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Cite as: [2012] IESC 42, [2013] 2 ILRM 183
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Judgment Title: Angela Farrell v The Governor and Company of Bank of Ireland & ors Neutral Citation: [2012] IESC 42 Supreme Court Record Number: 439/2010, 432/2010, 437/2010, 438/2010, 440/2010, 047/2011, 121/2011, 381/2011, 382/2011, 383/2011 High Court Record Number: 2010/3039P, 2009/139SP, 2011/485JR, 2011/486JR, 2011/611JR Date of Delivery: 10/07/2012 Court: Supreme Court Composition of Court: Denham C.J., O'Donnell J., Clarke J. Judgment by: Clarke J. Status of Judgment: Approved | |||||||||
THE SUPREME COURT Record Nos 439/2010, 432/2010, 437/2010,
438/2010, 440/2010, 047/2011 and 121/2011 Denham C.J. O'Donnell J. Clarke J. Between/ Angela Farrell Plaintiff/Appellant and
The Governor and Company of the Bank of Ireland Defendant/Respondent THE SUPREME COURT Record Nos 381/2011, 382/2011 and 383/2011 Between/ Brian Feeley Dermot Freehill and Mark Woodcock Applicants/Respondents and
The Judge of the District Court No.9 District Court Judge Bridget Reilly Respondent and
Angela Farrell Notice Party/Appellant Judgment of Mr. Justice Clarke delivered the 10th of July, 2012. 1. Introduction 1.1 These cases arise, in one way or another, out of a dispute between the plaintiff/appellant (“Ms. Farrell”) and the defendant/respondent (“Bank of Ireland”) which derives from a banking relationship between those parties. In circumstances which it will be necessary to address in some more detail, the dispute has become complex. 1.2 A number of orders of the High Court have been made which have been appealed to this court. In each of the appeals to this court Ms. Farrell is the appellant and Bank of Ireland or persons associated with Bank of Ireland are the respondents. In those circumstances Bank of Ireland (and those persons) have applied to the court for an order for security for the costs of each of the appeals. Ms. Farrell has opposed that application. It should be noted that Ms. Farrell is a solicitor and represented herself. In that context it is first necessary to set out a brief history of the proceedings in the High Court so as to identify the orders under appeal in context. 2. The Orders under Appeal and the High Court Proceedings 2.1 On the 13th February, 2009 Bank of Ireland commenced special summons proceedings (record no. 2009/139 SP) which sought an order for possession of a number of properties owned by Ms. Farrell over which the bank claimed security. It also needs to be noted that Ms. Farrell later commenced separate plenary proceedings (record no. 2010/3039 P) against Bank of Ireland on the 26th March, 2010. There appears to be a close connection between the two proceedings. The allegations which appear to form the basis of Ms. Farrell's claim in her plenary proceedings are also set out in the affidavits filed in reply in the special summons proceedings. In reality, the defence to the special summons proceedings seems to be based largely on the same allegations as underlie her claim in the plenary summons proceedings. 2.2 As noted the special summons proceedings commenced by Bank of Ireland were first in time and, in circumstances to which it will be necessary to refer briefly later in this judgment, those special summons proceedings took quite some time before being transferred into the judges' list. Eventually the special summons proceedings appeared before the High Court on the 26th March, 2010 which is, of course, the same day as Ms. Farrell's own plenary summons proceedings were commenced. Case management directions were given on that day. Ultimately a hearing date of the 13th July, 2010 was fixed for the special summons proceedings. 2.3 In the context of the matters which are now before this court on appeal it is also important to note that Ms. Farrell issued a motion seeking a mandatory order requiring Bank of Ireland to furnish documentation arising out of a request under the Data Protection Acts ("the data protection motion"). In addition Ms. Farrell issued a motion seeking to consolidate the plenary and special summons proceedings. On that application a consolidation order was made, on the 8th July, 2010, with the consent of Bank of Ireland. Given that a hearing date of the 13th July, 2010 had already been fixed for the special summons proceedings, that hearing date had to be vacated by reason of the consolidation of the two proceedings. 2.4 The now consolidated proceedings appeared in the list to fix dates on the 27th July, 2010. The position that pertained as of that date was that the plenary proceedings commenced by Ms. Farrell had not, it would appear, been formally set down for trial. However, Laffoy J. fixed a hearing date for the 23rd November, 2010 for the consolidated action and gave directions that Ms. Farrell formally set down her plenary proceedings for hearing not later than the 14th October. There were a number of other applications prior to the 23rd November which it is not necessary to detail at this stage. 2.5 However, on the 23rd November the proceedings were assigned to Gilligan J. Questions arose on that occasion concerning whether Bank of Ireland's special summons proceedings could go ahead in the absence of Ms. Farrell's plenary proceedings being in a position to go ahead (the plenary proceedings had not, even by that time, been set down for hearing). There were other issues raised at that stage which do not require detailed consideration for the purposes of this outline narrative. Gilligan J. initially decided that Bank of Ireland's case could go ahead but on the following day, in the light of developments, including an appeal lodged with this court to which further reference will be made, Gilligan J. decided to adjourn the special summons proceedings with various procedural directions being given in relation to the plenary proceedings and on Ms. Farrell giving an undertaking to serve a notice of trial in those plenary proceedings. 2.6 In those circumstances Bank of Ireland brought an application to seek to vary the order of consolidation made by Murphy J. on consent on the 8th July, 2010. That motion came before Gilligan J. on the 20th December, 2010 and the order sought on behalf of Bank of Ireland was made despite opposition from Ms. Farrell. 2.7 The special summons came on for hearing on that basis and was ultimately determined by McGovern J. on the 22nd February, 2011 with an order for possession being made. 2.8 In the context of that brief outline of the course of events up to that time it is appropriate to turn to the first set of appeals which have been brought to this court being the appeals which arise out of the special summons proceedings. The first appeal (record no. 439/2010) is against an order of Murphy J. of the 22nd November, 2010 in which that judge refused to place a stay on the special summons proceedings pending determination of the data protection motion. 2.9 The second appeal (record no. 432/2010) is in respect of an order made by Murphy J. on the 23rd November, 2010 refusing relief in the data protection motion, it being asserted inter alia that the relevant relief had already been refused at an earlier hearing on the 27th April, 2010, on the basis of an undertaking which was given by Bank of Ireland, without prejudice to its case, to make available a portion of a document (being pages 7 to 11 of a document dated the 7th November, 2007). 2.10 The third appeal (record no. 437/2010) is against an order of Gilligan J. of the 24th November, 2010 which refused a stay on the proceedings of one day and refused Ms. Farrell's application that Bank of Ireland's special summons proceedings should not go ahead by virtue of the consolidation order already in place. 2.11 The fourth appeal is against an order said to have been made on the 24th November, 2010 by Gilligan J. in which, it was said, the proceedings were adjourned to the 1st February, 2011 with procedural directions. Bank of Ireland asserts that no such order was made by Gilligan J. on the date in question which leads to the next appeal. 2.12 The fifth appeal (record no. 438/2010) is against an order identical to that referred to in the fourth appeal save that it is said in this notice of appeal that the relevant order of Gilligan J. was made on the 25th (rather than the 24th) November, 2010. 2.13 The sixth appeal is against an order of Murphy J. said to have been made on the 15th December, 2010 which is said to have given directions as to the filing by Ms. Farrell of a replying affidavit within a timeframe set out in that order. It is said by Bank of Ireland that no such order was, in fact, made by Murphy J. on the occasion in question which leads to the next appeal. 2.14 The seventh appeal (record no. 440/2010) is against an order of Gilligan J. of the 15th December, 2010, giving the same directions as are specified as having been given by Murphy J. on the same date in the sixth appeal. It does, therefore, appear that the fourth and sixth appeals referred to were in error in that, so far as the fourth appeal is concerned, a wrong date for the order was included in the notice of appeal thus requiring a new notice of appeal specifying the correct date to be filed (being the fifth appeal) and so far as the sixth appeal is concerned the wrong judge is specified thus giving rise to the seventh appeal which specifies the correct judge. 2.15 The eighth appeal (record no. 047/2011) is as against what I might loosely call the deconsolidation order made by Gilligan J. on the 20th December, 2010. 2.16 The ninth appeal (record no.121/2011) is against the substantive order ultimately made by McGovern J. on the 22nd February, 2011 for possession in the summary summons proceedings. 2.17 To return to the relevant sequence of events it is next necessary to refer to the fact that, on the 18th May, 2011, Ms. Farrell, purporting to act as a common informer, applied for the issuance of a number of District Court criminal summonses against first a Mr. Brian Feeley, an official of Bank of Ireland involved in the transactions which are at the heart of these proceedings, second against a Mr. Dermot Freehill, an official of Bank of Ireland who acted as deponent in relation to affidavits filed on behalf of Bank of Ireland in the special summons proceedings and third against a Mr. Mark Woodcock, a solicitor who acted on behalf of Bank of Ireland in these proceedings. Mr. Feeley was alleged to have obtained money by false pretences. Mr. Freehill and Mr. Woodcock were alleged to have been guilty of perjury. 