Moore v Moore [2009] EWCA Civ 737

Case No Case No: B4/2008/1651(A)[2009] EWCA Civ 737
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
PRINCIPAL REGISTRY, FAMILY DIVISION
(MR JUSTICE BODEY)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 17 th March 2009
Before
LORD JUSTICE THORPEMR JUSTICE HOLMAN
Between
MOOREApplicantMOORERespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr D Cellan-Jones (instructed by Crowther Solicitors) appeared for Applicant.Mr C Umezuruike (instructed by CT Emezie Solicitors) appeared for Respondent.
Judgment
[1]On 18December I heard an application by Mr Umezuruike for permission to appeal an order made by Bodey J in the Division. The short point that Mr Umezuruike wanted to argue was a point in principle of whether an order for maintenance pending suit that ran during a period when the petitioner asserted jurisdiction was enforceable when the court determined that it never had jurisdiction. I gave Mr Umezuruike some comfort in that I adjourned his application for hearing on notice with the appeal to follow if any permission granted. However, I was not particularly enthusiastic and I warned of the considerable risks that he would be running that substantial costs would be incurred and that if he failed he would face a bill not only for his own sum but for the costs of the other side, and I gave clear warning so that he could consider whether he wanted to put so much at risk. Perhaps in consequence, the wife’s solicitor, who had observed the hearing on 18 December, on the following day issued an application for security for costs and that is the application we determine this morning. It is supported by Mr Cellan-Jones for the wife and opposed by Mr Umezuruike for the husband. The skeleton argument of Mr Cellan-Jones is dated yesterday and Mr Umezuruike’s bears today’s date as does a statement from his client in Nigeria.[2]The case for the grant of security is very plain. The rules provide for it. CPR 25.13 says:
“(1) The court may make an order for security for costs under rule 25.12 if – (a) it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order; and (b) (i) one or more of the conditions in paragraph (2) applies, or (ii) an enactment permits the court to require security for costs.

(a) the claimant is – (i) resident out of the jurisdiction”

So Mr Cellan-Jones clears that hurdle since the husband is resident in Nigeria. (a) it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order; and (i) one or more of the conditions in paragraph (2) applies, or (ii) an enactment permits the court to require security for costs.

(a) the claimant is – (i) resident out of the jurisdiction”

[3]As to the circumstances of the case, he relies on the fact that the husband has to date blithely ignored orders of this court for the payment of maintenance pending suit and for the payment of previous costs orders. In relation to the latter, the husband may draw some support from the fact that the previous costs orders have not, I think, as yet been assessed. But all in all it looks as if he now owes something in the order of £290,000 in this jurisdiction, and the wife’s only security is a property which she is trying to sell in order to discharge arrears. The sale is in the hands of the Chancery Master. It is currently on the market at £275,000. Even were it to sell at that price tomorrow, with costs of sale deducted there would probably only be about £267,000 to meet a debt of approximately £290,000 and rising. So, says Mr Cellan-Jones, clearly the circumstances indicate the grant of the application.[4]Mr Umezuruike in an able submission seeks to rely on the fact that the wife is also non-resident. That may be one of the circumstances, but it is not in my judgment a fact that takes the case outside the provisions of Rule 25.13. He further says that his client has no money, is in penury and he advances that submission on the basis of the husbands’ statement to which I have already referred. The difficulty for Mr Umezuruike is that this is a husband who has all the manifest signs of some degree of affluence and whose evidence, certainly in relation to the beneficial ownership of the Edgware property, has been firmly rejected by a judge of the Division who described his testimony as deliberate lies.[5]Mr Umezuruike challenges the statement in the evidence of the wife’s solicitor that the husband pays his own legal team to the full and step by step. He may well be right in challenging that. It may be that the solicitors acting for the husband in this jurisdiction are taking a great risk in allowing him to litigate on boundless credit, but that in my view does not go the issue we have to decide. The point that Mr Umezuruike makes that most impresses me is that the sum of £20,000 sought is an essential reduction of a fantastic figure of £50,000 first advanced by the wife’s solicitor, and Mr Umezuruike speculates that it is simply founded on my estimate on 18 December. But, says Mr Umezuruike, I was estimating the costs on both sides. So we put Mr Cellan-Jones on the spot and said how did he make up this figure of £20,000? He said it was simply the solicitors’ best estimate of the bill that would be run from now on. My Lord, Holman J, has stressed that the costs burden on a respondent is much less than upon an appellant and that the principal item on a respondent’s bill might be the disbursement to counsel.[6]I reach the very firm conclusion that the circumstances of this case render a security order just, but I would not set the sum at more than £15,000. My experience of summary assessments in this court satisfy me that that is the sort of target area for a respondent’s bill in a case that raises a point of some legal principle but which is conducted within half to one day.[7]So I would fix security at £15,000 and I would adopt Mr Cellan-Jones’s timetable, namely the sum must be paid into court by way of cleared funds by 1400hrs on 23 March 2009.[8]I agree.

Order

Application granted