Flatley v Austin Newport Group Ltd and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Eileen Roberts
• Judgment Date: 15 August 2025
• Neutral Citation: [2025] IEHC 461
• Docket Number: 2023 No. 5989P

Between

Michael Flatley

Plaintiff

and

Austin Newport Group Limited, David Cushion, Ms Amlin Underwriting Limited, AXA XL Underwriting Agencies Limited, Hamilton Managing Agency Limited, Hiscox Société Anonyme and Lloyds Insurance Company

Defendants

[2025] IEHC 461

2023 No. 5989P

THE HIGH COURT COMMERCIAL

Security for costs – Damages – Negligence – Applicants seeking security for costs – Whether special circumstances warranted the refusal of an order for security

Facts: The plaintiff, Mr Flatley, advanced a claim for damages against the defendants, Austin Newport Group Ltd, Mr Cushion, MS Amlin Underwriting Ltd, AXA XL Underwriting Agencies Ltd, Hamilton Managing Agency Ltd, Hiscox Société Anonyme and Lloyds Insurance Company, estimated in the region of €30 million. He alleged that restoration works were defective, including on the basis of an alleged presence of unspecified toxins, which he said rendered his large protected property at Castlehyde, Fermoy, County Cork (Castlehyde) uninhabitable. The claim against the second defendant was discontinued on 27 March 2024. The claim against the sixth defendant was referred to arbitration. Two separate applications for security for costs were advanced against the plaintiff: one by the first defendant and the other by the third, fourth, fifth and seventh defendants. The applications were advanced under O. 29 Rule 1 of the Rules of the Superior Courts in circumstances where it was alleged that the applicants, if successful in the substantive proceedings, would face difficulty in executing any costs orders made in their favour as against the plaintiff. There were some unusual aspects to the applications: the plaintiff was a natural person and not a corporate entity; the plaintiff did not plead impecuniosity but said that he could afford to pay any costs that might ultimately be awarded against him; there was a dispute regarding whether the plaintiff was ordinarily resident outside the jurisdiction and a dispute as to the extent of assets the plaintiff had in the jurisdiction; allegations of delay in bringing the applications; and alleged prejudice to the plaintiff on various grounds.

Held by Roberts J that, on the evidence, the plaintiff was not ordinarily resident in Ireland but was rather there on a temporary and conditional basis. She held that the defendants’ actions had not caused the plaintiff to live in Monaco. It was accepted that the defendants had a bona fide defence to the proceedings. She held that the threshold requirements for an order under O. 29 were satisfied. She held that, on the facts of the case, delay was not a special circumstance warranting refusal of the relief sought. She held that the defendants had provided a reasonable explanation for their delay in bringing the applications. She held that it was the plaintiff who had the relevant information about the extent of unencumbered assets he owned which were located in the jurisdiction or elsewhere within the EU or a Lugano Convention 2007 signatory state so as to establish he had sufficient assets against which a successful defendant could enforce a costs order. She held that the existence of such assets would amount to a special circumstance such that there would be no necessity for the court to make an order for security. She held that the plaintiff had not discharged the burden of proof on that point. Given the plaintiff’s evidence of his ability to pay all costs incurred, she was satisfied that an order for security against the plaintiff would not impact on his right of access to the courts or his ability to progress the litigation.

Roberts J directed that the plaintiff should provide security for costs to the applicants.

Applications granted.

JUDGMENT of Ms. Justice Eileen Roberts delivered on 15 August 2025

Table of Contents:

1. Introduction	Page 2.
2. The parties and the background to these applications	Page 2.
3. The relevant legal principles in a security for costs application	Page 3.
4. The arguments advanced by the parties	Page 5.
5. Where is the plaintiff ordinarily resident?	Page 5.
6. Special Circumstances:
a. The plaintiff has expressed an intention to return to live in Ireland permanently	Page 8.
b. Undue and prejudicial delay on the part of both Austin Newport and the Lloyd's Defendants in bringing these applications	Page 9.
c. The plaintiff has ample assets in the jurisdiction to meet any award of costs	Page 14.
d. The plaintiff's right of access to the courts would be inhibited by an order for security	Page 22.
e. The plaintiff is a man of his word and can and will pay any costs if ordered to do so	Page 22.
7. Conclusion and Next Steps	Page 22.

