On 11 December 2023, Deputy Master Toogood KC granted an application made by the Defendant (Co-Diagnostics Inc) against the Claimant (Pantheon International Advisors Limited) for security for costs following unsuccessful requests for security and relevant financial information in prior correspondence.
Accepting the submissions made on behalf of the Defendant, the Deputy Master held that:
1. Considering all of the evidence as a whole, the test under CPR 25.13(2)(c) was fulfilled: there was reason to believe that the Claimant will not be able to comply with a costs order if made inter alia because the Claimant’s limited assets were largely made up of trade debtors being over 1 year old such that they are not liquid readily available assets and there was not a single document in support of the Claimant’s witness evidence as regards work allegedly in progress to generate the cash needed to satisfy a costs order.
2. There was nothing to displace the ordinary position that it is just to grant security for costs once it is established that there is reason to believe that a claimant will not be able to pay an adverse costs order. This is because the jurisdiction is founded on an inability to pay and so such an inability must have been envisaged as entitling a defendant in many cases to an order for security, and further, the interests of justice are generally best served if successfully litigants recoup much of their costs and unsuccessful litigants pay those costs.
As the case was at an early stage with pleadings not yet closed, the Claimant was ordered to provide the first stage of security for incurred costs and estimated future costs up to and including the first costs and case management conference by way of a payment of a specified sum into Court within a specified time.
Sophie Weber appeared for the successful Applicant/Defendant instructed by Freshfields Bruckhaus Deringer LLP.