Mehul Choksi v The Government of India & Ors

Mr Fitzgerald KC submits that it would be manifestly unjust to order the Claimant to pay security for costs to individuals against whom there is strong evidence that they highly probably formed part of a conspiracy to abduct, torture and render him to India.

In support of that submission, he took me to a number of pieces of evidence, summarised both in his Skeleton Argument and in the Fifth Witness Statement of Mr Phillips, the Claimant’s solicitor. He relied on an Antiguan Police Report, authored by Inspector Adonis Henry dated 25 June 2021, and upon the evidence gathered together in a witness statement of Oliver Laurence, dated 24 November 2025. Mr Laurence is an investigator instructed by the Claimant’s family. Both Inspector Henry’s report and Mr Laurence’s statement refer to statements made by others, and to documents seen by them.

The police investigation in Antigua did not progress, it appears, beyond Inspector Henry’s report. Mr Fitzgerald KC’s submission was that the reason for that is that the investigation was shut down as a result of collusion between the Defendants and the governments of Antigua and Dominica. The Claimant has brought separate proceedings in Antigua against the Antiguan government alleging a breach of duties to carry out an effective investigation of the treatment of the Claimant. Those proceedings, it is said, have been repeatedly delayed.

I have considered carefully the evidence filed on behalf of the Claimant. It is not necessary for the purposes of this judgment to address it in detail. The question on this application is whether there is a strong probability that the claims against these four Defendants will succeed. I am not satisfied that there is a strong probability of success.

Much of the evidence relied on for this application is hearsay and/or opinion. Inspector Henry and Mr Laurence produce documents obtained from others and summarise the evidence offered by others. In some instance they offer their opinions as to what that evidence shows.

Further, unsurprisingly, there is no witness evidence as to the kidnapping and assault of the Claimant, other than that of the Claimant himself. As is typical of conspiracy cases, much of the evidence is circumstantial and the existence and detail of the conspiracy is said to arise as a matter of inference. Mr Fitzgerald KC is right in saying that circumstantial evidence can be both powerful and sufficient; but at this early stage of the proceedings, before full consideration of all the available evidence, it is difficult to assess.

It is not possible to form a sufficiently firm view of the merits based on this material. At trial, this case will turn on the evidence of witnesses and a detailed assessment of the documents. It is impossible at this stage to form a meaningful assessment of which witnesses will give evidence, what they will say, and how their evidence will stand up to cross-examination. Similarly, without the full documentary and witness picture that will be before the trial judge, it is impossible to assess what the circumstantial evidence amounts to and what inferences properly arise.

One example from Mr Fitzgerald KC’s submission illustrates the problem with the Claimant’s position at this hearing. The Fifth and Sixth Defendants are alleged to have been on the boat with the Claimant between Antigua and Dominica and to have threatened and assaulted him. They accept that they were on the boat in question, but deny that the Claimant was; indeed they deny ever meeting him. Included in the evidence for this application was a transcript of an interview with these two Defendants carried out by a journalist in which they answered questions about their involvement. In the interview they denied any involvement or wrongdoing. It was submitted that their evidence was incredible. I was asked not just to read the transcript, but also to watch the video; it was submitted that the video would show how “shifty” the two Defendants were. I watched the video as asked. It confirmed my view that it is simply impossible to form a view on the merits based on the demeanour and answers of the defendants in a media interview: the evidence of the Defendants needs to be seen in its full context and tested in cross-examination at trial. The evaluation of witness credibility is not an exercise to be encouraged on a security for costs application.

In my judgment, this is not at all the kind of case that amounts to one of those rare instances where the Court is satisfied that there is a strong probability of success, so as to take the merits into account in exercising its discretion. Having reached that conclusion, it is neither necessary nor appropriate to set out an analysis of the evidence. Consideration of the detail of the evidence will be a matter for trial.

