An appeal based on alleged fresh evidence that could have been obtained by reasonable diligence before trial, and which would not probably have produced an opposite result, lacks real prospects of success. This lack of prospects constitutes a special circumstance warranting security for costs under Part 51 r 16, and negates the concern that such an order would stifle a genuine and arguable appeal. The nature of the Court of Appeal's jurisdiction to review registrar decisions (de novo or constrained by House v The King) remains unresolved.
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