The High Court has refused an application by FÁS for security for costs in a case brought by Euro Safety and Training Services Limited, allowing the proceedings to continue without the upfront payment sought.
Mr Justice Max Barrett’s judgment, delivered on 5 April 2016, concerned a procedural application under section 52 of the Companies Act 2014. The judge did not decide whether FÁS had committed any wrongdoing or whether Euro Safety would succeed at trial.
Euro Safety alleges that after it gave FÁS information about the unauthorised activities of a rival training company in or about 2002, it was blacklisted and denied opportunities to provide training and assessment courses. It claims reputational and financial losses and alleges negligence, breach of statutory duty and misfeasance in public office by FÁS and its staff. FÁS denies wrongdoing and has pleaded defences.
FÁS argued that Euro Safety would be unable to pay its costs if it successfully defended the case. Its estimated costs were about €601,000. The judgment recorded that Euro Safety’s 2013 balance sheet showed net assets of about €57,000. The parties accepted that FÁS had a prima facie defence and that Euro Safety could not meet FÁS’s costs if FÁS won. Euro Safety said an order for security would effectively end its case.
The judge also found, on a prima facie basis, that Euro Safety’s inability to pay could flow from the wrongdoing it alleged. He considered a report estimating profits the company said it would have made without the alleged blacklisting to meet the required threshold; FÁS had produced no report to counter its figures.
The application was brought about two years and eight months after the proceedings began. The judge described the delay as significant and found no convincing explanation, although he gave it less weight than the other considerations.
The decisive factor was the public interest in having detailed and serious allegations of misfeasance in public office examined and adjudicated upon, even though FÁS denied them. The court considered the case exceptional in its own way, while distinguishing it from cases involving greater public scandals. It therefore declined to order security for costs. The judgment made no finding on the underlying allegations, which remain for determination in the proceedings.