SUPREME COURT
Wednesday the 15th day of July 1998
BEFORE THE CHIEF JUSTICE
MR. JUSTICE BARRINGTON
MR. JUSTICE BARRON
BETWEEN
CARMEN PROETTA
PLAINTIFF
AND
ANDREW NEIL
DEFENDANT
The Motion on the part of the Defendant pursuant to Notice of Appeal
dated the 13th day of November 1995 by way of Appeal from the
Judgment and Order of the High Court (Mr. Justice Murphy) given and
made on the 17th day of November 1995 (whereby the Defendant’s
application for security for costs was refused) on the grounds and as set
forth in the said Notice of Appeal coming on for hearing before this Court
this day.
Whereupon and on reading the said Notice of Appeal the said Order of the
High Court the affidavits and exhibits referred to therein the Judgment
in the High Court the documents adduced in evidence and on hearing
Counsel for the Defendant and Counsel for the Plaintiff.
SUPREME COURT
And it appearing to the Court to be necessary in order to enable it to give
Judgment herein that the Court of Justice of the European Communities
should be requested to give a preliminary ruling upon the questions which
are set out at the conclusion of the Statement of Facts attached hereto
and numbered 1 to 5 therein for which purpose the Court hereby submits
the documents as set out in the Index to Book of Pleadings attached
hereto
The Court doth Order that the said questions be referred to the Court
of Justice of the European Communities for a preliminary ruling in
accordance with Article 177 of the Treaty establishing the European
Economic Community and doth request the Court of Justice to give a
ruling thereon
The Court doth refuse to grant a stay on any other interlocutory Orders or
applications in this matter
And the Court noting the date of the Defendant’s application for security
for costs as referred to in said Order of the High Court
Reserving the question of costs
ASSISTANT REGISTRAR
THE SUPREME COURT
1995 NO. 4O
BETWEEN:
CARMEN PROETTA
Plaintiff/Respondent
-and-
ANDREW NEIL
Defendant/Appellant:
STATEMENT OF FACTS
1. The Plaintiff is a British Citizen who holds Spanish nationality and
currently resides in San Pedro de Alcantara, Malaga, Spain; The Plaintiff
had for many years lived in Gibraltar. The Plaintiff is known in Ireland by
reason, inter alia, of having given interviews relating to the shooting dead
of members of the IRA by British forces in Gibraltar in March 1988. The
Defendant is a United Kingdom national.
2. The action is a claim for damages for libel brought by the Plaintiff
against the Defendant (and also against the Defendant’s employer Times
Newspapers Limited, same having been joined as co-defendant to the
action by Order of the High Court dated the 21st October 1996). The
action arises out of a statement made by the Defendant whilst appearing
on an Irish television programme on the 15th October 1993 for the
purpose of promoting the Irish edition of the Sunday Times newspaper
which is published by his employer and of which he was then editor.
The Defendant on that programme said of the Plaintiff that she was “a
drug runner”. The said programme was transmitted by RTE in Dublin and
received by viewers in Ireland, Northern Ireland and Wales.
3. Proceedings were instituted by way of Plenary Summons dated the 9th
day of May 1994 to which an Appearance was entered by the Defendant
on the 21st day of June 1994. A Statement of Claim was delivered by the
Plaintiff dated the 30th of June 1994. In both the Plenary Summons and
the Statement of Claim the Plaintiff relied upon Section 2, Article 5 (3)
of the Convention on Jurisdiction and the Enforcement of Judgements in
Civil and Commercial Matters signed in Brussels on the 27th of September
1968 and the Jurisdiction of Courts and Enforcement of Judgements
(European Communities) Act 1988 granting the Irish Courts jurisdiction to
hear and determine the matter.
4. A Defence was delivered by the Defendant on the 9th of February,
1995 and in essence pleads that the statement complained of was true in
substance and in fact.
5. By Notice of Motion dated the 13th day of April 1995, the Defendant
applied for an Order compelling the Plaintiff to provide security, on a
full indemnity basis, for the Defendant’s costs in the action and this
application was heard and determined by the High Court on the 17th of
November, 1995 when the said application was dismissed.
6. By way of Notice of Motion dated the 12th day of July 1996, the
Defendant sought an Order for Discovery of documents against the
Plaintiff which said Order was granted on the 26th day of July 1996. In
compliance therewith the Plaintiff has furnished an Affidavit of Discovery
dated the 17th day of December, 1996.
