The High Court in Santina Ltd v Rare Art recently provided useful guidance on security for costs applications made under CPR 25.13(2)(c) in relation to the burden of proof where a claimant refuses to adduce sufficient evidence of funds, as well as the relevance of expedition to the date of the application, and the use of budgeted costs when determining the quantum of security.
Putting it simply, work done on any non-litigation matter is non-contentious business and work done on litigation matters is contentious, as the names suggest. However, that is too simple.
Work done on potential litigation is non-contentious until proceedings are commenced, and at the point of issue, all the work becomes contentious, including the pre-issue work which retrospectively becomes contentious.
That is not as daft as it sounds as it enables parties to settle pre-issue at any time, but once the matter is issued and before the court, the control of all matters, including pre-issue costs and conduct, such as whether the pre-action protocols have been complied with, is within the court’s jurisdiction.
The recent cases of Jinxin Inc v Aser Media Pte Ltd (Jinxin) and Flowcrete UK Ltd and others v Vebro Polymers UK Ltd and others (Flowcrete) have offered some helpful reminders with regard to how parties should approach matters of privilege. These cases are particularly instructive on inadvertent disclosure, use of potentially privileged documents and waiver of privilege.
