Craft Development SCI v Actis LLP & Ors

This judgment is concerned with four applications which have been made in this case: three by the Claimant and one by the Defendants. Each of the applications are variously concerned with the order made by Stacey J on 4 June 2025 consequent to her judgment in which she granted the Defendants’ application for security for costs. That judgment is reported at [2025] EWHC 1355 (KB) – “the Stacey J judgment”.

In her order dated 4 June 2025 (and sealed on 5 June 2025), Stacey J ordered:

“1.

“The Claimant do give security for the Defendants’ future costs of the claim until up to the service and exchange of lay and expert witness evidence (as set out in the First and Second CMC Orders and with the agreed extension of time contained in the May Order) in the sum of £300,000 in accordance with paragraph 2 below.

2.

The Claimant shall make payment of the sums set out at paragraphs 2.1-2.3 below into the Court Funds Office by the dates set out herein or by lodging with the Defendants’ solicitors first class bank guarantees in the sums set out at paragraphs 2.1-2.3 below in favour of the Defendants and issued by a bank within England and Wales

2.1

First tranche of security in the sum of £100,000 to be provided by no later than 4pm on 4 July 2025;

2.2

Second tranche of security in the sum of £100,000 to be provided by no later than 4pm on 22 August 2025; and

2.3

Third tranche of security in the sum of £100,000 to be provided by no later than 4pm on 19 September 2025.

3.

In the event that security is not provided in accordance with paragraphs 1 and 2 above, the Defendants have permission to apply to the Court for the proceedings to be stayed.

4.

Costs in the case”

I will refer to this Order as the “Stacey J Order”.

No payments at all have been made by the Claimant in respect of this Order. As a consequence, the case management directions have had to be varied. The claim has been set down for trial in a window commencing on 5 May 2026 with a time estimate of 2 weeks. I have been told that the next procedural steps are as follows:

For the purposes of the hearing of the applications the parties submitted an extensive bundle of witness and documentary evidence; a bundle containing the pleadings in the case; and a bundle of authorities. Each party filed skeleton arguments in advance of the hearing, and I heard oral submissions from Mr Maguire on behalf of the Claimant and from Ms Zoe O’Sullivan KC on behalf of the Defendants. I am grateful to them both for their focused and concise submissions.

The judgment is divided into the following sections:

On 20 June 2025 the Claimant issued an application to vary the order made on 4 June 2025 by Stacey J “to include the payment of security by way of a suitable After the Event Insurance, or by any other acceptable guarantee or other mechanism” (“the 20 June 2025 application”).

On 4 July 2025 the Defendants issued an application that “(i) pursuant to CPR 3.1.(3)(a) and (b), unless the Claimant has given security in respect of the sum set out in paragraph 2.1 of the Order of Mrs Justice Stacey by 25 July 2025 the claim will be struck out and (ii) the proceedings be stayed, pursuant to CPR 3.1(2)(g)”. On 24 September 2025, Yip J (as she then was) gave leave to the Defendants to amend their application “to include the non-payments alleged.” Permission was given to file an amended application notice which was duly filed. That application sought an order that “pursuant to CPR 3.1.(3)(a) and (b) unless the Claimant has given security by paying the sum of £232,000 by [21 days of the date of the order] the claim will be struck out” (“the 4 July 2025 application as amended”).

On 16 August 2025, the Claimant issued an application seeking an order striking out paragraph 44.3 of the Defence and that “[t]he Security for Costs Order made on 4 June 2025 be revoked pursuant to CPR 3.1(7); or alternatively, varied to reduce the amount of security by removing provision for a Cameroonian law expert”. The Claimant also sought orders, inter alia, that (i) the costs order made at the security for costs hearing be varied so that the Defendants pay the Claimant’s costs of that application on an indemnity basis; and (ii) the Defendants “indemnify the Claimant in respect of the premium incurred by the Claimant in taking out an ATE insurance policy for the sole purpose of complying with the Security for Costs Order dated 4 June 2025.” (“the 16 August 2025 application”).

In the witness statement in support of the 16 August 2025 application, the Claimant’s solicitor, Dr Mirande Nasah, stated that on 1 May 2025 the Defendants had disclosed “by inadvertence a notarial deed of the Promesse de Vente. This confirms that the document was validly executed in notarial form”. Dr Nasah argued that the “Defence pleas suggested that the Promesse de vente was invalid, which weakened the Claimant’s case on consideration at the security hearing. In fact, the notarial deed confirms that the Promesse de vente was valid, and the Claimant’s case has strong prospects of success”. Dr Nasah stated that “in those circumstances the order for security should be revoked, or alternatively varied to remove provision for expert evidence on Cameroonian law.”

On 19 September 2025, the Claimant issued a further application. In that application the Claimant sought an order varying “paragraph 3 of the order of Mr Justice Morris dated 21^st March 2024, so as to provide for the immediate detailed assessment of the Claimant’s costs [and] that the Claimant’s ATE insurance shall stand as sufficient security for costs in substitution for payment into the Court Funds Office or the provision of first-class bank guarantees to the Defendants’ solicitors” (“the 19 September 2025 application”).

