Bend Weld Engineering Sdn Bhd v FMC Technologies Limited

Bend Weld Engineering Sdn Bhd v FMC Technologies Limited

The court found that BWE would likely be unable to satisfy a costs order, satisfying CPR 25.13(2)(c). However, security for costs should only cover costs incurred after commencement of proceedings up to the CMC, as pre-action costs were not shown to be purely defensive. The counterclaim is presently defensive and an undertaking was given to stay/dismiss it if the claim is dismissed for failure to provide security, justifying an order for security for costs.

Parties
Claimant: Bend Weld Engineering Sdn. Bhd; Defendant: FMC Technologies Limited
Jurisdiction
England and Wales
Judgment Date
11 October 2024
Procedural Posture
Civil (commercial/construction) / Interlocutory Application for Security for Costs
Outcome
Application for security for costs granted in part
Legal Topics
Security for Costs, Counterclaims, Costs Budgeting, Jurisdictional Requirements for Security
Civil Procedure Commercial Law Construction Law Security for Costs Counterclaims Costs Budgeting Jurisdictional Requirements for Security

Case Brief

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Parties

Bend Weld Engineering Sdn. Bhd

Claimant

FMC Technologies Limited

Defendant

Procedural Posture

Civil (commercial/construction) / Interlocutory Application for Security for Costs

Legal Issues

  1. 1 Whether the defendant is entitled to security for costs under CPR 25.12 and 25.13
  2. 2 Whether the existence and nature of a counterclaim affects entitlement to security for costs
  3. 3 Whether pre-action costs should be included in a security for costs order

Ratio Decidendi

The court found that BWE would likely be unable to satisfy a costs order, satisfying CPR 25.13(2)(c). However, security for costs should only cover costs incurred after commencement of proceedings up to the CMC, as pre-action costs were not shown to be purely defensive. The counterclaim is presently defensive and an undertaking was given to stay/dismiss it if the claim is dismissed for failure to provide security, justifying an order for security for costs.

Court Disposition

Application for security for costs granted in part

Orders

  • BWE to provide security for FMC’s costs up to the conclusion of the CMC in the sum of £70,800.
  • No security ordered for pre-action costs.