High Court, in professional negligence proceedings against the solicitors who acted for a company in the purchase and development of lands, refuses an application for security for costs brought by the solicitors, on the grounds that special circumstances exist disentitling the solicitors to an order for security for costs insofar as there was a 14-year delay on the part of the solicitors in bringing the motion for security, causing the company significant prejudice; and the solicitors' conduct was a cause of concern.
Application for security for costs – purchaser of lands suing its solicitors for negligence - no question but that the first plaintiff will be unable to pay the costs of these proceedings, given its very substantial liabilities - there is a prima facie defence - defendant pleads a settlement agreement that prevents these proceedings being continued – real dispute between the parties is the company’s claim that there are special circumstances indicating security should not be ordered due to (a) delay (b) the conduct of the defendant during the events which are the subject of these proceedings and (c) the cause of impecuniosity being the defendant’s conduct - factual background to the application – breach of undertakings – law in relation to security for costs - evidential threshold test when considering whether special circumstances are established - requisite standard of proof in considering whether special circumstances apply is whether it has been shown, on a prima facie basis, that a plaintiff’s inability to pay potential costs is due to the wrong doing asserted - relevance of a defendant’s conduct as a special circumstance - inability of the company to pay costs – prima facie defence – special circumstances - delay as a special circumstance - presence of individual co-plaintiffs is a factor to be considered in all cases – no objectively justifiable basis for waiting to seek security until the other plaintiffs were no longer in the proceedings – prejudice - conduct of Defendant as a special circumstance - no case law was cited to the court supporting the principle that the wrongdoings of a plaintiff can constitute a special circumstance justifying security – admission by the defendant - pleaded that on at least one occasion the defendant wrongfully and deliberately formally fraudulently misrepresented to the Bank that there existed signed contracts in relation to 20 houses forming part of the plaintiff’s development on the property – the effect of the misrepresentation was to sustain a false confidence between AIB and the plaintiffs - conduct of defendant as cause of first Plaintiff’s impecuniosity as Special Circumstance – company has not established on a prima facie basis that the acts and omissions of the defendant caused its inability to pay costs – hearing in 2018 – application for security for costs refused -