Case study
The one with the
horse, the passport and the envelope posted from Switzerland
Who?
We successfully defended a security for costs application brought against our client, an individual who had brought a claim to establish ownership of a horse.
What?
If there is any doubt over a party’s ability to pay any adverse costs order, the court may make an order for security for costs against them resulting in some form of security being required (often a payment into court). In this case, the Defendants applied for an order for security for costs on the basis that our client was residing in Switzerland, a non-Hague Convention State.
The Defendants relied upon the fact that, at an earlier hearing, our client had been ordered to provide to the Defendants, an equine passport. The client had posted this to the Defendants, from Switzerland. But was this really evidence of our client being “settled” in that country?
Our client’s position was that he resides in the UK, and he produced a string of documents linking him to residency at a UK address. However, the Defendants sought to counter this with evidence that our client did not own the UK property (a family member did) and was not on the electoral roll at the UK address. We argued that neither of these points determined residency in the UK.
The court agreed that the Defendants had not evidenced residence outside of the UK and therefore, the application failed at the first hurdle.
Why?
The court went on to agree with all alternative arguments we advanced for our client, and this was due to the unique circumstances from which the claim arose. Our client’s case was that he had bought the horse and took possession of it. The Defendants disputed our client’s ownership of the horse and some 2 years later they attended his premises in the middle of the night and took back the horse without agreement.
We said that the court ought not be impressed with the Defendants’ conduct in taking the law into their own hands. The better approach, we argued, would have been for them to commence court proceedings, as the Claimant, for delivery up of the horse. Had they done so, they would have been the Claimant (as opposed to the Defendant) in proceedings and as such would never have had a right to seek security from our client.
The court agreed with all arguments advanced on behalf of our client and the application was dismissed with an order that the Defendants pay our client’s costs of the application. It does not always follow, but success in interim applications can have a number of positive implications for the wider litigation. In this case, our client was saved from making a payment on account of costs, was awarded his costs of the application and is in a good position in the wider claim – a win win!

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