Qatar Investment and Projects Development Holing Co & Anor v Phoenix Ancient Art S.A. & Ors

There is no doubt that this condition is satisfied on the wording of the current version of Part 25 of the CPR.

The appellants contend that the 2020 Action is governed by the pre-Brexit provisions for security for costs, as a result of Regulation 20 of the Civil Procedure Rules 1998 (Amendment) (EU Exit) Regulations 2019, SI 2019/521 (the “2019 Regulations”). As at that date, the conditions for granting security for costs were found in CPR 25.13, pursuant to which security could be granted against someone who was resident abroad otherwise than in a Brussels Contracting State or a State bound by the Lugano Convention. Regulation 20 provided that, in the case of a claim that was issued before 31 December 2020, CPR 25.13 applied “as if the amendments to that rule made by these Regulations had not been made.”

Mr Jones, who appeared for the appellants, accepted that this point has limited practical importance, as it does not apply to the appeal insofar as it relates to the 2023 Action, or to Mr Hicham Aboutaam, who is resident in New York. He nevertheless submitted that, as both Phoenix and Mr Ali Aboutaam are resident in Switzerland, and as the 2020 Action was commenced before 31 December 2020, the application for security for costs is, so far as they are concerned, governed by the pre-Brexit version of the relevant rule.

The relevant provisions were, however, further amended and restated in the Civil Procedure (Amendment) Rules 2025, SI 2025/106 (the “2025 Rules”). Under Rule 7 of the 2025 Rules, a new Part 25 (annexed to the 2025 Rules) was substituted for the existing Part 25, as from 6 April 2025. Nothing in the transitional provisions in the 2025 Rules preserves the pre-Brexit position for claims commenced before 31 December 2020. Mr Jones submitted that the 2025 Rules should be construed as including the same carve-out for actions commenced prior to 31 December 2020 as was contained in the 2019 Rules. There is no basis, in my judgment, for construing the rules in that way, and Mr Jones did not identify the legal route by which this could be achieved.

Accordingly, condition (i) is satisfied in respect of all three appellants in both Actions.

The applicable principles to this condition were set out by Akenhead J in Phaestos Ltd v Ho [2012] EWHC 662 (TCC):

“(a)

As a threshold requirement, the Defendants must establish that there is reason to believe that the Claimants will be unable to meet any costs order: see CPR Part 25.13(2)(c). Thus, it is not enough for the Defendants to show that the Claimants might not be able to repay. More must be done, namely justification for a reason to believe that the Claimants will not be able to pay. In that regard:

(i)

The Defendants do not need to demonstrate on a balance of probabilities that the Claimants will not be able to satisfy any costs order: see Jirehouse v Beller [2009] 1 WLR 751 at [26]. However, there must be evidence that the company “will be unable to pay”, which is more than mere doubt or concern about the future ability to pay: see Re Unisoft Group Limited [1993] BCLC 532 per Sir Donald Nicholls VC at 534e-i, as followed by Jirehouse at [24]. As stated by Sir Donald Nicholls VC in Unisoft, the test is not “watered down” by the presence of the wording “reason to believe”.

(ii)

Similarly, in Texuna International Limited v Cairn Energy plc [2004] EWHC 1102 Gross J stated at [10]: “I emphasise that the inquiry is whether the Claimant “will be unable” to pay the Defendant's costs if ordered to do so – not whether it might be unable to pay them.”

(iii)

The burden is upon the Defendants. It is not incumbent upon the Claimants to prove that they have the means to pay: see Golden Grove Estates v Chancerygate Asset Management [2007] EWHC 968 per Lindsay J at [35].

(iv)

However, if legitimate concerns about the Claimants financial position are raised, if the Claimants choose to provide no or incomplete information in response, that in itself can lead to a court reaching the belief that the Claimants are unable to pay. In Mbasago v Logo Limited [2006] EWCA Civ 608, Lord Justice Auld stated (at paragraph 12) that “where it arises as a result of the party against whom the order is sought either providing unsatisfactory financial information as to his or its affairs, or as in this case none at all, it is not a big step for the court to take to conclude that there is reason for such belief”.

