Proetta v Neil

• Jurisdiction: Ireland
• Judge: Mr. Justice Francis D. Murphy
• Judgment Date: 01 January 1996
• Neutral Citation: 1995 WJSC-HC 5422
• Court: High Court
• Docket Number: Record No. 2762P/1994,[1994 No. 2762P]
• Date: 01 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...