High Court grants security for costs against plaintiff due to lack of proven local assets and potential residence abroad.

THE HIGH COURT

COMMERCIAL

[2025] IEHC 461

2023 No. 5989P

BETWEEN

MICHAEL FLATLEY

PLAINTIFF

AND

AUSTIN NEWPORT GROUP LIMITED, DAVID CUSHION, MS AMLIN

UNDERWRITING LIMITED, AXA XL UNDERWRITING AGENCIES LIMITED,

HAMILTON MANAGING AGENCY LIMITED, HISCOX SOCIÉTÉ ANONYME and

LLOYDS INSURANCE COMPANY

DEFENDANTS

JUDGMENT of Ms. Justice Eileen Roberts delivered on 15 August 2025 Table of Contents:

1. Introduction Page 2.

2. The parties and the background to these applications Page 3.

3. The relevant legal principles in a security for costs application Page 4.

4. The arguments advanced by the parties Page 8.

5. Where is the plaintiff ordinarily resident? Page 9.

6. Special Circumstances:

a. The plaintiff has expressed an intention to return to

live in Ireland permanently Page 13.

b. Undue and prejudicial delay on the part

of both Austin Newport and the Lloyd’s Defendants

in bringing these applications Page 16.

c. The plaintiff has ample assets in the jurisdiction

to meet any award of costs Page 24.

d. The plaintiff’s right of access to the courts would be

inhibited by an order for security Page 38.

e. The plaintiff is a man of his word and can and will pay

any costs if ordered to do so Page 39.

7. Conclusion and Next Steps Page 40.

1 Introduction

1. This judgment relates to two separate applications for security for costs advanced against the plaintiff - one by the first named defendant and the other by the third, fourth, fifth and seventh named defendants. The applications are advanced under O. 29 Rule 1 of the Rules of the Superior Courts (as amended) in circumstances where it is alleged that the applicants, if successful in the substantive proceedings, will face difficulty in executing any costs orders made in their favour as against the plaintiff. The motions were heard together by this court over two days and are dealt with together in this judgment.

2. While security for costs applications are relatively common, there are some unusual aspects to the present applications which set them apart in some respects from the usual scenario arising on security for costs applications made by defendants. Such aspects include, for example, that the plaintiff is a natural person and not a corporate entity; that the plaintiff does not plead impecuniosity but says that he can afford to pay any costs that might ultimately be awarded against him; that there is a dispute regarding whether the plaintiff is ordinarily resident outside the jurisdiction and a dispute as to the extent of assets the plaintiff has in this jurisdiction. Other more usual features include allegations of delay in bringing the applications and alleged prejudice to the plaintiff on various grounds. All these matters will be considered in this judgment.

2 The parties and the background to these applications

3. The plaintiff is an international professional dancer, entertainer and choreographer and is the owner of a large protected property at Castlehyde, Fermoy, County Cork (“Castlehyde”), which he purchased in 1999.

4. The first named defendant (“Austin Newport”) is a building and restoration company which carried out restoration works on Castlehyde between 2016-2017 following a fire there in June 2016.

5. The third, fourth, fifth and seventh named defendants (“the Lloyd’s Defendants”) are insurers who underwrote a policy of insurance for the plaintiff which was responsive to the fire which occurred at Castlehyde on the night of 18/19 June 2016.

6. The plaintiff claims in these proceedings that, following the fire at Castlehyde in June 2016, he instructed the Lloyd’s Defendants to carry out the entire restoration work on Castlehyde. He claims that the Lloyd’s Defendants appointed Austin Newport to carry out the restoration works and that the works were carried out negligently. The plaintiff says that the Lloyd’s Defendants (who paid for the works under the insurance cover in place at that time) are responsible for the negligence of Austin Newport in how the restoration works were carried out and that the Lloyd’s Defendants were therefore also negligent. He also claims that the Lloyds Defendants had knowledge of certain issues regarding the alleged contamination of Castlehyde which they failed to disclose to him when negotiating and entering into the settlement agreement finalising the indemnity payments made under the relevant insurance policy. The plaintiff seeks a declaration that the settlement agreement breached the Unfair Terms in Consumer Contracts Regulations, 1995.

