The Gazette 1992

GAZETTE

SEPTEMBER

1992

costs in respect of the appeal. HELD by the Supreme Court (Finlay CJ, Griffin and Hederman JJ) granting the order: special circumstances existed under the 1986 Rules justifying the making of an order requiring security for costs, since: (i) the plaintiff was a young man of modest means; (ii) the appeal would not involve a question of law of public importance; and (iii) there were special circumstances in the case, involv- ing the uncontroverted assertion that the plaintiff had been deliberately chosen as a person of little means to bring the proceed- ings, which were such that security for costs should be required. On remittal of the issue to the High Court, the Master fixed « security at £2,500, being about one third the defendant's estimated costs in contest- ing the plaintiff's appeal to the Supreme Court. On appeal to the High Court, Egan J affirmed that sum. On appeal by the second defendant HELD by the Supreme Court (Hederman and McCarthy JJ; Finlay CJ dissenting) dismissing the appeal: (1) the customary practice of the courts to require one third of the estimated costs of an ap- peal as security could be departed from in exceptional circumstances, such as where an appeal was bordering on vexatious liti- gation or devoid of any merit; but the constitutional right of equal access to the courts required that no litigant should be prevented by poverty from proceeding with a case through requiring that person to furnish a greater amount than one third. Thalle v Soares [1957] IR 182 discussed; (2) it was undoubtedly the case that the plaintiff was a man of limited means, but the interests of justice did not require an increase in the amount of security fixed by the Master, since the defendant would not be in any way prejudiced by the level of security actually set; nor was the plaintiff's appeal devoid of merit as there was an arguable point of law to be made and the plaintiff had also lodged appeal papers and the case was ready for hearing in the Su- preme Court. D'Arcy (A Minor) v Roscommon County Council Supreme Court 11 January 1991 PRACTICE - THIRD PARTY NOTICE - NEGLIGENCE CLAIM ON BEHALF OF INFANT - APPLICATION TO JOIN NEXT FRIEND AS THIRD PARTY - DISCRETION- ARY NATURE OF APPLICATION - AFFIDAVIT GROUNDING APPLICATION - HEARSAY - Rules of the Superior Courts 1986, O.I 6, r.1 The plaintiff, a minor suing by her mother and next friend, instituted proceedings in negligence against the defendant Council. The Council sought to have the plaintiff's parents joined as third parties in the pro- ceedings. The application was grounded on the affidavit of the solicitor for the Council, who averred that, to his knowl- edge and belief, the plaintiff's parents had themselves been negligent in relation to the incident the subject matter of the pro- ceedings. In the High Court, Mackenzie J refused the application to join the parents as third parties. On appeal by the Council HELD by the Supreme Court (Hederman, McCarthy and O'Flaherty JJ) dismissing the appeal: the allegations against the plain- tiffs' parents were inadequate to justify making an order joining them as third parties, and the trial judge was correct in

