ENGLAND & WALES Law and Practice Contributed by: Damian Taylor, Olga Ladrowska, Christy Conlon and Nathan Barrow, Slaughter and May
4.5 Applications for Security for Defendant’s Costs A defendant can obtain an order of security for costs against the claimant or, in certain circumstances, against a third party if it can demonstrate that one of the specified grounds set out in the procedural rules applies and the court is satisfied that, having regard to all the circumstances of the case, it is just to make such an order. Specified grounds include where: • the claimant is resident outside the jurisdiction; • the claimant is a company and there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so; or • the claimant has taken steps in relation to its assets that would make it difficult to enforce an order for costs against it. Security for costs cannot be sought against an indi- vidual claimant resident in England and Wales on the grounds that there are concerns regarding their ability to pay the defendant’s costs. This is consistent with the English courts’ broader approach of prioritising access to justice for individuals who may have limited financial means. Security for costs applications can only be made dur- ing court proceedings, not prior to formal proceedings being initiated. 4.6 Costs of Interim Applications/Motions The court has broad discretion as to whether costs of interim applications are payable, the amount of those costs and when they are to be paid. Costs orders might be made following the determina- tion of an interim application, depending on the cir- cumstances of the case. The general rule is that the court will make a summary assessment of costs at the conclusion of a hearing lasting not more than one day, using the statement of costs filed and exchanged by the litigants before the hearing. In some cases, the court may order that costs should be determined by way of detailed assessment. 4.7 Application/Motion Timeframe The timeframe for the court to deal with an application will vary depending on several factors, including the
nature and complexity of the application, the court’s availability and whether the application is deemed urgent. Interim applications can be made at any stage of the proceedings, but should be made without delay as soon as it is appropriate to do so. To assist the court, where possible, applications should be made in time to be heard at any pre-scheduled hearings. In some cases, applications are decided “on the papers”, meaning the court reviews the written sub- missions and decides whether to grant the applica- tion without holding a hearing. This process can be quicker, but timelines still vary. Discovery is commonly referred to as “disclosure” in England and Wales, and is available in civil cases. There are detailed rules governing disclosure, which vary depending on the nature of the case and on which court is hearing the case. Broadly, there are two main disclosure regimes. • Under the regime that has been in force for some time, there are a range of disclosure options. However, in practice, courts tend to order litigants to provide “standard disclosure”. This requires the litigants to disclose the existence of all docu- ments within their control on which they rely, which adversely affect their own or their opponent’s case, or which support their opponent’s case. • In contrast, under a relatively new regime (which applies to disputes heard in the Business and Property Courts), litigants are encouraged to pro- vide a relatively limited number of key documents at an earlier stage in the litigation process, and will only be permitted to have more extensive disclo- sure if the court considers it appropriate. Any order for extended disclosure must be reasonable and proportionate. The disclosure process is carried out by the litigants and their legal representatives, who must comply with 5. Discovery 5.1 Discovery and Civil Cases
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