2.18 Those three individuals, with the support of Bank of Ireland, brought judicial review proceedings seeking to have the relevant summonses quashed. On the 1st September, 2011 Charleton J. made an order quashing the relevant summonses. 2.19 In the light of the fact that, at the time when the matter came before him, the position was that the High Court had determined that Bank of Ireland should succeed on its special summons proceedings, Charleton J. was of the view that the allegations which underlay the charges brought amounted in substance to a collateral attack on the judgment of McGovern J. and were thus an abuse of process. On that basis orders of prohibition and certiorari were made which had the effect of quashing the criminal summonses and prohibiting the criminal proceedings going further. As there were three separate High Court judicial reviews involving, respectively, each of the three individuals concerned, there are three appeals (record nos. 381/2011, 382/2011 and 383/2011) to this court from those orders of Charleton J. 2.20 In summary, it seems to me that it is possible to characterise the appeals which are currently before this court in the following way:-
(b) There is both a procedural and substantive appeal against the order of the High Court in the data protection motion; (c) There is an appeal against what I have described as the deconsolidation order; (d) There is an appeal against the substantive decision of the High Court in the special summons proceedings; and (e) There are the appeals against the quashing of the criminal summonses. 2.21 Against that background it is next necessary to turn to the case made on behalf of Bank of Ireland, which, in this context, includes the three individuals involved in the judicial review proceedings. 3 Bank of Ireland’s case 3.1 In addition to the affidavit evidence relied on by Bank of Ireland, written submissions were filed prior to the hearing of these motions. I will return in due course to those aspects of the written submissions which concern the appropriate legal principles to be applied. However, without going into those principles in detail at this stage, it is clear that, in order for security for costs of an appeal to be granted, what is described in the jurisprudence as special circumstances (or what might, in the light of the analysis of the underlying rationale for that jurisprudence as set out later in this judgment, be described as a sufficient countervailing factor - that is a factor sufficient to make it proportionate to order security) must be present. While many matters of detail were canvassed on behalf of Bank of Ireland both in the affidavits filed and in the written submissions it seems to me to be fair to characterise the overall approach of Bank of Ireland to be one which asserts that the conduct of these proceedings on the part of Ms. Farrell has been vexatious and oppressive. 3.2 In the written submissions filed a number of categories of conduct which were said to be either oppressive or vexatious were outlined. First, it is alleged that there has been a repeated failure on the part of Ms. Farrell to comply with procedural directions and orders of the court. Second, it is said that a range of measures were adopted by Ms. Farrell, including the late service of detailed documents necessitating adjournments, the making of repeated applications for adjournments and the like, such that the hearing in this court of these motions amounted to the fiftieth separate occasion on which some aspect of these connected proceedings were before the courts. 3.3 Third, reliance is placed on the fact that, in the course of these proceedings, Ms. Farrell sought to institute private criminal prosecutions against certain officers of Bank of Ireland and their solicitor alleging the obtaining of monies by false pretences and perjury. The judicial review proceedings, in respect of which some of the appeals with which this court is concerned arise, were, as pointed out, brought on behalf of the individuals concerned for the purposes of seeking to have those private criminal proceedings quashed. It is said that the adoption of such a course of action, while these civil proceedings remained pending, is oppressive and vexatious. 3.4 Fourth, and finally, it is said that certain correspondence written by Ms. Farrell to, amongst others, counsel for Bank of Ireland can only, given its timing and its content, have been designed to attempt to intimidate those involved in the conduct of the litigation on behalf of Bank of Ireland from carrying out their duties in a professional manner. 3.5 All of those arguments are, in truth, variations on a theme. It is said that the litigation, in the various respects identified, has to date been carried on in a vexatious and oppressive manner such as would warrant this court treating same as the sort of special circumstance which would justify ordering security for costs of the various appeals. 3.6 In addition to the case made by Bank of Ireland concerning the question of whether security for costs, in principle, should be ordered, a submission was also directed to the separate question of the basis on which the amount of any security directed to be provided should be calculated. It will be necessary to turn to that issue in due course. However, the submissions made on behalf of Bank of Ireland acknowledge that there is something of a practice, at least in the case of personal litigants as opposed to corporate parties, of the court fixing security at one third of the amount estimated as being the likely cost to be incurred in the appeal. However, Bank of Ireland argues that the actions of Ms. Farrell of which it complains (and as already outlined) are such as ought lead the court, on the facts of this case, to depart from that general practice and require full security. 3.7 Before going on to consider the merits of the claim for security for costs, it is appropriate to turn to the legal principles by reference to which an application for security for costs of an appeal to this court is considered. 4. Security for costs of an Appeal 4.1 It is, in my view, at the outset important to keep in mind the distinction between the different types of applications for security for costs with which courts may be faced. Two distinctions should be noted. The first is as between an order sought against a corporate party with limited liability, on the one hand, and an order sought against a personal party on the other hand. The second is as and between an order for security sought prior to a trial in the High Court (where security is sought for the costs of a first instance trial), on the one hand, and an order, as here, sought in respect of the costs of an appeal. 4.2 I will shortly turn to the underlying rationale behind the jurisprudence related to making an order for security for costs in the first place. That rationale, at least at a very general level, applies in each of the circumstances which I have mentioned. However, for reasons which I would hope to analyse, the application of that general rationale differs dependent on the differing circumstances in which the requirement for security for costs is said to arise. 4.3 That there is a connection between the jurisprudence in all of these areas but that, nonetheless, the jurisprudence differs dependent on the distinctions to which reference has been made, can, perhaps, most easily be gleaned from reference to the standard textbook on civil procedure being Delaney and McGrath - Civil Procedure in the Superior Courts. Security for costs generally is dealt with in chapter 12 of that work. However separate sections of Chapter 12 deal with, respectively, what are described as “security for costs against individual plaintiffs”, “security for costs against corporate plaintiffs” and “security for costs of an appeal to the Supreme Court”. 4.4 However in the introduction to that Chapter, which might be said to have a general application to each of the separate cases, the authors suggest that the concept of ordering a party to provide security for the costs of an action effectively involves balancing the right of a defendant to recover costs if he successfully defends a claim against the right of a plaintiff, rooted in the Constitution, to have access to the courts (including, in most circumstances, a constitutional right of appeal). While it may, for reasons which I will shortly address, be more appropriate to analyse the relevant balance by reference to the right to have litigation fairly conducted (a right to fair process) rather than the right to have access to the courts, it seems to me that a starting point of any analysis of the jurisprudence in relation to security for costs has to be a consideration of such a balance. It is true that the Constitution places a high value on the right of access to the courts. Likewise the Constitution places a high value on the right of a losing party in the High Court to appeal to this court. On the other hand there can be little doubt that those rights can be abused. As counsel for Bank of Ireland pointed out, with rights come obligations. With the right of access to the court, whether of first instance or of appeal, comes an obligation to use best endeavours to conduct the process in accordance with procedural law and in a manner that does not add unnecessarily or inappropriately to the length or costs of the process. 