Security For Costs CPR 3.1(5) As Alternative To Debarring

Where serious but not egregious breaches of costs orders and procedural directions did not justify debarring, the court exercised its discretion under CPR 3.1(5) to order security for costs as a proportionate response to the party’s conduct.

A debarring order is a draconian sanction of last resort, which the court will only impose where a litigant’s conduct puts the fairness of the trial in jeopardy, would render any judgment unsafe, or amounts to such an abuse of process as to prevent the court from doing justice. [59, 60]
The court has jurisdiction to order security for costs under CPR r.3.1(5) where a party has failed to comply without good reason with a rule, practice direction or relevant pre-action protocol, and has demonstrated a lack of will to litigate a genuine claim or defence as economically and expeditiously as reasonably possible in accordance with the overriding objective. [107]
When considering whether to debar a party for failure to pay costs orders, the court will have regard to the degree of connection between the unpaid costs in question and the claim or application in which the respondent wishes to participate. [63, 86, 99]
A submission by a party that they lack the means to pay a costs order or provide security, and that such an order would be a denial of justice, must be supported by detailed, cogent and proper evidence giving full and frank disclosure of their financial position. [62]
In exercising its discretion to impose a sanction for non-payment of a costs order, the court will consider all relevant circumstances, including the policy of discouraging irresponsible interlocutory applications, the availability of alternative enforcement mechanisms, and whether the order should be an ‘unless’ order. [62]

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