7. By way of Notice of Motion dated the 8th day of July, 1996 the
Defendant sought to have Radio Telefis Eireann, the Irish national
television network, joined as a Third Party to the proceedings claiming
that if the Defendant had any liability to the Plaintiff then the Defendant
was entitled to be indemnified in respect thereof by Radio Telefis Eireann.
By Order of the High Court made on the 29th day of July 1996 Radio
Telefis Eireann was joined as a Third Party to the proceedings and an
Appearance was entered on behalf of Radio Telefis Eireann on the 9th day
of August 1996.
8. By Notice of Motion dated the 30th day of July 1996, the Plaintiff
applied to the High Court for an Order amending the Statement of Claim
and joining the Defendant’s employer, Times Newspapers Limited (a UK
registered company), as a co-defendant to the proceedings. By Order
dated the 21st day of October, 1996, the High Court granted the Plaintiff
liberty to join Times Newspapers Limited as a co-defendant. An Amended
Statement of Claim was delivered to the Defendant and the co-defendant
on the 27th day of November 1996 and a joint Defence on behalf of both
the Defendant and co-defendant dated the 15th day of May 1997, was
entered in respect thereof. It is not denied by the Defendant and the co-
defendant that the Defendant was acting on behalf of his employer, the
co-defendant, for the purpose of promoting the Irish edition of the Second
Named Defendant’s said newspaper, when he took part in the television
broadcast on the 15th day of October 1993 which has given rise to these
proceedings.
9. By a Notice dated the 13th day of December 1995 the Defendant
appealed against the dismissal of the application for security for costs by
the High Court on the 17th day of November 1995.
IRISH LAW
10. Order 29 of the Rules of the Superior Courts (Statutory instrument
Number 15 of 1986) provides:
“1. When a party shall require security for costs from another party, he
shall be at liberty to apply by notice to the party for such security; and
in case the latter shall not, within forty eight hours after service thereof,
undertake by notice to comply therewith, the party requiring the security
shall be at Liberty to apply to the Court for an Order that the said party
do furnish such security.
2. A Defendant shall not be entitled to an Order for security for costs
solely on the ground that the Plaintiff resides in Northern Ireland.
3. No Defendant shall be entitled to an Order for security for costs by
reason of any Plaintiff being resident out of the jurisdiction of the Court
unless upon a satisfactory Affidavit that such Defendant has a Defence
upon the merits.
4. A Plaintiff ordinarily resident out of the jurisdiction may be ordered to
give security for costs though he may be temporarily resident within the
jurisdiction.
......
6. Where the Court shall have made an Order that a party do furnish
security for costs, the amount of such security and the times or times at
which, and the manner and form in which, and the person or person to
whom, the same shall be given shall..........be determined by the Master
in every case..........ˮ
11. As interpreted by the Irish Courts and insofar as it is relevant to
the issue in these proceedings it has been held that a Defendant who
establishes a prima facie defence to a claim made by a Plaintiff residing
outside the jurisdiction of the Court has a prima facie right to an Order for
security for costs but that this right is not an absolute right and the Court
must exercise a discretion based on the facts of each individual case.
12. Under Irish law, if a Plaintiff is resident within the jurisdiction of the
Irish Courts, there is no similar discretion conferred on the Courts to grant
an Order for security for costs against such a Plaintiff. On the face of it
these rules apply irrespective of the nationality of the Plaintiff.
The high Court Decision:
13. On the Defendant’s application for security for costs in the High Court,
it was held that the Defendant was not so entitled to security for costs
having regard to the provisions of the Treaty of Rome and in particular
Article 7 thereof, (now Article 6 of the EC Treaty) and the Defendant’s
application was dismissed. In reaching that determination the High Court
relied in particular upon the judgement of the European Court of Justice in
Case C-398/92 Mund and Fester -v- Hatrix International Transport [1994]
1 ECR 467. By way of obiter dicta the Court stated that were it not for the
provisions of European law referred to above and having regard to the
particular facts of these proceedings the Court would have exercised its
discretion in favour of granting an Order for security for costs against the
Plaintiff herein.
The Appeal to Supreme Court:
14. The Defendant appealed against the Order of the High Court refusing
to grant an Order for security for costs.
15. Counsel on behalf of the Defendant/Appellant submitted that the
Plaintiff’s substantive cause of action was not connected with the
exercise of fundamental freedoms guaranteed by Community law nor
was it otherwise connected with the exercise of any right conferred
or guaranteed by Community law. Accordingly, Community law and in
particular Article 6 of the EC Treaty did not prohibit a member state
from maintaining rules of procedure applicable to a non-Community
law-based cause of action, such as the Plaintiff’s cause of action herein,
which said rules of procedure distinguish between Plaintiffs residing
within and Plaintiffs residing without the jurisdiction of the Irish Courts.