By the time of the hearing, the Claimant’s position had changed as it had been unable to obtain ATE insurance and therefore it was not pursuing the 20 June 2025 application or those parts of the 16 August 2025 and 19 September 2025 applications that were concerned with ATE. Aspects of the other applications had been agreed. The parties agreed that the Defendants should file an Amended Defence removing paragraph 44.3(i). There was also agreement in principle between the parties that the sum ordered to be paid by way of security should be reduced to reflect the fact that experts in Cameroonian law would not need to be instructed. In the course of the hearing the parties agreed that the appropriate reduction should be £74,000. Thus, the issues for determination were:

Stacey J helpfully summarised the underlying dispute in the claim at [2] – [5] of her judgment:

“The claimant (“Craft”) is a Cameroonian company with two shareholders: a majority shareholder (Mr Mathurin Jidouc Kamdem (“Mr Kamdem”) owner of either 51% or 75% of its shares (the amount is in dispute between the parties) and a minority shareholder, Mr Valère Tchumtchoua Tohouo (“Mr Tchumtchoua”) who holds either a 49% or 25% shareholding, depending on whose evidence is preferred.

3.

The defendants (collectively “Actis”) are a group of companies involved in global investment in sustainable infrastructure and a London based private equity fund, the Africa Real Estate Fund 3 (the colloquial term used to refer to the Second, Third and

Fourth Defendants). In its particulars of claim Craft claims damages from Actis for breach of contract, procuring breach of contract, unlawful means conspiracy and fraud

relating to a joint venture for a development project in the capital of Cameroon, Douala (“the Douala Mall”).

4.

It is said that in November 2015 the First and Sixth Defendants caused the Second and Third Defendants to sign a Letter of Intent with Craft (“the LOI”) to establish a joint venture concerning the purchase of land in Douala for the development of Douala Mall which is a shopping mall, business and leisure complex. Craft had obtained a “Promesse de Vente” (option to purchase) the land for the development of Douala Mall with a deposit of approximately $500,000 paid by Mr Tchumtchoua. But instead of forming a joint venture with Craft, Actis formed a joint venture with a company or group of companies wholly owned by Mr Kamdem, MatK Limited, and other companies which had acquired the Promesse de Vente from Craft. Whether and the extent to which any consideration was paid to Craft is in dispute. The land was subsequently purchased and developed without any involvement of the Claimant or Mr Tchumtchoua, although he has received at least some of the deposit money he had

put up for the Promesse de Vente back from Craft. The Douala Mall opened in 2020.

5.

Subsequently Mr Tchumtchoua arranged for the appointment of a provisional administrator over Craft, Mr Hiob, in order to bring an action against the defendants who are English entities in the courts of England and Wales.”

As noted earlier, the essential basis for the Claimant’s applications under CPR 3.1.7 was that the Defendants had disclosed on 1 May 2025 a notarised letter accompanying a deed dated 15 October 2015 which the Claimant argued demonstrated that the Promesse de Vente (“PdV”) had been extended until 15 December 2015. That was said to have led to the Defendants withdrawing their non-admission as to the validity of the extension of the PdV.

The Defendants pleaded position in relation to the PdV was as follows.

In their Defence at [32] the Defendants aver that their understanding in or by mid-December 2015 was that:

“(1)

the Promesse de Vente to which Craft was party had been extended so as to expire on 15 December 2015;

(2)

on 11 December 2015, Craft (acting by MJK) renounced the Promesse de Vente in favour of DRCC; and

(3)

MJK had authority to cause Craft to renounce the Promesse de Vente.”

The Defendants pleaded position in respect of the validity of the extension of the PdV was set out in their Defence as a non-admission. That non-admission was in response to paragraph 26 of the Particulars of Claim where the Claimant alleged that there was a breach of an implied contract between the Claimant and the Defendants:

“28.

The Claimant contends that the breach occurred on 18 March 2016 when the land was bought by DRCC instead of Craft. The Defendants used deception and fraud to oust Craft. The Claimant was made aware of the fraud in or about June 2019 when it requested a copy of the certificate of ownership for the subject land from the Cameroonian Land Registry. The Claimant relies on this date for limitation purposes.”

At paragraph 44 of the Defence, the Defendants stated:

“44.

As to paragraph 26:

(1)

It is in the premises denied that there was any binding contract between Craft

and any of the Defendants.

(2)

If, which is denied, there was a binding contract between AAREF3 and Craft on

the terms of the LOI, it is denied that AAREF3 was in breach of such contract.

(3)

Without prejudice to the generality of that denial:

(i)

The Defendants do not know (and make no admission as to) whether the Promesse de Vente had in fact (as MJK represented at the time) been validly extended. Pursuant to Cameroon law, a Promesse de Vente and any extension thereof must be drawn up in notarial form, under penalty of nullity. The Defendants do not know whether an agreement validly extending the Promesse de Vente was drawn up in notarial form.

(ii)

If, which is not admitted, the Promesse de Vente had been validly extended, then on or about 11 December 2015, Craft (by MJK, who had actual and/or ostensible authority to do so on behalf of Craft) disclaimed its interest in the Promesse de Vente in favour of DRCC. Craft thereby put it out of its power to perform its contract with AAREF3 and abandoned its contract; alternatively it repudiated and/or renounced its contract. AAREF3 accepted Craft’s conduct and breach as bringing the contract to an end by causing Actis Douala to enter into the SSA.

