Harberd v Cross Vetpharm
| Jurisdiction | Ireland |
| Judge | Mr. Justice Paul Gilligan |
| Judgment Date | 20 May 2003 |
| Neutral Citation | 2003 WJSC-HC 5862 |
| Court | High Court |
| Date | 20 May 2003 |
2003 WJSC-HC 5862
THE HIGH COURT
BETWEEN
AND
Citations:
RSC O.29
RSC O.29 r1
RSC O.29 r2
TREATY OF ROME 1957
RSC O.29 r3
COLLINS V DOYLE 1982 ILRM 495
FARES V WILEY 1994 2 IR 379
WALKER V ATKINSON 1895 1 IR 246
DENMAN V O'CALLAGHAN 1897 31 ILTR 141
HEANEY V MALOCCA 1958 IR 111
FLYNN V EIVERS 1951 86 ILTR 85 (REP SUB NOM FLYNN V RIVERS)
Practice and procedure - Employment law - Litigation - Security for costs - Whether plaintiff should give security for costs - Rules of the Superior Courts, 1986 (SI 15)
The plaintiff had initiated proceedings relating to an employment dispute. The plaintiff had formerly been employed by the defendant as a manager of a company in Tanzania. The plaintiff was presently employed as a project manager in Somalia. The defendant brought a motion seeking an order for security for costs against the plaintiff. The plaintiff claimed that due to the actions of the defendant he was unable to meet the request for security for costs.
Held by Gilligan J in directing security for the costs to be given. The plaintiff was resident out of the jurisdiction and was not a citizen of the European Union. The defendant had made out a specific and definite defence to the claim. Although the plaintiff might had suffered financial hardship the court could not accept an inability to furnish security for costs flowed from a wrong of the defendant.
Judgment of Mr. Justice Paul Gilligan dated the 20th day of May, 2003.
The plaintiffs claim herein as against the defendant is for the equivalent of US$49,000 which the plaintiff says is due and owing by the defendant to the plaintiff pursuant to an agreement entered into between the plaintiff and the defendant on or about the 29 th/31 st day of January, 1995 whereby the defendant agreed to pay to the plaintiff the sum of US$3,000 per month together with US$4,000 travel expenses in consideration of the plaintiff working as General Manager, of Interchem Vet (Tanzania) Limited, In Tanzania.
By agreement of the parties when the matter came on for hearing before the Master of the High Court the issue as between the plaintiff and the defendant was referred to plenary hearing and a statement of claim was delivered herein by the plaintiff on the 31 st day of October, 2001 and a defence delivered by the defendant on the 19 th day of July, 2002.
The defendants herein by way of this application seek security of costs from the plaintiff pursuant to Order 29 of the Rules of the Superior Courts which provide, inter alia, 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 48 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.
2. A defendant shall not be entitled to an order for security for costs solely on the ground that the plaintiff resides in Northern Ireland.
3. No defendant shall be entitled to an order for security for costs by reason of any plaintiff been resident out of the jurisdiction of the Court unless upon a satisfactory affidavit that such defendant has a defence upon the merits.
4. A plaintiff ordinarily resident out of the jurisdiction may be ordered to give security for costs though he may be temporarily resident within the jurisdiction.
I am satisfied that the procedures as contemplated in Order 29 Rule 1 have been complied with and that Rule 2 is irrelevant to these proceedings.
I am satisfied that the plaintiff is and has been at all material times been resident out of the jurisdiction in Africa initially in Tanzania and more recently in Kenya. I am further satisfied and it is accepted that the plaintiff is not a citizen of a member state of the European Union and that accordingly the provisions of the European Economic Community Treaty, 1957, (the Treaty of Rome), are not applicable.
I take the view that the initial decision to be made on this application is as to whether or not the defendant has complied with that part of Rule 3 which states "unless upon a satisfactory affidavit that such defendant has a defence upon the merits".
The then President of the High Court Mr. Justice Finlay in Collins v. Doyle (1982) ILRM 495 set out the following principles of law namely;
1. Prima facie a defendant establishing a defence to a claim made by a plaintiff residing outside the jurisdiction has got a right to an order for security for costs.
2. This is not an absolute right and the Court must exercise a discretion based on the facts of each individual case.
3. Poverty on the part of the plaintiff making it impossible for him to comply with an order for security for costs is not even when prima facie established of itself automatically a reason for refusing the order.
4. Amongst the matters to which the Court may have regard in exercising a discretion against ordering security is if a prima facie case has been made out by the plaintiff to the affect that his inability to give security flows from the wrong committed by the defendant.
At page 495 of the judgment the then President of the High Court stated
"In general it would appear to me that the principle underlying a defendants right to security for costs must be that he should not suffer from an inability to recover the cost of successfully defending the claim arising from the fact that the unsuccessful plaintiff resides and has his assets outside the jurisdiction of the Court".
The four propositions of law as set out by the then president of the High Court in Collins v. Doyle were upheld and confirmed by the Supreme Court in Fares v. Wiley ...
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