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MG v AR [2021] EWHC 3063 (Fam)

Mosty J granted an application for security for costs. The father had applied for an order in England seeking that a child living in Canada should live with him in Dubai. Mostyn J gives a detailed explanation as to the principles to be applied when considering such an application, noting the rarity of these applications in family proceedings given the rarity of costs orders in both children’s cases and at the conclusion of financial remedy applications.

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He summarised the principles to be applied at para 53 (having considered each step in more detail) at follows

"i) The court must find as a fact which gateway condition applies (referring to FPR270.7(2)(a)-(d).

ii) The court must have regard to all the circumstances in order to determine whether to make the order for security would be just. In making that determination the court will form a value judgment until it reaches the stage of quantification of the amount of security, where it will exercise a true discretion.

iii) If the applicant has a meritorious case and is of limited means so that the imposition of an order for security would hinder or stifle his substantive application then it would not normally be just to make an order for security.

iv) Subject to para (iii) above, the court must have regard to the merits of the substantive application and to the strength of the defence, as well as to the means of the parties, in order to determine if the respondent has a good chance of being awarded an order for costs at the final hearing of the substantive application. If the court concludes that the respondent does not have that good chance, then it would not normally be just to make an order for security.

v) When assessing the ability of the applicant to pay an order for costs and, ex hypothesi security for those costs, the court should apply the principles in TL v ML [2005] EWHC 2860 (Fam)1 at [124]  and make robust assumptions about his ability to pay where his disclosure had been deficient or where he maintains that a source of support has been cut off.

vi) If the court determines that the respondent has that good chance, it must then be satisfied by evidence adduced by her that there is a real risk (albeit not as high as a 50% probability) that she will not be in a position to enforce an order for costs against the applicant. Findings as to gateway condition (b) or (d) are likely to be highly relevant to the assessment of this risk.

vii) In determining whether it would be just to make an order for security the court will pay particular attention to whether the application for security was made promptly. It may not allow historic costs if the application for security was made unduly late.

viii) If the court decides to make an order for security it will fix the amount in a robust, broad-brush manner, deploying a wide discretion. Historic costs are fully claimable. The evidence of the respondent seeking security must provide full detail of claimed historic costs and a detailed estimate of future costs.

ix) The court may reflect future litigation uncertainties, as well as potential reductions on a detailed assessment, in a percentage discount from the sum claimed.

x) In the first instance, security should only be provided in a financial remedy case up to the FDR; in a children's case it should be provided up to the pre-trial review (or equivalent). Security should be payable in monthly instalments rather than in a single lump sum.

xi) Before making an order for security, the court must finally stand back and satisfy itself that what it is going to do is just. In a children's case the court must be satisfied that what it is proposing to do is consistent with the best interests of the children, or at least not contrary to their interests.

xii) In the event of default in the provision of security there should not be an automatic strikeout of the claim. Rather, the respondent should be entitled to apply urgently for a hearing at which the court will consider what measures should be taken in the light of the default. Such measures will include a summary dismissal of the substantive application, but in children's proceedings the court must be satisfied that such an order is in the best interests of the children, or at least not contrary to their interests."

1 A decision of Nicholas Mostyn QC sitting as a Deputy High Court Judge.

Case summary by Nicholas O'Brien, Barrister, Coram Chambers

For full case, please see BAILII