122 / 338
only source of income was £10 per week which she
received from 3 of her children who were working
and living with her, resided in Newry, County
Down. She commenced proceedings for damages
for injuries suffered by her while using the staircase
in defendant's restaurant shop and premises at
Dundalk as a customer. The defendant brought a
motion for security for costs and in the affidavit
grounding same it was stated that from a report
furnished by an engineer, in respect of the stairway
and steps, it was believed that the defendant had a
good defence to the action. The plaintiff stated that
she would be unable to give security for costs and
asked the Court to exercise its discretion in her
favour.
Murnaghan, J. held that it was highly improbable
that in this case the defendant, if successful, would
succeed in recovering any costs against her.
It
seemed to him that the effect of granting the order
sought would probably be to determine the action.
He feared that if he made the order sought he would
be doing an injustice to the plaintiff and therefore
had little hesitation in exercising his discretion in
favour of the plaintiff.
The Supreme Court (Maguire, C. J. Kingsmill
Moore, O'Daly, and Maguire, JJ.) held that the
order for security for costs should be made in this
case and accordingly reversed Murnaghan, J.
Maguire, C. J., held that Mr. Justice Murnaghan
was correct in saying that the position is that
prima
facie
a defendant is entitled to an order for security
costs where the plaintiff resided outside the juris
diction. In order to deprive him of this right some
special circumstances must be shown, e.g., that
there is no defence to the action, as in the two cases
to which reference has been made, or where there
is shown to be ample assets within the jurisdiction.
There may be other circumstances which would
justify the exercise of the Court's discretion in favour
of the plaintiff. Here it is suggested by the defendant,
on the report of an engineer, that she has a good
defence to the action. In view of this and no other
circumstances being shown to justify its being
refused the application should have been granted.
Per Maguire, J., It was also unfortunate that there
is no reciprocal rule corresponding to Or. XXIX,
r. 2 of the Rules of the Supreme Court of Northern
Ireland (Note: O XXIX, r. 2 of the Northern
Ireland Supreme Court Rules 1936 reads as follows :
" A defendant is not entitled to an order com
pelling the plaintiff to give security for costs solely
on the ground that the plaintiff resides in England
or Scotland or in the Irish Free State.")
(Heaney v.
Malacca—
(1958) I.R. in).
Amount of security for costs should be reasonable.
The plaintiff and the first-named defendant (who
was the only defendant concerned in the motion
for security for costs), both resided outside the
jurisdiction. The plaintiff commenced proceedings
for £25,000, forming 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.
The plaintiff
appealed to the High Court on the ground that the
amount was excessive.
O'Daly, J., held 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 (£2,500) was reasonable and should be
confirmed.
Gibson
v.
Coleman (1950) I.R.,'50 followed.
O'Daly, J., delivering judgment in the High
Court said :
The plaintiff by this motion has appealed against
the order of the Master of the High Court, dated
the 3Oth 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 the
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
£3,226 195. od. 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 down to £1,767 123. od.
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. od.
Mr. McGonigal has boldy advanced the pro
position that security should be for the bare minimum
which will enable the case to be presented. I think
it is right to say that the Master did not act upon