(b)

Even if the threshold requirement in CPR Part 25.13(2)(c) is satisfied, the Court's power to award security for costs is discretionary: see Hutchinson Telephone (UK) Limited v Ultimate Response Limited [1993] BCLC 307 at 317 per Bingham J. That discretion will be exercised following a detailed assessment of all the relevant circumstances of the case: see CPR 25.13(1)(a). In short, the Court is to have regard to what is fair and just in all the circumstances: see Jones v Environcom Limited [2010] Lloyd”s Rep. IR. 190 at [12] per Gloster J.”

The most recent financial statements disclosed by Phoenix are for the year ended 31 December 2023. These indicate that Phoenix then had net current assets of CHF 771,549 and net assets of CHF 517,212. Its accounts receivable were far outweighed by its accounts payable. The difference was largely made up of inventory said to be valued at CHF 5,476,221.

The Claimants point to other evidence filed previously by the appellants, and to numerous statements of impecuniosity made by them, in support of the proposition that Phoenix’s net asset position is in truth far worse than that set out in its 2023 financial statements.

Phoenix has disclosed an inventory of stock held as at 31 December 2023 which indicates a total value of just over CHF 183,000. Moreover, in a witness statement dated 20 January 2025, Mr Hicham Aboutaam said that Phoenix now carried very little stock. On the basis of either of these pieces of evidence the figure for stock in the 2023 financial statements is substantially greater than its real value. That difference is, alone, sufficient to render Phoenix heavily insolvent. In addition, its largest debtor is a company referred to as Electrum (which owes Phoenix CHF 22,826,013). That is a company which the appellants contend is in dire financial straits. Even if (about which there is no evidence) Phoenix would be able to offset the debt it owes to Electrum (CHF 21,515,653 in the 2023 financial statements), that would leave a shortfall of approximately CHF 1.3 million due from Electrum which, in light of its financial position, would likely be irrecoverable. This alone also renders Phoenix heavily insolvent.

In his witness statement from January 2025, Mr Hicham Aboutaam also referred to Phoenix having very little ready cash. He said that, in light of its financial position and the recent difficulties in its banking relationship, there was no practical possibility of it borrowing the significant sums of money necessary to finance the litigation. The clear inference is that Phoenix’s financial position had worsened considerably since the end of 2023.

Mr Jones suggested that the Claimants’ own position is that Phoenix is far wealthier than the appellants have admitted, which is inconsistent with their claim that there is reason to believe that Phoenix will be unable to pay any costs award made against it.

In fact, the Claimants’ assertion is that the appellants, together, are far wealthier than they are willing to admit. This is directed primarily at the Individual Appellants. While, as Mr Jones pointed out, the Claimants rely on the fact that Phoenix itself received US$14 million on the sale of artefacts to the First Claimant, that says nothing about its current asset position. In my judgment, the evidence amply justifies the conclusion that there is reason to believe Phoenix will be unable to satisfy a costs award.

The principles to be applied under this condition were set out by Roth J in Ackerman v Ackerman [2011] EWHC 2183 (Ch), at §16:

“16.