7. The plaintiff has advanced a claim for damages against the defendants1 estimated in the region of €30 million. He alleges that the restoration works are defective, including on the basis of an alleged presence of unspecified toxins, which he says renders Castlehyde uninhabitable.

8. The substantive proceedings have been robustly litigated. Being in the commercial court they have advanced quickly. At this point the pleadings have closed and discovery has been exchanged. The proceedings are therefore at a relatively advanced stage. This has some relevance to the timing of the present applications which I will deal with shortly.

3 The relevant legal principles in a security for costs application

9. A personal plaintiff ordinarily resident in Ireland, no matter how impecunious he or she may be, cannot be directed to provide security to cover the costs of a potentially successful defendant in those proceedings. In light of Regulation (EU) No.1215/2012 (the “Brussels I Regulation (recast)”) and the Lugano Convention 2007, which facilitate the easy enforcement of Irish judgments in EU and Lugano Convention signatory states, this same principle applies to a personal plaintiff who is ordinarily resident within the EU or in a Lugano Convention signatory state.

10. This position is to be contrasted with a personal plaintiff who is not ordinarily resident in Ireland or the EU or a Lugano Convention state.

The claim against the second named defendant was discontinued on 27 March 2024. The claim against the sixth named defendant has been referred to arbitration.

11. O. 29 provides in material part as follows: “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. …

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 time or times at which, and the manner and form in which, and the person or persons to whom, the same shall be given shall, subject to rule 7, be determined by the Master in every case. …..”

12. As noted by Cahill J in Tahboub v The Joint Arab-Irish Chamber of Commerce CLG, [2024] IEHC 616, at para 2: “There are two criteria that must be satisfied for an order under [O. 29]: first, the party against whom security is sought must be resident outside the jurisdiction of the Court, the EU and the Lugano Convention contracting states; and, second, the defendant must demonstrate a prima facie defence to the merits to the claim. If the defendant discharges this burden, the plaintiff then bears the onus in relation to any circumstances which are asserted to warrant refusal of the order sought”.

13. If the relevant criteria of residence outside the jurisdiction and a prima facie defence are satisfied then an order for security for costs would generally be granted unless special circumstances exist which require a different outcome. The application of special circumstances involves the court exercising its discretion to balance the justice of the matter as between the competing rights and interests of the party seeking security and the party resisting it. As O’Donnell J (as he then was) noted in Quinn Insurance Ltd v Price Waterhouse Coopers (a Firm) [2021] 2 IR 70 at para 12: “the issue on an application for security for costs is a question to be determined by reference to the balance of justice. That is because there is a possible injustice whatever order the court makes.” An order for security protects a defendant from being unable to recover its costs if successful but it can also work to prevent a plaintiff from being able to advance his claim. Each application must therefore be considered by reference to its own unique facts and circumstances and the court has a wide discretion as to whether to grant or refuse an order in every case.

14. It is important to understand the rationale behind the courts’ jurisdiction to make an order for security for costs under O. 29. This was explained by Clarke J (as he then was) in Harlequin Property (SVG) Limited v. O’Halloran, [2012] IEHC 13 at para 4.10, where he stated :“the jurisdiction under Order 29 is not based on the fact that a relevant plaintiff may be unable to pay costs in the event of losing but rather the jurisdictional difficulty in recovering these costs if the plaintiff is based in another jurisdiction and has no assets in this jurisdiction….. The jurisdiction under Order 29 is based on the practical difficulty of enforcing an award of costs outside the jurisdiction (or nowadays, outside the European Union) rather than anything else”.

