Effect Of Brexit On Security For Costs Applications In Irish Courts

• Published date: 19 February 2024
• Law Firm: RDJ LLP
• Author: Mr Ronan Geary and Conor Beck

A recent High Court decision, delivered by Ms Justice Bolger, in Henderson v Dublin Airport Authority T/A DAA Public Ltd Company & Anor (Approved)[2024] IEHC 29, has strongly suggested that Brexit may have a material effect on the position of a UK Plaintiff before the Irish Courts where a Defendant seeks an order for security for costs against them.

What is Security for Costs?

Security for costs arises where a Defendant in a case has a concern that the Plaintiff who is suing it, should that Plaintiff be unsuccessful in its proceedings, will not be in a position to make good on any award of costs ultimately made against it. Accordingly, by making such application, the Defendant seeks that the Plaintiff should have to put up security for any potential future costs Order that might be made against it, before that Plaintiff is permitted to continue with its claim.

An application for security for costs can be made by a Defendant pursuant to Order 29 of the Superior Court Rules.

Order 29 has been the subject of substantial case law and (in the case of companies, legislation) which has clarified and refined in what circumstances security for costs can be sought. Essentially the present position appears to be that:-

• Security for costs can be sought against
  • a limited company, or
  • a company or individual based out of the jurisdiction;
• Where the Defendant seeking the Order can show
  • it has a bona fide defence if the case runs; and
  • There is a real risk that it would...