Security for Costs

Condatis

I am curious about situations where applications are made for Security for Costs.

Is the right of access to the Courts dependent on a demonstration that Sean Citizen would be able to meet the notional costs of a losing action?

If so does might this infringe Article 40.1 of the Constitution which provides that "All citizens are equal before the law"? That appears to be a rather bland statement. Article 20 of the European Convention on Human Rights provides an equally terse and identical statement.

Is there any statutory expansion of these provisions?

Could a demand for Security for Costs amount to unfair suppression of the rights of a putative litigant?

I would accept that there should be provision to protect against frivolous actions but apart from that I posit that a citizen should be able to litigate where he feels that he has a well grounded cause.

Has a demand for Security for Costs ever been tested on constitutional grounds?

NoQuarter

Yes it has.

It's given rise to different conclusions though.

In Salih v. General Accident Fire and Life Assurance Corporation Ltd [1987] IR 628 it was held that the right of access was not unlimited and that security for costs with the aim of doing justice between the parties was not in breach of any such right.

then in Malone v. Brown Thomas & Co. Ltd [1995] ILRM 369 it was held that no unnecessary monetary obstacle should be placed in the path of those who seek access to the courts.

So contradicting judgments although note the word "unnecessary" in the Malone judgment. In practice it very much comes down to the legal arguments made on the day in Court.

ResearchWill

Condatis wrote: »

I am curious about situations where applications are made for Security for Costs.

Is the right of access to the Courts dependent on a demonstration that Sean Citizen would be able to meet the notional costs of a losing action?

If so does might this infringe Article 40.1 of the Constitution which provides that "All citizens are equal before the law"? That appears to be a rather bland statement. Article 20 of the European Convention on Human Rights provides an equally terse and identical statement.

Is there any statutory expansion of these provisions?

Could a demand for Security for Costs amount to unfair suppression of the rights of a putative litigant?

I would accept that there should be provision to protect against frivolous actions but apart from that I posit that a citizen should be able to litigate where he feels that he has a well grounded cause.

Has a demand for Security for Costs ever been tested on constitutional grounds?

A person residing in the state can not if I remember have an order made against them. Such orders are reserved for limited liability companies and non residents.

Condatis

NoQuarter wrote: »

Yes it has.

It's given rise to different conclusions though.

In Salih v. General Accident Fire and Life Assurance Corporation Ltd [1987] IR 628 it was held that the right of access was not unlimited and that security for costs with the aim of doing justice between the parties was not in breach of any such right.

then in Malone v. Brown Thomas & Co. Ltd [1995] ILRM 369 it was held that no unnecessary monetary obstacle should be placed in the path of those who seek access to the courts.

So contradicting judgments although note the word "unnecessary" in the Malone judgment. In practice it very much comes down to the legal arguments made on the day in Court.

That's interesting. Does this mean that the matter is somewhat unsettled?

Can it be taken that the eight year time lag between those decisions indicate that interpretation of the law is still evolving?

Does understanding of Common Law have any bearing here? The Magna Carta, for example, has "To no one will we sell, to no one will we refuse or delay, right or justice"?

Condatis

ResearchWill wrote: »

A person residing in the state can not if I remember have an order made against them. Such orders are reserved for limited liability companies and non residents.

Does this mean that when two people opt to trade as a limited company rather than as a partnership that their right to litigate is diminished?

NoQuarter

Condatis wrote: »

That's interesting. Does this mean that the matter is somewhat unsettled?

Can it be taken that the eight year time lag between those decisions indicate that interpretation of the law is still evolving?

Does understanding of Common Law have any bearing here? The Magna Carta, for example, has "To no one will we sell, to no one will we refuse or delay, right or justice"?

No the law is pretty settled, even with the contradiction. When applying for security for costs, there are a number of factors to consider first before the argument re. right of access comes up. Considering that security for costs is a common event, it can be taken that this constitutional right is not absolute.

Common law has no bearing as far as I know and ResearchWill is right about a Plaintiff having to be residing outside the jurisdiction. The whole point of security is so the plaintiff cant lose the case and then skip back out of reach of the courts. the rules are slightly different with regard to limited companies considering a lot of their trade would be international so obviously different rules are needed.

ResearchWill

Condatis wrote: »

Does this mean that when two people opt to trade as a limited company rather than as a partnership that their right to litigate is diminished?

No, it just means that a limited liability that has no assets and no trading income to protect may be required to give security for costs. Say there is a company with little assets but has a good turnover and profit, well then more than likely it would not be ordered to pay security for costs as it has good reasons to make sure it does not get into expensive litigation it may not win.

The issues not ability to pay but a real issue of being in trouble if you don't win.