The general principles that govern the making of an order for security and the application of CPR 25.13(2)(g) are well-recognised. They include the following:

i)

The requirement is that the claimant has taken in relation to his assets steps which, if he loses the case and a costs order is made against him, will make that order difficult to enforce. It is not sufficient that the claimant has engaged in other conduct that may be dishonest or reprehensible: Chandler v Brown [2001] CP Rep 103 at [19]-[20];

ii)

The test in that regard is objective: it is not concerned with the claimant's motivation but with the effect of steps which he has taken in relation to his assets: Aoun v Bahri [2002] EWHC 29 (Comm), [2002] CLC 776, at [25]-[26];

iii)

If it is reasonable to infer on all the evidence that a claimant has undisclosed assets, then his failure to disclose them could itself, although it might not necessarily, lead to the inference that he had put them out of reach of his creditors, including a potential creditor for costs: Dubai Islamic Bank v PSI Energy Holding Co [2011] EWCA Civ 761 at [26];

iv)

There is no temporal limitation as to when the steps were taken: they may have been taken before proceedings had been commenced or were in contemplation: Harris v Wallis [2006] EWHC 630 (Ch) at [24]-[25];

v)

However, motive, intention and the time when steps were taken are all relevant to the exercise of the court's discretion: Aoun v Bahri, ibid; Harris v Wallis, ibid.

vi)

In the exercise of its discretion, the court may take into account whether the claimant's want of means has been brought about by any conduct of the defendant: Sir Lindsay Parkinson & Co v Triplan [1973] QB 609per Lord Denning MR at 626; Spy Academy Ltd v Sakar International Inc [2009] EWCA Civ 985 at [14].

vii)

Impecuniosity is not a ground for ordering security; on the contrary, security should not be ordered where the court is satisfied that, in all the circumstances, this would probably have the effect of stifling a genuine claim: Keary Developments Ltd v Tarmac Construction [1995] 3 All ER 534 at 540, para 6. Thus the court must not order security in a sum which it knows the claimant cannot afford: Al-Koronky v Time-Life Entertainment [2006] CP Rep 47 at [25]-[26] (where this was referred to as “the principle of affordability”);

viii)

The court can order any amount (other than a simply nominal amount) by way of security up to the full amount claimed: it is not bound to order a substantial amount: Keary at 540, para 5.

ix)

The burden is on the claimant to show that he is unable to provide security not only from his own resources but by way of raising the amount needed from others who could assist him in pursuing his claim, such as relatives and friends: Keary at 540, para 6. However, the court should evaluate the evidence as regards third party funders with recognition of the difficulty for the claimant in proving a negative: Brimko Holdings Ltd v Eastman Kodak Co [2004] EWHC 1343 (Ch) at [12].

x)

When a party seeks to ensure that any security that may be required is within his resources, he must be full and candid as to his means: the court should scrutinise what it is told with a critical eye and may draw adverse inferences from any unexplained gaps in the evidence: Al-Koronky at [27].”

Certain of the matters relied on by the Claimants under this ground fall short of the requirements set out by Roth J. The Claimants, for example, contend that the appellants have a history of dishonesty, and that there is a real risk that they will dissipate their assets. Neither of these is sufficient: it is necessary to show that the appellants have dealt with their assets in the past in a way that would make it more difficult to enforce a costs order against them.

The Claimants also rely, however, on three specific matters. The first is that Mr Ali Aboutaam disposed of his interests in Phoenix and another company, Tanis Antiquities Ltd (“Tanis”), in 2023 for no consideration. As to Phoenix, this is of little relevance given that the evidence indicates it is insolvent. There is no evidence as to the value of Mr Aboutaam’s interest in Tanis, but the appellants do not suggest that it was anything other than a valuable asset. Mr Aboutaam said that the shares in Tanis are in bearer form and that he does not know (and has never known) where they are or who holds them (although we were told, and Mr Jones did not contradict this, that the appellants have positively asserted that the shares were owned by Mr Aboutaam prior to 2023).

The second matter relied on is the fact that Phoenix has been paying CHF 30,000 per month to Mr Ali Aboutaam, who has failed to provide any evidence of where this amount has been paid. The inference is that it has been either dissipated or hidden meaning, in either event, that the Claimants will have difficulty enforcing any costs order against this money.

