Summary

Security could not now be ordered as a matter of course from a foreign claimant and to avoid such an order he did not have the burden of establishing the ownership of fixed and permanent property here or indeed any property at all.

Facts

Defendants' appeal from the order of Master Moncaster of 18 November 1999 dismissing the defendants' application for security for costs which was made under CPR Sch.1 RSC O.23 r.1(i). The claimant was an Israeli national ordinarily resident in Israel, but he also had a home in England where he stayed on average 80 days per year. The claimant and the first defendant had a property development partnership and the substantive claim between them had arisen over certain developments and whether they were partnership ventures (the trial was due in May 2000).

Held

(1) It was established that a claimant could have two ordinary residences, one within and one outside the jurisdiction and the fact that a claimant, ordinarily resident outside the jurisdiction was also ordinarily resident within the jurisdiction did not preclude the court ordering security as RSC O.23 conferred jurisdiction to order security in the case of a claimant "ordinarily resident out of the jurisdiction" and not in the case of a claimant "not ordinarily resident within the jurisdiction".

(2) The judge did not accept the defendants' contention that a foreign claimant should be ordered to provide security whenever the claimant failed to discharge the onus upon him to prove that he had fixed and permanent property within the jurisdiction as the practice of the courts had fundamentally changed. Security could not now be ordered as a matter of course from a foreign claimant and to avoid such an order he did not have the burden of establishing the ownership of fixed and permanent property here or indeed any property at all. The single criterion for ordering security was what was just in the circumstances of the case. Accordingly the authorities relied on by the defendants such as, Ebrard v Gassier (1884) 28 Ch.D 232, Swinburne v Carter (1853) 23 LJQB 16 and In re Apollinaris Company's Trade-Marks (1891) 1 Ch 1 were no longer of any relevance or assistance; they were a distraction and in the judge's opinion were not to be cited any longer. The common sense principle applied that the existence of assets within the jurisdiction was relevant, as was their fixity and permanence and the court would not infer a real risk of dissipation of assets within this country unless there was a reason to question the probity of the claimant. If a claimant's probity was questioned then the character of his property became relevant; the risk being greater if the property was immediately realisable.

(3) On the facts of this case there were no reasons to question the probity of the claimant. He had offered an undertaking not to complete the sale of a property within this country prior to 2 June 2000 (ie the likely date of the judgment of the trial) without the court's permission and he also had investment property and leasehold offices within this country. The claimant had a substantial connection with this country and, having regard to his long residence here, the master had been correct to hold that it was not just to require him to provide security for costs. The judge found no assistance from Art.13 Convention Regarding Legal Proceedings in Civil and Commercial Matters between the United Kingdom and Israel. That article prohibited any discrimination in the making of orders for security on grounds of nationality. There was no question of any such discrimination in this case; the claimant was to be treated in the same way as a UK national ordinarily resident in Israel. Ordinary residence and not nationality was the critical consideration.

Appeal dismissed.