Power v Irish Civil Service (Permanent) Building Society

• Jurisdiction: Ireland
• Judgment Date: 26 March 1968
• Date: 26 March 1968
• Docket Number: [1966. No. 928 P.]
• Court: Supreme Court

Power v. Irish Civil Service (Permanent) Bldg. Soc.

ALBERT POWER

Plaintiff

and

IRISH CIVIL SERVICE (PERMANENT) BUILDING SOCIETY,Defendants (1)

[1966. No. 928 P.]

Supreme Court.

Practice - Security for costs - Plaintiff resident outside jurisdiction - No cause of action pleaded - Whether defendant's affidavit satisfactory - Rules of the Superior Courts, 1962 (S.I. No. 72 of 1962), Or. 29, r. 3.

Where an affidavit has been filed in support of a defendant's application for an order directing a plaintiff to furnish security for the defendant's costs, a mere averment in the affidavit that the deponent is advised and believes that the defendant has a good defence upon the merits may be treated as sufficient compliance with the requirements of Order 29, r. 3, of the Rules of the Superior Courts if the failure to comply fully with such requirements is due to the fact that the plaintiff has not disclosed a cause of action in his statement of claim.

So held by the Supreme Court (Walsh and FitzGerald JJ., Ó Dálaigh ó dálaigh C.J. dissenting).

Appeal from the High Court.

The facts are stated in the judgments, post. The defendants, who had entered an appearance, did not attempt to have the plaintiff's pleadings struck out or his claim dismissed pursuant to Order 19, r. 28, of the Rules of the Superior Courts, but they applied to the High Court (Murnaghan J.), by motion on notice, and obtained an order directing the plaintiff to furnish security for the defendants' costs. The plaintiff appealed to the Supreme Court on the ground that the defendants' affidavit, filed in support of their motion, did not satisfy the requirement of Order 29, r. 3, of the said Rules that the defendants should show that they had a good defence upon the merits. Order 19, r. 28, of the said Rules provides that:— "The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just."

The plaintiff appeared in person.

Cur. adv. vult.

Ó Dálaigh C.J. ó dálaigh :—

Order 29, r. 3, of the Rules of the Superior Courts provides that:— "No defendant shall be entitled to an order for security for costs by reason of any plaintiff being resident

out of the jurisdiction of the Court, unless upon a satisfactory affidavit that such defendant has a defence upon the merits."

This appeal, by the plaintiff in person, is against an order of Mr. Justice Murnaghan, dated 24th February, 1967, ordering the plaintiff to furnish the defendants with security for their costs. The appeal is taken on the ground that the affidavit sworn on the defendant society's behalf by Mr. Ludlow, secretary of the society, was not a satisfactory affidavit. This objection was taken by the plaintiff in the replying affidavit which he filed on the hearing of the motion in the High Court.

Order 29, r. 3, replaced Order 12 of the Rules of the High Court and Supreme Court, 1926. This latter order (which contained no provision corresponding to Order 29, r. 3) was construed as dispensing with the necessity for an affidavit of merits from the defendant: see the judgment of O'Byrne J. in Birch v. Purtill(1) and the other cases there referred to. Order 29, r. 3, of the present Rules is, however, a repetition of a rule in the same terms which can be traced back, first to the Rules of 1905, then to the Rules of 1891, further still to the Rules of 1877 and, ultimately, to s. 52 of the Common Law Procedure Amendment Act (Ireland), 1853.

What constitutes a satisfactory affidavit that the defendant has a defence on the merits was discussed in the old Court of Appeal in Walker v. Atkinson, (2). The defendant in his affidavit grounding the motion for security for costs, having deposed to various matters, stated that he had a good defence to the action on the merits. The Master of the Rolls (Porter, M.R.) held that the affidavit was not a satisfactory affidavit that the defendant had a defence on the merits. The Court of Appeal unanimously affirmed this view. Walker L.C. said:— "It is not necessary on an application of this kind that the defendant should make out in proof a defence to the action; but as he is bound to lay before the Court a 'satisfactory' affidavit, I think he must, at least, state facts which suggest some defence. I am unable to gather from the affidavit any facts which state or suggest a...