High Court of Ireland Decisions

1. The first defendant, Mr. Eenkhoorn has sought interim orders under three headings, i.e. an Order joining five proposed third parties to the action; an Order for security for costs and an Order for discovery of documents by all plaintiffs.

2. Mr. Eenkhoorn has no legal representation and conducted the application on his own behalf. He contends that by reason of alleged wrongdoing by the second and third plaintiffs which is the subject-matter of the action, including the counterclaim, he no longer has sufficient funds to provide professional representation. The issues between the parties are complex and the motion entailed the introduction of a substantial range of documents and extensive affidavits. Mr. Eenkhoorn is not a lawyer and has understandable difficulty in comprehending and complying with rules of procedure. I have no doubt he has done his best to do so and it would be unfair and unreasonable to apply relevant rules of Court rigidly against him. In particular, I am impressed by the fact that he has sworn detailed affidavits in which he has set out with considerable clarity what his position is and how he contends that he is entitled to the reliefs which he seeks. In course of three days the issues have been debated at length with both sides and the end result is as follows:-

3. This is a difficult matter in the present case and I am not satisfied that Mr. Eenkhoorn has furnished sufficient information to enable the Court to decide whether or not to sanction the joining of the proposed or any third parties and, if so, for what purpose. Apart from other pertinent matters, there is no doubt that the joining of the proposed third parties would add very greatly to the total costs of the action. Even as matters stand presently, costs are likely to be disproportionate to the monitory value of the claims and counterclaims. Mr. Eenkhoorn accepts that it is in his best interest that he should obtain professional advice regarding

4. Accordingly, paragraph 1 in his Notice of Motion is adjourned generally with liberty to re-enter.

5. Mr. Eenkhoorn accepts that the plaintiff company has no assets and he has sought security for costs against the personal plaintiffs only. He does so on two grounds. First, that the personal plaintiffs are Dutch citizens resident in Holland and, therefore, within the ambit of Order 29 of the Rules of the Superior Courts. Secondly, that the second and third plaintiffs appear to have hidden substantial personal assets with a view to frustrating the defendants in the event that they obtain an order for costs against them.

6. I am satisfied that neither of the foregoing grounds are sustainable. It has been held by the High Court in a series of judgments - see Pitt -v- Bolger [1996] 1 IR 108 (Keane J. as he then was); Maher -v- Phelan [1996] 1 IR 95 (Carroll J.) and Proetta -v- Neil [1996] 1 IR 100 (Murphy J.) that EU citizens have the same status as Irish citizens vis-à-vis security for costs which are not within Order 29. All three cases were decided in the light of the judgment of the European Court of Justice in Mund and Fester -v- Hatrex [1994] EU Rep 467.

7. As to the defendant’s second point i.e. whether in given circumstances an order for security for costs could be given against an Irish or EU citizen; Murphy J. makes clear in his judgment in Proetta -v- Neil at p. 104 that orders for security for costs under Order 29 may be obtained only against plaintiffs who are resident outside the EU and the right to seek security depends on that fact.

8. It follows in the light of the foregoing that the defendants are not entitled to orders for security for costs against the personal plaintiffs.

9. I should add that even if such relief were available to Mr. Eenkhoorn, he is a personal litigant conducting his own defence and would be entitled, therefore, only to a measured sum in respect of his expenses such as travel and maintenance together with similar witnesses expenses relating to the trial.

10. Mr. Eenkhoorn has made reasonably clear what documents he is seeking by way of discovery. He has further clarified his position as to the documents and classes of documents on which Mr. Dignam, counsel for the plaintiff, was understandably unclear. All in all, I am satisfied that the documents for which discovery is sought are prima facie discoverable as having apparent relevance to issues raised in the action. It may emerge that certain documents are alleged not to be in the possession or procurement of the plaintiffs or, alternatively, that privilege is claimed in respect of them. Such issues, if any, should be raised and ruled upon after the affidavits of discovery are filed and served. Mr. Eenkhoorn is entitled to an order for discovery of documents against all three plaintiffs in respect of the documents referred to in his major affidavit as clarified by him in course of the hearing. Ten weeks shall be allowed for the making of discovery. The third plaintiff shall swear the affidavit required from the plaintiff company.

11. Costs are reserved.