QB-2022-000681 - [2025] EWHC 2744 (KB)

Discussion and decision

The Claimant is undoubtedly in breach of the Stacey J Order. Having determined that there is no basis for that Order to be revoked there must in principle be a sanction for non-compliance. As Waller LJ said in Prince Radu of Hohenzollern v Houston [2007] 5 Costs LR 671 “[t]he obtaining of an order for security for costs is a rather special form of order. It is intended, if it is right to make an order at all, to give a claimant a choice as to whether he puts up security and continues with his action or withdraws his claim.” (see [18] of the judgment).

I do not accept the Claimant’s submission that if an order is to be made then it should be for a stay. Paragraph 3 of the Stacey J Order does not, it seems to me, preclude the making of an unless order. Indeed, there are occasions when a stay is combined with an unless order. See, for example, the decision of Eder J discussed in SC GD Petrol SRL v Vitol Broking Ltd [2013] EWHC 3920 (Comm) [2014] 2 Costs LR 205. In that case Eder J made an order on 7 June 2013 for security of costs to be provided within 28 days. Then, when security had still not been provided by 4 September 2013, he extended the time for providing the required security until 17 October 2013, with a stay of proceedings in the meantime. At the same time, he ordered, unless the security was provided or a further extension of time granted before 17 October 2013, the claim would be struck out on that date.

More specifically, I accept the Defendants’ argument that a stay would be inappropriate and unsatisfactory. It would simply put on hold the litigation leaving uncertainty for the Defendants.

I recognise that the making of an unless order is one of the most powerful weapons in the court’s case management armoury and should not be deployed unless its consequences can be justified. I must be satisfied that it would be proportionate for the claim to be struck out unless the security for costs is paid.

An important aspect of the proportionality assessment is the period to be given. It is clear from the witness evidence that efforts have been made to secure ATE insurance, albeit that the Claimant now accepts that ATE insurance is not going to be available. Equally the witness evidence indicates that there have been some efforts to raise funding through the sale of Mr Tchumtchoua’s house. To be weighed against those factors however is the fact that the whole purpose of the security for costs order is to give security for the costs to be incurred in the next phase of the litigation. The first payment under the Stacey J Order was to have been made as long ago as 4 July 2025. Over three months later there has been no payment whatsoever. The non-payment of the security for costs has already led to the case management directions being extended.

In my judgment, balancing all of those factors, it would be in accordance with the overriding objective for an order to be made whereby, unless the Claimant pays security for costs in the sum of £226,000 within 6 weeks of the handing down of this judgment, then the case will be struck out. Inevitably that will require the case management directions to be further delayed but should still enable the trial window to be maintained should there be compliance by the Claimant.

I invite the parties to agree an order reflecting the terms of this judgment. If agreement cannot be reached, then I will determine the terms of the order on the basis of brief written submissions as to the points in dispute.