I make clear that I reached this conclusion without attaching any weight to the evidence of Mr Kenneth Rijock, who submitted an unsolicited report into his own investigation into the Claimant’s case. There was some argument before me as to Mr Rijock’s status and reliability. It was agreed that he has a conviction for money laundering. The Claimant submitted, during the hearing, a witness statement from Mr Michael Polak, a barrister who has assisted the Claimant. He gave some evidence that Mr Rijock has now “switched sides” and has offered to help the Claimant. I do not need to resolve these matters. Whatever the credibility of Mr Rijock, he has no first-hand evidence as to the facts of the claim. I attach no weight to Mr Rijock’s own opinion as to what happened. Any witness or documentary evidence that his investigation has revealed will need to be examined on its own merits at trial.

Mr Fitzgerald KC argued that the forum non-conveniens argument is hopeless, because the Defendants have not identified one forum that is said to be the more convenient place for trial. The Defendants have identified a number of potentially appropriate fora: Antigua, Dominica, or St Vincent, where the relevant vessel was registered. Thus, said Mr Fitzgerald KC, the forum challenge “inevitably fails at the first hurdle”.

That submission was made on the basis of the House of Lords decision in Spiliada v Cansulex [1987] AC 460. I did not hear extensive argument on this point, which was only raised for the first time in a note on the morning of the hearing. Looking at Spiliada itself, it seems to me arguable that it does not stand for so stark a proposition as formulated by Mr Fitzgerald KC. The case itself concerned a choice between England and one other forum. In considering whether there was another forum more appropriate than England, their Lordships did not expressly address the situation where there may be more than one other more suitable forum. As a matter of language, it is possible to demonstrate that there is another forum more appropriate than England by demonstrating that there is more than one such forum. Lord Goff in fact uses a number of expressions in his speech: “some other available forum” at 476C para (a), “another available forum” at 476E para (b), “no other available forum which is clearly more appropriate for the trial of the action” at 478(e). The last formulation, in particular, arguably leaves open the potential for more than one forum which is more appropriate than England.

It is arguable that England is not the appropriate forum for the claim. The events which give rise to the claim happened in Antigua, Dominica and on a St Vincent registered boat travelling between the two. The witnesses and the relevant documents are in those locations. There is little, if anything to connect the events to England, other than the Claimant’s inferential case that the conspiracy was forged in England.

For current purposes, I need only consider whether the Claimant can show a high probability that the Defendant’s forum challenge will fail. I am not satisfied that the Claimant meets this threshold. These matters will be matters for argument at the hearing of the Jurisdiction Applications.

Mr Fitzgerald KC makes two points. First, the individual Defendants cannot rely on a state immunity defence unless they allege that they are officials or agents of the Government of India, which they currently deny. Second, India’s own state immunity argument is hopeless.

I am not persuaded that on either point the Claimant can show a high probability of success. The points are arguable either way and will fall to be determined at the hearing of the Jurisdiction Applications.

As to the first point, Mr Summers submits that it is open to a defendant to argue (a) I did not act as an agent of the Government of India as I did not do the things you allege against me; but (b) if I did do the things that you allege, then they would attract state immunity so your claim would fail in any event. Both Mr Summers and Mr Fitzgerald KC’s position seem arguable. I was taken to no authority addressing the point. I was referred to Jones v Saudia Arabia [2007] 1 AC 270, but that case concerned a different point. On any view the relevant individual in that case was a servant of the relevant state. The case does not address the proposition relied on by Mr Fitzgerald KC.

Mr Fitzgerald KC’s second point is that the First Defendant ’s own claim for state immunity is hopeless and that therefore there is a high probability that the Claimant will defeat the First Defendant’s application. The Claimant relies on the exception to state immunity contained in s.5 State Immunity Act 1978 – where personal injury is caused by an act or omission in the United Kingdom. All that is required is an act which is causative of the requisite damage on a more than de minimis basis (Al-Masarir v Saudi Arabia [2023] PIQR P3); it does not matter where the harm was felt, so long as an act or omission took place in the United Kingdom (Heiser’s Estate v Iran [2021] EWHC 2074 at 152).

