SECOND APPLICATION FOR SECURITY FOR COSTS WAS NOT AN ABUSE OF PROCESS (THIS TIME)

“46. That seems to me to be sufficient to entitle the Defendants to re-open the question of security. I do not need to decide if it was a misrepresentation as such, because Mr Plewman did not actually seek to set aside the consent order disposing of the first application for security – what he seeks to do is bring a second application – but I am satisfied that the circumstances at least come within the principle in Chanel that a party cannot re-open matters unless he “has become aware of facts which he could not reasonably have known, or found out, in time for the first encounter.””

Civil Litigation Brief

In Holyoake -v- Candy [2016] EWHC 3065 (Ch) Mr Justice Nugee decided that a second application for security for costs was not an abuse of process.  The judgment reviews the law relating to second applications and abuse in detail. It contains some important lessons for anyone considering withdrawing an application, but reserving the right to issue a second application.

KEY POINTS

  • It was possible that a second, identical, application made in a case could be an abuse of process.
  • The fact that  in negotiations leading up a consent order  withdrawing the application it was agreed that the claimant “reserved the right” to make a second application did not necessarily give that party any right to make a second application.
  • The question of whether the second application was an abuse was to be decided on the basis of a “broad merits-based judgment”.
  • On the facts of this case it was appropriate…

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