(iii)

Further or alternatively (and whether or not the Promesse de Vente had

been validly extended), in order to perform its obligations to AAREF3 under the LOI, Craft was required first to purchase the Land from the Epoupa Family. In order to do that, Craft needed to raise funds, since it had no sufficient funds of its own. Craft had failed to raise any funds and was thus unable to perform its obligations to AAREF3 under the LOI. By its conduct, Craft was in anticipatory breach of contract and/or had renounced the contract and/or had rendered the contract impossible of performance by Craft. AAREF3 accepted Craft’s conduct and breach as bringing the contract to an end by causing Actis Douala to enter into the SSA.

(4)

Save that it is admitted that Craft owns no shares in Happy Exchange Limited (whether the Guernsey or the Mauritius company), paragraph 26 is denied.”

(Emphasis added)

As noted earlier, the validity of the extension of the PdV was the primary reason why experts in Cameroonian law were to be instructed by the parties. I will discuss later in the judgment the parties’ positions in respect of the significance of the withdrawal by the Defendants of paragraph 44.3(i).

On 4 June 2025 Stacey J handed down her reserved judgment following a hearing that had taken place the previous month on 13 May 2025. It is necessary to set out the relevant findings of the Judge in some detail so as to assess whether or not there is a proper basis for the Judge’s order to be revoked.

At [6] – [10] of the judgment Stacey J set out the litigation history and chronology. At [10] the judge noted that disclosure by list had now taken place and that witnesses of fact statements as well as expert reports were due to be exchanged following her judgment.

At [14] Stacey J explained that the central issue raised by the Claimant in response to the application for security for costs was that it would stifle its ability to continue the case and thus security should not be ordered. The judge then considered the evidence on stifling in detail at [18]-[27]. At [18] she noted that in his first witness statement Mr Tchumtchoua accepted that he is the source of funding for this litigation. At [20] the Judge noted that Mr Tchumtchoua had been unable to find after the event insurance with an affordable premium.

The Judge’s conclusions on the central issue of stifling were set out at [28] – [34]. The Judge concluded that she was satisfied that Craft was not able to pay any legal costs that may be awarded against it and nor was Mr Tchumtchoua personally (see [28]-[31]). However, the Judge explained “that is not the end of the story. There are two difficulties with the evidence submitted by Mr Tchumtchoua. The first is that there is no explanation of how he intends to fund Craft’s costs of the continuing litigation and why his lawyers do not seem to be pressing him for funds, when he does not have means. He has not identified or named any others who are supporting the litigation and the evidence is that litigation funding from commercial providers is either exorbitant or unavailable. He seems to have been single handedly supporting the litigation on a wing and a prayer and by himself becoming increasingly indebted thus far. How then can Craft continue to pursue the case which requires service of lay and expert evidence in the coming months that will undoubtedly be costly?” [32]

The Judge said that “that, there may be an element of the Micawber principle involved in him hoping that something will turn up and he too is unsure what that “something” might be. But if that is the case, a further logical inference is that he would also be able to rustle up some security for costs.” ([32]).

The Judge’s second concern was “there is no evidence about the lack of possibility of other sources of funds. I bear in mind that it is very hard to prove a negative (see Brimko at [12]) and I did not expect Mr Tchumtchoua to name all his friends, relations and business associates, their assets, income and explanation for their lack of willingness to help him out. But instead there is more of a blanket denial. It is also a little puzzling when there is evidence of at least one person who has previously lent him money and helped him, (Ms Kamga), so I would have expected an explanation from her at least as to why she was unwilling to assist again” ([33].

Stacey J found that “that Craft has not established that its impecuniosity is caused by Actis. True it is that because the Promesse de Vente was assigned or transferred to Mr Kamdem’s company or companies, it meant that Craft did not have the opportunity to make a profit from Douala Mall, but there are many contingencies and ifs and buts as to whether or not Craft’s want of means are attributable to Actis. It is a very different factual scenario to a theft type case, such as Gresport, where, for example a defendant investment manager is alleged to have misappropriated client funds for his direct benefit where the amount of money can be clearly and easily traced, quantified and attribution is straightforward.” ([34]).

At [35] – [38] Stacey J set out the reasons for her conclusion that the Claimant had not established that there had been a delay by the Defendants and that it does not count against them as being a late and oppressive application.

At [39] – [45] the Judge addressed the merits of the claim. At the outset she noted:

“39.

The parties agreed that the authorities state and as reflected in the Commercial Court Guide Appendix 10, para 4, that the investigation of the merits of the case on an

application for security is strongly discouraged. It is usually only in those cases where it can be shown without detailed investigation of evidence or law that the claim is certain or almost certain to succeed or fail that the merits will be taken into account (Commercial Court Guide Appendix 10, para 4, and see Mountain Ash Portfolio Ltd v

Boris Tsibenovich Vasilyev [2022] EWHC 1867 (comm) [42]).

40.

The test is whether a claimant’s case or a defendant’s defence is “highly likely to

succeed” (Al-Koronky). Furthermore, parties should not attempt to go into the merits of the case unless such high probability of failure can be clearly demonstrated one way or another (Chernukhin v Danilina [2018] EWCA Civ 1802 at [69]).”

The Defendants had changed their position in relation to the merits of the claim. In the Defendants’ initial submissions from counsel the Defendants had stated “that that the Court should not have regard to the merits of either the claim or the defence in an application of this nature”. Subsequently in submissions filed two days before the hearing the Defendants sought to rely “on what are said to be inherent fatal weaknesses in Craft’s case in support of the Application.” ([41]).

