The High Court has refused an application by O’Shea Fishing Company Limited and Fintra Investments Limited to require a fisherman living in Australia to provide security for their legal costs in an employment dispute.
Mr Justice Binchy delivered the judgment on 9 June 2015. The defendants applied by motion in June 2013 under Order 29, rule 1 of the Rules of the Superior Courts. The application was heard on 17 April 2015. The plaintiff accepted, for the purpose of the motion, that the defendants had a prima facie defence.
The underlying claim concerns the alleged wrongful termination of the plaintiff’s employment on or about 14 July 2008. He says he began working for the first defendant around 2000 and that, after its business transferred to the second defendant in 2002, he either remained employed by the first company or transferred to the second on the same terms. The companies dispute that employment relationship, arguing that fishing vessel crew paid a share of the catch may be partners in a joint venture rather than employees. The court did not decide those issues in this application.
The plaintiff says the 2008 notice requiring crew members to remove their belongings and return company property amounted to termination. He says he then had to emigrate to find work and is now a vessel skipper in Australia. The judgment records that his gross income for the year to 30 June 2012 was AUS$118,741, approximately €78,000. He argued that security could prevent his claim reaching a hearing. He also argued that the companies’ conduct led him to leave Ireland, but the judge found he had not provided evidence of efforts to find alternative work within the jurisdiction.
The judge focused on delay. The statement of claim, served on 15 March 2012, said the plaintiff lived in Western Australia and included an estimated €10,000 emigration cost among his claimed special damages. The defendants’ security motion followed on 28 June 2013, after the parties had taken steps including pleadings, requests and replies for particulars, and discovery.
Mr Justice Binchy concluded the defendants should have requested security without delay after receiving the statement of claim and, if it was not provided, brought their motion soon after. By waiting, they allowed the plaintiff to incur considerable litigation expense; the case was described as all but ready for hearing apart from the motion. The judge refused the application as unjust at that stage. The judgment did not determine the merits of the employment claim.