Ashraful Alam Khokan v Jawad Hossain Nirjhor

Failure to pay an immediate interlocutory costs order may justify making payment a condition of continuing litigation. The usual form is an unless order, subject to any overwhelming consideration under Article 6 of the ECHR and the relevant circumstances, including alternative enforcement methods and evidence of inability to pay.

Security for costs may be ordered where a claimant is resident outside the jurisdiction in a non-Convention state, or has taken steps affecting enforcement against assets, if the order is just. The court must identify a real risk of substantial enforcement obstacles or additional cost and delay, and tailor the security to that risk. Merits generally have limited relevance, and full and candid financial disclosure is required.

The claimant brought a defamation claim concerning publications on social media. The claim was listed for a five-day trial. The defendant sought an unless order requiring payment of an immediate costs order made by the Senior Master, together with security for costs. The claimant sought an extension of time and, alternatively, a stay of execution of the costs order.

The court considered the claimant’s non-compliance, his evidence concerning his assets and means, the practical burden of enforcing an English costs order in the United States, and the proximity of trial. The central issues were whether continued participation in the litigation should be conditional on payment and whether security for costs should be ordered.

1. Unless order. The defendant established a clear case for making payment of the Senior Master’s immediate costs order a condition of continuing the claim. The relevant principles were those summarised in Michael Wilson & Partners v Sinclair [2017] EWHC 2424 (Comm). The court must consider the purpose of immediate costs orders, Article 6, alternative enforcement mechanisms, the circumstances in which the original order was made, and the quality of evidence concerning inability to pay.
2. The claimant had failed to pay £20,646.58, had delayed in addressing the breach, and had provided inadequate and concerning evidence about his assets and financial position. No overwhelming Article 6 consideration justified departing from the normal consequence that compliance with an immediate costs order is required to continue litigation. The court therefore ordered that, unless payment was made by a date to be fixed shortly, the claim would be struck out.
3. Security for costs. The conditions in CPR 25.13(2)(a) and (g) were satisfied. The claimant was resident outside the jurisdiction in a non-Convention state, and the evidence justified the inference that assets had not been fully disclosed or had been dealt with so as to make enforcement difficult.
4. Under Danilina v Chernukhin [2018] EWCA Civ 1802, the justness discretion had to be exercised consistently with Articles 6 and 14 of the ECHR. There was a real risk of substantial obstacles or additional enforcement burdens in the United States. The security had to be tailored to that risk. The court rejected the higher sum sought because the alleged repugnancy issue was insufficiently established, and ordered security of £26,000.
5. The merits of the defamation claim had limited relevance. The court would hear further submissions on the dates for payment of both sums.

First-instance applications in ongoing defamation proceedings. No appellate history is stated in the judgment.