Mehul Choksi v The Government of India & Ors

On an application for security for costs, the court’s discretion must be exercised having regard to all the circumstances. A claimant’s strong merits will ordinarily be relevant only where success or failure can be demonstrated with a high degree of probability. A high probability of success is not automatically determinative.

Where security is sought because the claimant resides abroad, the court must identify objectively justified grounds showing a real risk of non-enforcement or an additional enforcement burden. Security should be tailored to that risk. Security should not be ordered if the claimant proves, on the balance of probabilities, that it would stifle the claim.

The claimant brought a damages claim for personal injury against the Government of India and five individuals, alleging a conspiracy to kidnap, detain and assault him in Antigua and Dominica before rendering him to India. The defendants disputed jurisdiction and relied on state immunity. Four defendants applied for security for costs, relying principally on the claimant’s residence outside the jurisdiction.

The applications were heard before the jurisdiction and immunity issues. The claimant argued that the merits were exceptionally strong, enforcement would not present a real difficulty, and security would impair continuation of the claim. The court considered the merits, enforcement risk, ability to provide security and the amount required.

1. Applications granted in part. It was just to order security for costs under Civil Procedure Rules 1998, rule 25.27. The claimant’s residence outside the jurisdiction satisfied the applicable gateway condition.
2. The court applied the approach in Danilina v Chernukhin [2019] 1 WLR 758. Merits should not ordinarily be investigated unless there was a high degree of probability of success or failure. The evidence relied upon was substantially hearsay, opinion and circumstantial. A meaningful assessment of witness credibility, documentary evidence and inferences required a trial. Neither the substantive claim nor the jurisdiction and immunity arguments met the threshold.
3. The court was satisfied that substantial obstacles created a real risk that a costs order would not be enforced. The claimant had provided no evidence of assets in England, Belgium or Antigua, and his assets in India appeared to be frozen. Enforcement would involve identifying assets across several jurisdictions and potentially proceeding while the claimant was in custody.
4. The claimant had not shown, on the balance of probabilities, that security would stifle the claim. The evidence did not establish his inability to raise the money or explain how his existing legal costs were being met.
5. The sums sought were reduced to reflect duplication. Security of £425,000 was ordered for the Second and Fourth Defendants, and £252,000 inclusive of VAT for the Fifth and Sixth Defendants. The court did not determine the effect or timing of the QOCS issue under rules 44.13 and 44.14.

First-instance decision on two applications for security for costs. The jurisdiction and state immunity applications were directed to be heard separately before Freedman J’s order dated 11 July 2025.