“1. The Parties agree to develop judicial cooperation in civil and commercial matters as regards the negotiation, ratification and implementation of multilateral conventions on civil judicial cooperation and, in particular, the conventions of the Hague Conference on Private International Law in the field of international legal cooperation and litigation as well as the protection of children.”
“Within the scope of this Agreement, the Parties undertake to ensure that natural and legal persons of the other Party have access free of discrimination in relation to its own nationals to the competent courts and administrative organs of the Parties to defend their individual rights, including property rights”
“1. In the fields covered by this Agreement and without prejudice to any special provisions contained therein: (a) the arrangements applied by Georgia in respect of the EU or the Member States shall not give rise to any discrimination between the Member States, their nationals, companies or firms; (b) the arrangements applied by the EU or the MemberStates in respect of Georgia shall not give rise to anydiscrimination between nationals, companies or firms ofGeorgia.”
“[77] In my judgment, it is sufficient for an applicant for security for costs simply to adduce evidence to show that “on objectivelyjustified grounds relating to obstacles to or the burden ofenforcement” , there is a real risk that it will not be in a positionto enforce an order for costs against the claimant/appellant andthat, in all the circumstances, it is just to make an order forsecurity. Obviously there must be “a proper basis for considering that such obstacles may exist or that enforcement may be encumbered by some extra burden” but whether the evidence is sufficient in any particular case to satisfy the judge that there is a real risk of serious obstacles to enforcement, will depend on the circumstances of the case. In other words, I consider that the judge was wrong to uphold the Master’s approach that the appropriate test was one of “likelihood”, which involved demonstrating that it was “more likely than not” (i.e. an over 50% likelihood), or “likely on the balance of probabilities”, that there would be substantial obstacles to enforcement, rather than some lower standard based on risk or possibility...”
“[81]…The inherent uncertainty with which the court is having to deal in the context of an interlocutory application for security for costs — a future risk, or a potential difficulty — supports a risk-based, rather than a likelihood-based, approach.” 82. In my judgment, and as Mr Marshall submitted, an analogy can be drawn with the test applied by the court in the context of freezing injunctions. In that context the jurisdiction arises where: “the court concludes, on the whole of the evidence then before it, that the refusal of a Mareva injunction would involve a real risk that a judgment or award in favour of the plaintiffs would remain unsatisfied.” see Ninemia Maritime Corp v Trave Schiffahrts GmbH & Co KG (The Niedersachsen) [1983] 1 W.L.R. 1412 , 1422E-H per Kerr LJ. A claimant has to adduce “solid evidence of risk of dissipation by the defendant” to support his assertion that there is a real risk that the judgment or award will go unsatisfied. As the authors go on to state, “since each case depends on its own facts it is impossible to lay down any general guidelines on satisfying this evidential burden”, although they then outline some of the factors which may be relevant. Likewise, in the context of an application for security for costs, I consider that asimilar – and necessarily flexible — test is appropriate for thepurposes of deciding whether an order for security should bemade. The analogy with the freezing order jurisdiction is particularly apt, in my view, because it reflects the test which a claimant has to satisfy in order to obtain protection for satisfaction of any judgment which it might obtain against a defendant. An application by a defendant for an order for security for his costs is the converse side of the coin. There should, it seems to me, be an appropriate symmetry between the two tests that respectively entitle a claimant to a freezing order to satisfy any judgment, and a defendant (or appellant) to security for its costs. There are further similarities. On the making of a freezing order, the court makes an interim finding on the merits (the existence of a good arguable case) which is later tested at trial; on the issue of risk of dissipation, however,it makes a determination on an issue that is never tested at trial,namely: is there, on the whole of the evidence then before thecourt, a real risk of dissipation? As Mr Marshall submitted, thatapproach reflects the perceived justice of protecting the applicantagainst the risk of his being unable to enforce any judgment hemay later obtain because of unjustified dissipation, when a trialon the risk of dissipation is not practicable or proportionate.It isdirectly comparable to the security for costs jurisdiction whichprotects against “the risk of being unable to enforce any costsorder they may later obtain”
“An affidavit or witness statement in support of an application for security for costs should deal not only with the residence of the claimant (or other respondent to the application) and the location of its assets but also with the practical difficulties (if any) of enforcing an order for costs against it.”