Counsel for the Defendant/Appellant relied in argument, in particular,
upon the Judgement of the European Court of Justice in the case C-43-95
Data Delecta Aktiebolag and Another -v- MSL Dynamics Limited (1996)
ECR I 4661 which Judgement had been delivered after the Judgement
of Murphy, J. in the High Court herein. Counsel also referred to case
C-323/95 Hayes -v- Kronenberger (1997) ECR I 1711 and to Stephen
Austin Saldanha and MTS Securities Corporation -v- Hiross Holding AG,
case C-122/96 (Judgement delivered 2nd October 1997).
16. Counsel for the Plaintiff/Respondent submitted that the action was
brought before the Irish Courts pursuant to the provisions of Section
2, Article 5 (3) of the Convention on Jurisdiction and the Enforcement
of Judgements in Civil and Commercial Matters signed in Brussels on
the 27th day of September, 1968 (“the Brussels Convention”). The said
Convention grants the Plaintiff the right to sue the Defendant in Ireland
and thus this is a right pursuant to European law. The Plaintiff’s right
to pursue her cause of action in Ireland is a Community law right. The
Plaintiff is entitled to pursue her action in the Irish Courts pursuant to
Community law without having to seek the prior leave of the Irish Courts
as would have been the case under Irish law prior to the entry into force
of the Brussels Convention. It was submitted that as the Plaintiff was
relying upon a right to sue pursuant to European law, the matter was
within the scope of application of the EC Treaty and that Article 6 prohibits
any discrimination on grounds of nationality in the rules of procedure
relating to such actions. It was submitted that the distinction made by
the applicable rule between Plaintiffs resident in the jurisdiction and
Plaintiffs resident outside the jurisdiction of the Irish Courts but within
the European Community constituted an indirect discrimination based
upon nationality and was therefore prohibited by Article 6. Counsel for the
Plaintiff/Respondent relied on the judgement of the Court of Justice in the
case C-398/92 Mund and Fester -v- Hatrix International Transport [1994]
1 ECR 467.
17. In response to this argument, it was submitted on behalf of the
Defendant/Appellant that the substantive cause of action in this case was
not connected with Community law and the right which it was sought to
enforce was not connected with Community law and therefore the rules
and procedure relating to such proceedings could not be brought within
the scope of application of the EC Treaties by reason of the fact that the
action in question was brought in Ireland pursuant to the provisions of the
Brussels Convention. It was submitted that the alleged tort of defamation
was committed within Ireland and that according to Irish law prior to the
entry into force of the Brussels Convention, proceedings could have been
brought in Ireland with the leave of the Irish Courts.
Order for Reference
This Court, as a final Court of Appeal within the meaning of Article 177
of the Treaty, considers that a decision on questions of interpretation
of Community law is necessary to enable it to give a judgement on this
appeal and accordingly requests the Court of Justice to give a ruling on
the following questions:
Is the right of a citizen of the European Community to his or her good
name a fundamental right guaranteed by Community law?
2. Is an action for alleged libel taken by a national of one Member
State against a national of a second Member State in the Courts of a
third Member State, where the alleged libel was alleged to have been
published, a matter within the scope of application of the E.C. Treaty and,
in particular, of Article 6 thereof?
3. Is the right of a national of a Member State to sue a national of another
Member State in a third Member State for a tort, in this instance the tort
of libel, pursuant to Article 5 (3) of the Brussels Convention, a Community
law right?
4. Where a civil action is brought before the Courts of a Member State
pursuant to the provisions of the Brussels Convention, does Article 6 of
the E.C. Treaty preclude the Courts of that Member State from requiring
a national of another Member State resident outside the jurisdiction of
the Courts of the Member State in question to lodge security for the costs
of the proceedings when no such requirement could be imposed upon an
individual resident within the jurisdiction of the said Member State?
5. Where a civil action, not otherwise connected with a Community law
right, is brought before the Courts of a Member State pursuant to the
provisions of the Brussels Convention, does Article 6 of the E.C. Treaty
preclude the Courts of that Member State from requiring a national of
another Member State resident outside the jurisdiction of the Courts
of the Member State in question to lodge security for the costs of the
proceedings when no such requirement could be imposed upon an
individual resident within the jurisdiction of the said Member State.