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

RSUK first raised concern as to the Claimants’ ability to meet any costs order on 21 November 2023, expressing the view in that letter that the Balance was not “readily realisable”.

On 21 May 2024, in order (RSUK said) to “test that scenario”, RSUK’s solicitors wrote to Barclays’ solicitors stating that RSUK were considering whether to seek security for costs against the Claimants, and needed in that context to understand whether the Balance was available to RSUK to stand as security. The specific question asked was whether Barclays would be willing to process a payment order for payment to RSUK, to implement a court order requiring the Claimants to pay RSUK’s costs or requiring a reduction from the Balance of RSUK’s costs.

Barclays’ solicitors sought further information in a letter of 5 June 2024. In response, RSUK’s solicitors said that the premise of the order was that it would become entitled to an indemnity under the terms of the escrow agreement in respect of certain costs incurred and would obtain a costs order for the costs of the litigation.

In response, Barclays’ solicitors said that it was Barclays’ view at that time that complying with an instruction to apply the Balance in these circumstances “may damage its reputation or break a law, regulation or sanction, for similar reasons to those that apply in respect of the payment instruction that is the underlying subject matter of proceedings”.

On 11 December 2024, RSUK sent Barclays a further letter asking what Barclays’ position would be if the court made an order requiring Barclays to pay the Balance or part of it to RSUK in discharge of any costs order.

The response of 17 December 2024 confirmed that Barclays would, in principle, comply with such an order, but said that Barclays could not commit at that point to how it would respond to a hypothetical order which had not in fact been made, stating:

“In particular, Barclays would need to satisfy itself that any costs order requiring it to deduct an amount from the Escrow Funds in order to make a payment to your client would not result in the risk of prosecution in another jurisdiction, and that the terms of such an order contained adequate provision (including liberty to apply) for any relevant party to seek and obtain any licenses or consents necessary to comply with the order”.