those seeking a stay; (iii) the court should not try the substantive appeal; (iv) whether the appeal alleges that the trial court's findings were not supported by any cred- ible evidence; (v) whether monies payable on foot of a decree might not be recover- able; (vi) that bringing an appeal can, itself, be damaging to an injured party; (vii) that an appeal may be used as a bargaining weapon; (viii) the length of time involved in hearing the appeal; (ix) the absence of an application for a stay at the trial. Megaleasing UK Ltd and Ors v Barrett and Ors Supreme Court 16 May 1991 PRACTICE - DISCOVERY - WHETHER DISCOVERY MAY BE SOUGHT AS SUBSTANTIVE RELIEF - HIGH COURT GRANTING SUCH ORDER FOR DISCOVERY - REFUSAL TO GRANT STAY - WHETHER SUPREME COURT SHOULD ORDER STAY - CONSTITUTION - RIGHTS INVOLVED - Constitution, Article 40.3 The plaintiffs instituted plenary proceed- ings against the defendants in which the substantive relief was for orders for discov- ery concerning certain invoices said to be in their possession. The purpose of such orders was stated by the plaintiffs to be to facilitate them in bringing proceedings against other parties whose tortious acts the plaintiffs claimed had caused them (the plaintiffs) to suffer loss. In the High Court, Costello J granted the plaintiffs the relief sought, and refused to grant a stay of execu- tion upon the order. On appeal by the defendants against the refusal of the stay HELD by the Supreme Court (McCarthy, O'Flaherty and Egan JJ) granting the stay: while in principle the courts should aid in obtaining all information relevant and nec- essary to the true determ ination of facts, the defendants' appeal involved important con- stitutional issues concerning the rights of privacy and of communication; and if the stay was not granted, an appeal against the order made in the High Court would be rendered moot and a decision in the plain- tiff's favour at this stage of the proceedings would determine the action; and in the circumstances, the interests of justice re- quired that a stay be granted on the High Court order. Norwich Pharmacal Co and Ors v Customs and Excise Commissioners [1974] AC 133 and International Trading Ltd v Dublin Corporation [1974] IR 373 discussed. Fallon v An Bord Pleanala and Anor Su- preme Court 16 November 1990 and 15 May 1991 PRACTICE - SECURITY FOR COSTS - PLAINTIFF OF MODEST MEANS - WHETHER NOMINAL PLAINTIFF - WHETHER GROUNDS EXISTING FOR REQUIRING SECURITY FOR COSTS - AMOUNT OF SECURITY - WHETHER NORMAL ONE THIRD RULE SHOULD APPLY - FACTORS TO BE CONSIDERED - Rules of the Superior Courts 1986,0.58, r. 17 - Constitution, Article 40.3 The plaintiff, a man in his late 20s, insti- tuted proceedings seeking to have invali- dated a decision of the defendant Bord granting retention planning permission for certain bungalows which had been built by the second defendant. The plaintiff's claim wasdismissed in the High Court. The plain- tiff appealed this decision to the Supreme Court. The second defendant then applied, pursuant to 0.58, r.17 of the 1986 Rules, for an order from the Supreme Court re- quiring the plaintiff to furnish security for

taking into account the lack of clarity in the allegations made, particularly as the power to join under 0.16, r.1 is discretionary and the effect of making the order might be intimidatory on the parents in considering the running of the case and any settlement which might be offered. Per curiam: it was undesirable, in an application to join a third party, that the solicitor for the appli- cant should swear the grounding affidavit, and it was preferable that it be sworn by the person having first hand knowledge of the events in question. Johnston (A Minor) v Fitzpatrick Supreme Court 11 July 1991 PRACTICE - THIRD PARTY NOTICE - NEGLIGENCE CLAIM ON BEHALF OF INFANT - APPLICATION TO JOIN NEXT FRIEND AS THIRD PARTY - DISCRETION- ARY NATURE OF APPLICATION - WHETHER GROUNDS FOR MAKING ORDER ESTABLISHED - Rules of the Superior Courts 1986, O.I 6, r.1 The plaintiff, a minor suing by his mother and next friend, instituted proceedings in negl igence against the defendant. The plain- tiff, then 10 years old and in his parents' company, was struck by a car driven by the defendant. The defendant brought a mo- tion to join the plaintiff's parents as third parties. In support of the motion, the de- fendant's solicitor averred that the plaintiff 'dashed' onto the road in front of the de- fendant; and that his parents did not, in the circumstances, exercise any reasonable su- pervision over the plaintiff. In the High Court, Mackenzie J declined to join the parents as third parties. On appeal by the defendant, he was permitted, having re- gard to the decision in D'Arcy v Roscom- mon County Council (Supreme Court, 11 January 1991) (supra), to file an affidavit in which he personally deposed to the events of the accident. HELD by the Supreme Court (Finlay CJ, Hederman, McCarthy, O'Flaherty and Egan JJ) dismissing the ap- peal: the power of the Court to join a third party under 0.16 of the 1986 Rules is not mandatory in nature, and the party seeking the order must establish that the proposed third party contributed to the accident; and in the instant case, having regard to the child's age, the averment in the grounding affidavit did not establish that the parents contributed to the plaintiffs' 'dash' onto the road. Semble: the case would be different if there was an allegation that the plaintiff had a disability or that the parents had encouraged him to make a 'dash' across the road. PerFinlay CJ (McCarthy J concur- ring): a direct affidavit is not required in all applications to join a third party, but it was required in the instant case. D'Arcy v Ros- common County Council (Supreme Court, 11 January 1991) (supra) referred to.

4