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

Should an unless order be made requiring payment of the outstanding security for costs?

The parties’ submissions

The Defendants argued that there was no doubt that the Claimant was in breach of the Stacey J Order. The Defendants are suffering significant prejudice because it is incurring substantial cost of witness and expert evidence without the protection of the security which had been specifically ordered by the Court as a fair compromise between the competing interests of the parties. In Radu v Houston[2006] EWCA Civ 1575, [2007] 5 Costs LR 671, Waller LJ deprecated the practice of making an unless order as part of the initial order for security. The Defendants submitted that the time had now come to make an unless order. The Defendants argued that the Claimant should be given a final window of 21 days to put up the security. They argued that it was not open to the Claimant to argue that they could not afford to pay the security for costs: that was an impermissible attempt to re-run the stifling argument.

The Claimant argued that rather than an unless order a stay should be ordered. An unless order was a blunt tool but a stay would give flexibility. Mr Tchumtchoua was trying to sell his house to raise funds, but the house had not yet sold. The appropriate period should be three months. I asked Mr Maguire how such a period could be reconciled with the fact that the next steps in the litigation were likely to be heavy in costs (see the timetable referred to above at paragraph 4). Mr Maguire said that the timetable could be pushed back and that the trial could be listed at the end of the current trial window. Mr Maguire also relied upon the fact that Stacey J had contemplated that the next step if payment was not made would be an application for a stay.