“As a matter of authority, this court has held in the Bestfort case [2017] CP Rep 9 that the appropriate “threshold” test when considering the issue of whether there are “substantial obstacles” to enforcement is one of real risk rather than likelihood. Various reasons are given for reaching that conclusion, including theneed for a simple and clear approach to issues which will beconsidered at an interlocutory hearing on the basis of what“necessarily and proportionately, will be limited evidence”: atpara 48.”
“59. Whilst the court in the Bestfort case was concerned with the “threshold” test for exercising the discretion to order security for costs in a non-discriminatory manner rather than any discretion as to the amount of security to be ordered, I consider that the court’s approach should be consistent. If, for the reasons given in the Bestfort case, it is not appropriate to require that more than a real risk be established for the purpose of nondiscrimination, it is equally inappropriate to do so for the purpose of quantum. The consequence of adopting a sliding approach is in effect to require the defendant to establish likelihood of nonenforcement (if not more) if security for the entirety of the costs is to be obtained.”
“Further, it would lead to the type of detailed evidentiary exercise which the court was keen to avoid through its decision in the Bestfort case. It would allow in via the back door all the evidence and evidential inquiries which the court in that case took care to shut out via the front door.” “Further, it would lead to the type of detailed evidentiary exercise which the court was keen to avoid through its decision in the Bestfort case. It would allow in via the back door all the evidence and evidential inquiries which the court in that case took care to shut out via the front door.”
“The following principles appear to be settled and uncontroversial: i) This Court cannot rely upon a bare finding of a prior Court in a matter in which Mr Khrapunov was not a party or privy: Hollington v Hewthorn & Co Ltd[1943] KB 587 . The rationale for that rule is that fairness requires that this Court must decide on the basis of the evidence before it, rather than simply adopting the opinion of another Court (including when that other Court was making its findings of fact on the evidence that was before it): Rogers v Hoyle[2014] EWCA Civ 257 at [39]-[40] per Christopher Clarke LJ (approving the reasoning of Leggatt J at first instance, at[2013] EWHC 1409 (QB) , in particular at [93], [101] and [104]). ii) However, this Court can take into account the substance ofthe underlying evidence as set out in prior judgments (such as the contents of documents or the evidence of witnesses), givingthis such weight as is appropriate (and on the basis that it isentirely open to Mr Khrapunov to challenge that evidence andadduce other evidence): Rogers v Hoyle[2013] EWHC 1409 (QB) at [115]-[117] ;[2014] EWCA Civ 257 at [54] and [99]; and JSC A Bank v Ablyazov and another[2016] EWHC 3071 (Comm) at [24]. Furthermore, as detailed below, some of the same underlying evidence was, in fact, also before me”
“45. The relevant evidence relating to the difficulties of enforcement in Ras Al Khaimah and Georgia of any order of the English court in relation to costs may be summarised by reference to the account set out in the appellants' skeleton argument in this court from which Mr Millett did not demur. There was, not surprisingly, given the interlocutory nature of the application, no cross-examination of the experts on what were relatively short reports.” i) … ii) So far as enforcement of any costs order in Georgia was concerned, the appellants/defendants' evidence, supported by their Georgian law expert, Professor Kereselidze, was to the effect that there was a real risk that the appellants would not be able to obtain recognition in Georgia of any costs order made in their favour in these proceedings, due to the terms of art.68 of the Law of Georgia on International Private Law (the "IPL") which provided the basis upon which Georgian courts may recognise a foreign decision. That showed that a foreign judgment may not be enforced in Georgia: a) under art.68(2)(e), where the foreign country does not recognise court decisions of Georgia; b) under art.68(2)(f) if "proceedings are pending in Georgia between the same parties on the same issue and on the same basis"; and c) under art.68(2)(g) if "the decision contradicts the basic legal principles of Georgia". iii) As regards art.68(2)(e), Professor Kereselidze opined that, given that there are no multilateral