The court had no jurisdiction to order an impecunious plaintiff, whose defamation action was being funded by a close relative such as his mother, to provide security for the defendants' costs.
The Court of Appeal dismissed an appeal by the defendants, Ian Hislop and Pressdram Ltd, and affirmed the decision of Sir Michael Davies, sitting as a judge of the Queen's Bench Division on 15 July 1995, who set aside the order of deputy Master Ashton, on 12 May 1994, requiring the plaintiff, John Stuart Condliffe, to provide security for the defendants' costs in the sum of pounds 5,000 failing which his action would be stayed.
The defendants were respectively the editor and publisher of the magazine Private Eye, in which there appeared, on 27 March 1992, an article about the way the plaintiff, a chartered accountant, conducted his business. The plaintiff claimed the article was defamatory and began proceedings on 23 July 1993 seeking damages for libel.
On 27 August 1993, the plaintiff and his wife were adjudged bankrupt. When asked how he proposed to finance his litigation, he told the defendants' solicitors that he had the financial assistance of a relative, who turned out to be his mother.
The defendants suggested the plaintiff's mother was a lady of modest means and that the plaintiff, who was also pursuing a similar action against West Country Television, would incur substantial costs. They applied for a stay of the action unless or until he provided security.
David Eady QC and Adrienne Page (Davenport Lyons) for the defendants; Geoffrey Shaw QC (Peter Carter-Ruck & Ptrs) for the plaintiff.
Lord Justice Kennedy referred to Order 23 of the Rules of the Supreme Court, which dealt with security for costs. As the defendants conceded, the plaintiff did not fall within Order 23, rule 1, which was clearly directed at plaintiffs against whom, because they were abroad or concealing their identity, or were shielding themselves behind a nominal plaintiff, it might be difficult to enforce an order for costs. Means were not relevant, except in the case of a nominal plaintiff, and the law was in general anxious not to shut out the individual plaintiff who was of limited means.
There was no other Rule of the Supreme Court on which the defendants could rely, so their submission was that Order 23 was not exhaustive as to the circumstances in which the court might order security for costs. They sought to rely on the court's inherent jurisdiction.
But on the face of it Order 23 appeared to be specific as to the circumstances in which security for costs could be ordered, even to extent of providing, in rule 3, that "This Order is without prejudice to the provisions of any enactment which empowers the Court to require security to be given for the costs of any proceedings. . ."
If Order 23, rule 1 was not intended to be exhaustive as to the circumstances in which the jurisdiction might be exercised, rule 3 would seem to be surplusage; and in C.T. Bowring v Corsi  2 Lloyd's Rep 567 (Law Report, 14 July 1994), two members of the Court of Appeal expressed the view that Order 23, rule 1 was exhaustive.
The defendants argued that the court always had power to defend itself against abuse, and to order security for costs or stay proceedings as weapons to that end. Maintenance was still an abuse, even if it was no longer a crime or tort; so where, as here, a plaintiff had been shown to be a maintained plaintiff, an order for security for costs enforced by means of a stay should normally be made.
But it was clear from the Law Commission's report in 1966 (whose proposal for the abolition of the crimes and torts of maintenance and champerty was enacted in the Criminal Law Act 1967) that by then a close relative would have been regarded as lawfully justified and not guilty of maintenance if they were to give financial assistance to a person in this plaintiff's position. Nothing had happened since 1966 to render illegal the actions of the plaintiff's mother in this case.
Lord Justice Peter Gibson and Sir Roger Parker agreed.
Paul Magrath, BarristerReuse content