Disputes under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) are often emotionally charged and financially significant. While the majority of the focus is placed on whether a claimant has been left reasonable financial provision, an often overlooked - but potentially decisive - issue can arise at a much earlier stage, being security for costs.
A recent High Court decision in the case of Natthachai v Burrage & Anor [2025] provides a clear reminder to parties, particularly those based overseas, that these claims are still subject to the Civil Procedure Rules and applications are most common in the commercial courts.
Security for costs is an order requiring a party (typically a claimant) to pay money into court, or to provide another form of security, to ensure that if their claim (or defence) fails then the other party will be able to recover at least a proportion of their legal costs.
Importantly, there is no special exemption for 1975 Act claims. These claims fall squarely within the ordinary civil procedure framework and the court can order security for costs under Part 25 of the Civil Procedure Rules.
The court will apply a two-stage approach when considering whether to grant security for costs:
1. Whether one (or more) of a set list of conditions applies
The conditions listed under Part 25 include where the respondent:
i. is resident out of the jurisdiction (i.e. outside England and Wales) thereby creating a real risk that a costs order would be difficult to enforce overseas;
ii. is a company or other body and there is reason to believe that it will be unable to pay the applicant’s costs if ordered to do so;
iii. has changed their address since the claim was commenced with a view to evading the consequences of the litigation;
iv. failed to give their address in the claim form, or gave an incorrect address;
v. where there is reason to believe that they will be unable to pay the applicant’s costs if ordered to do so; or
vi. has taken steps in relation to their assets that would make it difficult to enforce an order for costs against them.
2. Is it just, in all the circumstances of the case, to make the order?
Even if one of the above ‘gateways’ applies, the court must decide whether ordering security is fair taking into account all of the circumstances of the case. This involves balancing the respondent’s right to bring/defend a claim against the applicant’s right to be protected against unrecoverable costs.
A key safeguard is the so-called “stifling” principle: the court will not make an order for security for costs if it can be shown that making such an order would effectively prevent a genuine claim from being pursued. However, the burden is on the Respondent to fully set out their financial position.
This was a 1975 Act claim where the claimant was resident in Thailand. The court accepted that this created a real risk that any costs order would be difficult to enforce, which was sufficient to satisfy the initial gateway for security for costs.
A central issue in Natthachai was the claimant’s financial disclosure. While she argued that she could not afford to provide substantial security, and an order for security for costs would therefore stifle her claim, the court found that her evidence was incomplete, inconsistent and insufficiently supported by reliable valuations.
The evidence provided by respondents to an application for security for costs must be full, frank and unequivocal [Al-Koronky v Time-Life Entertainment Group Ltd [2006]]. To resist security successfully, a respondent must demonstrate:
that the claim is genuine and arguable; and
that providing security would genuinely prevent the claim from continuing.
In Natthachai, the court accepted that the claim was arguable but was not satisfied that ordering security at a modest level would stifle it.
The court generally adopts a practical approach: security orders are not punitive but rather calibrated to achieve fairness. The amount will usually reflect both the applicant’s likely costs and the respondent’s realistic ability to provide funds.
If an order is made for security for costs and the respondent fails to pay it, the result is that the claim (or defence) is effectively brought to an end. The party who was ordered to provide security will also typically face an adverse costs order in respect of the other party’s legal costs.
Inheritance disputes are often seen through a personal or emotional lens, but Natthachai is a reminder that procedural rules can decisively shape the outcome.
For claimants, this is a stark warning - a security for costs order is not merely procedural but it can determine whether the case proceeds at all.
Conversely, for defendants a security for costs application can provide, if successful, meaningful security against potentially unrecoverable costs and a route to bring the claim to an end at an early stage. However, even when it fails because an order for security for costs would stifle a claim, it is a powerful tool to force the claimant into providing early financial disclosure.
For further information, please contact our disputed wills team.