The third matter is the failure of the appellants to provide full disclosure of their assets, relying on the third of the principles summarised by Roth J in Ackerman. The appellants could have been expected to make full disclosure of their assets on two occasions. First, in the context of their contention that they were unable to provide disclosure in these actions because of their impecuniosity and, second, when they were required to do so under the world-wide freezing order made by Kerr J in April 2025 and continued by Garnham J in May 2025.

Mr Jones accepted that the first two matters were instances of actual dealings with assets, and he did not dispute that it was possible to infer that assets were placed beyond the reach of creditors from a failure to provide proper disclosure of assets. He submitted, however, that in this case none of the matters relied on had the effect of rendering enforcement difficult, because the Individual Appellants had each disclosed the existence of an interest in real property (in, respectively, New York and Geneva) with a value that far exceeds the costs to which the Claimants might be entitled on this appeal. Mr Ali Aboutaam co-owns a property with his wife in Geneva, in which his equity is valued at approximately £1.5 million. Mr Hicham Aboutaam co-owns a property with his wife in New York, in which his equity is valued at approximately £1 million.

Each of them, however, has also disclosed debts due to third party creditors in the jurisdiction in which the properties are situated running to the equivalent of many millions of pounds. In Mr Hicham Aboutaam’s case, these include a judgment against him obtained in New York for over US$9 million. In Mr Ali Aboutaam’s case, these include a claim by the Swiss Federal Customs Department of the equivalent of approximately £3.5 million. The mortgagee of Mr Ali Aboutaam’s property commenced proceedings to recover the amounts due under the mortgage in May 2024, but there is no information as to what has happened to those proceedings since then.

In view of the very substantial amounts owed to local creditors, by each of Mr Ali and Mr Hicham Aboutaam, the remaining equity in their respective properties represents a precarious asset at best, being vulnerable to imminent enforcement proceedings in their respective jurisdictions. Accordingly, I do not accept that the fact that they currently retain equity in those properties provides any answer to the inference that the matters relied on by the Claimants under condition (vi) will render enforcement of a costs order more difficult.

I would add that, as Mr Emmett submitted, even if the Claimants are able to enforce against the Individual Appellants’ equity in their respective properties, the available amount falls far short of the amount necessary to satisfy the judgment debt (which, on the assumption that the Claimants are entitled to their costs of the appeal, will stand). Accordingly, the Claimants are likely to be looking to other assets of the Individual Appellants to enforce any costs order in their favour.

Accordingly, I am satisfied that conditions (i) and (vi) are satisfied in the case of all of the appellants and condition (ii) is satisfied in the case of Phoenix.

I have little doubt that, insofar as reliance is placed on condition (ii), in relation to Phoenix, and condition (vi), in relation to all the appellants, it is just in all the circumstances of the case to order that security be provided for at least part of the Claimants’ anticipated costs of the appeal. The risk that the appellants would take steps to dissipate their assets so as to avoid paying a judgment against them has been established to the court’s satisfaction, in the context of the world-wide freezing order. That is not a ground for granting security for costs, but is a factor relevant to the exercise of discretion. Added to that, the appellants have a history of failing to provide full disclosure of their assets, and of paying prior costs orders in these actions late, and only when necessary to enable the actions to continue. The incentive to do so will, by definition, have fallen away in the event that the appeal is unsuccessful and they are facing a substantial judgment debt. These are all matters which justify awarding security for costs of the appeal. I note that there is no suggestion that ordering the appellants to pay security for costs would stifle the appeal.

Mr Jones submitted, in relation to condition (i) (residence abroad) that the Claimants were not entitled to any security or, at best, no more than security in the sum of CHF 10,000. To do otherwise, he submitted, would be discriminatory.

It is common ground that the Court must ensure, at the stage of exercising its discretion, that it is exercised in a non-discriminatory manner: Bestfort Developments LLP v Ras Al Khaimah Investment Authority [2016] EWCA Civ 1099, at §50-51. Gloster LJ said, at §51:

“In order for the court to be satisfied that it is exercising its discretion in a just manner – i.e. a manner which is not discriminatory for the purposes of Article 14 – it has to conclude that it is doing so on objectively justified grounds relating to obstacles to or the burden of enforcement in the context of the particular foreign claimant or country concerned.”

