Fleming v Marshall

In *Fleming v Marshall*, the appellants sought to appeal a decision refusing to stay proceedings on the grounds of *forum non conveniens*. The respondents applied for security for the costs of the appeal pursuant to rule 51.50 of the Uniform Civil Procedure Rules. The primary question before the court was whether "special circumstances" existed to justify requiring the foreign appellants to provide security for costs before the issue of the forum of litigation was resolved.

The court was required to determine whether the appellants, as foreign litigants, should be compelled to provide security for the costs of the appeal. This involved considering the application of rule 51.50 and rule 42.21 of the Uniform Civil Procedure Rules, and whether the circumstances of the case met the threshold for "special circumstances" that would warrant an order for security for costs.

The court reasoned that the discretion to order security for costs under rule 51.50 should be exercised cautiously, particularly when the underlying appeal concerned the fundamental issue of the appropriate forum. It was held that the mere fact that the appellants were foreign litigants was not, in itself, a special circumstance justifying an order for security for costs. The court considered the potential impact of such an order on the appellants' ability to pursue their appeal and the broader principles of access to justice.

The Notice of Motion for security for costs was dismissed, with the appellants ordered to pay the respondents' costs of the motion, including any costs previously reserved.