Elahi v Mohamed (C.C. 11/1929.) [1929] EACA 49 (1 January 1929)

Before SHERIDAN, J.

## KARM ELAHI

## $\mathbf{1}$

## AHMED MOHAMED.

## C. C. $11/1929$ .

Civil Procedure Rules, 1927, Order 23-security for the costs of a defendant.

*Held*: —That the discretion of the Court under Order 23, should be exercised in accordance with the English practice. Inability of the plaintiff to pay his debts is not a sufficient ground for an order in a case at first instance although it might be considered sufficient in an appeal.

ORDER.—This is an application for an order that the plaintiff be required to give security for costs. An affidavit in support of the application has been filed and the only ground set out therein is that the plaintiff, being unable to pay his debts, in the event of Judgment being given against him he will not be able to pay costs. According to the English practice this ground would not be sufficient to secure an order in a case at first instance although it might be considered sufficient in an appeal. To use the words of Bowen, L. J. in Cowell v. Taylor, 31 Ch. D. at p. 39: "The general rule is that poverty is no bar to a litigant, that, from time immemorial, has been the rule at common law, and also. I believe, in equity. There is an exception in the case of appeals, but there the appellant has had the benefit of a decision of one of Her Majesty's Courts, and so an insolvent party is not excluded from the Courts, but only prevented, if he cannot find security, from dragging his opponent from one Court to another ".

In my opinion the discretion to be exercised under Order XXIII should be exercised in accordance with the English practice, and I therefore refuse the application with costs. I find that the application which came before me on a previous occasion when I made an order for security for costs was made in an appeal under Order XXXIX, 9.