Pitt v Bolger

• Jurisdiction: Ireland
• Judge: Keane J.
• Judgment Date: 02 February 1996
• Neutral Citation: 1996 WJSC-HC 2208
• Court: High Court
• Docket Number: No. 7112P/1993,[1993 No. 7112P]
• Date: 02 February 1996

PITT v. BOLGER

BETWEEN

MARY PITT

PLAINTIFF

AND

JAMES BOLGER AND ROBERT BARRY

DEFENDANTS

1996 WJSC-HC 2208

No. 7112P/1993

THE HIGH COURT

Synopsis:

PRACTICE

Costs

Security - Defendant - Application - Plaintiff - Foreigner - Resident of Isle of Man - Country of residence not being a member State of European Union - EEC Treaty prohibits discrimination on grounds of nationality - Whether operation of rules of court effects such discrimination - Refusal of order directing provision of security - Rules of the Superior Courts, 1986, order 29 - Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988 (No. 3) ss. 2, 3 - Treaty of Rome (EEC), article 7 - (1993/7112 P - Keane J. - 2/2/96) - [1996] 1 I.R. 108

|Pitt v. Bolger|

WORDS AND PHRASES

"Discrimination"

Action - Costs - Security - Defendant - Application - Plaintiff - Foreigner - National of the United Kingdom - Normally resident in Isle of Man - Residing from time to time in recently acquired dwelling in the United Kingdom - EEC Treaty prohibits discrimination on grounds of nationality - Whether operation of rules of court effects such discrimination - (1993/7112 P - Keane J. - 2/2/96) - [1996] 1 I.R. 108 - [1996] 2 ILRM 68

|Pitt v. Bolger|

Citations:

RSC O.29

MUND & FESTER V HATRAX INTERNATIONAL TRANSPORT 1994 ECR 1467

MAHER V PHELAN UNREP CARROLL 3.11.95 1996/6/1780

PROETTA V NEIL UNREP MURPHY 17.11.95 1995/21/5422

RSC O.29 r3

COLLINS V DOYLE 1982 ILRM 495

RASHAD FARAS 1984 1 ILRM 469

JURISDICTION OF COURTS & ENFORCEMENT OF JUDGMENTS (EUROPEAN COMMUNITIES) ACT 1988

TREATY OF ROME ART 7

BERKELEY ADMINISTRATION INC V MCCLELLAND 1987 1 WLR 420

RSC O.23 r1(a)

TREATY OF ROME ART 220

FITZGERALD & ORS V WILLIAMS ; O'REGAN & ORS V WILLIAMS (UNREP THE TIMES 3.1.96)

TREATY OF ROME ART 6

BRITISH NATIONALITY ACT 1981 S1 (UK)

BRITISH NATIONALITY ACT 1981 S11 (UK)

BRITISH NATIONALITY ACT 1981 S50(1) (UK)

FOREIGN JUDGMENTS (RECIPROCAL ENFORCEMENT) ACT 1933 (UK)

DICEY & MORRIS CONFLICT OF LAWS 12ED 519, 523–4

BRUSSELS CONVENTION 1968

1 Judgment delivered the 2nd day of February 1996 by Keane J..

2 This is an application on behalf of the second named Defendant in these proceedings for an Order pursuant to Order 29 of the Rules of the Superior Courts requiring the Plaintiff to provide security for costs.

3 In the Plenary Summons, the Plaintiff is stated to reside at Fell Cottage, Glenauldyn, Ramsey, Isle of Man and to be a farmer and bloodstock breeder. The Statement of Claim delivered on her behalf avers that she is the breeder and, prior to December 1985, was the full owner of a valuable thoroughbred filly born in 1985 of which "Mill Reef" was the sire. She further says that she was introduced by the first named Defendant, who is a race horse trainer, to the second named Defendant, who is a stud farmer specialising in producing thoroughbred bloodstock for sale at public auction. She says that at that time she was advised by the first named Defendant to enter into a partnership agreement with the second named Defendant in respect of the filly. The agreement, as pleaded, was that the second named Defendant would pay the Plaintiff £100,000 for a half interest in the filly, with a view to the second named Defendant taking possession of the filly and producing her for sale by public auction in Autumn 1986 so that she might achieve her maximum value. She says that it was a term of this agreement that the second named Defendant would be solely responsible for the costs of rearing, managing, insuring and producing the filly for sale, together with any publicity or advertising costs considered necessary or appropriate by him.

