The Court of Appeal refused an application by Chris Gordon for security for the costs of an appeal by the Irish Racehorse Trainers Association (IRTA), finding that an order would prevent the association from pursuing its appeal.
The application followed a High Court jury trial in which the jury found six publications defamatory and found malice in relation to four of five publications for which qualified privilege had been pleaded. It awarded Gordon €300,000: €200,000 in general damages, €50,000 aggravated damages and €50,000 exemplary damages. The High Court also ordered the IRTA to pay Gordon’s costs in full. The IRTA appealed the verdict, rulings made during the trial and the costs order. The appeal itself was not decided in this judgment.
Gordon sought security for his appeal costs under Order 86, Rule 9 of the Rules of the Superior Courts. The IRTA accepted that it could not pay those costs if it lost the appeal. The court considered it impecunious, noting that its 2019 accounts showed net assets of €252,173 and that Gordon’s costs accountants estimated his appeal costs at about €250,000. The parties also accepted that the appeal was stateable and that Gordon had a prima facie defence to it.
The judge concluded that the issues raised by the IRTA did not amount to questions of law of such public importance as to prevent an order for security. He also rejected Gordon’s arguments that the nature of the defamation case, the association’s conduct during the trial, the appeal’s prospects, or the IRTA’s status as a limited liability company amounted to special circumstances. The court said poverty alone was insufficient, and the IRTA’s corporate status did not change the applicable test.
The court considered whether security would stifle the appeal. The IRTA’s chief executive, Michael Grassick, said an order would shut the association out of appealing. The court accepted that evidence, noting that its lawyers had not been paid in full for the High Court litigation, its income had been affected by the Covid-19 pandemic, and Gordon had identified no alternative source of funding. The judge said the evidence was sufficient even if the IRTA bore the burden of proving that security would prevent its appeal.
The application was refused. The judge’s initial view was that the costs of the application should be reserved to the appeal, with either party able to seek a different order within five days.