1. Does being an overseas plaintiff automatically mean that security for costs will be ordered?
No. An overseas plaintiff is not automatically required to give security for costs.
Although the court commonly treats foreign residence as creating a prima facie risk that a costs order may be difficult or expensive to enforce, the power to order security remains discretionary. The court will consider all the circumstances of the case.
An overseas plaintiff may be able to resist an application for security for costs if he can show, for example, that he has substantial fixed assets within Hong Kong, such as real property or readily tradeable shares, against which a costs order could be enforced.
He may also resist the application if a Hong Kong costs order can be enforced easily in his home jurisdiction, without significant extra expense or delay, for example under a reciprocal enforcement regime.
In addition, the court may refuse security if the plaintiff appears to have a genuinely strong case with a very high probability of success on the merits.
The court may also take into account whether the defendant delayed unreasonably in making the application. If the application was made only after egregious or unexplained delay, that may weigh against ordering security.
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