On this occasion a second application for security for costs was not an abuse of process
The judgment of Holyoake & Anor v Candy & Ors  EWHC 3065 (Ch) (29 November 2016) is worth a read as it discusses the law relating to abuse of process and second applications in detail.
- The Defendant made an application for security of costs.
- The Claimant served timely evidence before the application hearing.
- The Defendant then withdrew the application with the costs of the application being costs in the case.
- The Defendant made a second application for security of costs.
- The Claimant argued this was an abuse of process.
- A second identical application can be an abuse of process.
- Just because the Defendant reserved the right to make a second application this did not secure that right.
- For a second application to be successful, the Defendant must identify a material change.
- New evidence had come to light since the previous application which cast doubt on the evidence served by the Claimant before the first application was withdrawn.
- This was sufficient to entitle the Defendant to re-open the question of security of costs.
- Based on the facts of the case the Judge allowed the Defendant’s second application.
Attain tip: Think carefully before withdrawing an application. If additional evidence needs to be considered then the application could be adjourned. A ‘material change’ will be reliant upon the facts of each specific case.
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