Whether counterclaiming defendant can get a security for costs order against the claimant

Recent cases have focused on whether a claimant can get security for costs against a counterclaiming defendant. In general, an order won't be made unless the counterclaim has "an independent vitality of its own" and the defendant is doing more than simply defending himself. However, this case involved an application by the counterclaiming defendant for a security for costs order against the claimant (for the costs of defending the claim).

Newey J refused to make the order on the basis that the claim and counterclaim raised very much the same issues. The costs that the defendant incurs in defending himself could be regarded as the costs necessary to prosecute his counterclaim too. Furthermore, if the order was made and the claimant failed to provide security, the claim would be struck out but the counterclaim would still fall to be fought out.