Sheikh Tahnoon Bin Saeed Bin Shakhboot Al Nehayan v Kent (aka Joannis Kent) [2016]
In Sheikh Tahnoon Bin Saeed Bin Shakhboot Al Nehayan v Kent (aka Joannis Kent) [2016] EWHC 623 (QB) (21 March 2016) this matter was heard before Mrs Justice Nicola Davies. The Claimant, a national of the United Arab Emirates living in Abu Dhabi and from the ruling family had invested money with the Defendant in respect of his hotel businesses. The Defendant, a business man living in Athens, was involved in hotels and tourism in Greece and Cyprus. The Defendant applied for security for costs in respect of the whole action from the Claimant.
He sought the sum of £1,000,000 to be paid into court by the Claimant as to,
- the sum of £400,00 within 35 days from the order,
- £250,000 no later than 35 days after the CMC and
- £350,000 no more than 2 days before the trial date.
He further claimed that if security was not provided then the claim should be struck out with judgment in his favour for the costs in the matter.
The law applicable IS CPR 25.13 where the court may make an order if, having examined all the circumstances, it is satisfied it can make an order and one or more of conditions in paragraph 2 are satisfied where the Claimant is living outside the jurisdiction
“(ii) not resident in a Brussels Contracting State, a State bound by the Lugano Convention or a Regulation State, as defined in section 1 (3) of the Civil Jurisdiction and Judgements Act1982; …”
The Defendant stated in his application that he would face substantial difficulties in enforcing costs against the Claimant in view of his position within the ruling family of Abu Dhabi and enforcing judgments in the UAE emanating from courts from this jurisdiction with the possibility that any order for costs would not be enforced by courts in the UAE.
Mrs Justice Davis observed that the Claimant did not appear to possess assets within this jurisdiction against which the Defendant could enforce a costs order and as to the £60,000 already paid by the Claimant, the Defendant had argued that this kept the claim going and
“If the claimant was faced with a costs order having lost the substantive action there would be no incentive on his part to pay a substantially higher award of costs”.
She considered that the Defendant’s argument was that this was high value commercial litigation of great importance to him for financial and reputational reasons and that not only did he live and run his hotel business in Athens, his witnesses also lived and worked there. His English lawyers had been required to go to Athens at various times and they continue going to Athens to prepare for trial. She observed that costs had not been sought to pay the Defendant’s former lawyers and
“a reduction of 10% has been allowed to reflect overlap between the costs of the defence and the costs of the current claim. The quantum has also been reduced by 1/3 to reflect the fact that a successful party will not generally recover more than 2/3 of its costs”.
She noted that the Claimant accepted the provisions of CPR 25.13. (2) had been met and he relied upon the discretion of the court and relevant authorities. She observed that the Claimant was extremely wealthy, he had immediately paid costs on the two prior failed applications. Further, the Defendant had delayed in the matter in his application for security without good reason, he waited more than a year before making his first application for security for costs followed by a delay before issuing.
In reliance upon the authorities Mrs Justice Davis contended that
“the claimant should not be treated less favourably than a person within the Brussels or Lugano convention. It is also contended that the defendant had not adduced evidence sufficient to justify the exercise of the costs jurisdiction”.
In her conclusions she agreed the provisions of CPR25.13 9 (ii) apply and if proceedings were begun in the UAE, Article 235 of the CPC would be applicable. She considered the issue was the discretion given in CPR 25.13 (1) (2) and what should be looked at was whether in trying to enforce a costs order that had been issued within this jurisdiction, in UAE, the Defendant would be faced with being unable to recover any costs from the Claimant.
She referred to a report concerning the judiciary in the UAE and the difficulties of pursuing a claim to enforce a foreign judgment. The author of the report had not been aware of any case between the UAE and the courts in England and Wales that had permitted a judgment to be enforced.
Mrs Justice Davis accepted that the Defendant might have to enter into a lengthy costly process to try to enforce a costs order. Mindful of this she considered granting a security for costs order limited to an amount which would not prevent the Claimant from continuing with the claim. The drafted application did not include the claim and there was no quantification. She asked both parties for their written submissions as to whether they agreed to this course or whether they required a further hearing.