In the context of a claim arising out of a consultancy agreement and subsequent settlement agreement between the parties, summary judgment was entered in favour of the claimant in respect of some of her claims and the defendant was ordered to provide payment on account pending a trial to determine the level of damages. Since the defendant subsequently failed to comply with an “unless” order for the payments due and the required disclosure, the defendant was “debarred from defending [the] proceedings”. Meanwhile, the defendant’s outstanding interim applications; (1) an application for payment on account from costs which had been previously ordered in his favour following the discontinuance of various pleaded claims and (2) an application for security for costs, were adjourned to the pre-trial review hearing. The claimant resisted those applications, contending that the defendant was debarred from moving an application for an interim order which would benefit him because that necessarily amounted to “defending the proceedings”.
On the applications—
Held, applications refused. Whether a step taken or sought to be taken by a defendant prior to trial amounted to “defending the proceedings” could not be considered in the abstract but depended upon the particular circumstances. Provided the step in question did not, by its nature or in fact, act to stifle or hamper the claimant’s pursuit of the remaining claims, taking a step to realise a pre-existing entitlement could not be characterised as amounting to a step taken in defence of those claims. Notwithstanding the debarring order, the defendant was entitled to pursue the interim application for payment on account which arose from a pre-existing entitlement relating to claims which no longer formed part of the proceedings and thus could not be characterised as “defending the proceedings”. However, that application would be dismissed on the merits. The defendant was debarred from pursing the security for costs application, it having been brought as a means, indirectly, of defeating the claimant’s claim. Moreover, there was no reason, as a matter of discretion, why he should be able to pursue it (paras 7–8, 12–16, 17, 21–22).
Simon Atrill KC and Samuel Rabinowitz (instructed by Quinn Emanuel Urquhart and Sullivan (UK) LLP) for the claimant.
The defendant in person.