Home Jurisdiction Cost security – through what lens are application criteria considered?

Cost security – through what lens are application criteria considered?



Political obstacles may outweigh legal obstacles when the court considers enforcement of costs Haque v Hussain (i)

In September 2020, the plaintiff, Syed Aminul Haque, brought an action on behalf of the unincorporated association known as Muttahida Quami Movement Pakistan (“MQM Pakistan”), against an unincorporated association based in London known as the Muttahida Quami Movement (“MQM London”). MQM Pakistan and MQM London say their organizations grew out of the Muttahida Quami Movement (“MQM”), a political party founded by the first accused in Pakistan around 1984.


The plaintiff asserts that MQM Pakistan is the beneficial owner of six properties, the legal titles of which are in the names of the defendants, and further that MQM Pakistan is entitled to the proceeds from the sale of a seventh property. The defendants, meanwhile, assert that MQM London is the beneficial owner of these properties and the proceeds of the sale.

Security for costs

A demand for security for costs was submitted by the first defendant under CPR25.13. The relevant provisions state that the court may make an order if it is satisfied, having regard to all the circumstances of the case, that it is fair to make such an order, and that one of the conditions of CPR25.13 ( 2) is met. One of these conditions is that the applicant resides outside the jurisdiction but does not reside in a state bound by the Hague Convention of 2005, as defined in section 1 (3) of the Law of 1982 on the civil jurisdiction and judgments. Having satisfied himself that this condition was thus satisfied, the Captain noted that when this ground is invoked, impecuniosity would only be relevant for the exercise of the discretion of the Court to the extent that it would serve “(I) prevent or hinder or increase the burden of enforcement abroad against property which exists abroad or (ii) in practice, to increase the likelihood that the plaintiff will take advantage of any available opportunity to avoid or hinder such execution abroad ” (1). The claimant had not provided any proof of his means in either Pakistan or the UK, and the master acted on the assumption that the claimant would not be personally able to satisfy a judgment on costs against him.

Legal obstacles to enforcement

Although there is a legal framework for the enforcement of English judgments in Pakistan, the first defendant argued that certain provisions of the Code of Civil Procedure of Pakistan of 1908 would prevent the enforcement of a judgment against the plaintiff in this case. However, the captain rejected these arguments, stating that they did not show a “real

risk “of substantial obstacles to enforcement. A key factor in the captain’s conclusion on this point was the lack of expertise in Pakistani law in relation to these provisions.

The first defendant argued that since the representative plaintiff had no apparent means of enforcing a judgment on costs against him, the only realistic avenue of recovery was to seek enforcement against other members of MQM Pakistan, and that this would constitute an additional risk and burden of enforcement. Building on the position of English law, CPR 19.6 (4) would require defendants to seek leave of the Court before execution, and it would then be open to any non-party to advance special reasons why the costs order should not be applied against them (2). Furthermore, in Pakistan it was argued that other members of MQM Pakistan would try to prevent the execution by suggesting that they never approved the English action or that they did not have sufficient knowledge of the financial implications of the case. The captain rejected both of these arguments, reiterating that there was insufficient evidence regarding Pakistani law and that the difficulties in recovering costs could be attributed to the representative nature of the claim rather than the jurisdiction. . Moreover, the mere fact that CPR 19.6 (4) should be observed was also not a sufficient bar to the enforcement of an order against the applicant.

Political / practical obstacles to implementation

The prothonotary concluded that there were four key features of the claim and in the evidence indicating that its judgment showed that there would be a real risk of substantial obstacles to the enforcement of a costs order. by the defendants against the plaintiff:

(1) the status of the applicant as a government minister, in his capacity as a member of MQM Pakistan;

(2) the status of MQM London as a political party which (for whatever reason) is effectively banned in Pakistan;

(3) the status of the first defendant as a high-profile and controversial political figure, who was charged with serious criminal offenses, including money laundering (and convicted in Pakistan, in his absence, of murder), as well as criminal proceedings in London with the cooperation of the Government of Pakistan; and

(4) the material of [the] two monitoring organizations as to the level of corruption in the justice system in general, and in particular the politicization of the justice system. “ (3)

A “guarantee certificate” offered by the plaintiff as security for the defendants’ costs was also found to face the same political obstacles to enforcement as a judgment.


In exercising his discretion and issuing a bail order for costs in relation to the claim, the master concluded that political obstacles to enforcement, rather than legal obstacles to enforcement, were key factors in his decision. The judgment also reinforces the message that evidence relating to the law of another jurisdiction must be presented by an expert in the field, otherwise it will be ruled inadmissible.



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