The Gazette 1992

GAZETTE

SEPTEMBER

1992

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

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

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.