Birch v Purtill and Kelly

• Jurisdiction: Ireland
• Judgment Date: 06 March 1936
• Date: 06 March 1936
• Court: High Court (Irish Free State)

Birch v. Purtill

CECIL JOSEPH EDWIN BIRCH

Plaintiff

and

PATRICK JOSEPH PURTILL and PATRICK JOSEPH KELLY

Defendants.

Practice - Security for costs - Discretion of Judge - Affidavit not stating or suggesting any defence - Material on which to excercise discretion - Whether mere statement that plaintiff resides abroad is sufficient - Rules of the High Court and Supreme Court, 1926, Or. XII, r. 1.

In an action for money lent, each of the two defendants made an application for security for costs against the plaintiff, but in their affidavits in support of their applications they did not state or suggest that they had any defence to the action, confining themselves to a mere allegation that the plaintiff resided in England. The plaintiff in his affidavit exhibited a letter from one of the defendants in which the debt was impliedly admitted.

Held that, though no affidavit of merits was necessary, the making of an order for security for costs was a matter for the discretion of the Court in each particular case; and, as the defendants did not give the Court any assistance or material upon which the discretion might be exercised in their favour, the applications must be refused.

Two Motions for security for costs, heard together.

The plaintiff issued a summary summons indorsed with a claim "for £209 11s. 9d. money due from the defendants to the plaintiff for money lent by the plaintiff to the defendants and for interest at 5 per cent. pursuant to an agreement contained in a letter, dated the 22nd day of February, 1935." In the particulars it was stated that the amount of money lent was £200, and the interest thereon at 5 per cent. from the 18th February, 1935, to the 3rd February, 1936, was £9 11s. 9d., and further interest was claimed till payment or judgment.

An appearance was entered on behalf of each of the two defendants and subsequently their solicitors wrote asking the plaintiff to give security for costs, but the applications were refused. Thereupon each of the defendants brought a motion asking for an order that the plaintiff give security for costs"on the ground that the plaintiff resides out of the jurisdiction of the Court." These motions were heard when the plaintiff applied for judgment on the Summary Summons.

The facts as stated in the affidavits filed in support of each application appear sufficiently for the purposes of this report in the judgment of O'Byrne J. post.

O'Byrne J.:—

This matter comes before me upon motions by both...