1 Introduction

1 . This judgment relates to two separate applications for security for costs advanced against the plaintiff — one by the first named defendant and the other by the third, fourth, fifth and seventh named defendants. The applications are advanced under O. 29 Rule 1 of the Rules of the Superior Courts (as amended) in circumstances where it is alleged that the applicants, if successful in the substantive proceedings, will face difficulty in executing any costs orders made in their favour as against the plaintiff. The motions were heard together by this court over two days and are dealt with together in this judgment.

2 . While security for costs applications are relatively common, there are some unusual aspects to the present applications which set them apart in some respects from the usual scenario arising on security for costs applications made by defendants. Such aspects include, for example, that the plaintiff is a natural person and not a corporate entity; that the plaintiff does not plead impecuniosity but says that he can afford to pay any costs that might ultimately be awarded against him; that there is a dispute regarding whether the plaintiff is ordinarily resident outside the jurisdiction and a dispute as to the extent of assets the plaintiff has in this jurisdiction. Other more usual features include allegations of delay in bringing the applications and alleged prejudice to the plaintiff on various grounds. All these matters will be considered in this judgment.

2 The parties and the background to these applications

3 . The plaintiff is an international professional dancer, entertainer and choreographer and is the owner of a large protected property at Castlehyde, Fermoy, County Cork (“ Castlehyde”), which he purchased in 1999.

4 . The first named defendant (“ Austin Newport”) is a building and restoration company which carried out restoration works on Castlehyde between 2016–2017 following a fire there in June 2016.

5 . The third, fourth, fifth and seventh named defendants (“ the Lloyd's Defendants”) are insurers who underwrote a policy of insurance for the plaintiff which was responsive to the fire which occurred at Castlehyde on the night of 18/19 June 2016.

6 . The plaintiff claims in these proceedings that, following the fire at Castlehyde in June 2016, he instructed the Lloyd's Defendants to carry out the entire restoration work on Castlehyde. He claims that the Lloyd's Defendants appointed Austin Newport to carry out the restoration works and that the works were carried out negligently. The plaintiff says that the Lloyd's Defendants (who paid for the works under the insurance cover in place at that time) are responsible for the negligence of Austin Newport in how the restoration works were carried out and that the Lloyd's Defendants were therefore also negligent. He also claims that the Lloyds Defendants had knowledge of certain issues regarding the alleged contamination of Castlehyde which they failed to disclose to him when negotiating and entering into the settlement agreement finalising the indemnity payments made under the relevant insurance policy. The plaintiff seeks a declaration that the settlement agreement breached the Unfair Terms in Consumer Contracts Regulations, 1995.

7 . The plaintiff has advanced a claim for damages against the defendants 1 estimated in the region of €30 million. He alleges that the restoration works are defective, including on the basis of an alleged presence of unspecified toxins, which he says renders Castlehyde uninhabitable.

8 . The substantive proceedings have been robustly litigated. Being in the commercial court they have advanced quickly. At this point the pleadings have closed and discovery has been exchanged. The proceedings are therefore at a relatively advanced stage. This has some relevance to the timing of the present applications which I will deal with shortly.

3 The relevant legal principles in a security for costs application

9 . A personal plaintiff ordinarily resident in Ireland, no matter how impecunious he or she may be, cannot be directed to provide security to cover the costs of a potentially successful defendant in those proceedings. In light of Regulation (EU) No.1215/2012 (the “ Brussels I Regulation (recast)”) and the Lugano Convention 2007, which facilitate the easy enforcement of Irish judgments in EU and Lugano Convention signatory states, this same principle applies to a personal plaintiff who is ordinarily resident within the EU or in a Lugano Convention signatory state.

10 . This position is to be contrasted with a personal plaintiff who is not ordinarily resident in Ireland or the EU or a Lugano Convention state.

11 . O. 29 provides in material part as follows:

“ 1. When a party shall require security for costs from another party, he shall be at liberty to apply by notice to the party for such security; and in case the latter shall not, within forty-eight hours after service thereof, undertake by notice to comply therewith, the party requiring the security shall be at liberty to apply to the Court for an order that the said party do furnish such security. …

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