Gloster LJ returned to this point, at §69, saying that the Court must exercise its discretion “on objectively rational grounds by reference to the difficulties of enforcement or some other attribute of the litigant that objectively renders enforcement problematic.”

Where there is an objectively justified risk, not that the foreign state will not recognise a judgment for costs, nor that the claimant/appellant will not have the assets to pay the costs, but that there will be an additional burden in terms of cost and delay in enforcing abroad, then the order for security for costs is to be tailored in amount to reflect the nature and size of that risk: Bestfort (above) at §75, citing a passage in the judgment of Mance LJ in Nasser v Bank of Kuwait [2002] 1 WLR 1868 at §67.

For the reasons already given in relation to conditions (ii) and (vi), there are objectively justified grounds that there is a real risk that the Claimants will not be able to enforce an order for costs against the appellants.

Mr Jones submitted, however, that those grounds do not arise from the fact of foreign residence, but from other matters, such as the lack of assets – taking into account the presence of other major creditors in New York and Geneva respectively – and the risk that the appellants would take steps to prevent the Claimants successfully enforcing a costs order. It would, he said, be discriminatory to rely on these factors because they would not justify an order for security for costs against an appellant resident within the jurisdiction.

If it were necessary to decide this point, I consider that the grounds established in this case would justify an order for security in reliance on condition (i). Gloster J’s formulation in Bestfort is that the difficulties in enforcement must relate either to the “particular foreign claimant or country concerned”. The anticipated difficulties in this case relate to the circumstances of the appellants themselves: including a lack of available assets (taking into account that any equity in the real properties in New York and Geneva are vulnerable to enforcement action by local creditors), failures in disclosure of assets and the risk that the appellants will take steps to prevent any order being enforced. These provide (in the words of Gloster LJ at §77 of Bestfort) “rational and objective justification for discrimination against non-Convention state residents”.

In any event, an order for security in an amount that reflects the Claimants’ costs of the appeal, and not merely any additional costs arising from enforcement abroad, is justified on the basis of conditions (ii) and (vi), so it is not necessary to reach a concluded view in respect of condition (i).

The Claimants’ anticipated costs, at £225,000, are disproportionately high in the context of this appeal, which raises a relatively short point of law which can easily be disposed of within a day.

Mr Emmett KC, who appeared for the Claimants, sought to justify the level of costs on the basis that the Claimants have issued a respondent’s notice, which seeks to uphold the judge’s order granting summary judgment on the grounds that such an order was justified on the merits (even if the judge was wrong to conclude that there was no need to consider the merits because the strike out of the appellants’ defences was equivalent to an admission by them of the allegations in the claim).

There is, however, a conceptual difficulty with this argument. The Claimants would not have been entitled to security for costs of their application for summary judgment in front of the judge. If the appeal succeeds, then the parties will be put back in the position that there is an extant application for summary judgment, the merits of which have yet to be determined. Without pre-judging the course that this Court will take on the hearing of the appeal, it may well decide to remit that question for determination by the judge. If so, the Claimants could not obtain security for costs in respect of it. It should not, in my view, make any difference – so far as security for costs is concerned – if this Court went on itself to determine the application for summary judgment on its merits.

Accordingly, I consider that the amount of security ordered should be limited to an amount which reflects the Claimants’ costs of responding to the appeal, excluding the costs incurred in respect of their respondent’s notice. The Claimants have not sought to separate out the costs in this way, so it is necessary to take a broad brush approach. I consider that a sum of £70,000 is a reasonable and proportionate level of costs to be incurred in responding to the appeal.

For the above reasons, I would allow the application but order security in the much lower sum of £70,000.

I agree.