The High Court has refused Aviva Insurance Limited’s application for two appellants to provide security for its costs while they appeal a Circuit Court decision arising from a road traffic accident claim.
Ms Justice Creedon ruled on 26 January 2018 that the application failed at the first part of the legal test because both appellants were ordinarily resident in the United Kingdom. The court also refused Aviva’s request to adjourn the application while the UK’s departure from the European Union was being negotiated.
The underlying claim concerned an accident alleged to have occurred on 24 June 2012. The Circuit Court President, Judge Groarke, had found that the accident was fraudulently staged by the appellants and dismissed their claim. That was the prior decision under appeal; the High Court judgment addressed only Aviva’s application for security for costs.
Aviva sought the order under Order 29 of the Rules of the Superior Courts. The judgment records that it relied on Supreme Court authority concerning the balance between a defendant’s ability to recover costs and a plaintiff’s access to the courts, as well as the relevance of the appeal stage.
The appellants argued that the governing two-part test was not met because they lived within the European Union. Under that test, the plaintiff must ordinarily reside outside the relevant jurisdiction and the defendant must have a prima facie defence on the merits. The court retains discretion to refuse security even if both conditions are met.
Justice Creedon concluded that the first condition was not satisfied. She said Irish cost orders were readily enforceable across the EU and that extending security orders to plaintiffs resident within the Union was a matter for the legislature. The court also accepted the appellants’ argument that comments in a Supreme Court appeal case about how an appeal may be assessed did not apply to a de novo appeal from the Circuit Court to the High Court, where there is a full rehearing.
Aviva had conceded that both appellants lived in the UK, but proposed a general adjournment because of uncertainty over the UK’s future relationship with the EU. The court declined, saying it had to apply the law as it stood and would not act on hypothetical future arrangements.
The application for security for costs was refused. The judgment did not determine the merits or outcome of the underlying appeal.