2024-11-29 - CoA - Aarke v. Sodastream Industries - UPC_CoA_548/2024

When deciding on a request for security for costs failing any guarantees or other special circumstances, it is not relevant whether the claimant belongs to a - financially sound - group of companies. It is only the financial position of the claimant itself that is relevant; it is not relevant whether a claimant is willing to reimburse the defendant if a cost order would be issued in favour of the defendant; It is also irrelevant whether a cost order in favour of the defendant is to be expected. The Court should not engage in evaluating the likelihood of the outcome of the case; it is not required that it is proven that enforcement is impossible. It is sufficient for a defendant to establish that enforcement of a cost order is unduly burdensome. The burden of showing this is on the applicant of an order for security for costs. To this end, the applicant shall not only provide evidence as to the foreign law applicable in the territory where the order shall be enforced, but also its application.

The Court of Appeal dismissed an appeal against an order rejecting the application to order a security for costs. The court explained the relevant criteria for ordering a security.