About this case:

• Citation:
  [2024] IEHC 29
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Marguerite Bolger

Delivering judgment for the High Court, Ms Justice Marguerite Bolger highlighted that “the question is whether it would be more difficult or expensive than enforcing such a costs order in Ireland. Whilst the plaintiff avers at para. 9 of her affidavit, that the UK is ‘the neighbouring jurisdiction with the same legal system and language being used’ it is, very significantly, no longer part of the EU and therefore not within the Brussels Convention on the Enforcement of Judgments.”

Background

The plaintiff claimed in her personal injuries summons that she sustained injuries due to negligence, nuisance and breach of duty of the defendants whilst she was descending an escalator in Dublin Airport.

The plaintiff claimed in the alternative that as her alleged injuries were sustained in the course of embarking a Ryanair aircraft on which she was scheduled to fly, the second defendant was liable under the Air Navigation and Transport (International Conventions) Act 2004 and the Montreal Convention 1929.

The first defendant made an application for security for costs pursuant to Order 29 of the Rules of the Superior Courts, contending that it had a bona fide defence on the basis that the plaintiff, having pleaded that she was in the course of embarking a Ryanair aircraft at the time of the incident, was precluded from pursuing any claim against the first defendant and was confined to suing the second defendant alone.

The High Court

Ms Justice Bolger began by setting out Order 29, Rule 3 of the Rules of the Superior Courts, which states that “no defendant shall be entitled to an order for security of costs by reason of any plaintiff being resident out of the jurisdiction of the Court, unless upon a satisfactory affidavit that such defendant has a defence upon the merits”.

Emphasising that the court has “an additional discretion to refuse security for costs in special circumstances”, Ms Justice Bolger noted those circumstances as “including an inability to provide the security due to the defendant’s wrongs…”.

The plaintiff’s affidavit asserted that she would be in a position to pay any costs order should such an order be made against her, and that it would be both “possible and straightforward” for the first defendant to engage with the UK legal system in order to recover its costs if necessary.

In response to the first defendant’s draft defence, the plaintiff contended that she was entitled to plead her case in the alternative — both that she was injured on the first defendant’s premises due to its negligence, or that she was injured during in the course of boarding the second defendant’s aircraft.

The court considered the judgment of the Court of Appeal in Bell v. DAA [2016] IECA 384, emphasising that “the court, having found that the plaintiff sustained her injuries when disembarking from the airplane, held (at para. 42) that ‘she can only bring her claim subject to the conditions of the Convention’… and was therefore restricted to proceeding against the airline only”.

Ms Justice Bolger considered that whilst advancing a plea in relation to the Convention as an alternative “does not render the first defendant’s defence in relation to the Convention any less bona fide”, it would be a matter for the trial judge to decide whether the plaintiff has any claim as against the first defendant in light of Bell and depending on where the accident occurred.

Nonetheless, the judge considered that “that does not alter the fact that the first defendant has established, in an appropriate affidavit, the prerequisites of O.29 i.e. that the plaintiff resides outside the jurisdiction and that it has a bona fide defence… neither claims are denied by the plaintiff”.

The court proceeded to a consideration of whether the plaintiff had established any special circumstances concerning her ability to pay security due to the first defendant’s wrongdoing, finding that “no such claim is made by her. She clearly deposes to her ability to pay costs albeit she has sustained a loss of a bonus of approximately STG£12,000 as a result of excessive sick leave but, significantly, in her replies to particulars she says she is making no claim for loss of earnings in these proceedings. The relevance, therefore, of this loss of bonus is unclear and does not establish the necessary special circumstances to refuse the order being sought.”

In response to the plaintiff’s contention that it would be straightforward for the defendant to enforce an order for costs against her through the UK courts system, Ms Justice Bolger noted that the UK is no longer a member of the EU and so is not within the Brussels Convention on the Enforcement of Judgments, an issue which is relevant in light of Quinn Insurance Ltd (Under Administration) v. Pricewaterhousecoopers [2021] IESC 15 and Be-Spoke Capital AG v. Altum Capital Management LLC [2022] IEHC 524.

Conclusion

Accordingly, Ms Justice Bolger determined that the first defendant was entitled to an order for security for its costs, the proportion of which remained to be decided.

Henderson v. Dublin Airport Authority t/a DAA Plc and Ryanair Dac [2024] IEHC 29