Thalle v Soares and Others

• Jurisdiction: Ireland
• Judgment Date: 01 January 1959
• Date: 01 January 1959
• Docket Number: [1952. No. 1563. P.]
• Court: Supreme Court

Thalle v. Soares and Others.

JOSEPH THALLE

Plaintiff

and

MANUEL SOARES and HENRY MONAGHAN, JOHN P. REIHILL, N. P. D. McCALMONT and EARL DUNRAVEN

Defendants.

[1952. No. 1563. P.]

High Court.

Supreme Court.

Practice - Security for costs - Amount - Sufficiency - Whether excessive - Plaintiff and defendant both resident out of jurisdiction - Nature of security for costs - Whether amount to constitute a complete security - Rules of the Supreme Court (Ir.), 1905. Or. XXIX; Or. LVIII, r. 15 -Rules of the High Court and Supreme Court, 1926, Or. XII.

The plaintiff and the first-named defendant (who was the only defendant concerned in the motion for security for costs), both resided out of the jurisdiction. The plaintiff instituted proceedings for £25,000, being a half-share in a sweepstake ticket which won a first prize of £50,000. The High Court ordered the plaintiff to give security for costs and the Master of the High Court fixed the security at the sum of £2,500. On an appeal by the plaintiff to the High Court on the ground that the amount was excessive it was

Held by O'Daly J. (following Gibson v. Coleman[1950] I. R. 50) that the amount of the security should be such as to constitute a security for the costs of the defendant, if successful, and not merely an earnest of good faith or even a security for part of those costs. The Master of the High Court not having departed from that principle, the figure fixed by him was reasonable and should be confirmed. On an appeal by the defendant it was

Held by the Supreme Court (Maguire C.J., Lavery and Kingsmill Moore JJ.) that it was customary for many years to require as security an amount not more than about one third of the costs which would probably be incurred by the defendant. In fixing security for costs care must be taken by the Court not to fix such a sum as would shut the plaintiff out from such rights as he might have.

The order of the High Court was accordingly varied and the plaintiff was ordered to find security for costs in the sum of £1,000.

Motion on Notice.

The plaintiff, Joseph Thalle, was a constructor's foreman residing in New York. He instituted proceedings against the first-named defendant, Manuel Soares, alleging that he (the plaintiff) and the said first-named defendant agreed to share equally between them the prize or prizes obtained by two sweepstake tickets held respectively by each of them. The ticket held by the first-named defendant obtained the first prize of £50,000 and the plaintiff claimed the sum of £25,000, being half thereof. The remaining defendants were the Trustees of a Scheme promoted by Hospitals Trust (1940) Ltd.

The first-named defendant also lived in New York, but at the time of the proceedings was residing in Portugal and was a labourer.

The first-named defendant applied to the High Court (Dixon J.) for an order for security for costs. Dixon J. made an order that the plaintiff should give security for costs and referred it to the Master of the High Court to fix the amount thereof.

There was before the Master an affidavit by the defendant's solicitor referring to an estimated and itemised bill of costs prepared by a costs drawer which estimated the defendant's costs at the sum of £3,226 19s. 0d. The Master fixed security for costs at the sum of £2,500. From that order the plaintiff appealed to the High Court (O'Daly J.).

Cur. adv. vult.

O'Daly J. :—

The plaintiff by this motion has appealed against the order of the Master of the High Court, dated the 30th July, 1953, fixing the amount of security to be given by the plaintiff in respect of the costs of the defendant, Manuel Soares, at the sum of £2,500. The ground of the appeal is that the sum fixed is excessive.

The subject-matter of the action is the sum of £25,000 a half share in an Irish Hospitals Trust Sweepstake prize. The parties, the plaintiff and defendant, are persons of lowly stations and they have their homes in New York State.

The defendant's solicitor had an estimate of the defendant's costs of the action prepared by Mr. William D. Smith, costs drawer. This estimate, drawn up in the form of a draft bill, amounted to £3,226 19s. 0d. The plaintiff's solicitor, on the other hand, took counsel with his assistant, Mr. William Maginn, who has considerable experience of taxation matters. Mr. Maginn made a report on the items in the defendant's estimate which he thought should be reduced. The total of these reductions was £1,459 7s. 0d., thereby bringing the defendant's estimate down to £1,767 12s. 0d. An affidavit supporting Mr. Maginn's figure was made by Mr. Christopher McSweeney, costs drawer.

The Master of the High Court, having considered this evidence, fixed the amount of the security at £2,500. This figure, it will be noted, is midway between the two figures put before him, and it exceeds the figure contended for by the plaintiff in Mr. Maginn's report by the sum of £732 8s. 0d.

On this motion Mr. McGonigal in his analysis of the defendant's estimate has generally reiterated the criticisms contained in Mr. Maginn's report; he has, however, in arguing that only one Senior Counsel should be allowed for, gone a step beyond Mr. Maginn, who gave as a reason for reducing the senior brief fee from 100 guineas to 35 guineas that it was proposed to retain two senior counsel. But that is one of the lesser items; the larger items to which Mr. McGonigal directed criticism were for witnesses' expenses, £1,730; provision for a six-day, as against a four-day, trial; the instructions fee, £500, and the Senior brief fee, 100 guineas.

Now, I observe that there are in Mr. Maginn's report three reductions which total £576, which if proper to be written back into the estimated bill, would bring Mr. Maginn's figure within £150 of the figure fixed by the Master of the High Court. These reductions are, 1, expenses of American lawyer, £274; 2, fees to five American male witnesses, £100; 3, reduction in outlay for fees of counsel on the basis of a four-day, as against a six-day, hearing, reckoning the Senior brief fee at 35 guineas, £202.

An American lawyer becomes a necessary witness for the defendant in this action because the defendant has, among other defences, pleaded that the contract sued upon by the plaintiff is rendered illegal and void by article 30 of the Penal Law of the State of New York as being a contract relating to or dependent upon the event of a lottery. The provision in respect of this witness's expenses in the defendant's estimate is as follows:—air fare, £159; maintenance, one week, 10 guineas; fee for attending Court to give evidence, 100 guineas. Each of these sums is demonstrably moderate, and it is wholly reasonable that they should find a place in the defendant's estimate.

The next item of £100 is calculated on the basis of a fee or allowance of £20 each to the five American male witnesses, presumably in respect of loss of earnings, while absent in Ireland for one week. Bearing in mind what is a common knowledge of American wage rates I am unable to agree that the proposed allowance is excessive. Lastly, there is the reduction of £202 on the basis that the case may reasonably be expected to be disposed of in four days. The Master thought the action would take six days. We are here largely in the realm of prophecy and that the plaintiff's own estimate is close to the Master's is warrant enough for saying that the Master's...