The High Court has refused an application to require Maria Keena to provide security for the costs of co-defendants in her action over the proposed purchase of the Ard Rí Hotel in Waterford.
In a judgment delivered on 21 December 2017, Mr Justice Max Barrett held that the evidence did not establish that Ms Keena was a nominal plaintiff acting for someone else. He also found that the co-defendants had not shown she would be unable to pay their costs if her claim ultimately failed.
Ms Keena’s substantive claim seeks specific performance of an alleged agreement to buy the hotel for €1.6 million. She says the agreement was made on 21 November 2016 and that she paid a non-refundable deposit of €160,000. She claims the defendants later told her they would not sell the hotel to her. These are claims in the underlying proceedings; the judgment did not decide whether the alleged agreement existed or determine the specific performance claim.
The co-defendants said a later agreement, dated 16 March 2017, provided for the hotel to be sold to Kilkenny Walsh Limited for €1.5 million, and that the sale contract had been executed and the full price paid. They sought security for costs under Order 29 of the Rules of the Superior Courts.
Their application relied in part on discovered financial documents referring to Treacy family members and companies. They argued the material suggested that the beneficial interest in the alleged purchase and the claim belonged to others. Ms Keena said her maiden surname was Treacy, that she was among the family members mentioned, and that she had an interest in a Treacy family company.
The judge said the documents could indicate that family members or family-owned companies might help fund the purchase. But that did not establish that Ms Keena lacked the beneficial interest in her own cause of action. He concluded it was more likely than not that she was the person beneficially interested in the claim, and said the evidence fell short of showing she was a sham or nominee plaintiff.
The court also considered her accountant’s statement of assets and liabilities, which put her net assets above liabilities at €1,280,114. The co-defendants challenged some listed assets. Even after discounting the assets they objected to, the judge said the remaining figure of €554,014 was a multiple of their estimated defence costs of €137,950 plus VAT. The court’s alternative conclusion was that inability to pay had not been established, even if Ms Keena were a nominal plaintiff.
The court declined to order security for costs. It did not decide the merits of the hotel purchase dispute.