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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Nasser v United Bank Of Kuwait  EWCA Civ 556 (11 April 2001)
Cite as:  EWCA Civ 556,  CP Rep 105,  1 All ER 401,  1 WLR 1868,  WLR 1868
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IAN KENNEDY J.
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 11th April 2001
B e f o r e :
LORD JUSTICE MANCE
- and -
UNITED BANK OF KUWAIT
| AMY NASSER
|- and -
|UNITED BANK OF KUWAIT
Peter Irvin (instructed by Messrs Wedlake Bell for the Respondent)
Crown Copyright ©
LORD JUSTICE MANCE:
History of the proceedings
"I consider that if I made any order of any substance, i.e. anything more than a nominal order, the plaintiff's action would be snuffed out and consequently it would not be right to make the order".
"to have matter listed with substantive hearing and she has asked for our reasons in writing – told Paul I will fax a letter to that effect to Julie Whittam (fax no. 0207 947 6621) – I will also send him a copy.
Told him I will try to see if Mr Rashid [junior counsel in another set of chambers] available for 17.10.00 otherwise get back to him for replacement Counsel"
"I write further to our conversation on Friday afternoon concerning the Security for Costs Application by the other side.
When we spoke on Friday it was your intention to write to the Court of Appeal requesting that the application be heard when the main substantive hearing is listed, and furthermore you were going to forward me copy correspondence. Since speaking to you on Friday I have left numerous messages informing you that the Court of Appeal have brought the other side's application from the 17th October to Tuesday 10th October (tomorrow).
Given that my calls remain unanswered I will not pursue this matter any further and treat it that we are without instructions in respect of the above hearing.
I am obliged for your assistance."
"Subsequently ringing Charles Khan. Having introduced myself and asked for Mr Shah, there was a pause and the switchboard operator came back to say that Mr Shah had stepped out of the office. I said that the matter was urgent and Mr Shah must be told immediately that we were going ahead with our application to the Court of Appeal which was listed not before 12 this morning. I was then put through to a Mr Khan who told me that he was Mr Shah's assistant. I gave him the same message."
"It obviously appears that there has been some administrative oversight or confusion at the Court of Appeal in listing the matter and not informing us, as we were in the procedure [sic] of making representations and having this matter listed together with the Substantive Hearing of the 2nd and 3rd November 2000."
"We would respectfully submit that the matter be adjourned to be heard with the Substantive Hearing. We assure the Court that no disrespect is intended for our non-appearance today, which is purely due to not having been informed of today's hearing."
Judge LJ's decision of 10th October 2000
"10. I have read all the relevant papers. The applicants, the United Bank, are respondents to this appeal which is brought by Amy Nasser against the decision of Ian Kennedy J. striking out her claim against the Bank on grounds of delay. That word sufficiently encompasses the basis on which the judge made his order. Leave has been granted for this appeal to be brought, hence the present application for security.
11. The appellant as she now is, is a citizen of the United States of America. She resides there. There were previous orders for security, the last only discharged when the claimant was granted legal aid in this country. She no longer enjoys the benefit of a legal aid certificate. Those orders were, however, made a long time ago and I have decided that I should examine this application on the basis of more recent events and the facts known to me as they now stand. The evidence suggests that she has no assets at all in this jurisdiction. If her appeal is unsuccessful the respondents will have, putting it neutrally, considerable difficulty in recovering the costs of successfully contesting the appeal. Efforts have been made, and I have seen the correspondence both in June and again in July, to persuade the solicitors for the claimant to provide some security so as to avoid an application. Apart from what could be described as standard courtesies, effectively, there never was any response to those letters. I understood from Mr Irvin this morning, but I am open to correction, that his solicitors have continued to write to the solicitors for the other side trying to encourage rather more activity than the negative responses that were received to the June and July letters.
12. Be that as it may, having stood back from the facts of this case, I am satisfied that the application is justified. I have looked at the figures, there is no one to contend that they are unreasonable, the figures are now approaching something just under £20,000. It seems to me that the appropriate order should be less than that I shall make it in the sum of £17,500."
