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Royal Courts of Justice
Author Anthony M
Creative Commons Licence
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In the United Kingdom, as in many other countries, the unsuccessful party in civil litigation usually has to contribute substantially to the solicitors and counsel's fees of the successful party. The amount that the unsuccessful party has to pay is known as "costs" in England, Wales and Northern Ireland and "expenses" in Scotland. If there is serious doubt as to whether a claimant could or would pay such costs or expenses the courts if those jurisdictions have power to require him or her to give security (or in Scotland
caution) for the costs. That typically takes the form of a deposit of money into an interest bearing account managed by the court but it could be a bank guarantee, insurance bond, escrow fund or other arrangement.
In England and Wales the power to order security for costs is governed by
Section II of Part 25 of the Civil Procedure Rules.
CPR 25.13 enables the court to make an order for security for costs if:
"(a) it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order; and
(b) (i) one or more of the conditions in paragraph (2) applies, or
(ii) an enactment permits the court to require security for costs."
This is a very powerful weapon for defendants as it can stop a claim in its tracks. The usual reason for an order is that:
"the claimant is a company or other body (whether incorporated inside or outside Great Britain) and there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so."
However, there are other grounds one of which is that the claimant is:
"(i) resident out of the jurisdiction; but
(ii) not resident in a Brussels Contracting State, a State bound by the Lugano Convention, a State bound by the 2005 Hague Convention or a Regulation State, as defined in section 1(3) of the Civil Jurisdiction and Judgments Act 1982."
It was on that ground that Mrs Justice Nicola Davies expressed willingness in
Sheikh Tahnoon Bin Saeed Bin Shakhboot Al Nehayan v Kent [2016] EWHC 623 (QB) (21 March 2016) to make a security for costs order (albeit limited in scope) against the sixth in line to the throne of Abu Dhabi who is a very wealthy man.
In this action the claimant claimed £2 million under an agreement with the defendant to invest in an hotel business. His claim form was issued on 8 July 2013 and a request was made for interim security on 10 Jan 2014. That was not provided to the defendant's satisfaction so he applied on 28 July 2015 for security in the sum of £1 million payable as follows:
"i) £400,000 within 35 days of the date of the court's order;
ii) £250,000 by no later than 35 days after the hearing of the restored CMC;
iii) £350,000 by no later than 2 days before the date fixed for the trial in the action."
The defendant's application notice provided for the claim to be struck out and judgment to be given to the defendant if such security was not given.
The defendant submitted that:
- He would face serious and substantial difficulties in seeking to enforce any costs award in his favour against the claimant having regard to the claimant's status as a senior member of the ruling family of Abu Dhabi and for position generally with respect to the enforceability in the UAE of judgments of the court of England and Wales.
- If the court were to ignore the standing of the claimant and concerns about the judicial system in the UAE, expert evidence before the court demonstrated that a costs order from the courts in England and Wales would not be enforced by the courts in the UAE.
In support of his first submission, the defendant relied on a report on the UAE by
the United Nations Special Rapporteur on the Independence of Judges and Lawyers. The rapporteur found that:
"The justice system in the UAE has developed into an elaborate and complex court system in a relatively short time frame. Despite commendable progress and achievements the Special Rapporteur is concerned that the challenges and shortcomings she has identified are serious and negatively affect the delivery of justice, the enjoyment of human rights and the public's confidence in the judiciary. …"
She found at para [28] of her report that:
"The federal system of the United Arab Emirates is complex and can be difficult to understand, in particular for non nationals, who constitute the majority of the population. During a visit, the Special Rapporteur was told that because of the complex superposition of federal and local laws, it is sometimes difficult for the public to know where the boundaries lie between the federal and local justice systems. There also appears to be a lack of consistency between the applications of federal laws between the Emirates. The Special Rapporteur is concerned about reports that it is difficult for people to know which legal provisions are applicable to them depending on where they are in the Federation, and that laws are sometimes applied in an arbitrary manner, that creates ambiguity and mistrust with both law enforcement authorities and the justice system."
There were also concerns about the independence of the judiciary, the absence of a formal distinction between the judiciary and the executive and particularly that the attorney-general was one of the 7 members of the federal supreme court and 3 others represented the executive.
In support of his second submission, the defendant relied on the evidence of a senior UAE lawyer that it would be extremely difficulty and expensive to enforce a costs order against the claimant in the UAE.
At para [29] of her judgment, Mrs Justice Nicola Davies found no objectively justified grounds upon which to conclude that this defendant was unlikely to successfully obtain enforcement of a costs judgment against the claimant in the civil or commercial courts of the UAE but she did accept at [30] that the defendant would be likely to have to embark upon a legal process which could be lengthy and thus costly in order to attempt to obtain enforcement of a costs order. She formed the view that those difficulties would be better protected by a security for costs order tailored to the additional costs that the defendant would incur in enforcing a costs order. She made it clear that such an order would be limited in its amount and would not preclude this claimant from pursuing his claim.
As the defendant's application did not include such a claim and as no quantification had been provided, Her Ladyship left it to the parties to state in writing whether they could agree terms and to return for a second hearing if they could not.
An order of the kind proposed by the judge is unusual and would not have been made if the claimant had substantial assets in the United Kingdom. In expressing willingness to make it, she impliedly accepted at least some of the criticisms that had been made of the UAE and Abu Dhabi legal systems by the defendant. No doubt that is one of the reasons why the authorities in Dubai and Abu Dhabi have established special common law jurisdictions in their financial districts (see Jane Lambert
Abu Dhabi Global Market - Yet Another Common Law Enclave in the Gulf 22 Feb 2016).
Should anyone wish to discuss this case or any of the issues raised in it he or she should call me on +44 (0)207 404 5252 during office hours or send me a message through my
contact form. I should like to thank
Mr Abdul Hafeezi of Freeman Harris for bringing this case to my attention.