or bilateral enforcement treaties in place between Georgia and England, there was a real risk that an English judgment for costs would not be enforced in Georgia. Professor Kereselidze drew attention to two decisions of the Georgian Courts where money or property judgments had not been recognised given the absence of any international agreement, and, consequently, the absence of any obligation on the foreign state to recognise Georgian court decisions: the first (Ruling No. A-2046-SH-57-2010 of20 December 2010 ), a decision in respect of a judgment of the courts of Israel, and the second, an application to recognise a foreign judgment dealing with the distribution of matrimonial property. iv) In response, the respondents' Georgian law expert, Professor Ninidze, opined that the view expressed by Professor Kereselidze that a Georgian court would not recognise an order made in a foreign country due to the absence of a bilateral or multilateral treaty was outdated and no longer followed by the Supreme Court of Georgia. He expressed the view that more recent authority demonstrated that the Georgian court was very willing and prepared to recognise legally effective foreign judgments, unless there was positive proof that Georgian judgments would not be recognised in that jurisdiction. Accordingly, he said that the lack of a bilateral or multilateralconvention did not prevent recognition of a foreign judgment. In support of this view he exhibited four matrimonial cases in which the Georgian courts had recognised foreign divorces; two German and two Greek. v) In reply Professor Kereselidze expressed the view that family law cases (such as recognition of a marriage or divorce) were cases which arose in a completely different context and were not relevant for present purposes. He expressed the view that familycases were treated differently from cases concerning commerciallaw or property, and that in a family law context the Georgian courts had a greater expectation that their judgments would be enforced abroad and, as such, were more willing to enforce foreign family law judgments in Georgia, which usually involved recognition but did not require enforcement. However, he went on to say that outside the family law context, the position was uncertain. He said: "One line of authority…… states that absence of bilateral or multilateral treaties is about recognition. It is true that there is a different line of authority, even outside family law cases, which appears to acknowledge that foreign court decisions may be recognised despite the absence of multilateral bilateral treaties (see for example cases..). However it is not correct to say, as Professor Ninidze does, that the decision of A-2046-SH-57-2010 is "outdated and "no longer followed". The reality is that there isno discernible consistency in the approach of the GeorgianCourts, and as such it is very difficult to predict the outcome inany particular case (See for example case of #a-1369-sh-30-2012 where a foreign court decision was again not recognised). The decisions of the Georgian Courts do not always contain a fully reasoned judgment and so this further increases the difficulty in deducing their approach to this issue with any certainty." vi) So far as art.68(2)(f) of the IPL was concerned, Professor Kereselidze's evidence was that recognition might be refused on this basis, on the grounds that the s.25 proceedings in England and the claims brought by the respondents currently pending in the Georgian courts were arguably "between the same parties on the same issue and on the same basis". In his response, Professor Ninidze rejected that view, stating that that was "simply incorrect" since the English proceedings were proceedings for worldwide freezing orders and for the appointment of receivers and, as such, there could "never be proceedings on the same issues and on the same basis" in Georgia. In response, Professor Kereselidze disagreed, stating that in circumstances where the English s.25 proceedings were ancillary proceedings commenced by the respondents/claimants in support of their Georgian claims, it was at least arguable that the Georgian courts would consider it appropriate to refuse recognition on the basis of art.68.2(f), at least until such time as the Georgian claims were resolved in Georgia.”
“Obviously there must be a proper basis for considering that such obstacles may exist…but whether the evidence is sufficient in any particular case to satisfy the judge that there is a real risk of serious obstacles to enforcement will depend on the circumstances of the case”