"IT IS ORDERED1. that the Claimant's application contained in letters dated the 10th of October 2000 to adjourn the hearing of this application be refused
2. that the Claimant provide security for the Defendant's costs of the appeal herein by paying the sum of £17,500.00 into Court by 4pm on Tuesday the 24th of October 2000 and in default of such security being furnished as directed and on the solicitor for the Defendant notifying the Civil Appeals Office of such default the said appeal shall stand dismissed with costs without further order.
6. there be permission to both parties to apply."
It was stamped 11th October and faxed to Charles Khan on the same date.
The present application
"3.1(7) A power of the court under these Rules to make an order includes a power to vary or revoke the order."
"23.11 - (1) Where the applicant or any respondent fails to attend the hearing of an application, the court may proceed in his absence.
(2) Where(a) the applicant or any respondent fails to attend the hearing of an application; and
(b) the court makes an order at the hearing, the court may, on application or of its own initiative, relist the application. …."
The merits of the issue whether an order for security should have been made
"Security for costs of an appeal
25.15-(1) The court may order security for costs of an appeal against -(a)an appellant;
(b)a respondent who also appeals,
on the same grounds as it may order security for costs against a claimant under this Part.
(2) The court may also make an order under paragraph (1) where the appellant, or the respondent who also appeals, is a limited company and there is reason to believe it will be unable to pay the costs of the other parties to the appeal should its appeal be unsuccessful."
25.13-(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.
25.13(2) The conditions are -(a) the claimant is an individual -(i)who is ordinarily resident out of the jurisdiction; and
(ii) is not a person against whom a claim can be enforced under the Brussels Conventions or the Lugano Convention, as defined by section 1(1) of the Civil Jurisdiction and Judgments Act 1982.
(b) the claimant is a company or other incorporated body –(i) which is ordinarily resident out of the jurisdiction; and
(ii) is not a body against whom a claim can be enforced under the Brussels Conventions or the Lugano Convention;
(c) the claimant is a company or other body (whether incorporated inside or outside Great Britain) and there is reason to believe that it will be unable to pay the defendant's costs if ordered to do so; …"
"Article 6 – Right to a fair trial(1) In the determination of his civil rights and obligations …., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …"
" … a Contracting State which sets up an appeal system is required to ensure that persons within its jurisdiction enjoy before appellate courts the fundamental protections in Article 6."
"2. Compliance of Article 6(1) 59. The Court reiterates that the right of access to the courts secured by Article 6(1) may be subject to limitations in the form of regulation by the State. In this respect the State enjoys a certain margin of appreciation. However, the Court must be satisfied, firstly, that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Secondly, a restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.
It follows from established case law that Article 6(1) does not guarantee a right of appeal. Nevertheless, a Contracting State which sets up an appeal system is required to ensure that persons within its jurisdiction enjoy before appellate courts the fundamental guarantees in Article 6. However, the manner of application of Article 6 to proceedings before such courts depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein.
The Court's task is not to substitute itself for the competent British authorities in determining the most appropriate policy for regulating access to the Court of Appeal in libel cases, nor to assess the facts which led that court to adopt one decision rather than another. The Court's role is to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation."
"63. In the first place, the case had been heard for some 40 days at first instance before the High Court, in the course of which Lord Aldington gave evidence for more than six days and was cross-examined, the applicant gave evidence for more than five days and a number of witnesses were called. It is undisputed that the applicant enjoyed full access to the court in those proceedings. It is true that he initially complained about their lack of fairness. However, that complaint was declared in admissible by the Commission as being manifestly ill-founded.
The Court attaches great weight to the above considerations in its assessment of the compatibility with Article 6 of the restrictions on the applicant's access to the Court of Appeal. Indeed, as indicated earlier, the entirety of the proceedings must be taken into account.
64. Admittedly, the sum required - £124,900 - was very substantial and the time-limit - 14 days - for providing the money was relatively short. However, there is nothing to suggest that the figure was an unreasonable estimate of Lord Aldington's costs before the Court of Appeal or that the applicant would have been able to raise the money had he been given more time.
