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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
costs in the sum of
£1,000.
Kingsmill Moore, J., in
the course of his
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
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.