De Abreu v Findlater Hotels Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 11 July 2017
• Neutral Citation: [2017] IEHC 446
• Docket Number: 2017 No. 10CA
• Court: High Court
• Date: 11 July 2017

[2017] IEHC 446

THE HIGH COURT

Barrett J.

2017 No. 10CA

Between:

FABIELE MARQUES de ABREU

Plaintiff

– and –

FINDLATER HOTELS LIMITED TRADING AS THE CASTLE HOTEL

Defendant

Practice and Procedures – O.29, r.3 of the Rules of the Superior Courts (RSC) – Security for Costs – Foreclosure of within proceedings – Discrimination – Non-EU resident

Facts: The plaintiff lost her personal injuries suit filed against the defendant and intended to bring an appeal to the High Court. The defendant expressed his inability to recover outstanding costs ordered by the Circuit Court on the ground that the plaintiff's residence was outside the jurisdiction of the Court and sought an order for the security for costs pursuant to o.29, r.3 of the RSC. The plaintiff contended that the manner in which the order was sought was discriminating against the plaintiff on grounds of her nationality and would impose a bar on non-EU citizen like the plaintiff from litigating claims.

Mr. Justice Max Barrett granted an order for the security for costs as sought by the defendant. The Court held that since the plaintiff stayed outside the jurisdiction of Ireland in a non-European country, it would become difficult to ensure the enforcement of any order made by the Court. The Court found that there was no claim of denial of basic rights in the present case that would warrant the denial of the relief sought. The Court held that there was no evidence in the present case that the plaintiff was unable to pay any amount if ordered due to any wrong done by the defendant. The Court found that the plaintiff was professionally employed and in a position to provide the security for costs.

JUDGMENT of Mr Justice Max Barrett delivered on 11th July, 2017.

I. Background

1 Ms Marques de Abreu is a Brazilian national who lived in Ireland for a time in the past. While here, she worked at The Castle Hotel in Great Denmark Street in Dublin City. She returned to Brazil a number of years ago and now works there as a flight attendant with a Brazilian airline. Thus she is neither resident nor ordinarily resident in Ireland.

2 Ms Marques de Abreu appears to have suffered an injury while she was working at The Castle Hotel. It is claimed that a door with some sort of closing mechanism closed on one of her hands while she was carrying a glass, thereby occasioning a laceration of the hand. Following on the just-described incident, Ms Marques de Abreu instituted the within personal injuries proceedings. The proceedings failed before the Circuit Court; however, Ms Marques de Abreu intends bringing an appeal to the High Court. It is estimated by counsel for The Castle Hotel that the all-in cost of bringing the High Court appeal will be €25k. But this does not include the existing costs order made in favour of The Castle Hotel by the Circuit Court. So if Ms Marques de Abreu were not to succeed on appeal and a further costs order were made against her, she would be liable to The Castle Hotel for a substantial sum of money.

II. Application Now Made

3 The Castle Hotel is concerned at the scale of costs presenting and has brought the within application seeking security for costs. Such an order falls to be made (if made) under O. 29, r. 3 of the Rules of the Superior Courts 1986, as amended. The court indicated at the close of hearing that it would make the order sought and that it would return with written reasons as to why it would do so. Those reasons are set out in this judgment.

4 Order 29, rule 3 provides as follows:

‘ No defendant shall be entitled to an order for security for costs by reason of any plaintiff being resident out of the jurisdiction of the Court, unless upon a satisfactory affidavit that such defendant has a defence upon the merits.’

5 Such an affidavit has been provided in the within application. Indeed, counsel for Ms Marques de Abreu made no objection to the satisfactoriness of the affidavit, conceding that where, as here, a defence has succeeded in the court below, following consideration by the learned trial judge, there can be no doubt but that a defence upon the merits exists.

III. Some Key Points Made

6 Counsel for The Castle Hotel, in advancing his client's case, referred to the scale of the anticipated cost presenting, the scale of the costs order outstanding at the Circuit Court level, and the fact that Brazil, being so very far away, presents practical challenges as regards enforcing orders of the Irish courts (which challenges, it can reasonably be anticipated, would entail even further cost). Counsel for The Castle Hotel rightly conceded that if Ms Marques de Abreu were now living in another European Union member state, he would not succeed in the within application, given the relative ease with which judgments can now be enforced in the other 27 member states of the European Union. (See in this regard, inter alia, Maher v. Phelan [1996] 1 I.R. 95, Proetta v. Neil [1996] 1 I.R. 100, Pitt v. Bolger [1996] 1 I.R. 108, and Salthill Properties Ltd v. Royal Bank of Scotland plc [2010] IEHC 31).

7 Ms Marques de Abreu has not averred that if an order for costs were now to issue that that would effectively foreclose the continuation of the within proceedings. What Ms Marques de Abreu has averred, and what her counsel has contended, is that for the court to make the order for security for costs now sought would be unlawfully to discriminate against her on the grounds of her nationality. Her counsel went further and contended that to grant the order for security for costs on the basis now sought ‘ would be to impose a bar on non-EU citizens from litigating claims arising from the time they spent living and working in this jurisdiction’. These contentions are respectfully not accepted by the court for the reasons set out in the next section of this judgment.

IV. The Suggestion of Discrimination

8 The Oxford Online Dictionary defines the word ‘ discrimination’ as follows:

‘1. The unjust or prejudicial treatment of different categories of people…

2. Recognition and understanding of the difference between one thing and another.’

9 The unjust or prejudicial treatment of different categories of people is anathema to our system of law, and rightly so. Ms Marques de Abreu was welcome to work in Ireland; indeed one of the great pleasures of present life in Ireland is the great breadth of diversity that exists within contemporary society. Ms Marques de Abreu is also welcome to bring and continue the within proceedings in Ireland. However, it is not unjust or prejudicial treatment of Ms Marques de Abreu for the courts of Ireland to recognise that there is or may be a difference of consequence arising between the situation where a foreign national (i) resident in Ireland or another European Union member state is prosecuting court proceedings here in Ireland and (ii) a foreign national resident in a far-away jurisdiction that is not within the European Union is prosecuting proceedings here in Ireland. The situation referred to at (i) does not entail the same potential difficulties as regards enforcement that can arise in (ii). To recognise that potential difficulty does not involve the court in unjust or prejudicial treatment. Rather, it involves the court seeking to achieve the greatest fairness possible between the parties to such proceedings by making a proper differentiation as to circumstance and seeking to ensure, assuming it makes the order for security for costs sought, that if the party situate in Ireland triumphs in those proceedings, the said party has a prospect of recovering some of the costs of the proceedings. As to the contention that for the court to grant an order for security for costs on the basis now sought ‘ would be to impose a bar on non-EU citizens from litigating claims arising from the time they spent living and working in this jurisdiction’, there is no such bar arising. Non-European...