CA-2025-001045-A - [2025] EWCA Civ 1300

Quantum of security

The Claimants’ anticipated costs, at £225,000, are disproportionately high in the context of this appeal, which raises a relatively short point of law which can easily be disposed of within a day.

Mr Emmett KC, who appeared for the Claimants, sought to justify the level of costs on the basis that the Claimants have issued a respondent’s notice, which seeks to uphold the judge’s order granting summary judgment on the grounds that such an order was justified on the merits (even if the judge was wrong to conclude that there was no need to consider the merits because the strike out of the appellants’ defences was equivalent to an admission by them of the allegations in the claim).

There is, however, a conceptual difficulty with this argument. The Claimants would not have been entitled to security for costs of their application for summary judgment in front of the judge. If the appeal succeeds, then the parties will be put back in the position that there is an extant application for summary judgment, the merits of which have yet to be determined. Without pre-judging the course that this Court will take on the hearing of the appeal, it may well decide to remit that question for determination by the judge. If so, the Claimants could not obtain security for costs in respect of it. It should not, in my view, make any difference – so far as security for costs is concerned – if this Court went on itself to determine the application for summary judgment on its merits.

Accordingly, I consider that the amount of security ordered should be limited to an amount which reflects the Claimants’ costs of responding to the appeal, excluding the costs incurred in respect of their respondent’s notice. The Claimants have not sought to separate out the costs in this way, so it is necessary to take a broad brush approach. I consider that a sum of £70,000 is a reasonable and proportionate level of costs to be incurred in responding to the appeal.