On the Claimant’s case, the kidnapping, assault and threats were all carried out outside the United Kingdom. The Claimant alleges that the conspiracy was “hatched or furthered” in England. There is no direct evidence of that. It is argued that it is plain as a matter of inference, given that the relevant Defendants are resident in England, and flew together to Antigua on two occasions (it is alleged there was a dry run or aborted attempt in April 2021). While evidence indicates that the relevant Defendants did travel on the same flights, it is denied that they did so together and the Second/Fourth Defendants on the one hand and the Fifth/Sixth Defendants on the other deny that they knew each other. Even if they did travel together, there is no evidence one way or the other as to where the plan was “hatched or furthered”.

In my judgment, it cannot be said that there is a high probability of the Claimant succeeding on these points, which will be a matter for more detailed argument at the hearing of the Jurisdiction Applications.

The Claimant argues that there is no real risk that an order for costs would not be enforceable, nor that there are any particular obstacles in seeking to enforce an order in Belgium, India or elsewhere. The Defendants argue that there is self-evidently a real risk, based on the obvious realities of the situation.

In my judgment, there are substantial obstacles to enforcement that give rise to a real risk that any order for costs will not be enforceable:

In those circumstances, any attempt to enforce a costs order will face considerable challenges, in terms of identifying assets in one or more of at least three overseas jurisdictions (Antigua, Belgium and India); in terms of taking enforcement action against a Claimant who may be in custody in either Belgium or India and embroiled in ongoing criminal proceedings; and in terms of establishing assets that are not covered by freezing orders made by other courts. In these circumstances, it is difficult to see how the Claimant could be made to comply with a monetary order against him, and difficult to see how effective orders could be made against proprietary assets in his name.

There is no real evidence that the Claimant’s claim would be stifled if an order for security were made. Indeed, Mr Fitzgerald KC, quite properly on the evidence, did not put the matter so high. He submitted that an order for substantial security would lead the Claimant and his wife to rethink whether to pursue the claim. That submission reflects paragraph 4 of Mrs Choksi’s witness statement, dated 17 December 2025:

If an order were made to pay £700,000 or a large sum of money in security for costs then, as matters presently stand, we would be put in considerable difficulties and we would need to seriously consider whether we would be able to continue with this litigation against these defendants.

In the same statement Mrs Choksi says that there are freezing orders in India relating to all Mr Choksi’s assets/property in India. That statement was provided the day before the hearing. There is no detailed evidence as to Mr Choksi’s financial position, nor as to his ability to raise money to cover the security. There is no explanation as to how he is meeting his own legal costs.

I am not satisfied that Mr Choski would be unable to raise the money required to provide security, and I am not satisfied that an order for security would stifle the claim.

Taking all the circumstances into account, in my judgment it would be just to make an order for security for costs. This is not one of those rare cases where it can be seen that there is a high probability of success, either on the preliminary issues or at trial. I do not find that it would be unjust to order security because of the seriousness of the allegations against the Defendants. Given that there is a dispute of fact as to whether the Defendants were involved in kidnapping and assaulting the Claimant, I cannot proceed on the basis that they were. Given the circumstances I have outlined above, there is a real risk that an order for costs against the Claimant would not be capable of enforcement. On the other hand, I am not satisfied that the claim would be stifled if I order security.

I turn next to the amount of security. The Claimant argues that the sums sought are unreasonable.

The costs of the Second and Fourth Defendant are explained in the third Witness Statement of Mr Summers at paragraphs 12-13. The total security these Defendants seek is £500,000. Paragraph 13 makes clear that this includes the costs of the hearing before Freedman J, the hearing before me and the five day jurisdiction hearing. Mr Summers has also factored in a contemplated appeal from the decision on the Jurisdiction Applications.

