Security for costs

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SECURITY FOR COSTS, practice. In some courts there is a rule that when the plaintiff resides abroad he shall give security for costs, and until that has been done, when demanded, he cannot proceed in his action.
     2. This is a right which the defendant must claim in proper time, for if he once waives it, he cannot afterwards claim it; the waiver is seldom, or perhaps never expressly made, but is generally implied from the acts of the defendant. When the defendant had undertaken to accept short notice of trial; 2 Hen. Bl. 573; 3 Taunt. 272 or after issue joined, and when he knew of plaintiff's residence abroad; or, with such knowledge, when the defendant takes any step in the cause these several acts will amount to a waiver. 5 Bar & Ald. 702; S. C. 1 Dow. & Ryl. 348; 1 M. & P. 30; S. C. 17 E. C. L. R. 164. Vide 3 John. Ch. R. 520; 1 John. Ch. Rep. 202; 1 Ves. jun. 396.
     3. The fact that the defendant is out of the jurisdiction of the court, will not, alone, authorize the requisition of security for costs; he must have his domicil abroad. 1 Ves. jr. 396. When, the defendant resides abroad, he will be required to give such security, although he is a foreign prince. 33 E. C. L. Rep. 214. Vide 11 S. & Rawle, 121 1 Miles, R. 321; 2 Miles, 402.

References in periodicals archive ?
However, the type of interim relief that a tribunal may grant in arbitration has generated considerable debate for some time now, particularly when it comes to the arbitral tribunal's power, or lack thereof, to order security for costs.
Generally, an order for security for costs is an order by a tribunal that orders a party bringing a claim or a counterclaim to provide security for the costs of the other party in case the claim or counterclaim fails and the claiming party does not pay the costs awarded against it.
Therefore, while in practice it is only ordered in very particular circumstances and the threshold is somewhat high, provided that it is consistent with the parties' arbitration agreement security for costs is generally available in international arbitration.
That said, whilst many national laws grant certain powers to the tribunal to order interim relief, there is still a general lack of express provisions empowering the tribunal to specifically order security for costs.
One option available to a Defendant in the DIFC Courts to lessen the risk of being left to bear significant costs even if it wins a trial is to make a security for costs application against the Claimant pursuant to Part 25 of the Rules of the DIFC Courts (RDC).
The DIFC Courts will consider a number of factors when determining a security for costs application and will order security for costs to be provided if they are satisfied, having regard to all the circumstances of the case, that it is just to make such an order and if one or more of the conditions set out in Rule 25.
It is clear that these conditions give the DIFC Courts a wide discretion to grant security for costs, but this discretion must be exercised in accordance with established principles and with regard to the underlying purpose of such orders.
In overturning the order of DIFC Court of First Instance requiring security for costs from the Claimants, the DIFC Court of Appeal stated that the burden of establishing facts sufficient to justify such an order rests on the applicant and that the difficulty of enforcing a costs order (in another jurisdiction) is a material consideration.

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