Proetta v Neil

JurisdictionIreland
JudgeMr. Justice Francis D. Murphy
Judgment Date01 January 1996
Neutral Citation1995 WJSC-HC 5422
CourtHigh Court
Docket NumberRecord No. 2762P/1994,[1994 No. 2762P]
Date01 January 1996
PROETTA v. NEIL
CARMEN PROETTA
PLAINTIFF

AND

ANDREW NEIL
DEFENDANT

1995 WJSC-HC 5422

Record No. 2762P/1994

THE HIGH COURT

Synopsis:

PRACTICE

Costs

Security - Defendant - Application - Plaintiff - Foreigner - Citizen of member State of European Union - EEC Treaty prohibits discrimination on grounds of nationality - Whether operation of rules of court effects such discrimination - Rules of the Superior Courts, 1986, order 29 - Treaty of Rome (EEC), article 7 - (1994/2762 P - Murphy J. - 17/11/95) - [1996] 1 I.R. 100

|Proetta v. Neil|

WORDS AND PHRASES

"Discrimination"

Action - Costs - Security - Defendant - Application - Plaintiff - Foreigner - Citizen of member State of European Union - EEC Treaty prohibits discrimination on grounds of nationality - Whether operation of rules of court effects such discrimination - (1994/2762 P - Murphy J. - 17/11/95) - [1996] 1 I.R. 100

|Proetta v. Neil|

Citations:

RSC O.29 r1

RSC O.29 r2

RSC O.29 r3

RSC O.29 r4

COLINS V DOYLE 1982 ILRM 495

FARES V WILEY 1994 1 ILRM 465

RSC O.23 r1 UK

BERKELEY ADMINISTRATION INC V MCCLELLAND 1990 1 AER 958

RSC O.29

TREATY OF ROME ART 7

BOUSSAC SAINT-FRERES GERTSTENMEIER 1980 ECR 342

RSC O.23 r1(1)(a) UK

TREATY OF ROME ART 177

MUND & FESTER V HATREX INTERNATIONAAL TRANSPORT 1994 ECR 474

GERMAN CODE PARA 917(2)

GERMAN CODE PARA 917(1)

BANCO AMBROSIANO V ANSBACHER UNREP MURPHY 15.7.85

RSC O.23 UK

BRUSSELS CONVENTION 1968

1

Judgment Mr. Justice Francis D. Murphydelivered the 17th day of November 1995.

2

This is an application on behalf of the Defendant, the above named Andrew Neil, for an Order directing the above named Plaintiff, Carmen Proetta to provide security on a full indemnity basis for the Defendant's costs of these proceedings.

3

These proceedings arise out of a statement admittedly made by the Defendant on the 15th October, 1993 when appearing on a television programme broadcast by Radio Telefis Eireann and known as "The Late Late Show". The Defendant said that the Plaintiff was "a drug runner". The Plaintiff claims that these words were defamatory of her and seeks damages for libel as against the Defendant. Neither the Plaintiff nor the Defendant resides in Ireland. In her Statement of Claim the Plaintiff claims that she resides at a particular address in Malaga, Spain and that the Defendantresides in London, England. The essential defence of the Defendant is that the statement made by him aforesaid of and concerning the Plaintiff was true in substance and in fact.

4

The Claim for security for costs is brought under Order 29, Rule 1 of the Rules of the Superior Courts. That Order does not express in positive terms a requirement that a foreign resident may be required to give security for costs. Rather the rule proceeds on the footing that such is the case and the detailed provisions are expressed as limiting or modifying the application of the assumed provision. This ambiguity appears clearly in Rules 2, 3 and 4 of Order 29 which are asfollows:-

5

2 "2. A Defendant shall not be entitled to an Order for security for costs solely on the ground that the Plaintiff resides in Northern Ireland.

6

3. 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.

7

4. A plaintiff ordinarily resident out of the jurisdiction may be ordered to give security for costs though he may be temporarily resident within the jurisdiction".

8

With regard to those somewhat elliptical rules the then President of the High Court, Mr. Justice Finlay, in Colins and Doyle, 1982 I.L.M.R. 495 enunciated the following principles of law, namely:

9

(1) Prima facie a defendant establishing a prima facie defence to a claim made by a plaintiff residing outside the jurisdiction has got a right to an order for security for costs.