Stacey J considered it “telling that no application has been made to strike out the claim under CPR 3.4(2)(a) on grounds that the statement of case discloses no reasonable grounds for bringing the claim or for summary judgment under CPR 24 on grounds of no real prospect of success.” She reminded herself however that “that the authorities are clear that an application for security for costs is not intended as a weapon to obtain a speedy summary judgment without a trial or by the back door (see Prince Radu of Hohenzollern v Houston [2006] EWCA Civ 1575 at [18]) and see also Bailey v GlaxoSmithKline UK Ltd (2017) EWHC 3195 Foskett J at [75]).”

Significantly, the Defendants’ attempts to rely upon the merits of the claim was robustly rejected by the Judge:

“If it had seriously been intended for a proper analysis of the merits to have been undertaken the defendants should also have asked for a longer hearing and indicated that more reading time would be necessary. But the risk was that the case would turn into a mini-trial – blowing the case up into a large interlocutory hearing – which is exactly why investigation of the merits is deprecated except in the clearest of cases.

44.

In spite of Ms O’Sullivan’s best efforts in the limited time available, I am not satisfied that she has shown the high probability of failure of Craft’s case as she has argued for. There are a number of difficulties with the points relied on by her. Her assertion that Cameroonian law would not apply to any aspect of the substantive claim and the interpretation of the LOI and the “Promesse de Vente” sat very uneasily with the agreed directions for expert evidence from both sides on Cameroonian law for which she had no explanation. The question of interpretation of whether the LOI was intended to be legally binding upon the fulfilment of certain conditions does not appear to be as straightforward as she suggested. She acknowledged that it would require detailed analysis and a finding as to whether there was a typographical error in a reference to clauses in the document which may not be straightforward and evidence about whether the conditions were fulfilled. Whether Craft’s interpretation of the LOI is eccentric, as Ms O’Sullivan suggested, will require detailed analysis and submissions to assist the court. Other aspects of the claim will depend on the evidence and disputed facts.

45.

Actis has failed to demonstrate in the short hearing that this is a case where there is a high degree of probability of their success.”

At [46]- [47] Stacey J considered the Claimant’s arguments that a security for costs order was unnecessary because the Defendants would have alternative remedies to obtain their costs. The Judge then went on to set out her conclusion at [48]-[50]. At [48] she noted:

“For the reasons set out above, of all the issues raised by the parties as to factors the court should take into account in deciding whether to exercise the discretion to order

security for costs I have disregarded the merits of the claim and the defence and the possibility of alternative remedies. I do not consider that there has been an unreasonable delay by Actis in bringing the application. The sole consideration is stifling, but and I do not consider that it is sufficiently clear to say that Craft’s impecuniosity is caused by Actis”.

Stacey J was not satisfied that the Claimant had fully discharged its burden of proof, albeit that it was a “fairly closely run” conclusion:

“Whilst I appreciate that care must be taken and caution exercised where corporate entities with their distinct legal identities are involved (see Goldtrail Travel), this is a

case where I do not take Mr Tchumtchoua and Craft’s refutation of inability to pay entirely at face value because of the lacuna in the evidence of how Craft is going to fund its own costs of the ongoing litigation and the absence of information about lack

of source of funds from associates, such as Ms Kamga. I am therefore not satisfied that Craft has fully discharged its burden of proof. It seems to me that whether or not there has been full and candid disclosure is binary – there either has been or there has not. On the facts of this case it is fairly close run, but on balance I find that the gaps that I have identified mean that a little more was required of Mr Tchumtchoua to discharge the burden. I am thus satisfied that having regard to all the circumstances of the case it is just to make an order for security for costs.

Having said that, the picture is clear enough to see that Mr Tchumtchoua’s finances are hand to mouth and that an order for security for costs in the region claimed by Actis will stifle the litigation. I am satisfied that Craft and Mr Tchumtchoua will not be able to lay their hands on the £1.6 million sought and certainly not at the short notice required for the litigation timetable.” [49]-[50].

The Judge then went on to consider the amount of security to be provided and directed herself by reference to the principles to be applied to the exercise of that discretion by Henshaw J in Pisante v Logothetis [2020] EWHC 3332 (Comm); [2020] Costs L.R. 1815. At [53] the Judge said that the “court must use the middle way of setting an amount which represents the court’s best estimate of what the claimant (in this case Mr Tchumtchoua) can afford, despite his having been insufficiently candid. Since this was not a case of a complete absence of information from Mr Tchumtchoua and his disclosure was very much at the forthcoming end of the spectrum, although not quite as full as was required, I am in a reasonable position to make an estimate of what Craft and Mr Tchumtchoua can afford and have access to. It is clear that the order will have to be for considerably less than the amount claimed to avoid stifling the claim.”

The Judge determined that “[g]iven that I will have to order considerably less than the amount of costs that will be incurred by Actis, even on a robust basis and applying a broad brush, because to do otherwise will make continuation of the claim dependant on a condition which it will be impossible for Craft and Mr Tchumtchoua to fulfil, the fairest approach to both sides seems to be to be to limit the amount to be ordered to a proportion of future costs up to the end of the exchange of expert evidence, leaving open the opportunity for further costs to be sought by Actis at that stage.” (at [54]).

