Difference between the practice in the Court of Chancery and in Common Law Courts

‘Harlock v. Ashberry’, (1881) 19 Ch D 84 (C), which sets out the law obtaining in England on this point. Lush L. J., points out the difference that existed between the practice in the Court of Chancery and in Common Law Courts before the Judicature Acts as follows :

“In the Court of Chancery, it was the practice to require security to a certain amount for the costs of an appeal to be given in every case. That was not the practice in the Courts of Common Law ; there poverty alone was not considered a sufficient reason for requiring security to be given …………………. The rule under the Judicature Act (R. 15 of O. 58) provides that such security for the costs of any appeal shall be given an may be directed under special circumstances by the Court of appeal.

This was intended to alter the whole practice both of the Court of Chancery and of the Courts of Common Law, and to leave it in the discretion of the Court whether security should be given under special circumstances.”

As regards the practice now obtaining in England, jessel M. R., observed as follows :

“For sometime past it has been the settled practice if the respondent asks for it, to require security for costs to be given by an appellant who would be unable through poverty to pay the respondent’s costs of the appeal if it should be unsuccessful. The amount is generally very moderate and ofter turns out to be a good deal less than the actual costs.”