Jan 2016
BRITISH VIRGIN ISLANDS
HIGH COURT(COMMERCIAL DIVISION)
SECURITY FOR COSTS CIVIL PROCEDURE RULES (“CPR”) 24.2 – APPLICABLE PRINCIPLES – CLAIMANT ORDINARILY RESIDENT OUTSIDE JURISDICTION – CLAIM FUNDED BY THIRD PARTY – WHETHER APPLICATION PREMATURE CPR 24.2(2) WHETHER JUST TO ORDER SECURITY AND IF SO, IN WHAT SUM CPR 24.3
The Defendant applied for security for costs of proceedings commenced by the Claimant, a company incorporated in Malaysia and currently under receivership. In support of its application the Defendant relied on the fact that the Claimant was resident outside the jurisdiction and was being funded by third parties. The Defendant also relied on the impecuniosity of the Claimant and its past conduct in not satisfying an (albeit unrelated) cost award. The Claimant opposed the application on the ground that the application was premature having been applied for before a case management conference and in any event should await the outcome of an application to stay the proceedings in favour of arbitration and an appeal of the court’s decision to discharge an injunction. The Claimant said it had assets, that the merits of the Claim were arguable, and that enforcement in Malaysia (which is where its assets were based) would not be tedious since Malaysia was a commonwealth country.