In setting the amount of the security for costs, the Judge expressly took into account that the Claimant’s costs from the application decided by Morris J were yet to be subject to a detailed assessment. At [55] Stacey J said:

“Doing the best I can and adopting a broad brush basis – balancing both parties’ respective rights - and cognisant that the hourly rate claimed by Actis is considerable

in excess of guideline hourly rates, and their costs and time claimed seems extravagant in what may not be the most complex litigation either factually or legally, I consider that security for costs should be set at £300,000 towards the costs of future litigation from now up to the completion of the directions ordered for service and exchange of lay and expert witness evidence set out in the two orders of Master Gidden with the agreed extension of time contained in the consent order of 14 May 2025 sealed on 22 May 2025. I assess this to be an amount that will not make compliance impossible, but it will be a very considerable stretch for Craft, which is justified given the extent of Actis’ exposure and costs risks. I find that it is the most that can be ordered without making compliance by Craft impossible. In arriving at the figure of £300,000 I have factored in that Craft’s costs of defending the strike out application decided by Morris J are yet to be subject to a detailed assessment, which was ordered to be undertaken at the end of the trial.”

The Judge expressed the hope that the parties could agree staged payment dates but, in the event, agreement was not reached. At [58] Stacey J determined that:

“After considering the parties respective written submissions I have ordered payment to be made in equal parts, broadly following the timetable for service of expert evidence. I have been a little more liberal than suggested by Actis to enable Craft and Mr Tchumtchoua a little more leeway to find funding so as not to stifle the claim. But they have been formally on notice of the security for costs application for nearly a year now and should have either been taking steps to find the funds or explain in evidence given to this court before the application hearing why more time is necessary to allay any fears that this may merely be a stalling tactic.”

The Judge ordered that the costs of the application should be costs in the case. Stacey J refused the application for permission to appeal and the application for a stay of the Order pending appeal. At the hearing, I was told that the Claimant did not seek permission to appeal from the Court of Appeal.

As noted above, Stacey J expressly took into account the costs order that had been made by Morris J. That order was made consequent to his judgment on 6 March 2024 on a preliminary issue in these proceedings: [2024] EWHC 484 (KB). The judgment concerned the Defendants’ application to strike out the proceedings on the grounds that Mr Hiob (who is the provisional administrator of Craft) did not have authority to act on behalf of Craft in these proceedings. That application was rejected by Morris J after a hearing that took over six days.

On 21 March 2024, Morris J made an order consequent to that judgment having considered written submissions from the parties in respect of costs. Morris J ordered that the Defendants should pay the Claimant’s costs of the application, such costs to be the subject of detailed assessment if not agreed. In his reasons section of the Order, Morris J rejected the Claimant’s argument that there should be a summary assessment of costs for the reasons that had been advanced in the Defendants’ written submissions.

Morris J ordered that the Defendants should within 21 days pay the sum of £144,000 to the Claimant on account of those costs. In his reasons he noted that there “should be a conservative approach to the amount of any payment on account, for the reasons set out in paragraphs 18 to 24 of [the Defendants’] submissions.” In those paragraphs the Defendants had re-calculated the Claimant’s costs by reference to the relevant guideline hourly rates rather than the £700 per hour (Grade A) and £500 per hour (Grade B) rates that had been claimed. The recalculated costs totaled £287,832.50 (rather than the £527,436 that had been claimed). The Defendants argued that the court should award no more than 50% of the guideline-corrected rate, i.e. £144,000.

The parties were agreed as to the relevant approach to the applications to revoke the Order of Stacey J and to vary the Order of Morris J. The basis for either lay in CPR 3.1(7) which gives: “A power of the court under these Rules to make an order includes a power to vary or to revoke the order”.

In Tibbles v SIG plc [2012] EWCA Civ 518;[2012] 1 W.L.R. 2591 Rix LJ (with whom Etherton and Lewison LJJ agreed) reviewed the authorities on the exercise of the discretion in CPR 3.1(7) and concluded:

“39.

In my judgment, this jurisprudence permits the following conclusions to be drawn:

(i)

Despite occasional references to a possible distinction between jurisdiction and discretion in the operation of CPR r 3.1(7), there is in all probability no line to be drawn between the two. The rule is apparently broad and unfettered, but considerations of finality, the undesirability of allowing litigants to have two bites at the cherry, and the need to avoid undermining the concept of appeal, all push towards a principled curtailment of an otherwise apparently open discretion. Whether that curtailment goes even further in the case of a final order does not arise in this appeal.

(ii)

The cases all warn against an attempt at an exhaustive definition of the circumstances in which a principled exercise of the discretion may arise. Subject to that, however, the jurisprudence has laid down firm guidance as to the primary circumstances in which the discretion may, as a matter of principle, be appropriately exercised, namely normally only (a) where there has been a material change of circumstances since the order was made, or (b) where the facts on which the original decision was made were (innocently or otherwise) misstated.

(iii)

It would be dangerous to treat the statement of these primary circumstances, originating with Patten J and approved in this court, as though it were a statute. That is not how jurisprudence operates, especially where there is a warning against the attempt at exhaustive definition.

(iv)

Thus, there is room for debate in any particular case as to whether and to what extent, in the context of principle (b) in (ii) above, misstatement may include omission as well as positive misstatement, or concern argument as distinct from facts. In my judgment, this debate is likely ultimately to be a matter for the exercise of discretion in the circumstances of each case.

