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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Carlo Tassara Assets Management S.A. -v- Éire Composites Teoranta & Ors [2015] IEHC 236 (15 April 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H236.html
Cite as: [2015] IEHC 236
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Judgment
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Neutral Citation: [2015] IEHC 236 THE HIGH COURT COMMERCIAL [2014 No. 10087 P.] BETWEEN CARLO TASSARA ASSETS MANAGEMENT S.A. PLAINTIFF AND
ÉIRE COMPOSITES TEORANTA, WILLIAM COSTELLO, PATRICK FEERICK, CONCHUR Ó BRÁDAIGH AND THOMAS FLANAGAN DEFENDANTS JUDGMENT of Mr. Justice Brian J. McGovern delivered on the 15th day of April, 2015 1. In this application, the first defendant applies for an order pursuant to O. 29 of the Rules of the Superior Courts and s. 390 of the Companies Act 1963, directing the plaintiff to provide security for costs in respect of these proceedings. The first defendant also seeks an order under the inherent jurisdiction of the court striking out paras. 24 and 25 and the reliefs sought at para. (h) of the statement of claim. Security for Costs
4. Whether or not to make an order directing that security for costs be furnished is a discretionary matter for the courts. 5. The plaintiff is a company registered in Luxembourg. As it is appropriate to apply the principles applicable in an application under s. 390 of the Companies Act in this application for security for costs, the applicants must show two things:-
(ii) that there is credible testimony that there is reason to believe that the plaintiff will be unable to pay the costs of the defendant’s successful defence of the proceedings. 7. Note 5 of the 2013 accounts states:-
9. The first named defendant has sought further information concerning the accounts but this has not been furnished by the plaintiff. There is at least a question as to whether or not the plaintiff is balance sheet insolvent and even cash flow insolvent as its income and accumulated funds are controlled by Carlo Tassara SpA and may not be available to discharge any costs awarded without the express approval of that company. Furthermore its income is subordinated to repay an unidentified debt to that company. 10. In the circumstances, I exercise my discretion in favour of making an order directing the plaintiff to furnish security for costs in this case. Extent of Security to be Provided 12. I considered the estimate of costs set out by Behan and Associates on behalf of the plaintiff and Connolly Lowe on behalf of the first defendant. There is disagreement between the Legal Cost Accountants both on the number of senior counsel that is appropriate to brief and the length of time that the case will take. For the purpose of fixing security for costs, it seems to me that I should do so on the basis of one senior counsel being briefed. Having considered the reports of the Legal Cost Accountants, I propose fixing security on the following basis.
Paperwork, advice and proofs, consultation €2,500 Brief fee €40,000 Case management hearing fees €2,000 Refreshers €12,000 Submissions €3,500 Total €60,000
Junior Counsel Fees Paperwork, consultations €1,500 Brief fee €26,666 Case management hearing fees €1,000 Refreshers €7,050 Submissions €2,350 Total €38,566
Solicitor’s Professional Fees €85,000 Witnesses expenses €15,000 Stamp duties, consultation rooms, Commissioners fees €1,500 Postage, telephone and sundry expenses €1,500 Court duty, Taxing Master stamp duty €0 Total €103,000 13. The other issue before the court is whether or not paras. 24 and 25 and the relief sought at para. (h) of the statement of claim should be struck out. The first named defendant says that the statement of claim delivered on 26th January, 2015, sought new relief not referred to in the plenary summons and that this relief included damages for conspiracy which is claimed at para. (h) at the relief sought in the statement of claim and also paras. 24 and 25. 14. Conspiracy is not alleged in the general endorsement of claim. I accept the submission made on behalf of the plaintiff that the allegations of conspiracy do not arise out of any additional facts which were pleaded. Counsel for the plaintiff contends that if a formal application had been made to amend the statement of claim, it is inconceivable that such an application would not be granted. Counsel for the first named defendant argues that a plaintiff cannot simply be allowed to add into the statement of claim an allegation of conspiracy where it is not referred to in the plenary summons. This is not an application by the plaintiff to amend a statement of claim but rather involves a motion brought by the first named defendant to strike out matters which are not referred to in the plenary summons but arise out of the same facts supporting the pleas made in the writ. In my view, the first defendant has not shown that it would be unfairly prejudiced by admitting the statement of claim in the form in which it was filed. If these allegations are contested they can be properly dealt with in a defence which has yet to be delivered. 15. I refuse the first defendant’s motion to strike out para. (h) of the relief sought in the statement of claim and paragraphs 24 and 25.
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