The High Court has refused an application by Pascarn Services Limited for security for costs in a contract dispute with Interfund Global Services Limited, finding the application was brought after significant delay. The ruling did not determine whether the defendant owes the disputed contract sum.
Interfund, a company incorporated in Nigeria, says Pascarn, an Irish company, owes it £785,067.77 under a 2008 remittance agreement. Under the arrangement described in the judgment, Pascarn collected money from customers in the United Kingdom and instructed Interfund to distribute it to beneficiaries in Nigeria. Pascarn was to reimburse Interfund in sterling and pay interest twice weekly.
The judgment records that Interfund had brought several motions to obtain particulars of Pascarn’s defence and counterclaim. At a hearing on 16 December 2013, the court directed Pascarn to provide further replies and awarded the costs of that motion to Interfund.
Pascarn’s separate motion sought dismissal of the action as frivolous or vexatious, or, alternatively, security for costs. At the hearing, it pursued security under Order 29 of the Rules of the Superior Courts, while relying on principles associated with section 390 of the Companies Act 1963.
The judge admitted affidavits filed for Interfund despite technical defects in some jurats and unsigned exhibits, finding it would be unjust to exclude them. The court then considered Interfund’s financial evidence, including company accounts for 2008 to 2012. That evidence was not contradicted. The judge found Pascarn had not established that Interfund was unlikely to pay a costs order, so the section 390 basis for security was not made out.
The court also refused security because of delay. Pascarn first requested security by letter in June 2012; its motion followed in February 2013, nearly three years after the action began. The judge noted that Interfund had incurred costs pursuing particulars and, after the motion issued, responding to allegations about its existence and its Nigerian lawyer’s licence. The judgment says those allegations were untrue and that Interfund had incurred considerable expense obtaining supporting affidavits and documents.
The court concluded that Pascarn was not entitled to security under Order 29 because of the inordinate delay. Its application for security for costs was refused. The judgment does not resolve Interfund’s claim for the alleged debt or Pascarn’s counterclaim.