4.5 Before going on to analyse the role of an award of costs in our system it is, therefore, appropriate to make some comments on the right of access to the courts and the right of appeal to this court from non-excluded decisions of the High Court, both of which are rooted in the Constitution. It must be recalled that the right of access to the court does not carry with it an entitlement to have all issues decided at a full trial or to conduct the relevant litigation in whatever way the party concerned wishes. A distinction needs to be drawn between, on the one hand, restrictions imposed by law on the right of access to the courts as such and decisions made as part of the administration of justice which may have an effect on how litigation is to progress on the other. As far back as MacAuley v. Minister for Posts and Telegraphs [1966] I.R. 345, Kenny J. determined that the then requirement to obtain the fiat of the Attorney General in order to bring an action against a Minister of Government was a breach of the right to have recourse to the High Court "To defend and vindicate a legal right and that it is one of the personal rights of the citizen included in the general guarantee of article 40.3" which seemed to Kenny J. to be a necessary inference from Article 34.3.1. While there have been other decisions of the courts in which the right to litigate or the right to have access to the courts has been found to be rooted in other provisions of the Constitution, the general existence of a right of access to the courts cannot be doubted. 4.6 Where, however, a party has had access to the court, but where, as part of the administration of justice, decisions are taken by the court which affect that party's ability to pursue the litigation, then it seems to me that such questions are more properly viewed in the context of the right to fair process being the right to have litigation fairly conducted (whereby the court is required to balance the rights of all parties to litigation in a fair, balanced and proportionate way) rather than on the basis of a right of access to the court per se. In Slattery v. An Taoiseach [1993] 1 I.R. 286, in commenting on an appeal to this court from a refusal of the High Court to give leave to bring an application during vacation, McCarthy J. said the following:-
4.8 Many examples can be given. A plaintiff may have their proceedings dismissed as being bound to fail under the principles first identified in Barry v. Buckley [1981] I.R. 306. The plaintiff's case may not progress very far but the plaintiff has had access to the court and is entitled to be heard on the defendant's application to dismiss and put forward whatever evidence or argument might be considered appropriate to attempt to persuade the court that the proceedings are not bound to fail. Likewise, a party who fails to persuade the court to grant leave to seek judicial review or, as in Slattery, leave to issue a motion seeking particular relief, has had an opportunity to address the court as to why the relevant leave should be granted. In similar vein, a defendant who fails to persuade the court that an arguable case for the defence has been established on a motion for summary judgment will not have an opportunity to have a trial on the merits. That defendant will, however, have had access to the court to put forward whatever argument and evidence might be considered appropriate to seek to persuade the court that an arguable defence does exist. Indeed it should be noted that not all such cases involve the court in forming some view on the overall merits of the case. Where a party is guilty of extremely serious or significantly persistent procedural failure it is open to the court to dismiss that party's claim or defence, as the case may be, on the basis of procedural failure. However, again, such a dismissal will only occur after a full hearing at which the party concerned will be able to defend itself against the allegations made and also be heard as to whether dismissal is a proportionate response to any allegations admitted or established. Many other examples could be given. On one view such cases might be considered to amount to legitimate and proportionate interference with the right of access to the court. However, like McCarthy J. in Slattery, it seems to me that the more appropriate analysis, in such cases, is to acknowledge that the party has, by being heard on whatever application (such as to dismiss, for leave or to seek plenary hearing in summary proceedings), led to the case not going further, been given access to the court. In such circumstances it does not seem to me that it can be said that the party has been denied access to the court. Rather the party has had access but has failed to persuade the court that the case should take the course which they wished. 4.9 It does, of course, have to be acknowledged that the courts, in exercising either inherent, rule made or statutory powers which influence the course of proceedings, are required to act in a proportionate way so as to ensure that the rights of all litigants are balanced and are, so far as practicable, preserved. However, where the decision which has the effect of restricting the course of the proceedings is made by a court, having given the relevant litigants an opportunity to be heard, it does not seem to me to be accurate to characterise that decision as being one which involves a restriction on the right of access to the courts but rather one which might be said to affect the right of the relevant party to ensure that litigation is conducted in a fair way so that the court is required to ensure that any procedural measures imposed do not disproportionately and inappropriately affect the rights of that party. 4.10 Like consideration seem to me to apply to an application for security for costs. The party against whom the application is brought has the right to be heard and to put forward whatever evidence and argument they wish. In considering whether an order should be made the court needs to make a determination which is proportionate to the legitimate interests of all of the litigants. 4.11 It is also important to recall the importance of costs orders in our legal system. It might be said that costs orders play two roles. First it may be said that a successful party (a plaintiff who has to come to court to establish rights and/or entitlements not conceded or a defendant who successfully sees off a claim) should not be at a loss in having to bring or defend the proceedings in question. I am not here concerned with how the costs which might legitimately be recovered are to be quantified. Leaving that question aside it seems to me that the ordinary position that costs follow the event is a recognition that it is unjust to impose on a plaintiff, who is required to come to court to obtain his legal rights, the financial burden of establishing those rights most particularly where the plaintiff concerned would not have to have come to court if the claim was conceded or not opposed. Likewise it is unfair that a defendant should have to bear the costs of defending a claim which the court finds to be unmeritorious. Thus the first underlying rationale behind the award of costs is that justice requires that a successful party not be penalised in having to bear the reasonable costs of court proceedings. 4.12 But there is another justification. If there were not provision requiring generally for the payment of costs to the successful party then there would be a real risk that the bringing or defending of proceedings could be used as a form of unfair tactic little short, at least in some cases, of blackmail. A plaintiff could threaten proceedings which would undoubtedly put the defendant to significant cost in the hope that the defendant would buy off the case (even it was unwholly unmeritorious) so as to avoid having to incur the costs of defending. If it were not possible, ordinarily, to recover costs on behalf of a defendant in respect of a failed claim then such a tactic could easily be adopted by many unscrupulous parties. Likewise, a defendant, with no real defence, could implicitly threaten a plaintiff with a defence by trench warfare which would greatly increase the costs of the plaintiff establishing his rights and entitlements and thus, in truth, devalue those rights and entitlements by placing an unreasonably high price on their establishment. 4.13 Furthermore the courts have become more prepared, in recent times, not least because of changes in the Rules of Court, to look at individual elements of the conduct of proceedings to ascertain whether parties have acted in such a way as has, irrespective of the ultimate outcome of the case, led to additional and unnecessary costs being incurred. Apart from the undoubted justice of that approach same has the added advantage of discouraging parties from bringing unnecessary and unmeritorious applications, resisting appropriate applications or adding unnecessarily and inappropriately to the complexity (and thus the cost) of proceedings by adding a multiplicity of claims or a multiplicity of defences. 4.14 That analysis is designed to show that the power of the court to award costs is a very important aspect of the armoury of the courts designed to ensure that parties are treated justly and that the court process is not abused. Indeed, in that context, it is worthy of some note that the court's normal response to a procedural failure is to see, first, whether it is possible to remedy that procedural failure by an appropriate award of costs. If it were not possible to order costs as a means of dealing with a procedural failure then the court might, in balancing any rights involved, be constrained to take some more significant action which might affect the result of the case as a whole. This would be a highly undesirable development but one which would come into much greater focus in the event that the court was unable to deal with procedural failure on the basis of remedying the wrong arising from that failure (where possible and adequate as a remedy) by an award of costs. 4.15 Of course all of that analysis, in one sense, begs the question as to whether an award of costs, in any particular case, has any reality to it. All practitioners and judges will be well aware that there can, in at least some cases, be a great deal of difference between the court making an order for costs and the party in whose favour that order is made actually recovering any, let alone all, of the costs awarded. But the analysis in which I have just engaged does suggest that an inability or difficulty in recovering costs can give rise to an injustice. If justice required the award of costs in the first place then it follows that a party not actually recovering costs properly awarded must be said to have suffered an injustice. 