The parties were both sons of the testator. His will was proved in Nigeria and the executors executed a power of attorney appointing the claimant as their attorney and agent over the property at issue in the proceedings. Letters of administration with the will annexed were issued to the claimant in respect of his father’s estate and he was registered as the proprietor of the property. The claimant brought a claim against the defendant for possession of the property. The defendant served a defence and counterclaim denying that the claimant had any interest in the property whether legally or beneficially and advancing proprietary estoppel and constructive trust claims. He applied for security for costs pursuant to CPR r 25.13 which, by paragraphs (a) and (f), empowered the court to make an order where (a) the claimant was resident out of the jurisdiction; (f) the claimant was acting as a nominal claimant, other than as a representative claimant under Part 19, and there was reason to believe that he would be unable to pay the defendant’s costs if ordered to do so. The recorder granted the application, concluding that the claimant was resident out of the jurisdiction and that, although he did not need to decide it, he was a nominal claimant.
On the claimant’s appeal—
Held, appeal allowed. The recorder was not entitled to conclude that the claimant was resident out of the jurisdiction for the purposes of CPR r 25.13(2)(a), and CPR r 25.13(2)(f) was not applicable either. In the light of case authority: (i) a person with a significant interest in the outcome of a claim would rarely, if ever, be considered a “nominal claimant” within CPR r 25.13(2)(f). (ii) A personal interest was not, however, essential. While a trustee, executor or personal representative would not be a “representative claimant under Part 19” merely because CPR r 19.7A was in point, he still would not ordinarily be a “nominal claimant”, regardless of whether he was also a beneficiary. (iii) At least typically there had to be “some element of deliberate duplicity or window-dressing for a person to be a nominal claimant”. The claimant had a real role and interest in the present proceedings. He had been appointed as the executors’ agent and as administrator of his father’s estate and, in that capacity, was the legal owner of the property (paras 26, 28, 45).
White v Butt [1909] 1 KB 50, CA; Envis v Thakkar [1997] BPIR 189, CA; Farmer v Moseley (Holdings) Ltd [2001] 2 BCLC 572; Compagnie Noga d’ Importation et d’Exportation SA v Australia & New Zealand Banking Group Ltd [2004] EWHC 2601 (Comm) and Allen v Bloomsbury Publishing plc [2011] EWCA Civ 943 considered.
The claimant in person.
Justin Kitson (instructed by Mishcon de Reya) for the defendant.