10

(2) This is not an absolute right and the Court must exercise a discretion based on the facts of each individual case.

11

(3) Poverty on the part of the plaintiff making it impossible for him to comply with an order for security for costs is not, even when prima facie established, of itself automatically a reason for refusing the order.

12

(4) Amongst the matters to which the Court may have regard in exercising a discretion against ordering security is if a prima facie case has been made out by the plaintiff to the effect that his inability to give security flows from the wrong committed by the defendant.

13

Those four propositions were upheld and confirmed by the Supreme Court in Rashad Fares v. Wiley 1994 1 I.L.M.R. 465 but for the purposes of the present case perhaps the mosthelpful proposition is to be found in the judgment of the then President of the High Court in the Collins and Doyle judgment (above) at Page 496 where the learned Judge expressed his views in the followingterms:-

"In general it would appear to me that the principle underlying a defendant's right to security for costs must be that he should not suffer from an inability to recover the cost of successfully defending the claim arising from the fact that the unsuccessful plaintiff resides and has his assets outside the jurisdiction of the Court".

14

That analysis of the rules for dealing with security for costs would suggest that there is at least a difference in emphasis, if not in principle, between the Irish rules in relation to security and those contained in Order 23, Rule 1 of the U.K. Rules of the Supreme Court as stated in that Order and more particularly as interpreted by the Court of Appeal in England in Berkeley Administration Inc. and Others v. McClelland and Others 1990 1 A.E.R. 958. The Court of Appeal emphasized that residence outside the jurisdiction is not - for the purposes of the U.K. rules - of itself a ground for making an Order for security. It is merely a pre-condition to the existence of jurisdiction to make an Order (see judgment of Parker L.J. page 961). The condition having been complied with, it is then a matter for the Court to have regard to all of the circumstances of the case and to decide whether or not security should be required. Under the Irish rule residence abroad is not merely a pre-condition butit is of itself the factor which gives the right to demand security subject only to the qualification that the right is not absolute and falls to be exercised having regard to all of...

To continue reading

Request your trial
16 cases
  • Pitt v Bolger
    • Ireland
    • High Court
    • 2 February 1996
    ... ... 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 ... ...
  • Harlequin Property (SVG) Ltd & Harlequin Hotels & Resources Ltd v O'Halloran
    • Ireland
    • High Court
    • 19 January 2012
    ...AER 368 LISMORE HOMES LTD v BANK OF IRELAND FINANCE LTD & ORS 2001 3 IR 536 2002 1 ILRM 541 2001/14/3907 EEC REG 44/2001 PROETTA v NEIL 1996 1 IR 100 1995/21/5422 PITT v BOLGER & BARRY 1996 1 IR 108 1996 2 ILRM 68 1996/7/2208 SALTHILL PROPERTIES LTD & CUNNINGHAM v ROYAL BANK OF SCOTLAND P......
  • Angela Farrell v The Governor and Company of Bank of Ireland and Others
    • Ireland
    • Supreme Court
    • 10 July 2012
    ... ... BARRY v BUCKLEY 1981 IR 306 COMPANIES ACT 1963 S390 LISMORE HOMES LTD v BANK OF IRELAND FINANCE LTD 1999 1 IR 501 PROETTA v NIEL 1996 1 IR 102 PITT v BOLGER 1996 1 IR 108 SALTHILL PROPERTIES LTD v ROYAL BANK OF SCOTLAND PLC 2011 2 IR 441 ... ...
  • Goode Concrete v CRH Plc Roadstone Wood Ltd and Others
    • Ireland
    • High Court
    • 21 March 2012
    ...COSTELLO 22.6.81 1981/11/2038 BRAY TRAVEL LTD & ANOR, IN RE UNREP SUPREME 13.7.1981 RSC O.29 r2 RSC O.29 r3 RSC O.29 r4 PROETTA v NEIL 1996 1 IR 100 PITT v BOLGER & BARRY 1996 2 ILRM 68 HARLEQUIN PROPERTY (SVG) LTD & HARLEQUIN HOTELS & RESOURCES LTD v O'HALLORAN UNREP CLARKE 19.1.2012 201......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT