The Gazette 1958-61

arose when the amount of security has to be fixed are so varied and so numerous as to render dangerous any striving after precise direction. Security for costs must be so fixed as to advance the ends of justice and not to hinder them. If the amount is too small a plaintiff with a speculative or even dishonest case may be able to force a defendant into an unfavourable settlement by the threat of expensive litigation whose costs may be irrecoverable : if too large a defendant may be able to defeat an honest and substantial claim because the plaintiff cannot find the necessary security. Somewhere between Scylla and Charybdis a way has to be found but there can be no Admiralty chart, not succinct sailing directions. Finally, if I may rely upon my own experience of the practice which has prevailed in Ireland from 1919 until recent years, it was customary to require as security an amount not more than about a third of the costs which would probably be incurred by the defendants. We are not given any exact details of the means of the plaintiff in the present case but he is described as a " constructors' foreman" which does not suggest any degree of affluence. The defendant has not suggested in his affidavit that the plaintiff is well off, a fact which was considered as relevant by O'Byrne, J. in Guion v. Heffernan (1929) I.R. 487. Undoubtedly there is a large sum at stake and the costs of the trial will be heavy but we must be careful not to fix a sum which will shut out the plaintiff from such rights as he may have. On a full consideration of the facts it seems to me that the sum of £1,000 would be reasonable to fix as security. (Thalle v. Scares (1959) 93 I.L.T.R. 49). Acquisition of 'Possessory Title. This question has recently been the subject of a very important decision by the Supreme Court. In the case of Vaughan v. Cottingham two points have been settled : (i) Section 86 (i) of the 1891* Act does not create an express trust and In re Loughlin (1942) I.R. 15 has been overruled; (2) the period over which the possessory title to such land may be acquired by the personal representative is twenty years under the Law of Property (Amendment) Act 1860, sec. 13, as in the case for personal estate. The facts of the case are simple :—The deceased owner of registered freehold land died intestate and a bachelor, leaving as next-of-kin a brother and five sisters. One sister, Margaret, remained in exclusive possession of the land until her death on 22nd February, 1955, having taken out a grant of administration to his estate on the igth May, 1947. The plaintiff claimed title to the lands by virtue of * Registration of Title Act 1891.

this basis ; and if Mr. McGonigal's proposition were sound this appeal should be allowed, and the matter should go back to the Master to re-assess security. Mr. Justice Dixon in Gibson v. Caiman (1959) I.R. 50, considered carefully the principle to be applied by the Master. The principle enunciated by him is not that contended for by Mr. McGonigal. The Supreme Court (Maguire, C. J., Lavery and Kingsmill Moore, J. J.) reversing O'Daly, J., held that it was customary for many years to require as security an amount of 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 therefore varied and the plaintiff was ordered to find security for judgment said : Mr. Justice O'Daly in confirming the figure of £2,500 followed the judgment of Mr. Justice Dixon in Gibson v. Coleman (1950) I.R. 50, which laid down that, where security for costs was ordered, the amount of the costs to which the defendant would, on a fair and reasonable computation, probably be put in defending the action. It was not seriously contested before this Court that, if this was the correct principle, the amount of £2,500 was ex cessive : but it was urged that the principle so laid down was erroneous, and contrary to long- established practice. The plaintiff did not attempt to put forward any other basis which could be applied with the same approach to definiteness as it is afforded by that laid down by Mr. Justice Dixon, but suggested that the amount fixed for security should be not greater than would suffice to ensure the good faith of the person bringing the action. Except in the case of impecunious limited com panies, the power to order a plaintiff to give security for costs does not depend on statute but on the inherent jurisdiction of the Courts. The significant feature of the 1876 rule, which for three-quarters of a century has survived substantially unaltered despite the scrutiny of so many rule- making committees, is its careful avoidance of any indication as to a measure whereby the amount of security is to be gauged. Such indefiniteness cannot have been otherwise than deliberate. The framers of the rule were perfectly aware of the Chancery rule of thumb and of the provisions in the Companies Act, 1862. They chose not to follow such guidance. It seems to me that they and their successors left every thing at large, realising that the considerations which costs in the sum of £1,000. Kingsmill Moore, J., in the course of his