Mr Summers explains that he intends to instruct specialist leading counsel for the hearing of the Jurisdiction Applications and that leader will have his own chosen junior, to represent the Second Defendant. Mr Summers will represent the Fourth Defendant. Counsel costs total £350,000 and litigator costs total £150,000 across the two Defendants.

Instruction of a specialist leader is not unreasonable. The issues are complex. I do not accept that these Defendants should be expected simply to “play second fiddle” to the First Defendant, as it was put. They have been sued in their own right, and they have interests separate to that of the First Defendant. They are entitled to defend themselves, and to take the points open to them, including for example the question of whether the First Defendant’s immunity (if any) extends to them.

However, there does appear to me to be some duplication in junior costs. I have not been told that there is any difference between the positions of the Second and Fourth Defendants. I do not see the need for each to have a separate junior. The two figures for juniors are £100,000 and £50,000. I bear in mind that Mr Summers figure is predicated on the fact that he is also the litigator in the case and is already familiar with it. I propose to include in the figure for security £75,000 for junior fees (i.e. a reduction of £75,000). The litigator fees do not seem unreasonable.

Accordingly, in respect of the Second and Fourth Defendants I will make an order for security of £425,000, reduced from the £500,000 sought in the third witness statement of Mr Summers.

The treatment of VAT in these figures is not clear to me, and I was not addressed on it. Mr Summers’ witness statement explains that the estimates for leading counsel and his junior are exclusive of VAT. It is not clear what the position is regarding Mr Summers’ estimated figures. However, I was invited to make an order for security of £500,000, not of that figure plus VAT. I will proceed on the basis of the figure claimed, less the reduction I have made. So, the figure is £425,000 total in respect of the Second and Fourth Defendants.

The Fifth and Sixth Defendants seek security of a total of £250,000 exclusive of VAT, total £300,000. The Third Witness Statement of Mr Kang (solicitor for these Defendants) sets out cost estimates at paragraph 6. As with the other Defendants, these individuals have been sued and are entitled to defend themselves. The costs appear reasonable, save that I can see no reason why three counsel are needed (each of the two Defendants has a junior counsel supporting senior counsel). I propose to deduct the cost of one junior counsel from the amount of security I will order.

I will order total security of £252,000 (inclusive of VAT) in respect of the Fifth and Sixth Defendants.

Finally, I address two matters which arose after the hearing on 18 December 2025 and, in fact, after I had set out my decision in a draft judgment.

At the end of the hearing on 18 December 2025 I reserved judgment. I prepared a draft judgment which was circulated to the parties on an embargoed basis on 14 January 2026.

On 29 December 2025, after I had prepared the draft but before it had been circulated, Mr Summers emailed the Court with additional documents upon which he sought to rely. The Claimant objected. I disregarded this additional evidence. By the time it was filed I had drafted a judgment in favour of Mr Summers’ clients. The additional evidence would have made no difference to the outcome or reasoning. I explained this to the parties in an email dated 27 January 2026.

Following receipt of the draft judgment, the Claimant sought to raise a new point as to the effect on the application of the provisions for Qualified One Way Cost Shifting (“QOCS”) under CPR 44.13 to 44.14. The Defendants objected to the new point being raised. I considered the email representations by each party and on 27 January 2026 I made directions for a further hearing to consider both whether the point could be raised now and the merits of the point. However, in an email dated 3 February 2026, the Claimant’s solicitors indicated that they no longer sought to make further submissions on the QOCS point. They submitted that the time to consider whether QOCS would preclude the enforcement of a defendant’s costs order would be following the hearing in October 2026. Accordingly, I am now handing down judgment in the form of the draft circulated, save for the addition of this Postscript.

Given that the Claimant no longer wishes to argue the point at this stage, I have not addressed it. I make no decision as to the effect of QOCS, nor as to the point at which such an argument can or should be raised.