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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Turkan & Co (A Firm) & Anor v Toplum Postasi Ltd & Anor [2001] EWCA Civ 99 (29 January 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/99.html Cite as: [2001] EWCA Civ 99

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR JUSTICE MORLAND)

		Royal Courts of Justice Strand London WC2 Monday, 29th January 2001

Monday, 22nd January 2001

1. LORD JUSTICE TUCKEY: This is an application for security for costs by the claimants in these proceedings who are respondents to an appeal by the unsuccessful defendants in this libel case. The claimants are a firm of solicitors and their principal, Miss Turkan. The first defendant company publishes a small circulation weekly newspaper for the Turkish community in London. The second defendant is an officer of that company and the chief editor of the newspaper.
2. The proceedings arose out of articles published in the issue of the paper for 23rd July 1998 which, put shortly, alleged that the claimants were one of a number of British lawyers abusing the Legal Aid system by colluding with foreigners to make bogus asylum applications. In fact the paper simply repeated similar allegations made in The Sunday Times but the claimants chose only to sue these defendants.
3. After a trial before Morland J and a jury, the firm were awarded £10,000 and Miss Turkan £35,000 and their costs. No stay of execution of this judgment has been granted and nothing has been paid, but the defendants obtained permission to appeal from this Court on 4th October 2000. Steps taken by the claimants to enforce the judgment and suggestions that the defendants should pay half the amount which was awarded, met with no positive response. Accordingly, the claimants applied for security on the basis that this Court should infer that neither the company nor the editor of the paper had paid because they were impecunious. The application simply sought security for costs amounting to a complete indemnity of any costs which might be incurred.
4. In this form the application was fatally flawed. There was no valid claim for security against the editor, and the claim against the company did not justify the inference which the Court was invited to draw in the light of the fact that permission to appeal had been granted. It was also defective because it was not accompanied by any statement as to what the claimants' costs of resisting the appeal were likely to be.
5. In a flurry of activity in the last two working days, the claimants have, to an extent, put matters right. As a result of the hearing before me today part of their application has become academic because the editor has indicated that he does not wish personally to pursue the appeal, and as a result of being given time, he and the claimants have come to terms both as to the disposal of his appeal and, more importantly I imagine from both parties' view, as to how the judgment below should be dealt with.
6. All I need say in his case is that by consent his appeal is dismissed with no order for costs.
7. So far as the company is concerned, the last-minute evidence put in by the claimants shows that it is about to go into liquidation. Its accounts show that it was not in a very healthy financial state before, but a meeting of creditors is due to take place on 9th February where it seems probable that a firm of insolvency practitioners who have given notice of this meeting will be appointed liquidators. There can be no doubt from the information now before the Court that the company is insolvent. There is no one present before the Court to give instructions as to what stance it now takes, but clearly in the light of its imminent liquidation it would not be sensible for the editor to say or do anything on its behalf. Its state does therefore come within the conditions necessary to be fulfilled before an order for security can be made in other words there is reason to believe that the company would be unable to pay the claimaint's costs if ordered to do so.
8. The Court nevertheless has a discretion as to whether to make such an order. In the circumstances it seems to me right to do so albeit that the company is shortly to be liquidated and the probability is that it will have great difficulty providing security. But some security should be provided if for some reason the appeal is to be pursued. Otherwise it would be unfair to the claimants to be left facing the appeal completely unsecured where they already have an unsatisfied judgment for a substantial amounts in their favour.
9. The statement filed by the solicitors for the appellants suggests that any security ordered should be limited to £5,000 as the hearing is estimated to last for one day. Mr Alper Riza QC, who appears for the claimants, argues that this is much too little. The statement of his solicitors put in at the 11th hour and the 59th minute suggests that their costs are more likely to be £15,000 to £20,000. Those are guesstimates obviously. I think in the circumstances that it would be right to limit the order to that which it is accepted will be incurred by the claimants on this appeal, namely the sum of £5,000. If a party is looking for substantial security for costs the application must be supported by detailed evidence usually in the form of a draft bill of costs to support the claim. That has not been done in this case and therefore I think £5,000 is appropriate.
10. The company will be ordered to provide security for the respondents' costs of this appeal in the sum of £5,000 within 28 days on the usual terms.

(Defendant to provide security within 28 days with no order for costs)