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‘High Court decision shows Brexit side effects’

Lawyers at RDJ have highlighted a recent High Court decision as a reminder of “the many, unintended, and uncontemplated side effects of Brexit”.

The case involves a plaintiff based in Britain who is taking legal action against airports operator DAA over a claim that she suffered injuries in Dublin Airport. The DAA is fully defending the claim.

In her decision, Ms Justice Bolger (pictured) ordered that the plaintiff would have to put up security for costs in order to proceed with the claim.

In a note on the firm’s website, RDJ partner Ronan Geary explains that security for costs arises where a defendant in a case has a concern that a plaintiff who is unsuccessful will not be able to pay any costs ultimately awarded against it.

By making such an application, the defendant seeks that the plaintiff put up security for any potential future costs order before being allowed to continue with its claim.

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In this case, Ms Justice Bolger stated that the DAA had satisfied the pre-requisites for a defendant seeking security, by demonstrating that the plaintiff lived outside the jurisdiction, and that it had a bona fide defence if the case ran.

The judge also, however, accepted that the plaintiff had successfully shown that she had the resources to meet an award of costs made against her at the conclusion of the proceedings.

This left only the issue of whether security for costs could nonetheless be ordered due to a greater difficulty or expense in enforcing any costs order against the plaintiff, because of her living in Britain.

‘Difficult and expensive’

“The plaintiff has confirmed her ability to pay any costs order that may be made against her, but the enforcement of any such order will be more difficult and expensive for the first defendant, as it will have to be made in the UK, a non-EU jurisdiction,” Ms Justice Bolger stated.

“Very significantly,” she added, Britain was, because of being outside the EU, not within the Brussels Convention on the Enforcement of Judgments.

RDJ pointed out that, given the extent of business and travel between Britain and Ireland, there were always going to be a significant number of British litigants pursuing claims in the Irish courts at any given time.

“It now appears that such UK-based litigants can expect to be asked to put up security for costs in many such cases on foot of this decision,” the firm’s lawyers concluded.