4.16 On the other hand no system of justice can be perfect. If it were possible to predict in advance what claims would succeed and what claims would fail then it might be possible to avoid parties suffering an injustice by having to incur the costs of bringing successful claims or defending unsuccessful actions in circumstances where, despite an order for costs, no or insufficient moneys are recovered. However like so many other areas in which the court has to balance competing rights at a stage when it is impossible to form a clear view as to the likely result of the case (such as when the court at an early stage has to decide whether to grant or refuse an interlocutory injunction) the court has to do the best it can. However the analysis in which I have engaged is designed to demonstrate that exposing a party to having to incur the costs of litigation in circumstances where there is no reality to that party recovering those costs on foot of a court order in the event of the party concerned being successful amounts to exposing the relevant party to a risk of injustice. It is that risk that needs to be set against the undoubtedly high constitutional value that is attributed both to the right of access to courts of first instance and to the right of appeal from the High Court to this court, or perhaps, in view of the earlier analysis in this judgment, to the right of all litigants to fair process in the conduct of proceedings. In attempting to strike a balance the court is required to act in a proportionate way. 4.17 Against that background it seems to me that the jurisprudence in relation to all of the areas where security for costs is considered (as referred to earlier) starts from a default position that, in the absence of some significant countervailing factor, the balance of justice will require that no security be given. The reasoning behind that view is that, if it were otherwise, all impecunious parties might, in substance, be shut out from bringing cases or pursuing appeals. Such a balance would be untenable and disproportionate. It is for that reason that there must be some additional factor at play before an order for security for costs can be made. 4.18 The jurisprudence in respect of corporate parties is relatively well settled. It is clear that the underlying rationale behind the provisions of Section 390 of the Companies Act 1963 is to the effect that the ordering of security for costs against a corporate plaintiff (who would be unable to pay the defendants costs if the defendant were to succeed) is seen as deriving from the limited liability attaching to the company concerned. It has in some of the cases been described as the price paid for limited liability. As pointed out by Barrington J. in Lismore Homes Ltd. v. Bank of Ireland Finance Ltd [1999] 1 I.R. 501 (at p.507) "insolvent limited liability companies are in a different category simply because the liability of their shareholders is limited". 4.19 The logic behind that rationale is that parties, such as shareholders, or in an appropriate case creditors, behind a company will get the benefit of the company being successful in litigation but will be spared the adverse cost consequences of the company being unsuccessful for the premise on which security for costs is ordered under Section 390 is that those costs will not, in practice, be paid if the company loses. Why should the parties who are going to benefit by a successful action not also be exposed to the costs of failure. That is the underlying rationale for corporate security for costs. There are, of course, a range of other factors that need to be taken into account such as the establishment of an arguable defence and the existence of special circumstances in accordance with the jurisprudence. It is not necessary to consider those factors in this case. 4.20 So far as individual plaintiffs are concerned the jurisprudence suggests that the High Court will not order security against an individual plaintiff unless that plaintiff is out of the jurisdiction (which in this context now includes, in practice, the European Union in respect of EU nationals). See Proetta v. Niel [1996] 1 I.R. 102 and Pitt v. Bolger [1996] 1 I.R. 108. The rationale behind that jurisprudence is that a plaintiff, though impecunious, must be entitled to bring and pursue a case. The awarding of security for costs against plaintiffs from outside the relevant area is based on the difficulty of recovering costs where the plaintiff is not readily amenable to the process of the Irish courts or other courts which, under the provisions of Regulation 44/2001, give a high level of recognition to orders (including cost orders) of the Irish courts. 4.21 It does, however, seem to me that there are important differences of principle between the position that pertains before a court of first instance and that which arises in respect of an appeal. It is well settled that it is, in the absence of some significant excusing factor, essential that an application for security for costs before a court of first instance be brought at an early stage. It is rightly considered that inducing a party to expend its own time and resources in bringing litigation close to trial only to spring an application for security for costs at a late stage would in itself be an unfairness which may well disentitle a party, otherwise entitled, to an order for security. Therefore, at the stage when the court will have to consider granting security in respect of a first instance trial, the proceedings will be at an early stage. In such circumstances the courts in this jurisdiction, and in other common law jurisdictions, have consistently warned against the danger of attempting to predict the likely outcome of proceedings given the experience that cases quite frequently look very different when the evidence has been heard and tested at trial than they might have appeared at an early stage in the process. It is for that reason that the court does not assess the relative strength of the parties' case but simply determines whether the defendant has shown a prima facie defence. 4.22 Likewise it seems unlikely that a party, at that early stage, could be said to have abused process. If the very commencement of the proceedings is itself an abuse of process then the appropriate remedy is to have the proceedings dismissed on that basis at that early stage. On the assumption that bringing the proceedings cannot be shown, of itself, to be an abuse of process then it is highly unlikely that a party could be shown to have a “track record” at such an early stage which would justify the court in concluding that the relevant party was going to abuse its position of impecuniosity by taking measures which would greatly increase the costs of its opponent in circumstances where the opponent was unlikely to recover those costs. While it might, in theory, be the case that a picture of procedural failure leading to an inference of abuse of process, might emerge as the case progresses, it seems to me that, on balance, a court could not reasonably be expected to entertain multiple applications for security for costs as the pre-trial process moves along which would only have the effect of distracting the parties from the important task of getting the case ready for trial and would also use up valuable court resources which could themselves be used for trying the actions of other litigants. It is for these reasons that the courts have not considered it appropriate to order security against a resident plaintiff. In any event, it seems to me, for the reasons which I set out in Salthill Properties v. Royal Bank of Scotland & ors [2010] IEHC 31, that if there are to be circumstances in which a court of first instance is to direct security for costs against an individual plaintiff within the jurisdiction (or the EU), the matter requires a considered rule change. 4.23 However, by the time a case gets to appeal the court has available to it a detailed account of the process which was engaged in by all parties before the court of first instance. Furthermore it is much easier for an appellate court to at least form some view on the likely chances of success or failure of an appeal. The facts have been found by the trial judge. Any argument that findings of fact which were important to the decision could not be sustained on appeal can only be directed to the limited basis on which this court can review findings of fact. Also questions of law will frequently have become more refined. The focus of the appeal will almost certainly be much narrower and much more direct than the case appeared in the early stage after commencement before the court of first instance. 4.24 In that context it is appropriate, in my view, to note the analogy with the position of the courts in respect of bail of accused persons. Prior to trial an accused person has a right to liberty (based on the presumption of innocence) unless a significant countervailing factor in accordance with the Constitution, the relevant legislation and the jurisprudence can be established. However after conviction (and even in the event of an appeal), the situation is quite different. The accused has had a trial. The accused has been convicted. Ordinarily the accused will not be admitted to bail pending appeal unless the Court of Criminal Appeal identifies exceptional factors such as an obvious flaw which makes the prospect of a successful appeal quite likely. Like considerations apply in civil litigation. A party who has lost before the High Court has had a trial. The court is in position to engage in an analysis, at least on a preliminary basis, of whether there is any reality to the appeal. 4.25 It is against the background of those general principles that it is necessary to turn to the specific jurisprudence as to the circumstances in which it is appropriate for the Court to direct security for costs against an individual appellant before this Court. 4.26 The leading case is Midland Bank Ltd v. Crossley-Cooke [1969] I.R. 56, where, at p.61, Walsh J., having reviewed relevant authorities up to that time, said the following:-