(v)

Similarly, questions may arise as to whether the misstatement (or omission) is conscious or unconscious; and whether the facts (or arguments) were known or unknown, knowable or unknowable. These, as it seems to me, are also factors going to discretion: but where the facts or arguments are known or ought to have been known as at the time of the original order, it is unlikely that the order can be revisited, and that must be still more strongly the case where the decision not to mention them is conscious or deliberate.

(vi)

Edwards v Golding [2007] EWCA Civ 416 is an example of the operation of the rule in a rather different circumstance, namely that of a manifest mistake on the part of the judge in the formulation of his order. It was plain in that case from the master's judgment itself that he was seeking a disposition which would preserve the limitation point for future debate, but he did not realise that the form which his order took would not permit the realisation of his adjudicated and manifest intention.

(vii)

The cases considered above suggest that the successful invocation of the rule is rare. Exceptional is a dangerous and sometimes misleading word: however, such is the interest of justice in the finality of a court's orders that it ought normally to take something out of the ordinary to lead to variation or revocation of an order, especially in the absence of a change of circumstances in an interlocutory situation.”

The Claimant argued that the Order should be revoked as it was made on a “false premise” advanced by the Defendants in their Defence that the PdV was of doubtful validity. The Defendants had disclosed a notarial deed which it was said to establish the validity of the extension of the PdV. In the written submissions for the hearing, the Claimant argued that the Defendants should have alerted the Court to the existence of the notarial deed before the hearing before Stacey J. It was described as “exceptional circumstances” such that the Defendants’ “initial or continuing disclosure obligations required D to hold up its hands to admit the mistake or wrongdoing”. In the written submissions it was argued that the Defendants had been “arguably dishonest” in pleading paragraph 44(3)(i) in the way that it had done or, at least, “at a minimum seriously improper”. It was submitted that the Defendants’ “current position amounts to an attempt to profit from their own turpitude”. In his oral submissions Mr Maguire did not put the argument using such language but did argue that the withdrawal of paragraph 44(3)(i) was of “existential significance” to the claim and that there would inevitably have to be “an inquiry at trial” as to the circumstances in which it was pleaded. He argued that the position was now that a number of further claims might be advanced. He accepted however that there was no application by the Claimant to amend the claim to include those unparticularised further claims.

The Claimant argued that if paragraph 44(3)(i) had been withdrawn before the security for costs hearing it would have argued that the court should have considered the merits of the claim. Mr Maguire (who did not appear before Stacey J) submitted that had he been instructed then the Claimant would have argued that there was a high probability of success such that the application for security for costs should be refused.

For the Defendants, Ms O’Sullivan KC, argued that the Claimant had fundamentally misunderstood the position. The Defendants had not been advancing a positive case as to the validity of the extension of the PdV: it was simply a non-admission as to whether it had been validly extended. In any event, it was wrong to characterise the document relied upon as a deed. Only the letter accompanying the deed had been notarised and so it was unclear whether the deed itself had been notarised. Notwithstanding that uncertainty, the Defendants had decided that it was not proportionate to maintain the non-admission and was content to proceed on the basis that the PdV had been validly extended. Consequently, the need for expert advice in relation to Cameroonian law was no longer necessary.

The Defendants argued that the Claimant could not establish that the withdrawal of paragraph 44.3(i) would have enabled it to argue that there was a high degree of probability of success. The Defendants pointed to the approach taken by Stacey J to the Defendants’ attempts to persuade the court to consider the merits of the claim. There was every reason to believe that had the Claimant similarly sought to persuade the court it too would have been unsuccessful. Furthermore, there was nothing in the argument that establishing the validity of the extension of the PdV would be decisive in determining the merits of the claim. The essence of the case was as set out in paragraph 32 of the Defence (set out above at paragraph 16).

The starting point is whether there is a basis for the Stacey J Order to be revoked or varied under CPR 3.1.7.

It is not in issue that there has been, to some degree, a material change of circumstances since the Stacey J Order. The material change of circumstances arises from the withdrawal of the non-admission in relation to the validity of the extension of the PdV. The parties are now agreed that there is no longer a need for expert evidence in relation to Cameroonian law following the Defendants’ withdrawal of its non-admission in paragraph 44.3(i) of its Defence. To that extent, but to that extent alone, the 16 August 2025 application succeeds in that the amount of the security for costs should be varied. As noted at the outset of the judgment in the course of the hearing it was agreed that it should be reduced by £74,000.

However, I do not accept the Claimant’s argument that there has been a change of circumstances because it can now establish a high degree of probability of success such that the Stacey J Order should be revoked. My reasons are as follows.

First, Stacey J made it clear in her judgment that she was not considering the merits of the claim when determining whether to make an order for security for costs: see the Stacey J judgment at [39]-[40]. The Judge noted that the investigation of the merits of the case on an application for security for costs is strongly discouraged. As Stacey J held, the merits of the claim will require detailed investigation of evidence and law. That is precisely why the investigation of the merits is deprecated “except in the clearest of cases.” That has been the long-established position – see for example Chernukhin v Danilina [2018] EWCA Civ 1802 at [69] and Porzelack KG v Porzelack (UK) Ltd [1987] 1 W.L.R. 420 (per Sir Nicholas Browe-Wilkinson VC). It is also open to question whether it would ever be appropriate to focus on a selected aspect of a case in the way the Claimant has sought to do by reference to the extension of the PdV (see [42] of In the matter of AUGER INVESTMENTS PLC Concept Elite Inc v Thames Enterprises Ltd & ors (2012] EWHC 94 (Ch); per Warren J).

