NDEUGUEU v FOTSING

This Decision considered whether leave should be granted to appeal a Security for Costs Order, and whether a Stay of enforcement pending appeal was available.

Justice Fagnan confirmed that Security for Costs Orders are discretionary, and permission to appeal those Orders will only be granted in rare circumstances. Under Rule 14.5, an Applicant must demonstrate a serious question of general importance and a reasonable chance of success on appeal, having regard to prejudice and delay. Orders for Security for Costs attract substantial deference and will not be interfered with absent an error of law, a misapprehension of material facts, or an unreasonable exercise of discretion.

In considering Security for Costs under rule 4.22, the Chambers judge had considered the relevant factors, including the Applicant’s financial circumstances, the Respondent’s limited means, the weakness of the underlying claim, and the broader litigation context between the Parties. The Court of Appeal held that the Chambers Judge properly exercised discretion in ordering Security for Costs and in fixing the amount at half of what was sought.

Because the Applicant failed to demonstrate a reasonable chance of success on appeal, permission to appeal and the related Stay were refused.

Costs were awarded to the Respondent under Rule 14.88, payable on the same scale as was ordered by the Court of King’s Bench in the lower decision.