Eirgrid refused security for costs in damages action
Co Monaghan Anti-Pylon plc -v- Eirgrid plc
Neutral citation number: (2012) IEHC 103.
Judgment was delivered on March 30th, 2012, by Mr Justice Peter Charleton.
An application by the defendant, Eirgrid plc, for an order for security for costs in an action for damages taken by Monaghan Anti-Pylon plc was refused on the grounds that special circumstances arose in the case.Background
The case arose as a result of an aborted hearing by An Bord Pleanála concerning the construction of overhead power-lines on pylons as part of a scheme known as the Meath- Tyrone 400kw interconnector.
County Monaghan Anti-Pylon plc (initially a committee) was established to oppose this on health grounds and argue in favour of buried interconnector power-lines. The group raised about €250,000, most of which it spent on an expert’s report and on legal representation before the Bord Pleanála hearing.
This began on May 10th, 2010, and continued until June 28th. On the 23rd day of the hearing, counsel for Eirgrid announced that the hearing could go no further as there had been a mistake in the height of the proposed pylons in the newspaper advertisements announcing the planning application. The hearing was abandoned and has not resumed since, although it is expected to.
Monaghan Anti-Pylon plc claimed it had expended most of its funds on this aborted hearing and would be unable to return to donors seeking money for a fresh hearing. It claimed Eirgrid was responsible for this loss due to its mistake and the resulting abandonment of the hearing after 23 days, and it sought the reimbursement of its funds.
Eirgrid sought an order for security of costs against the group to be lodged before the matter going to trial.
Mr Justice Charleton said that making such an order was a matter of discretion based on settled principles. These were that a defendant must objectively demonstrate the existence of evidence upon which he would rely to establish the facts of his defence. It was not necessary to demonstrate that he was likely to, or had a good prospect of, succeeding.
He must also demonstrate that the plaintiff could not meet the full sum of his costs if the defence is successful. This was accepted in this case.
A number of special circumstances had been identified in the case law allowing the court to decline to exercise its discretion in favour of an order.
These included the plaintiff demonstrating that its insolvency had arisen as a result of the action of the defendant; that there was delay in bringing the security for costs application, leading to further loss for the plaintiff; that a point of law may be of such importance, transcending the interests of the parties, that the process of the case should not be interrupted by making an order for security for costs; that an order may be refused where there were two plaintiffs, one of which could meet the costs of the action if it was lost; and a point of fact of national importance might arise in the case (as did in the case of the contaminated pig feed).
Here the main defence raised by Eirgrid was that Monaghan Anti-Pylon plc had suffered no loss and so the claim was flawed.
Mr Justice Charleton said he was not convinced of this. The accounts of Monaghan Anti-Pylon plc showed no income and expenditure for the relevant period, but there was sworn evidence meticulously detailing specific items of expenditure related to the abandoned oral hearing.
It was not for the court to decide on this at this stage, but it was a matter of common sense that experts had to be paid for and lawyers are in the business of making a living from law and advocacy.
Had the oral hearing not been abandoned, leading to the loss of the funds, the action would not have been taken.
The special circumstances of this case included the fact that the plaintiff company could not pursue the purpose for which it was set up.
Bodies such as this could be regarded by some as a nuisance, but allowing democratic participation in physical development was at the heart of the planning code in Ireland. The ruination of the environment in other countries was testimony to the importance of wide consultation and serious debate.
The special circumstance here required the court to decline to make the order sought.
The full judgment is on courts.ie.
Colm Mac Eochaidh SC and Aoife Carroll BL, instructed by Seán Conlan Co, Ballybay, Co Monaghan, for the plaintiff; Jarlath Fitzsimons BL, instructed by Deirdre Nagle, Eirgrid solicitor, for the defendant.