Mahan Air and another v Blue Sky One Ltd and others [2011] EWCA Civ 544

The Respondents had applied for security for costs of appeals made by the Appellant and its parent company. They also applied for conditions to be imposed on the appeals pursuant to CPR 52.9(1). Costs orders were made against the Appellant, who appealed that decision.

The Appellant argued that it lacked the means to comply with any substantial condition imposed under CPR 52.9(1), and that it was only able to provide “limited” sums as security for costs. These arguments were rejected. The Court of Appeal also rejected the Appellant’s assertions that the imposition of any substantial financial conditions would stifle its appeals, constitute an abuse of process and infringe their right to a fair trial.

This case exemplifies the approach that the court is likely to take where a party is seeking to avoid both providing security and having conditions imposed on an appeal. The court will review the conduct of the matter as a whole, including compliance with interim orders. In this case, on a review of all of the circumstances, the Court came to the conclusion that the Appellants had had access to funds when they needed them, and that they had been able to pay the sums necessary to keep their own claims alive.