Reference:  EWCA Civ 1123; The Times, 28 August 2006
Court: Court of Appeal
Judge: Sedley, Keene & Longmore LJJ
Date of judgment: 28 Jul 2006
Summary: Libel - Security for costs - Claimants resident in the Sudan - Enforcement of costs - CPR Part 25.12 - CFAs - After the event insurance (ATE) - Discretion - Appeals - Stifling - Fresh evidence - Comity
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Appearances: Adrienne Page KC - Leading Counsel (Defendant)
Instructing Solicitors: Carter-Ruck for the Claimants; Reynolds Porter Chamberlain for the Defendants
The Claimants, the former acting Ambassador of the Sudan in London and his wife, brought proceedings for libel contending that a book published by the Defendants alleged that they had kept a slave, Mende Nazer, whilst resident in London. The Defendants pleaded a defence of justification and, because the Claimants had returned to the Sudan, sought security for their costs. The Claimants filed a large number of witness statements in opposition to the application and contended that the defence of justification was highly likely to fail and that security for costs should not be granted. They argued that the Defendants’ evidence as to the likely unenforceability of any costs order offended comity. The Judge allowed the application and ordered security of £375,000. The Claimants appealed and sought to adduce substantial further evidence on the stifling and merits issues.
(1) Whether the fresh evidence should be admitted;
(2) Whether the Judge was wrong to hold that the Claimants had failed to demonstrate a high probability of success;
(3) Whether the evidence before the Judge had shown that the Claimants’ claim would be stifled if he made a substantial order for security; and
(4) Whether the evidence in relation to enforcement of any costs order in the Sudan offended the principle of comity.
Dismissing the appeal: (1) Apart from parts of the first Claimant’s fresh evidence which amount to recent admissions against interest, there was no good ground for admitting the evidence assembled on the Claimants’ behalf since the hearing before Eady J. (2) The Claimants’ evidence as it stood before Eady J was not such that he was compelled to find their case overwhelmingly or highly likely to succeed at trial. (3) In setting the amount the judge was right to conclude that he had not been provided with a full and candid account of the Claimants’ actual and potential means. The sum he set was a suitable sum in the exercise of his discretion. (4) In deciding that enforcement of a costs order in the defendants’ favour would be impractical in Sudan Eady J acted on evidence and breached no principle of international comity.
In the end, the appeal was dismissed on the basis that Eady J had not erred and the order he made was well within the ambit of his discretion. The judgment is interesting for its discussion of CFAs and comity – and the refusal to admit fresh evidence – but the decision is essentially one of upholding the correctness of Eady J’s original judgment.