4.28 It seems to me that the passage from the judgment of Walsh J. in Crossley-Cooke already cited, needs to be seen in the light of the underlying principles behind the jurisdiction to award security for costs which I have already sought to address. The first point is simply a general comment. The second point made in that passage is that poverty alone is not sufficient to warrant the making of such an order. As already indicated if it were to be otherwise then impecunious parties would be debarred from prosecuting an appeal to the Supreme Court which would, for the reasons set out by Hamilton C.J. in Malone, be a disproportionate interference with what I would characterise as the right to fair process in the pursuit of an appeal to this Court from the High Court. 4.29 Next it is important to note that the third point made in Crossley-Cooke, to the effect that poverty, while not of itself sufficient, is an essential prerequisite for the making of an order, seems to me to stem from the fact that the only right of the respondent to the appeal that can properly be brought into the balance is the right of that party to some reasonable prospect of recovering costs in the event that they be successful. If the appellant has sufficient assets within the jurisdiction (or other relevant jurisdictions) to meet any likely claim for costs then there could be no possible basis for requiring security. 4.30 The fourth requirement, that there be no point of law of public importance, stems from the public policy requirement that no barrier be put in the way of ensuring that points of law of public importance are determined by the Supreme Court. 4.31 It is, however, the more general comments of Walsh J., concerning the special circumstances which need to be present in order that security be ordered that need, in particular, to be viewed against the backdrop of the general analysis of the relevant principles in which I have engaged. The overall approach, as noted by Walsh J., is that it requires some significant countervailing or special circumstance to justify the making of the order. The reason why that requires to be so seems to me to derive from the analysis of the constitutional rights engaged which appears earlier in this judgment. In order that a requirement that security for costs be provided might amount to a proportionate interference with the right of an appellant to this court to have a fair process in pursuing an appeal, it seems to me that two factors need to be present. First, there must be a countervailing potential interference with the right of the respondent such as would justify directing security for costs as a proportionate response to the situation shown to exist. Second, the nature and scope of the security directed must, itself, be a proportionate response to that situation. 4.32 Seen against that background the type of special circumstances identified by Walsh J. can be examined. The first circumstance noted is residence outside the jurisdiction. As already indicated the rationale behind that circumstance is the difficulty in enforcement of an order for security for costs outside the jurisdiction or, nowadays, the EU. The second circumstance mentioned is that there is no apparent prima facie ground of appeal. This stems from the fact that this Court will, for the reasons already analysed, have a much greater ability to assess whether there is, on the basis of the notice of appeal, any arguable grounds of appeal set forth. It should be pointed out that such a circumstance does not involve the court in finally determining the appeal, for it may be that some ground might emerge at the trial of the appeal itself. However, if the appellant is not able, on an application for security, to point to some reasonably arguable ground of appeal, then the potential impairment of the respondent's rights will be large for there will, in that eventuality, be a high degree of probability that the respondent is being exposed to an unnecessary appeal in circumstances where the respondent will not, in practice, be able to recover the costs of the appeal concerned. It will, of course, be the case that where the alleged absence of prima facie grounds of appeal is raised the appellant will have access to this court to address the basis of their appeal. 4.33 The long delays on the part of the appellant in the conduct of the litigation, mentioned as the next circumstance, might, in my view, be expanded to include cases where the conduct of the litigation up to the point of the consideration of the application for security demonstrates that, whether deliberately or due to the inability of the appellant to understand and properly comply with their obligations as a litigant, it is reasonable for the Court to infer that the respondent will not just be put to the ordinary costs of the appeal but will be put to larger costs than might reasonably arise by virtue of the likely continuing failure of the appellant to progress the appeal in an appropriate, focussed and reasonable manner in accordance with procedural law. The final example mentioned, being that of a nominal appellant, seems to me to derive from the same sort of circumstances that underlie the separate jurisprudence in respect of corporate plaintiffs. If the real parties who have an interest in pursuing an appeal are not before the Court and are not, therefore, likely to be exposed to any order for costs if the appeal fails, but will benefit by a successful pursuit of the appeal, then the same sort of considerations as arise in respect of an impecunious corporate appellant are present. 4.34 I should emphasise that it does not seem to me that the list of special circumstances identified by Walsh J. in Crossley-Cooke is exhaustive. As a result of the analysis which I have just conducted it seems to me that each of the cases mentioned are ones where there is, at least prima facie, a sufficient countervailing potential impairment of the right of the respondent to justify an order for security for costs notwithstanding the constitutional right of appeal and the right to a fair process in pursuing such an appeal which are involved. That is not to say that there may not be other circumstances where a similar risk of disproportionate injustice to the respondent may arise on the facts of an individual case. It seems to me that the overall question which the Court must ask itself is as to whether the special circumstance or circumstances identified by the respondent demonstrate a sufficient risk of added and unnecessary injustice (beyond the inevitable injustice that will apply to any respondent who successfully defends an appeal brought by an impecunious plaintiff) such as warrants the proportionate response of directing security for costs of a type or extent which itself is proportionate to the circumstances warranting the order in the first place. 4.35 In the context of special circumstances or countervailing factors not being a closed set it is appropriate to refer to some of the other, and more recent, authorities on which Bank of Ireland placed reliance. In Hidden Ireland Heritage Holidays v. Indigo Services Limited [2005] 2 IR 115, this court was concerned with an application under s.390 of the Companies Act 1963. There can be little doubt but that delay in moving for security was a significant factor in the rejection of the application in that case. However, Fennelly J., speaking for the court, also stated:-
4.37 Attention was also drawn to the decision of this court in Bula Limited v. Tara Mines Limited (unreported, Supreme Court, 26th March, 1998, Keane J.) in which reference is made to the making of serious allegations before the court of first instance, which were not backed up by any, or at least any credible, evidence. It seems to me again that that decision forms part of the same overall approach. A party who makes serious allegations which not only do not find favour with the court of first instance but which are not backed up by any credible evidence at all, has shown a tendency to abuse the process such as leads to the reasonable inference that such conduct will continue and that the respondent will be put to unreasonable and unnecessary expense in defending the appeal. It is, perhaps, appropriate to characterise the conduct analysed over the last five paragraphs as amounting to vexatious or oppressive conduct of litigation. 4.38 To the extent that it might be said that this court should act in a way which might prevent an abuse of process it must always be remembered that the primary carriage of an appeal in the common law system lies on the appellant. While, in modern circumstances, the court may be involved in case management, it nonetheless remains the position that a party who is either not able or not prepared to conduct the appeal in accordance with procedural law and ordinary practice will inevitably cause significant difficulties for the respondent almost certainly leading to that respondent being exposed to much greater costs than might otherwise be the case. 4.39 Against that general analysis of the jurisprudence it is necessary to return to the case made on behalf of Bank of Ireland and the response of Ms. Farrell to it. I, therefore, turn to the specific issues which arose on the papers filed in Court on this application and the oral argument. 5. The Issues 5.1 It was not disputed on the evidence that Ms. Farrell would be unable to pay the costs of Bank of Ireland if it were to succeed on the appeals. While Ms. Farrell makes very serious allegations of fact against Bank of Ireland in these proceedings generally and also makes serious allegations against a number of judges of the High Court who heard aspects of these cases and made the orders under appeal, there does not appear to me to be any point of law of significant public importance involved. Clearly if Ms. Farrell's allegations (or even some of them) were to be true, same would represent a serious situation. However, the fact that there is a serious allegation on the facts does not, of itself, turn a case into one involving a point of law of significant public importance. 