15. A further explanation of that rationale was expressed by the court (Ó’Neill J) in Ditt v. Krohne [2012] IEHC 312 where it was held at paragraphs 15 and 16 that the determinative factor which establishes a threshold or test which will lead the court to exercise its discretion in favour of granting or refusing security for costs is “…the impossibility of enforcement of a costs order against the plaintiff in question or substantially increased difficulty or expense in enforcing such costs order as compared to the enforcement of such an order against the plaintiff resident in Ireland or who had sufficient assets in Ireland”.

16. Under O. 29 the applicant for security does not need to show an inability on the part of the other party to pay costs. Rather, O. 29 is designed to ensure that defendants do not face jurisdictional obstacles in enforcing costs orders in their favour.

17. This rationale is to be contrasted with the rationale, for example, of making an order for security for costs against an Irish limited company under Section 52 of the Companies Act 2014. For such corporate entities the rationale has been explained by reference to the nature of limited liability (Thalle v. Soares [1957] I.R. 182 – although under the prior statutory regime being Section 390 of the Companies Act 1963). Orders for security for costs against Irish limited companies under Section 52 of the Companies Act 2014 (or indeed foreign companies under O.29) require evidence that the company will be unable to pay the costs of the defendant if the defendant is successful in the proceedings.

18. In practical terms, there is also a distinction between the level of security generally awarded in cases involving applications against personal plaintiffs and those involving corporate plaintiffs. There is a general (although not absolute) practice of confining security for costs in O. 29 cases against personal plaintiffs to approximately onethird of the costs likely to be incurred whereas a court ordering security against a company is likely to fix the amount by reference to the full costs likely to be incurred.

4 The arguments advanced by the parties

19. The plaintiff says that the necessary criteria for making an order for security do not exist in the present case. While generally the threshold criterion which causes the most debate is the establishment of a prima facie defence, that is not the case here. It was accepted that the defendants have met this threshold for the purposes of this application and so the issue did not need to be addressed any further. The sole focus of the threshold test in this case therefore was, somewhat unusually, the question as to whether the plaintiff was ordinarily resident outside the jurisdiction of the court, the EU or the Lugano Convention contracting states. I will deal with the evidence on that issue later.

20. A secondary argument advanced by the plaintiff was that even if he was found to be ordinarily resident outside Ireland or any EU or Lugano jurisdiction, this was due to the actions of the defendants, which actions he claims rendered Castlehyde unfit for habitation.

21. Finally, the plaintiff says that even if he is unsuccessful on these points, the court should nevertheless refuse to make an order for security for costs against him due to the existence of various special circumstances. The special circumstances relied on (in respect of which the plaintiff bears the burden of proof) are that:

(a) The plaintiff has expressed an intention to return to live in Ireland permanently;

(b) There has been undue and prejudicial delay on the part of both Austin Newport and the Lloyd’s Defendants in bringing this application;

(c) The plaintiff has ample assets in the jurisdiction to meet any award of costs;

(d) The plaintiff’s right of access to the courts would be inhibited by an order for security;

(e) The plaintiff is a man of his word and can and will pay any costs if ordered to do so.

22. I will consider these arguments in turn. Before doing so I now address the threshold test of ordinary residence outside the relevant jurisdictions. If that test is not satisfied then no entitlement to an order for security for costs arises under O. 29.

5 Where is the plaintiff ordinarily resident?

23. The stated requirement under O. 29 was simply that a defendant had to establish that a plaintiff was ordinarily resident outside Ireland. That requirement was revised as a result of Ireland’s membership of the European Union (see. Proetta v Neil [1996] 1 IR 100) for plaintiffs ordinarily resident in the EU. This was further extended as noted by O’Neill J in Ditt v Krohne [2012] 3 IR 120 for plaintiffs ordinarily resident in contracting states of the Lugano Convention, following the Lugano Convention being incorporated into Irish law by the Jurisdiction of Courts and Enforcement of Judgments (Amendment) Act 2012. The effect of the Brussels 1 Regulation (recast) and the Lugano Convention is that judgments of relevant signatory states generally have the same force and effect as a judgment given by an Irish court.

