Barrett v Leahy No. 2
 IEHC 19
THE HIGH COURT
[2011 No. 1406 S.]
Practice and Procedure - Costs - Courts Act, 1981 - Order for costs - Lodgement of amount - Money held as security
Facts: The plaintiff obtained an order from the High Court directing payment out of the portion of monies submitted in the Court, so as to assist the plaintiff in the prosecution and defence of other proceedings brought by the defendant. The key issue arose as to whether the plaintiff was entitled for the costs. The plaintiff contended that the defendant had intentionally withdrawn payment of certain amount of monies. The plaintiff had obtained judgment for the relevant monies against the defendant. The plaintiff contended that he needed funds to defend those other proceedings.
Ms. Justice Baker ordered the release of certain amount of money to the plaintiff. The Court held that it was proportionate and reasonable in the interest of justice. The Court stated that the defendant had no ground to seek money on the basis of anticipation or hope of winning the judgment. The Court held that the plaintiff was entitled for the costs as the plaintiff had a claim for the amount lodged but not the immediate entitlement to the release of the monies as the said monies were subject to the order of the Court.
On 13th January, 2012 the plaintiff obtained an order from the Master of the High Court granting liberty to enter final judgment against the defendant in the sum of €450,000 together with interest pursuant to the Courts Act 1981. The amount of the judgment was amended on 25th January, 2012 to €455,000 and judgment was entered on foot of orders on 14th May, 2012.
No steps have been taken by Mr. Leahy to impugn the judgment which is final and unassailable.
On the 16th July, 2015 the defendant lodged in to court the amount of €426,602.41, the amount including interest then due 'without admission of liability' by way of security for the balance of the judgment. That lodgement was made in response to a motion brought by the plaintiff for the attendance and examination of the defendant in aid of execution and for the appointment of a receiver by way of equitable execution over the proceeds of sale of land then sold, or about to be sold, by the defendant.
In a judgment delivered 25th November, 2015, , I refused to grant the relief then sought by Mr. Leahy that a judgment mortgage registered on his lands by the plaintiff as part of an execution process be discharged or removed from the Register on account of the lodgement in to court of the monies.
The present judgment is given in respect of a motion brought by the plaintiff for an order directing payment out to him of €246,000, part of the monies in court, to assist the plaintiff in the prosecution and defence of other proceedings brought by Mr. Leahy and his wife: plenary proceedings bearing record number 2014 No. 4092 P. and summary proceedings 2013 No. 3715 S. Those two sets of proceedings are likely to be heard during the current or following legal term, and counsel for both parties agree that the trial of the two actions is likely to last eight days.
The grounding affidavit of Mr. Barrett avers to the fact that he does not have sufficient means to fund the defence of the two proceedings issued against him. He exhibits a statement of means which bears this out. He avers that this fact is 'causing me severe prejudice' and says that he believes that the proceedings commenced against him are vexatious, frivolous and unlikely to succeed. The plaintiff's income is a combination of small dividends, a small salary and pension income. He exhibits his current expenditure and outgoings, and shows ownership of a third share of what appears to be a residential property. No contrary evidence or argument is tendered to show that the plaintiff's assets or income is sufficient to fund the anticipated costs.
The plaintiff also exhibits an estimate from Messrs. Lowes, Legal Cost Accountants, of the projected costs of defending the plenary and summary proceedings, estimated at €257,439 and €112,483 respectively, totalling €369,922.
The judgment obtained by Mr. Barrett against Mr. Leahy will, at the commencement of the trial of Mr. Leahy's proceedings, be almost seven years old and apart from a relatively small amount received on foot of instalment orders, Mr. Barrett has not had the benefit of his judgment.
Mr. Leahy opposes the application. He avers that the limited means of Mr. Barrett now disclosed in his affidavit is a cause of 'very serious concern' to him. He now has trepidation that should he succeed in the proceedings, as he anticipates, there will be insufficient funds to meet any judgment.
Mr. Leahy avers that the claims in his proceedings 'far exceed' the monies lodged in court and argues that those monies in court should be 'safeguarded and remain in court' to avoid loss to him in the event of an anticipated difficulty in the execution of any future judgment. Mr. Leahy denies any delay, although his affidavit does accept that some delay has occurred, occasioned and caused, he argues, by both parties who have 'for one reason or another' not been in a position to apply for a hearing date. No argument is made that the case has been delayed owing to a lack of court resources, and Mr. Leahy's evidence is that 'significant time' was taken up between the parties concerning the issue of discovery.
Mr. Leahy does not contest the evidence estimating the quantum of the costs of defending the proceedings should they proceed to full trial.
The possibility, even probability, that Mr Barrett may not have sufficient funds to meet a successful claim by Mr. Leahy can not influence my determination of the present application. It would appear from the course of the three sets of proceedings that both parties are somewhat concerned as to the ability of the other to meet a judgment. Further, there are no circumstances identified that would permit me to make an order giving Mr....
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