will be unable to pay RSUK’s costs if ordered to do so. Indeed Mr Turner did not seek to argue the contrary. Both Virgo and Nixie are foreign companies. They are incorporated in jurisdictions which do not require the publication of accounts, and neither has responded to the request that they provide details of their assets and financial positions. This is a state of affairs which the Commercial Court has long treated as sufficient to justify an order for security for costs, and, following a brief hiatus, the correctness of that practice was confirmed by the Court of Appeal in Sarpd Oil International v Addax Energy [2016] EWCA Civ 120.

Nor was there any attempt to argue before the court that the effect of ordering the security sought would be to stifle the claim. Further, the “full, frank, clear and unequivocal evidence” required for such an argument (Al-Koronky v Time Life Entertainment Group Ltd [2005] EWHC 1688 (QB), [31]) has not been produced, and the assertion by the Claimants that it would be “burdensome if not impossible” to provide the security sought does not come close to meeting the forensic burden on a party who seeks to resist security for costs on stifling grounds.

The real issue on this application is the effect of the Balance of USD11m currently held in the RSUK USD Client Account and whether, given the presence of that Balance in an account in the jurisdiction:

Before considering those issues, it is necessary to explore at rather greater length than was done at the hearing, the legal relations between the parties brought into being by the escrow arrangements and the payment made into the RSUK USD Client Account.