Greene v Highcross Bars Ltd
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 22 October 2015 |
| Neutral Citation | [2015] IEHC 654 |
| Judgment citation (vLex) | [2015] 10 JIC 2208 |
| Court | High Court |
| Date | 22 October 2015 |
[2015] IEHC 654
THE HIGH COURT
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Tort – Damages & Restitution – Personal injury action – Security for costs – O. 29 of the Rules of the Superior Courts 1986 – prima facie defence – Ordinary resident
Facts: Following the initiation of an action for personal injuries against the defendant by the plaintiff, the defendant now came to Court seeking an order for security for costs. The defendant contended that since the plaintiff had already settled the matter with the concerned individual and now resided abroad on leave of absence, there was a possibility that the plaintiff would evade any order for costs in the event the defendant won as the defendant had a very strong case against the plaintiff. The plaintiff claimed that the provisions of o. 29 of the Rules of the Superior Courts did not apply to him as he was an ordinary resident of Ireland having a proper residence address and a permanent job as a national teacher therein.
Mr. Justice Max Barrett refused to grant an order for costs to the defendant. The Court held that before granting an order for costs under o. 29 of the Rules of the Superior Courts 1986, two pre-conditions must be satisfied: that the defendant had a prima facie defence on merit and that the plaintiff resided outside the jurisdiction. The Court observed that even if the pre-conditions were met, the Court had wide discretion to grant or refuse an order for security for costs in case there was an impossibility of enforcement of a costs order or expense for enforcement of such costs order. The Court held that though the place of domicile of the plaintiff continued to be Ireland, yet he was ordinarily a resident of Dubai, where he worked and earned a living. The Court found that since the plaintiff was a permanent resident of Ireland, there would not be any difficulty in enforcement of cost orders against the plaintiff and the insufficiency of the plaintiff to meet the expenses of the legal representation in High Court was not a ground to compel him to lodge security for costs.
JUDGMENT of Mr Justice Max Barrett dated 22nd October, 2015.
1. In September, 2013, Mr Greene, who has a permanent contract of employment as a teacher in a National School, though he is presently on leave of absence abroad, was 'glassed' in the face while at the defendant's bar and restaurant in Galway. He has arrived at a settlement with the individual who attacked him but wishes to continue an action for personal injuries against the defendant. For its part, the defendant is concerned at the amount of money that it will have to expend on defending High Court proceedings to which it considers itself to have an ironclad defence. As a result, the defendant has now come to court seeking an order for security for costs.
2. At its simplest, an order for security for costs requires that a paying party (almost certainly a plaintiff) who is ordinarily resident outside Ireland pay money into court as security for an opponent's costs in the event that the paying party eventually loses its case. It typically issues when certain pre-conditions (considered hereafter) are satisfied. However, the now typically very high cost of coming armed with legal representation to the High Court means that such an order is something of a nonsense in the case of a young man such as Mr Greene who is at the start of his professional career and, unsurprisingly, does not have masses of free assets to begin with. Mr Greene has pointed also to the fact that he has a constitutional right of access to the courts and that this right may well be frustrated if an order for security for costs is now made against him. That said, the defendant too has no little justice on its side. It is trying to run a business and the fact that it has a stream of income does not mean that it has an unending pool of money from which to finance the defence of any High Court proceedings that may be brought against it.
3. The issues presented by the within application likely would not present at all, or to the same extent, if the costs of coming to the High Court armed with legal representation had not reached the very high levels that typically now pertain. The solution to this issue is a matter of public policy. But there seems something awry when the costs of civil litigation before the High Court are now often so great that merely by determining where the risk of bearing those costs ought for now to lie, the court may, however it decides matters, determine the future course of the within proceedings. If it grants the order sought, the court may effectively force Mr Greene to abandon his proceedings for want of present resources; if it refuses the order sought, the court runs the risk of forcing the defendant to settle the proceedings for fear of future costs. Questions of legal principle should not be reduced to questions of available principal; the present cost of legal representation has the result that in all too many cases they are.
4. Mr Greene is a 27-year old man who holds a permanent contract as a teacher at a National School. At the present time, he is on leave of absence, enhancing his credentials and savouring a little of the world, working in Dubai. At the end of the term of his leave of absence, Mr Greene's job will be waiting for him back in Ireland, should he then wish to return.
5. In September, 2013, Mr Greene was present on the defendant's bar and restaurant in Galway when he was 'glassed' in the face by another patron. He has settled his cause of action against the individual who attacked him. However, he wishes to continue a personal injuries action against the defendant.
6. For its part, the defendant considers that it has an ironclad legal defence against the said personal injuries proceedings. It is so confident of winning the proceedings that it has commenced its present application for security for costs. This is because the defendant is concerned that if (the defendant would say 'when') Mr Greene loses his case, with an order for costs then being likely to issue against him, those costs will in truth prove irrecoverable, leaving the defendant with a Pyrrhic victory in which it has won its case but lost its money. The application is brought under Order 29 of the Rules of the Superior Courts (1986), as amended.
7. Order 29 provides for the making of an order requiring a party (almost certainly a plaintiff) to grant security for costs where that party is resident outside Ireland. The rationale for such an order is to provide a measure of protection to those involved in litigation where a party to that litigation is situate outside Ireland and thus well placed to evade any order for costs that may later be made against her, him or it. However, the process is clearly open to abuse by the unscrupulous in that it can be used as a tactical ploy, e.g., to frustrate a good claim being brought by a plaintiff of middling means. The courts have historically been alive to this possibility, though as the court has indicated in its introductory comments, such a possibility would not present to the extent that it does if the cost of coming armed with legal representation to the High Court had not reached the often very high levels that it has.
8. As counsel for Mr Greene noted in argument, there are usually two pre-conditions to the granting of an order for security for costs against a plaintiff under 0.29:
(1) that the defendant have a prima facie defence on the merits to the plaintiffs claim. (This pre-condition arises because 0. 29, r.3 provides that '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 a defendant has a defence upon the merit.").
(2) that the party against whom the order is sought be resident outside the jurisdiction. Order 29 does not expressly provide that the party must be resident or 'ordinarily resident' outside the jurisdiction. But the wording of 0. 29, r.4 suggests that the latter is what is anticipated....
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Pasrm Ltd v Companies Acts
...inability to meet an order for security for costs, the applicant relies on the judgment of Barrett J in Greene v Highcross Bars Limited [2015] IEHC 654. In that case, the court refused an order for security against an Irish plaintiff resident in Dubai: “20. “…the current cost of legal repre......