4 The Plaintiff says that the first named Defendant advised her that this transaction was in her best interests on the grounds that, while the sum of £100,000 was an under value in respect of the 50% interest, this would ultimately be to her benefit because of the skill and expertise of the second named Defendant in producing the filly for sale. She says that on that basis she entered into the agreement and that the second named Defendant took possession of the filly and paid her the sum of £100,000. She said that she relied on the skills, judgment and advice of the first named Defendant, who was paid a commission on the sale of £10,000, and that the second named Defendant had a fiduciary duty to her to inform and advise her of all matters relating to the filly and her value and to secure the best possible price for the filly.

5 The Plaintiff says that, in April 1986, the first named Defendant advised her that an offer had been made by American customers to buy out the entire interest of both the Plaintiff and the second named Defendant in the filly for a total sum of £400,000. She says that the first named Defendant advised her to accept the offer. She says that, acting on that advice, she agreed to the sale of the filly and was led to believe that such a sale had occurred. She says that she ultimately received the sum of £200,000, of which the sum of £100,000 was paid by the first named Defendant and £95,000 was paid by the second named Defendant the remaining £5,000 being charged by the first named Defendant to the Plaintiff as his commission.

6 The Plaintiff claims that, contrary to the representations alleged to have been made by the Defendants, the filly had not in fact been sold to American clients but to a company called Darley Stud Management Limited which was controlled by Sheik Mohammed of the Royal Family of Dubai and that the purchase price of the filly was not £400,000 but £800,000. She says that the Defendants have acted fraudulently and in breach of their duty to her and that as a result she has suffered loss and damage. In the alternative, she says that each of the Defendants was negligent in failing to advise her as to the true value of the filly. She accordingly claims damages of £515,000 from each of the Defendants.

7 In an Affidavit grounding the present application, the second named Defendant disputes the version of events pleaded in the Statement of Claim. He says that the figure of £100,000 for which the Plaintiff disposed of 50% of her interest in the filly was the value placed on the filly by the Plaintiff herself and that he never assumed any duty to the Plaintiff in relation to the valuation of the filly. He says that in April, 1986 he was aware of a possible offer from a U.S. citizen, of £400,000 and that he informed the first named Defendant and the Plaintiff of this. He says that at that stage the Plaintiff agreed to sell her remaining 50% interest in the filly for the sum of £200,000. He also says that the American deal fell through, but that he was interested in acquiring the entire interest of the Plaintiff in the filly and did so for the sum of £200,000 in June 1986. He says that both the Plaintiff and the first named Defendant were aware at all times that he (the second named Defendant) was the purchaser of her share. He says that at no stage had he any agreement with third parties to sell the filly for a greater price, but that later in the month of June 1986 an offer was made for the filly of 800,000 U.S. dollars. He says that at that stage he had acquired the entire interest in the filly and the partnership was no longer in existence. He says that at that date the, equivalent purchase price in Irish currency was £588,000. He further said that, since the Plaintiff did not reside in this jurisdiction but in the Isle of Man, she was accordingly not resident in a State which was a contracting State for the purpose of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial matters (hereafter "the Convention") and that he was unaware of what assets, if any, the Plaintiff had.

8 An Affidavit was also filed by the first named Defendant in which he denies that he ever acted as an adviser to her in the sale of the filly, since the Plaintiff was a most experienced horse breeder and would not require such advice. He said that he had never seen the filly and gave details of other successful race horses which, he said, the Plaintiff had bred. He said that while he was aware of the second named Defendant's interest in good quality bloodstock and had introduced the Plaintiff to him, this was at the Plaintiff's request. He said that, while he was aware of the Plaintiff having sold her interest to the second named Defendant for £100,000, she in no way relied on his (the first named Defendant's) skill and judgment. He said that while he was aware that in April 1986 an offer had been made to buy the filly, he was unaware of the identity of the purchaser and gave the Plaintiff no advice in relation to it. He said that, following this aborted sale, the Plaintiff expressed the desire to sell her remaining 50% interest in the filly and asked him (the first named Defendant) if he thought the second named Defendant would be interested. He said that, acting as a go between, he spoke to the second named Defendant who agreed to purchase the 50% interest for £200,000. He said the Plaintiff gave him £5,000 for "brokering the deal" but said that he had telephone conversations with the Plaintiff for several years without any reference to or complaint about this transaction. He said he took no part whatever in the resale of the filly and did not know what price was obtained. He denied that the Plaintiff relied in relation to any of these matters on his skill and advice.

9 The Plaintiff in a replying Affidavit said that, while she had formerly resided in the Isle of Man, she had recently acquired a property in Hertfordshire, England — 18 Grove Park, Tring — in which she intended to reside permanently as soon as she sold her current home in the Isle of Man. She said that this property had a value of £115,500 sterling and that she was the full owner. In a supplemental...