65. According to the relevant practice in the Court of Appeal, impecuniosity was a ground for awarding security for costs of an appeal to that court, but only on certain conditions. In exercising its discretion as to whether to grant an application for such an order, the Court of Appeal would consider whether the measure would amount to a denial of justice to the defendant, in particular having regard to the merits of the appeal. If it had reasonable prospects of success, the Court of Appeal would be reluctant to order security for costs.
The disagreement between the applicant and Lord Aldington in the security for costs proceedings concerned the merits or lack of merits of the appeal. The Registrar of the Court of Appeal, with hesitation, decided that the appeal had just enough strength to allow the applicant to proceed without furnishing security for costs. This decision was subsequently reversed by the Court of Appeal because the applicant had failed to show real and substantial grounds for his appeal, both on liability and on damages. On the point of damages, the Court of Appeal observed, inter alia, that the applicant was not so interested in that issue as in the question of liability and that he had declined to accept Lord Aldington's offer to settle for £300,000. Therefore, an appeal on damages only would have been no more than an academic exercise.
The Court does not find that the justification given by the Court of Appeal for ordering security for costs disclosed any arbitrariness.
66. Moreover, the security for costs issue was first examined by the Registrar of the Court of Appeal and then heard by the court for six days. The Court of Appeal's decision was thus based on a full and thorough evaluation of the relevant factors.
67. In the light of the foregoing, the Court does not find that the national authorities overstepped their margin of appreciation in setting the conditions which they did for the applicant to pursue his appeal in the Court of Appeal. It cannot be said that those conditions impaired the essence of the applicant's right of access to court or were disproportionate for the purposes of Article 6(1)."
"Article 14 – Prohibition of discriminationThe enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"a. Article 14 applies to the "enjoyment" of Convention rights. This means that even if there is no actual breach of a Convention right there can still be an Article 14 claim if the conduct complained of comes within the ambit of the right, i.e. its subject matter is linked to the exercise of the right concerned (Belgian Linguistics Case (No. 2) (1979-80) 1 EHRR 252) ….;
b. Therefore, as long as it is established that orders for security for costs fall within the ambit of the right to a fair trial in Article 6, the UK is obliged to exercise its discretion in granting orders in a way which does not discriminate under Article 14;
c. A claim falls within the ambit of Article 6 if the conduct is linked to one of the rights "inherent in Article 6, which includes effective access to the courts in the determination of a civil right or obligation (or a criminal charge) (Golder v UK (1975) 1 EHRR 524);
d. An applicant next has to show that he or she is treated less favourably than other people who are in a relevantly similar or analogous situation; Stubbings v UK (1996) 23 EHRR 213;
e. Article 14 then prohibits discrimination between those people on a "prohibited ground", which includes those listed in Article 14 and others;
f. Conduct which would otherwise be unlawful will not breach Article 14 if it is objectively justified, i.e. it pursues a legitimate aim (Belgian Linguistics);
g. The conduct must also be a proportionate means of achieving the legitimate aim. Proportionality under the Convention involves striking a fair balance between the protection of the interest of the community and a respect for the rights and freedoms safeguarded by the Convention (Sporrong and Lonnroth v Sweden (1982) 5 EHRR 35) …..
h. Finally, Contracting states enjoy a margin of appreciation (i.e. a discretion) in relation to the question of justification, which depends on all the circumstances, subject matter and background of the case (Rasmussen v Denmark (1985) 7 EHRR 371 ….."
"Within the scope of application of the Treaty, and without prejudice to any special provision contained therein, any discrimination on grounds of nationality shall be prohibited."
"The answer compelled by the Mund case in my view is: the English court should never exercise its discretion to order security to be given by an individual plaintiff who is a national of and resident in another member state party to the Convention [i.e. the Brussels Convention], at any rate in the absence of very cogent evidence of substantial difficulty in enforcing a judgment in that other member state."
Other objections to the order for security
"Stifling" the claim
(b) The amount of security sought