Moore and Others v Attorney-General and Others (No. 2)

• Jurisdiction: Ireland
• Court: Supreme Court (Irish Free State)
• Judgment Date: 01 July 1929
• Date: 01 July 1929

Supreme Court.

Moore and Others v. Attorney-General and Others.

ROBERT LYON MOORE and Others

Plaintiffs

and

THE ATTORNEY-GENERAL FOR SAORSTAÁT saorstaátÉIREANN éireann,WILLIAM GOAN, and Others, Defendants (No. 2) (1)

Practice - Security for costs - application to the Supreme Court - Respondents in appeal to Supreme Court applying for order - Appellants the unsuccessful co-defendants of the Attorney-General - Attorney-General sued as representing the public - No appeal by Attorney-General - Competence of appellants' appeal - Position of Attorney-General - Poverty of appellants - Expense of action and appeal - Whether"special circumstances" justifying an order - Rules of the Supreme Court (Ir.), 1905, Or. LVIII, r. 15.

Motion on Notice to the Supreme Court for an order that the appellants (the defendants in the action other than the Attorney-General) should furnish security for the costs of their appeal from the judgment of Johnston J., delivered in the action on the 18th February, 1929.

The plaintiffs in the action claimed (inter alia) a declaration that they were entitled to a several fishery for salmon and all other fish in the entire tidal portion of the River Erne, in the County of Donegal, from the falls of Assaroe at Ballyshannon to the high sea or bar of Ballyshannon; and they further claimed an injunction restraining the defendants and all other persons from trespassing upon the said several fishery. The defendants were a number of fishermen (who had challenged the plaintiffs' title) and the Attorney-General of the Irish Free State, who was sued as representing the public and the State. In their defences, the defendants denied the validity of the documentary title relied on, and contended that for various reasons the existence of a several fishery in the locus in quo was not possible. Johnston J. held, in a considered judgment, that the plaintiffs were entitled to the relief they claimed. The case is reported [1929] I.R. 191.

The defendants, other than the Attorney-General, served notice of appeal to the Supreme Court from the entire of the judgment of Johnston J. The Attorney-General served notice of appeal from the judgment in so far as it imposed any liability on him to pay the plaintiffs their costs of the action.

The plaintiffs now applied to the Supreme Court for an order that the defendants, other than the Attorney-General, should furnish security for the costs of the appeal.

This application was grounded on the affidavit of Ralph Hall Reid, solicitor for the plaintiffs, in which he stated that the plaintiffs had incurred very heavy expenses and costs in the matter of the hearing of the action, and the outlay alone amounted to the sum of £3,200, which sum did not include solicitors' costs, which he estimated at not less than £1,000; that, assuming the case would last ten days in the Supreme Court, counsels' fees, briefs of appeal, and solicitors' costs would amount to about £1,640; that the appellants had no means of paying any of the plaintiffs' costs either of the action or of the appeal; that he knew all the appellants; that some of them were small farmers, their farms consisting of ten acres down to two or three acres; that others were persons who had no means whatever of paying the plaintiffs' costs; and that the defendant, the Attorney-General...