As noted by Stacey J, paragraph 4 of Appendix 10 to the Commercial Court Guide states:

“Investigation of the merits of the case on an application for security is strongly discouraged. It is usually only in those cases where it can be shown without detailed investigation of evidence or law that the claim is certain or almost certain to succeed or fail that the merits will be taken into consideration.”

The position in relation to merits remains the same as it was before Stacey J. The Claimant has not been able to show a “high degree of probability” that it will succeed. In spite of Mr Maguire’s efforts, I am wholly unpersuaded that because the Defendants are now no longer pleading a non-admission of validity in respect of the extension of the PdV that there is a high degree of probability that it will succeed at trial. Such a submission would require detailed consideration of evidence and law that would propel the hearing before me into a mini-trial. Mr Maguire’s submission that there were now a number of further potential claims (as yet unparticularised) open to the Claimant served only to underline the fact a detailed investigation would be required before the court could come in any way close to concluding a high degree of probability of success.

The validity of the extension of the PdV was clearly of some significance as the parties agreed that it required expert evidence as to Cameroonian law. It seems to me however on the pleaded cases far from being a decisive aspect of the case, shown most clearly by dint of the fact that the Defendants were not advancing a positive case as to whether or not it had been validly extended. Their position had been a non-admission as to its validity. The decisive aspect of the defence seems to me to be paragraph 32 of the Defence.

Secondly, the alleged failure of the Defendants to alert the Claimant to the letter from the notary is irrelevant to the question of whether the Claimant can now establish a high degree of probability of success. Even if it was arguably relevant, then the argument seems to me to be mis-conceived. There is no duty on a party in private law to alert the other party to relevant material (c.f. the position in public law proceedings: see Tweed v Parades Commission for Northern Ireland [2006] UKHL 53; [2007] 1 AC 650). Moreover, the Defendants pleading a non-admission of the validity was properly open to the Defendants for the reasons explained at the hearing (see paragraph 46 above). The Claimant’s allegations of “turpitude” are misplaced. It cannot reasonably be argued that the Defendants had “mis-stated” the facts to Stacey J.

Thirdly, the notarised letter accompanying the extension to the PdV was available to the Claimant by the time of the hearing before Stacey J. It was disclosed on 1 May 2025. If, contrary to the foregoing, it could establish that the Claimant had a high probability of success then it was “knowable” (to use the language of Tibbles at [39(v)]). It could have been deployed at that hearing.

The Claimant argued that the costs order made by Morris J should be varied so that there should be detailed assessment of the Claimant’s costs. As noted above, Morris J had ordered a payment on account of costs on a conservative basis of what would be received on detailed assessment. Mr Maguire argued that at detailed assessment the costs judge would allow an hourly rate of at least £400 per hour and arguably nearer to £700 per hour.

After the hearing had concluded, the Claimant filed a witness statement from Dr Nasah in which it was stated that Master McCloud had allowed £400 per hour in respect of the Claimant’s costs. The Defendants did not object to the admission of the statement but argued that it was factually incorrect as the Master had in fact been assessing the Defendants’ costs rather than the costs of the Claimant.

I asked Mr Maguire how long it might take for detailed assessment to take place and what its effect might be on the trial timetable. He stated that it might necessitate losing the trial date. Later he argued that it might still be possible to keep the trial window if the trial took place at the end of the trial window.

Mr Maguire relied on the Court of Appeal’s judgment in Koza Ltd and Hamdi Akin Ipek v Koza Altin Islet Meleri AS [2020] EWCA Civ 1263, (“Koza”). In Koza Popplewell LJ said at [14] of his judgment:

“The appellants argue that there is no basis for departing from the general rule articulated in CPR 47.1 that detailed assessment is to take place after conclusion of the proceedings; and that the principles behind that general rule apply in this case, namely avoiding time and cost being spent whilst the proceedings are progressing, avoiding multiple detailed assessments, and having an assessment which can take account of set-offs of different costs orders. I agree. The only justification for immediate assessment would be if there were an imperative for an immediate payment of the excess (if any) over the payment on account of costs. There is no such imperative in this case.”

Mr Maguire submitted that there was an “imperative” in this case because of the need to meet the security for costs. However, Mr Maguire properly drew my attention to the judgment of David Richards LJ (as he then was) in Shergill and others v Khaira (No 2) [2017] EWCA Civ 1687; [2017] 1 WLR 175 where reference was made at [17] of the judgment to the fact that “Paragraph 1.4 of 47PD provides that a costs judge may make an order allowing detailed assessment proceedings to be continued where there is no realistic prospect of the claim proceeding.”

The Defendants argued that the order should not be varied. Stacey J had expressly taken into account the costs liability arising from the hearing before Morris J when she had set the amount of the security for costs. Nothing had changed since then. There was no basis under CPR 3.1.7 to vary the order that had been made by Morris J. Ms O’Sullivan KC also pointed to the fact that it would lead to the loss of the trial date. In any event, it was not accepted that detailed assessment would lead to the Claimant recovering sufficient funds to meet the security for costs.

