Maher v Phelan

• Jurisdiction: Ireland
• Judgment Date: 01 January 1996
• Date: 01 January 1996
• Docket Number: [1993 No. 6343P]
• Court: High Court

High Court

[1993 No. 6343P]

Maher v. Phelan

William Maher

Plaintiff

and

Paschal Phelan

Defendant

Cases referred to in this report:—

Berkeley Administration Inc. v. McClelland [1990] 2 Q.B. 407; [1990] 2 W.L.R. 1021; [1990] 1 All E.R. 958.

Berry v. Stratham Ltd. [1928] I.R. 580.

De Bry v. Fitzgerald [1990] 1 W.L.R. 552; [1990] 1 All E.R. 560.

Fares v. Wiley [1994] 2 I.R. 379; [1994] 1 I.L.R.M. 465.

Mund & Fester v. Hatrex Internationaal Transport (Case C-398/92)[1994] I-E.C.R. 467.

Practice - Security for costs - Application by defendant for security for costs - Plaintiff resident outside the jurisdiction but within the European Union - Whether granting an order for security for costs against a resident of the European Union amounts to discrimination on the grounds of nationality - Rules of the Superior Courts, 1986 (S.I. No. 15), O. 29, r. 3 - Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, (No. 3), 1988 - Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, 1968 - Treaty of Rome, 1957, Articles 7 and 220.

European Union - Security for costs - Whether order for security for costs applicable against individual plaintiff resident in a Member State - Whether discrimination on grounds of nationality - Enforcement of judgment outside jurisdiction but within the European Union - Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, (No. 3), 1988 - Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, 1968 - Treaty of Rome, 1957, Articles 7 and 220.

Motion on Notice.

The facts have been summarised in the headnote and are set out fully in the judgment of Carroll J., infra.

By plenary summons dated the 17th March, 1994, the plaintiff claimed damages for breach of contract and declaratory relief as against the defendant. By notice of motion dated the 17th January, 1995, the defendant applied for an order for security for costs against the plaintiff.

The motion was heard by the High Court (Carroll J.) on the 2nd and 3rd November, 1995.

Article 7 of the Treaty of Rome, 1957, provides:—

"Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited."

Article 220 of the same Treaty provides, inter alia:—

"Member States shall, so far as is necessary, enter into negotiations with each other with a view to securing for the benefit of their nationals . . . the simplification...