Q&As

Can I apply for security for costs of a s 68 challenge?

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Published on LexisPSL on 26/11/2013

The following Arbitration Q&A provides comprehensive and up to date legal information covering:

  • Can I apply for security for costs of a s 68 challenge?
  • Security for costs when challenging an award

Can I apply for security for costs of a s 68 challenge?

Security for costs when challenging an award

The simple answer to this question is, yes, you can apply for security for costs of a challenge to an award made under s 68 of the Arbitration Act 1996 (AA 1996). Even better, you should also consider applying for security in the amount of the award and the costs of the challenge.

Section 70(6) of AA 1996 sets out the court’s power to order security on an application under AA 1996, ss 67–69 on grounds that the defendant has insufficient assets or does not have readily available assets to satisfy any court order. The key point for an applicant for security under s 70(6) to establish is that the respondent does not have assets available to meet a judgment for the costs of the proceedings. Of lesser importance, though nevertheless relevant, will be the strength of the challenge that is pursued by the respondent.

The court will not grant security on the basis that the defendant is resident outside of the jurisdiction and while it is rare to obtain security, this doesn’t mean that you shouldn’t apply for it. For more detailed information, see Practice Note: AA

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