Malone v Brown Thomas Company Ltd

• Jurisdiction: Ireland
• Judge: Hamilton C.J.
• Judgment Date: 01 January 1995
• Neutral Citation: 1994 WJSC-SC 3491
• Court: Supreme Court
• Date: 01 January 1995

1994 WJSC-SC 3491

THE SUPREME COURT

HAMILTON C.J.

EGAN J.

DENHAM J.

270-91

285-91

MALONE v. BROWN THOMAS & CO LTD

BETWEEN:

DEIRDRE MALONE

Plaintiff/Appellant

and

BROWN THOMAS & COMPANY LTD. AND FEDERAL SECURITY SERVICES LTD.

Defendants/Respondents

Citations:

PERRY V STRATHAM LTD 1928 IR 580

COLLINS V DOYLE 1982 ILRM 495

MIDLAND BANK LTD V CROSSLEY COOKE 1969 IR 56

Synopsis:

CONSTITUTION

Personal rights

Courts - Recourse - Citizen - Residence - Abroad - Intention to return to Ireland - Appeal by plaintiff citizen against dismissal of claim to damages in High Court - Defendant's motion for security for costs of appeal dismissed - (270,285/91 - Supreme Court - 25/11/94) - [1995] 1 ILRM 369

|Malone v. Brown Thomas & Co. Ltd.|

PRACTICE

Costs

Security - Appeal - Respondent - Application - Grounds - Plain tiff citizen resident abroad - Plaintiff's insufficient means - Plaintiff due to return to Ireland within eight months - Constitution - Personal rights - Recourse to courts - Security provided by plaintiff for defendant's costs of action in High Court - Plaintiff's appeal from dismissal of claim to damages - Refusal of appellate court to order provision of security for costs of the appeal - (270,285/91 - Supreme Court - 25/11/94)1995 1 ILRM 369

|Malone v. Brown Thomas & Co. Ltd.|

1 25th day of November 1994 by Hamilton C.J. [NEM DISS]

2 This is an application brought on behalf of the first-named Respondent for:-

3 (a) an order that the Plaintiff/Appellant do furnish security for costs to the first-named and second-named Defendants/Respondents in respect of the appeal being prosecuted by the Plaintiff/Appellant against the judgment and verdict of the High Court made on the 16th day of July 1991 in an action against the Defendants/Respondents herein for damages for wrongful arrest and false imprisonment and defamation, assault and battery and for loss and damage and distress suffered and sustained by her whereby the Plaintiff's claim was dismissed with an order for costs against the Plaintiff.

4 (b) An order staying the Plaintiff/Appellant's appeal against the Defendants/Respondents herein pending the furnishing of such security for costs, and other ancillary relief.

5 The application is grounded on the affidavit of one Hilary J. Prentice, a solicitor with the firm of Matheson Ormsby Prentice who are the solicitors on record for the Defendants/Respondents herein.

6 From this affidavit it appears that:-

7 (a) that the Plaintiff/Appellant's claim against the Defendants/Respondents herein was dismissed in the High Court and the Plaintiff/Appellant was ordered to pay the costs of the Defendants/Respondents.

8 (b) A notice of appeal dated the 9th day of August 1991 was duly served by the Plaintiff/Appellant upon the Defendants/Respondents, and

9 (c) an application had been brought by the first-named Defendant/Respondent before the High Court on the 17th day of June 1991 seeking security for costs against the Plaintiff/Appellant by reason of the fact that the Plaintiff/Appellant was resident outside of the jurisdiction and was living in Australia.

10 (d) The Plaintiff/Appellant did agree to furnish such security for costs to the first-named Defendant/Respondent and such security for costs was furnished in the form of the lodgment of £7,500 in a joint deposit held between the solicitors for the first-named Defendant/Respondent and the solicitors for the Plaintiff/Appellant.

11 (e) That the Plaintiff/Appellant is presently residing in Australia and that to the best of the knowledge and information and belief of the deponent the Plaintiff/Appellant had no assets in this jurisdiction that would be amenable to execution in respect of the order for costs.

12 (f) That by letters dated the 20th day of May 1993 and the 26th day of January 1994 addressed to the Plaintiff/Appellant's solicitors the Plaintiff/Appellant was requested to furnish security for costs in relation to the appeal being prosecuted by the Plaintiff/Appellant herein.

13 (g) That there had been no response to these letters.

14 It appears from an affidavit sworn by the Plaintiff/Appellant on the 25th day of October 1994 that:-

15 (a) the Plaintiff/Appellant is presently residing at 529 Nerrim Road, Murrumbeena, Victoria, Australia and is employed as Secretary to her father who is employed in the horse-training business.

16 (b) His contract of employment will expire in June 1995 at which time her parents will be returning to reside permanently in Ireland.

17 (c) The Plaintiff/Appellant will likewise be returning to reside permanently in Ireland at that time, namely, June 1995.

18 (d) That the Plaintiff/Appellant alleges that she has assets in Ireland in that she maintained two bank accounts, one with the Allied Irish Bank and the other with the First National Building Society.

19 A further affidavit was sworn by one Sharon Daly, solicitor with the firm of Matheson Ormsby Prentice, the solicitors for the Defendants/Respondents herein in which she avers that the costs of the High Court appeal are estimated to be £14,193.14.

20 It is submitted on behalf of the Defendant/Respondent that as the Plaintiff/Appellant is resident outside the jurisdiction in Australia, has no meaningful assets within the jurisdiction and has been unsuccessful in her action against the Defendants/Respondents, that she should be obliged to provide security for the costs of the appeal brought by her against the findings of the High Court.

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