5.2 On the basis, therefore, that inability to pay is established and no point of law of significant public importance arises, it seems clear that the real question which must be asked is as to whether the special circumstances asserted on behalf of Bank of Ireland are such as amount to a sufficiently significant countervailing factor such that the proportionate response to those circumstances, in the interests of justice, requires that security be given. Those circumstances amount to an allegation of vexatious or oppressive conduct in this litigation so far. The only other issue which arises is as to the basis, if it be appropriate to direct security, on which the amount of that security is to be calculated. I propose dealing with both issues in turn. 6. Is there a sufficient countervailing factor? 6.1 As pointed out earlier (see para 3.5) each of the arguments put forward on behalf of Bank of Ireland are a variation on a theme. The contention is that these proceedings have, to date, been carried on in a vexatious and oppressive manner which amounts to a sufficient special circumstance or countervailing factor which would justify ordering security for the costs of each of these appeals. It is to that case and Ms. Farrell's answer to it that it is necessary to turn. 6.2 It is important to commence by noting that Bank of Ireland did not invite the court to consider any alleged weakness in Ms. Farrell's appeals as a special circumstance or countervailing factor. For the reasons already analysed such a consideration is a matter that can, properly, be taken into account by this court in considering whether to order security for costs. Given that the question of the strength or weakness of the appeals was not before the court it seems to me that I should refrain from touching on any questions which might involve expressing a view on the merits of any of the individual appeals as such. However, that is not to say that an overall consideration of the course of these proceedings to date and the sort of appeals with which this court is now faced is not, for the reasons already analysed, an important factor which must be addressed. 6.3 It is striking that quite a number of the appeals analysed in section 2 of this judgment amount to appeals directed against procedural orders or directions of various judges of the High Court. While there are, of course, circumstances in which this court can and should entertain an appeal against such orders and directions, the clear and consistent overall approach of this court is as set out in In Re Irish Life & Permanent Group Holdings plc and The Credit Institution Stabilisation Act, 2010, Dowling & ors v. Minister for Finance [2012] IESC 32. In section 3 of my judgment in that case I noted what I described as "the undoubted jurisprudence of this court to the effect that an appellate court should be slow to interfere with case management directions made by the court of first instance". I went on to note that the test which should be applied was that the relevant measures under appeal created a substantial risk of significant procedural unfairness coupled with the likelihood that no remedial action could be put in place either by the trial judge or by this court on appeal which would have the effect of significantly remedying any unfairness which might be demonstrated to have occurred. The reference in that latter comment to an appeal to this court was, of course, to an appeal which might occur after final orders had been made in the High Court and when this court is required, if the question is raised on an appeal, to assess the overall fairness of the process which led to the making of the orders concerned. 6.4 The bringing of very many appeals against procedural directions of the High Court is itself potentially an oppressive means of conducting litigation and is a factor which can, in my view, properly be taken into account by this court in assessing whether security for costs is to be ordered. It remains oppressive to mount such a large number of appeals against individual procedural orders even if there might, to some extent, be some merit in some of the points raised. The proper conduct of litigation requires parties to engage with the process in the High Court, to comply with procedural directions given by that court, and to only invoke the appellant jurisdiction of this court either at the end of the process or in the very limited circumstances where the jurisprudence of this court permits a review of individual procedural and case management directions. The fact that two of the appeals listed earlier appear to have been mistaken as to the order appealed against, thus necessitating two further appeals on the same point, only goes to exacerbate the situation. 6.5 Second, it must be said that a careful review of the detailed chronology of events in the High Court in this case does reveal a very significant number of occasions when Ms. Farrell failed to comply with procedural directions as to the timing of the filing of documents. It is, of course, the case that parties can miss directed filing dates. However, persistent failure can lead to an unnecessary prolongation of proceedings and a significant increase in costs with hearings having to be rescheduled or adjourned to accommodate the situation which has arisen by reason of the failure to file on time. A point can be reached where such persistent failure amounts to the oppressive conduct of litigation. It is the very sort of factor on which significant weight can be placed in an application such as this. As pointed out earlier past conduct which gives rise to a reasonable inference that it will continue into the future leading to an unnecessary increase in the costs of defending an appeal (in circumstances where, if successfully defended and costs awarded, the increased costs thus incurred will not, in practice, be recovered) is the very sort of factor which this court must take into account. Without dealing with each and every individual instance cited in the papers it is impossible to reach any conclusion other than that there have been significant and persistent failures to comply with procedural directions which must have had the effect of significantly increasing the costs of Bank of Ireland to date. There is no reason to believe that the situation on these appeals will be any different. 6.6 Indeed, in that context, it is of some relevance to note that, when these motions first came before the court, directions were given as to the time within which Ms. Farrell was to file her replying affidavit. That time limit was not met leading to an adjournment of the hearing of these applications which, because of the fact that it turned out to be possible to find another slot in this court's busy schedule within a week of the original date fixed (a situation which would, by no means, always be the case) did not lead to any significant delay in the hearing of this application. 6.7 In seeking an extension of time to file her affidavit Ms. Farrell drew attention to the very lengthy nature of the affidavit which was then under preparation. On that basis an extension of time was granted. The court has now had the benefit of reading that affidavit. There can be little doubt that, because of its length, it would have taken some significant time in preparation. However, it also needs to be noted that at least a significant amount of the material contained in that affidavit is of either no, or of only highly tangential, relevance to the specific issues which arise on an application for security for costs. It does not seem to me that an affidavit which focussed on the real questions of fact which needed to be addressed on this application required to be anything like as lengthy as the one ultimately filed and indeed an affidavit that was so focussed could almost certainly have been prepared and filed within the timescale originally directed. 6.8 That leads logically to the next issue. In the course of the hearing before this court the Chief Justice, and other members of the court, repeatedly invited Ms. Farrell to concentrate her submissions on the issues which arise on an application such as that with which the court was concerned. Whether because of being unwilling or unable, it has to be recorded that Ms. Farrell did not do so. Indeed, her submissions to this court on these applications displayed a singular lack of ability to focus on the questions which the court had to address. To take but one simple example, Ms. Farrell was asked as to whether there were special circumstances in the case. She replied that there were, clearly unaware of the fact that it was for Bank of Ireland to establish special circumstances in order to justify an order for security for costs and that the absence of special circumstances would have allowed her to successfully resist the application. While it might be said, with some validity, that not every lawyer would understand the precise use of the term "special circumstances" in the context of an application to this court for security for costs, this was a case where the written submissions already filed on behalf of Bank of Ireland had made clear that Bank of Ireland accepted that it had to establish special circumstances in accordance with the jurisprudence in order to justify the order sought. Likewise even a cursory investigation of the relevant principles as set out in the standard textbook of Delaney & McGrath would make the meaning of "special circumstances", in the context of an application such as this, clear. The court was here not involved in some arcane and almost impenetrable area of the law. The court was concerned with basic and readily understandable principles discernible from the standard textbooks and clearly acknowledged as a burden lying on Bank of Ireland in the bank's own written submissions. It can only be concluded that the above represents a complete failure on the part of Ms. Farrell to be prepared to engage with the process. Other examples from the hearing could readily be given. 