Although expressed as an application to vary the costs order made by Morris J, it is inextricably linked with the application to vary or revoke the security for costs order. In my judgment the Claimant has not established that there has been a material change of circumstances such as to warrant varying the order made by Morris J.

First, there has been no relevant and material change of circumstances since the order was made by Morris J. Stacey J expressly took into account the costs liability arising from the hearing before Morris J: see [55] of her judgment. Even if the Claimant is correct that it might recover on detailed assessment more than the guideline hourly rate used by Morris J when he made his payment on account of costs, it seems to me to be wrong in principle for that to be a basis to vary the order when that costs liability was expressly taken into account by Stacey J.

Secondly, it is of note that at the hearing before Stacey J it was not argued by the Claimant that the court should vary the costs order made by Morris J.

Thirdly, insofar as the application to vary the order by Morris J is linked to the application to vary the Stacey J Order, I have already rejected the argument that the withdrawal of the non-admission in paragraph 44.3(i) of the Defence amounts to a material change of circumstances because the Claimant can now establish that there is a strong probability of success.

Fourthly, and without prejudice to the foregoing, I see no reason here to depart from the general rule that detailed assessment should only be ordered at the conclusion of the proceedings (see Shergill, cited above). Detailed assessment would be lengthy, costly and disruptive of the proceedings, and would cause prejudice to the Defendants. As Mr Maguire accepted, it might well lead to the loss of the trial window.

The Defendants argued that there was no doubt that the Claimant was in breach of the Stacey J Order. The Defendants are suffering significant prejudice because it is incurring substantial cost of witness and expert evidence without the protection of the security which had been specifically ordered by the Court as a fair compromise between the competing interests of the parties. In Radu v Houston[2006] EWCA Civ 1575, [2007] 5 Costs LR 671, Waller LJ deprecated the practice of making an unless order as part of the initial order for security. The Defendants submitted that the time had now come to make an unless order. The Defendants argued that the Claimant should be given a final window of 21 days to put up the security. They argued that it was not open to the Claimant to argue that they could not afford to pay the security for costs: that was an impermissible attempt to re-run the stifling argument.

The Claimant argued that rather than an unless order a stay should be ordered. An unless order was a blunt tool but a stay would give flexibility. Mr Tchumtchoua was trying to sell his house to raise funds, but the house had not yet sold. The appropriate period should be three months. I asked Mr Maguire how such a period could be reconciled with the fact that the next steps in the litigation were likely to be heavy in costs (see the timetable referred to above at paragraph 4). Mr Maguire said that the timetable could be pushed back and that the trial could be listed at the end of the current trial window. Mr Maguire also relied upon the fact that Stacey J had contemplated that the next step if payment was not made would be an application for a stay.

The Claimant is undoubtedly in breach of the Stacey J Order. Having determined that there is no basis for that Order to be revoked there must in principle be a sanction for non-compliance. As Waller LJ said in Prince Radu of Hohenzollern v Houston [2007] 5 Costs LR 671 “[t]he obtaining of an order for security for costs is a rather special form of order. It is intended, if it is right to make an order at all, to give a claimant a choice as to whether he puts up security and continues with his action or withdraws his claim.” (see [18] of the judgment).

I do not accept the Claimant’s submission that if an order is to be made then it should be for a stay. Paragraph 3 of the Stacey J Order does not, it seems to me, preclude the making of an unless order. Indeed, there are occasions when a stay is combined with an unless order. See, for example, the decision of Eder J discussed in SC GD Petrol SRL v Vitol Broking Ltd [2013] EWHC 3920 (Comm) [2014] 2 Costs LR 205. In that case Eder J made an order on 7 June 2013 for security of costs to be provided within 28 days. Then, when security had still not been provided by 4 September 2013, he extended the time for providing the required security until 17 October 2013, with a stay of proceedings in the meantime. At the same time, he ordered, unless the security was provided or a further extension of time granted before 17 October 2013, the claim would be struck out on that date.

More specifically, I accept the Defendants’ argument that a stay would be inappropriate and unsatisfactory. It would simply put on hold the litigation leaving uncertainty for the Defendants.

I recognise that the making of an unless order is one of the most powerful weapons in the court’s case management armoury and should not be deployed unless its consequences can be justified. I must be satisfied that it would be proportionate for the claim to be struck out unless the security for costs is paid.

An important aspect of the proportionality assessment is the period to be given. It is clear from the witness evidence that efforts have been made to secure ATE insurance, albeit that the Claimant now accepts that ATE insurance is not going to be available. Equally the witness evidence indicates that there have been some efforts to raise funding through the sale of Mr Tchumtchoua’s house. To be weighed against those factors however is the fact that the whole purpose of the security for costs order is to give security for the costs to be incurred in the next phase of the litigation. The first payment under the Stacey J Order was to have been made as long ago as 4 July 2025. Over three months later there has been no payment whatsoever. The non-payment of the security for costs has already led to the case management directions being extended.

In my judgment, balancing all of those factors, it would be in accordance with the overriding objective for an order to be made whereby, unless the Claimant pays security for costs in the sum of £226,000 within 6 weeks of the handing down of this judgment, then the case will be struck out. Inevitably that will require the case management directions to be further delayed but should still enable the trial window to be maintained should there be compliance by the Claimant.

I invite the parties to agree an order reflecting the terms of this judgment. If agreement cannot be reached, then I will determine the terms of the order on the basis of brief written submissions as to the points in dispute.