Key Facts
- •Claimants (individuals and corporate entities) invested in an unsuccessful option trading strategy in 2014.
- •Claimants allege breaches of contract, statutory duties, negligence, misrepresentation, and dishonesty by the defendant.
- •Defendant applied for security for costs against corporate claimants in October 2021.
- •Master Stevens' initial judgment ([2022] EWHC 973 (QB)) required security, potentially via an ATE policy with anti-avoidance provisions, addressing solvency and direct payment.
- •Claimants initially failed to comply with the Security Order, which included a Deed of Indemnity.
- •Claimants subsequently offered an ATE policy from a new provider (AIE) without a Deed of Indemnity.
- •Claimants applied to amend/vary the Security Order due to alleged mistakes and changed circumstances (AIE's inability to provide a Deed).
- •Defendant issued a cross-application to strike out the corporate claimants' claims for non-compliance.
Legal Principles
Slip Rule (CPR 40.12): Court can correct accidental slips or omissions in a judgment or order; cannot allow 'second thoughts'.
CPR 40.12, White Book commentary at 40.12.1, Bristol-Myers Squibb v Baker Norton Pharmaceuticals Inc [2001] EWCA Civ 414, Leo Pharma A/S v Sandoz Ltd [2010] EWHC 1911 (Pat)
Variation of Order (CPR 3.1(7)): Court can vary or revoke an order; considerations of finality, preventing 'two bites at the cherry', and appeals apply.
CPR 3.1(7), Tibbles v SIG plc [2012] EWCA Civ 518, Lloyds Investment (Scandinavia) Ltd v Ager-Hanssen [2003] EWHC 1740 (Ch)
Extension of Time (CPR 3.1(2)(a)): Court has discretion to grant extensions, considering the overriding objective.
CPR 3.1(2)(a), Denton v TH White Ltd [2014] 1WLR 3026, Andrew James Barclay-Watt & Ors v Alpha Panareti Public Ltd [2021] EWHC 3298 (Comm), Harrison Jalla v Shell International Trading [2021] EWCA Civ 1559, Everwarm Ltd v BN Rendering Ltd [2019] EWHC 2078(TCC)
Outcomes
Application to amend under the Slip Rule refused.
No 'mistake' was made; the Security Order reflected the court's intention; claimants agreed to the order's terms; new arguments/authority should have been raised earlier.
Application for variation under CPR 3.1(7) refused.
No material change in circumstances beyond claimants' control; significant delay caused by claimants' inaction; inadequate alternative security; failure to comply with court orders.
Application for extension of time refused.
Claimants' significant delay; inadequate alternative security; prejudice to defendant; overriding objective requires compliance with orders; even under Denton principles, relief would be refused.
Corporate claimants' claims struck out.
Failure to provide adequate security as ordered; non-compliance with the Security Order.