6.9 Indeed, the hearing itself provided further examples of the problems likely to be encountered both by the court and by Bank of Ireland in the conduct of these appeals. In commenting on the refusal by Murphy J. to make the order sought on the data protection motion Ms. Farrell, in quite strong terms, questioned whether the rule of law itself could be said to have been upheld by the trial judge given that he was, as she correctly indicated, a judge of a court which under the Constitution (Art. 34.3.1) has full original jurisdiction. However, apart from the fact that the relevance of that submission to the issues which this court had to consider is not obvious, it also needs to be noted that it betrays a fairly fundamental misunderstanding of the meaning of the term "full original jurisdiction" as used in the Constitution. Again, while there may be many interesting questions as to the precise application of that provision, it is clear from the consistent jurisprudence of this court as to the meaning of the full original jurisdiction of the High Court, that the Oireachtas is competent to confer exclusive jurisdiction on lower courts or other bodies provided that the manner of conferring the relevant jurisdiction is consistent with the Constitution. Again, a reading of standard textbooks such as Kelly The Irish Constitution 3rd Ed. (Hogan & Whyte) at pp.408-420 makes this clear. There is, therefore, no reason in principle why the Oireachtas cannot create a statutory scheme with its own means of enforcement and implementation and where the role of the High Court, in exercise of its full original jurisdiction, is confined either to judicial review or such statutory appeals as the scheme may put in place. 6.10 It may, of course, be a question of interpretation of any particular piece of legislation as to whether the legislation in question does, in fact, confer all relevant jurisdiction on some lower court or other body. As there is an appeal before this court on this point I do not express any view on the question of the precise interpretation of the relevant data protection legislation. However, if, as Bank of Ireland asserts, and it can, I think, be said that it is at least not a vexatious submission, the data protection legislation provides its own enforcement mechanisms, then it is clear from the jurisprudence of this court that the High Court would not, in that eventuality, have any jurisdiction to make an order of the type sought and refused by Ms. Farrell in the High Court. As is clear from the standard textbooks it is a question to be answered in respect of each individual piece of legislation as to whether there has been a constitutionally permissible determination by the Oireachtas that the High Court is not to have any role in dealing with the questions raised under that legislation other than judicial review and such statutory appeals as may arise. 6.11 If, on the proper construction of the legislation concerned, the High Court has no larger role, then it is in fact an upholding of the rule of law for the High Court to decline jurisdiction, for in so doing the High Court is respecting a validly enacted piece of law. While again it might be said that this is an area of law with which not every lawyer would be instantly familiar, having regard to the fact that the general principles which I have set out are hardly controversial and are to be found in standard textbooks, it is surprising that a lawyer, who has chosen to present her own case in the Supreme Court and to make the serious suggestion that a judge of the High Court had not upheld the rule of law, had not at least acquired a basic familiarity with such principles. Unfortunately, this is yet again another example of the unwillingness or inability of Ms. Farrell to focus on the issues properly arising and her inability to avoid unnecessary diversions into areas with which she is clearly unfamiliar. While dealing with this topic it should, of course, also be mentioned that the normal way in which any party to litigation has access to relevant documentation in the possession of its opponent is by bringing an application for discovery of documents in the ordinary way. That procedure entitles any party to obtain relevant documentation. A party does not, therefore, need to invoke the provisions of the data protection legislation to obtain documents which are relevant to issues which arise in existing litigation. 6.12 Of slightly more direct relevance to at least some of the issues which arose on this application but, unfortunately, betraying a similar lack of understanding of fairly basic principles, Ms. Farrell was, at the hearing, at pains to point out that, in her view, what she alleged was a failure of disclosure on the part of Bank of Ireland when the special summons was before the Master could have led the Master to fail to make a decision that the proceedings were not suitable for summary disposal. That submission, which was made on a number of occasions and at some length, betrays a fundamental misunderstanding of the role of the Master of the High Court in special summons proceedings. The Master has no determinative role in such proceedings. Rather, as is again pointed out in Delaney & McGrath, if, as here, the defendant enters an appearance then the function of the Master is to ensure that such replying affidavits as the parties may wish are exchanged and then transfer the matter into the judges' list. It is simply not the case, and this is again absolutely clear from the standard textbooks and the Rules of the Superior Courts, that the Master has a function in deciding whether a special summons case is suitable for summary determination. It is true that it is possible for special summons proceedings to be adjourned for plenary hearing. (See O.38 R.9). However, in the absence of consent, that matter is dealt with by the court. A very significant amount of the submissions made by Ms. Farrell to this court on the hearing of these applications were, therefore, based on a fundamental misunderstanding of a fairly basic aspect of High Court procedure. 6.13 Towards the end of her submissions Ms. Farrell complained that she did not have adequate time. The truth is, however, that a great deal of her submissions were directed towards issues which did not arise on these applications or were based on misunderstandings or misapprehensions about fundamental procedures and principles. It is, of course, the case that the courts have always extended some additional reasonable leeway to persons who represent themselves. While the leeway may not be quite so great in the case of a lawyer who acts as his or her own advocate nonetheless the court will take into account the fact that such a lawyer will not necessarily have the same familiarity with practice, procedure and relevant legal principles as might an advocate expert in the area of law arising. However, there must be a limit to the extent to which allowances can be made. A party, whether lawyer or not, who chooses to represent themselves (whether out of necessity or not) carries an obligation to at least make reasonable endeavours to focus on the issues which arise on the particular application, to familiarise themselves, as best they can (and in this case the burden on a lawyer will necessarily be higher), with relevant legal principles and to conduct the hearing or litigation in accordance with the directions of the court and not in a manner which adds unnecessarily to the costs of an opposing party. 6.14 Many more examples beyond those addressed in this judgment could be given. It is reasonable to conclude that, in the conduct of this litigation to date, Ms. Farrell has fallen significantly short of those obligations in a way which must necessarily have significantly lengthened the proceedings and the costs of her opponents. It is reasonable to infer, not least by the manner of the conduct of the hearing with which this judgment is concerned, that that situation is likely to continue. It is reasonable to infer, therefore, that this appeal is likely to be conducted in a way which will lead to significantly more costs being incurred by Bank of Ireland than ought reasonably be the case. In circumstances where it is clear that, in the event that Bank of Ireland succeed and have costs awarded, those costs will not be recovered, that is a significant factor to which weight needs to be attached. 6.15 I next propose turning to the two additional aspects of the conduct of Ms. Farrell on which reliance is placed being the attempt to bring criminal prosecutions and the correspondence with counsel for Bank of Ireland. 6.16 The facts in relation to the first of those issues have already been set out. I am not here concerned with whether Charleton J. was correct in quashing the relevant summonses. That question will arise on the substantive appeal. However, it is important to note that, at the time when Ms. Farrell caused the relevant criminal summonses to be issued, these proceedings, and indeed her own plenary proceedings in the High Court, were still in existence. So far as her own proceedings were concerned, same were pending before the High Court and involved issues concerning the underlying transactions which gave rise to her apparent indebtedness to Bank of Ireland. So far as the special summons proceedings were concerned same had been dismissed but an appeal was pending to this court. In such a situation it seems to me that seeking to issue criminal proceedings arising out of allegations which are either still for consideration by the High Court or arise out of allegations of perjury in the context of proceedings still in being, can only be characterised as the oppressive conduct of litigation. 6.17 Where a party feels that orders of the High Court have been improperly obtained, then the proper remedy is either to pursue an appeal to this court or, in certain circumstances, to bring proceedings before the High Court seeking to have orders made by that court set aside on the grounds of fraud (see for example Tassan Din v. Banco Ambrosiano SPA [1991] 1 IR 569). There are ample procedures available to a party who genuinely wishes to have litigated on a stateable basis a question as to whether a judgment has been properly obtained. 6.18 In the event that civil proceedings have finished there might not, indeed, be any basis for suggesting that the commencement of criminal proceedings against persons involved in the civil proceedings was oppressive (although the question of whether such criminal proceedings could be maintained in the light of the result of the civil proceedings, as long as the judgment stood, would arise). However, it seems to me that the only possible reasonable characterisation of the attempt to bring these criminal proceedings, while the civil proceedings were still pending, is that the criminal proceedings were designed to bring inappropriate pressure on the individuals concerned and thus amount to a further instance of the oppressive conduct of these proceedings. 6.19 So far as the communication with counsel for Bank of Ireland is concerned, it seems to me that like conclusions can be reached. Ms. Farrell was at great pains, in the course of argument, to lay emphasis on what she said were her duties as an officer of the court. However, it seems to me that her conduct in this case comes within that described in Domican v. AXA Insurance Ltd. [2007] IEHC 14. In that case I said the following:-
