Costs judge finds no jurisdiction to make order, in first case of its kind
A court dealing with an inter partes costs assessment does not have the power to order security for costs, a judge has ruled.
Costs Judge Brown said neither advocate before him was able to find any cases on the point, and he was not aware of any such application ever having been made in the Senior Court Costs Office.
The rules around detailed assessment did not give any express power, nor was there an express importation of the rules on security in CPR 25, while he decided that the power to order security was “qualitatively different” from ordinary case management powers.
In Magomedov & Ors v Rabinovich & Ors [2026] EWHC 962 (SCCO), Judge Brown went on: “To my mind, had it been intended that there should be a power to make orders for security in detailed assessment proceedings the rules would have said so expressly and made clear the circumstances in which it could be applied for, and indeed who is be regarded as the defendant and who the claimant for these purposes (as the rules do in respect of part 36 offers, see CPR 47.20(4)).
“The previous status of the parties as claimant and defendant for the purposes of the CPR rules is changed in detailed assessment, so that the parties are referred to as receiving party and paying party. And whilst the fact that the parties are renamed may not be decisive, it is indicative.
“Indeed, it points to another problem which is that if the applicants were right that they should still be regarded as the defendants and CPR 25 did apply independently in costs assessment, then both parties might be able to apply for security (as the receiving party might say they were the defendant to the claim for costs). This would seem to be a highly improbable interpretation.”
The judge questioned the need for any power to order security in detailed assessment proceedings given the wide powers of the court dealing with the substantive claim.
“Indeed it is far from the ordinary role of the costs court to deal the issues such as the ‘gateways’ and broader considerations which might apply in the event that there were risks of stifling – issues which are outside the SCCO’s normal remit.
“Indeed, it is difficult to see how the costs court can readily determine whether there has been a material and sufficient change of circumstances when it is not the court dealing with the substantive claim. These can be expensive and time-consuming applications.”
The costs court did have the power to order an interim payment, which was “well recognised” as a form a security, the judge added.
He noted too that making an order for security would “instigate the risk of a substantial amount of satellite litigation”; there was also “good reason to believe such a jurisdiction would be used oppressively and would give rise to disproportionate costs”. This application had generated £150,000 in costs.
Judge Brown concluded that there were “ample means of achieving security before the court dealing with the substantive claim. That must in itself be good reason for rejecting an application for security”.
He was referred to two recent Solicitors Act assessments where the Senior Costs Judge and Costs Judge Nagalingam accepted that CPR 25 applied, but he found that neither assisted in dealing with the inter partes position, given the self-contained nature of section 70 of Solicitors Act 1974.
Were he wrong on this, he continued, there had not been a material change of circumstances such as to justify an increase in the security the judge in the substantive hearing had ordered, while he would in any event have rejected the application on his discretion.
Thomas Mason (instructed by Fieldfisher) for the applicants. Imran Benson (instructed by Seladore Legal) for the respondents.