Barrett v Leahy No. 2


[2018] IEHC 19


Baker J.

[2011 No. 1406 S.]


(No. 2)

Practice and Procedure - Costs - Courts Act, 1981 - Order for costs - Lodgement of amount - Money held as security

JUDGMENT of Ms. Justice Baker delivered on the 23rd day of January, 2018

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, Barrett v. Leahy [2015] IEHC 734, 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...

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