…
The reference to a different conclusion is a reference to a conclusion that the actions of AXA in the case concerned could not be characterised as amounting to a material or significant interference with the solicitor/client relationship on the facts of the case in question. 6.20 The legal principles are, therefore, clear. Ms. Farrell's duty as an officer of the court was to refrain from taking any action which might interfere with the relationship between Bank of Ireland and its counsel. It is impossible to characterise her correspondence with counsel for Bank of Ireland as having any intention other than to intimidate. It follows that, in writing that correspondence, Ms. Farrell also engaged in a significantly oppressive means of conducting this litigation. 6.21 It is also important to note that, save to the very limited extent addressed in this judgment, Ms. Farrell did not at the hearing really focus on the real issues which arose on this application and confined herself to repeating wide-ranging allegations against Bank of Ireland, its officials and lawyers and, indeed, a number of judges of the High Court. If this judgment does not set out in detail and deal with Ms. Farrell's argument on this application it is simply because, to a significant extent, she did not really make any argument that was material to any of the issues raised. 6.22 Likewise, it does need to be recorded that there is an obligation on a party, whether a lawyer or not, or whether representing themselves or not, to conduct themselves in the course of oral hearing before the court in accordance with proper process and in a way which both engages with the real issues which the court has to decide and does so in an appropriate manner. It as to be said that, in some respects, Ms. Farrell's conduct at some of the hearings in the High Court, of which transcript evidence was placed before this court, fell well short of that standard. 6.23 The overall conclusion which it is reasonable to reach is, therefore, that Ms. Farrell has conducted this litigation in a significantly oppressive manner and is, despite the best efforts of the courts, likely to continue to do so. It follows that there is a significant countervailing factor in this case which makes it proportionate for the court to make an order for security for costs. 6.24 At the level of principle it seems to me that it would be open to this court to consider making an order for security in respect of all of the appeals. However, as indicated earlier, it is appropriate for the court not only to consider whether the making of an order for security for costs is a proportionate response to the special circumstances established but also to consider what precise type of order for security represents such a proportionate response. I, therefore, turn to the question of the type of order for security for costs that should be made on the facts of this case. 7. What Order for Security for Costs should be made? 7.1 In the context of this question it is, perhaps, appropriate to note that there is an underlying dispute between Ms. Farrell and Bank of Ireland arising out of their banking relationship which remains before the High Court in the form of the plenary proceedings and which raises, at least arguably, issues relevant to the special summons proceedings which are before this court on appeal. It is not appropriate for me at this stage to make any comment as to the merits or otherwise of Ms. Farrell's case on that underlying dispute. 7.2 Against that background it is, perhaps, appropriate to distinguish between that underlying dispute, on the one hand, and the multiplicity of appeals deriving, at least in significant part, from the oppressive conduct of these proceedings already identified, on the other. 7.3 In that context it seems to me that an appropriate approach, which would be proportionate in all the circumstances, would be to direct security for costs in respect of each of the individual appeals currently before this court with the exception of Ms. Farrell's appeal against the decision of McGovern J. in relation to the substantive order in the special summons proceedings. Such a course of action would place no barrier in Ms. Farrell's way in pursuing that appeal. However, the proliferation of appeals with which this court is now faced stems, at least in material part, from the oppressive conduct of this litigation to date. In those circumstances if Ms. Farrell wishes to pursue those other appeals then she will have to provide security. 7.4 As to the amount of the security to be provided it is true that this court has, in the past, identified a practice which suggested that security in the amount of one third of the costs estimated as being likely to arise should be ordered, (see Thalle v. Soares & ors [1957] I.R. 182 and Fallon v. An Bord Pleanála [1992] 2 I.R. 380). It is not clear as to what the origins of that practice may have been, (see Harlequin Property (SVG) Ltd & anor v. O'Halloran & anor [2012] IEHC 13). 7.5 Two points need to be made. First, it seems to me that a real question arises as to whether the analysis contained in those cases is of continuing validity. It is suggested in Fallon that an order fixing the level of security at one third of the likely costs concerned is a response to the fact that an order for security can have the effect of preventing a party from pursuing its appeal. However, it seems to me that any impediment which an order for security might impose on the ability of an appellant to be able to fully pursue their appeal on the merits is a factor which must have already been taken into account in deciding whether to order security in the first place. There might well, for example, be an appropriate distinction to be made in cases involving foreign litigants (i.e. those outside the EU) between those who have assets (even though outside the relevant jurisdiction) and could provide security (where the only problem is the availability of those assets within the jurisdiction so as to be readily available to meet any order for costs) and those who do not have sufficient assets at all, where the ordering of security might, in practice, bring the proceedings or appeal to an end. However, such factors must be considered by the court in deciding whether to grant security in the first place. There may well, therefore, be an argument that this court should not arbitrarily reduce the amount of security ordered, below a realistic estimate of the likely full costs of the appeal, without a sufficient reason to justify such a course of action. However, as this point was not fully argued in the application in this case and in the light of the existing jurisprudence to which reference has already been made, I would propose dealing with this case in accordance with the existing jurisprudence and leave over to another case the question of whether that jurisprudence requires to be revisited. 7.6 That leads to the second point. It is clear that the existing jurisprudence does allow, in an appropriate case, a departure from the so called "one third rule". It seems to me that, in determining whether there should be such a departure on the facts of an individual case, the court should attempt to fashion an order for security which is proportionate in all the circumstances. In acknowledgement of the fact that it is the proliferation of the appeals (as an incidence of the generally oppressive manner in which these proceedings have been carried on) rather than the fact of appeals themselves which has caused concern, it seems to me that, on the facts of this case, a proportionate response will be to require security in respect of all of the appeals in relation to which security is being ordered amounting to 50% of the sum estimated in the evidence tendered on behalf of Bank of Ireland to this court. 7.7 The following table sets out the calculation in each of the appeals.
8. Conclusions 8.1 In conclusion I am satisfied that the factors analysed in this judgment amount to sufficient countervailing circumstances as make it proportionate to direct security for costs against Ms. Farrell. 8.2 I am also satisfied that a proportionate response requires that security be given in respect of each of the appeals with the exception of the appeal against the order of McGovern J. on the substantive special summons hearing and that the amount of security should be as set out in the table included in this judgment. As the appeals against the various interlocutory orders made are so closely connected a single order for security in respect of each of those appeals is appropriate. 8.3 It follows that each of the appeals, with the exception of the appeal against the order of McGovern J., must be stayed until such time as that security is provided. |