24. At the time of the hearing of this application on the 8 and 9 July 2025, the uncontroverted evidence was that the plaintiff was residing in Monaco. Indeed the plaintiff specified his home address in Monaco on the pleadings and affidavits he swore and he accepted at para. 12 of his replying affidavit sworn 25 April 2025 that his then current address was in Monaco. The evidence is that he has been living in Monaco since at least 2014 and that he stayed in Castlehyde whenever he was in Cork, effectively using it on an ad hoc temporary basis as a holiday home primarily over the summer school holiday period, up until October 2023. Monaco is neither within the EU nor is it a signatory state to the Lugano Convention. There was a suggestion by the plaintiff that Monaco has a bilateral agreement with France which would in some manner equate to a similar regime for the recognition of foreign judgments. However this point was not substantiated by any expert evidence of foreign law and so I have discounted it entirely. If the plaintiff ordinarily resides in Monaco then there is a jurisdictional basis for an order for security for costs to be made against him in this case, barring special circumstances.

25. On 25 July the court was advised by the plaintiff’s counsel of what he described as “a material change in circumstances” 2 in relation to the plaintiff’s residence which it was said affected the position in relation to security for costs. The evidence of this material change in circumstances was set out in a short affidavit sworn by the plaintiff’s solicitor on 23 July 2025, the material paragraph of which stated : “I say I took instructions from my client, Michael Flatley on 21 July 2025. He confirmed to me that he is moving back to live in Ireland within the next two weeks. He will therefore be resident in the EU. He further intends to seek nominations to run for President of Ireland”.

26. Objection was taken to the admission of this additional material on the basis that it was hearsay and that in any event it did not change the reality of the plaintiff’s ordinary residence, which remains Monaco. It was also pointed out that the plaintiff, not having sworn the affidavit, could not be cross-examined on it. The defendants further objected to what they said was an attempt by the plaintiff to “move the goalposts”3 subsequent to the hearing in order to suit his own purposes. The defendants said that they had previously been advised by the plaintiff’s solicitor that the plaintiff was moving to live in Paris and later to Valencia (both within the EU) but that neither in fact happened.

Transcript 25 July 2025 page 4 lines 12 and 22

Transcript 25 July 2025 page 14 line 24

27. Because of the importance of the plaintiff’s ordinary residence to the jurisdiction of this court to make an order for security for costs against him, I agreed to admit the affidavit subject of course to whatever weight I might attach to it.

28. The plaintiff’s solicitor’s affidavit sworn on 23 July is indeed hearsay. I was later advised that the plaintiff would himself swear an affidavit regarding his move to Ireland but I was not prepared to allow the exchange of yet further affidavits post the hearing of this matter. I am proceeding however on the basis that the plaintiff has already or will shortly move to Ireland and seek nominations to run for President of Ireland, as was indicated in his solicitor’s affidavit.

29. Even on that assumption however, there is a complete lack of detail as to what practical arrangements the plaintiff has made to source accommodation and, most significantly, whether he has made any arrangements for him and his family to return to Ireland to live on a long term basis. The court was not provided with any information which demonstrates in a practical way that the plaintiff would be able to satisfy the test of ordinary residence in Ireland within the meaning of O. 29. Being “ordinarily resident” is an entirely different matter to being “resident” for a period of time.

30. It appears that the plaintiff’s recently stated intention to return to Ireland is not openended or unconditional. By linking his return and the timing of it to the forthcoming Presidential campaign and election, I believe that the plaintiff is, at best, committing to returning to live in Ireland long term if he were successful in his Presidential ambitions. There is no evidence before me that he would remain living in Ireland otherwise.

31. As O. 29 rule 4 makes clear, a plaintiff ordinarily resident out of the jurisdiction may be ordered to give security for costs even though he is temporarily resident within the jurisdiction. Thus a plaintiff may still have an order for security for costs made against him even though temporarily resident in Ireland. This highlights the distinction drawn in O. 29 itself between temporary residence and ordinary residence. Such a distinction is also well established in other areas, such as tax law.

32. In Green v Highcross Bars Limited, [2015] IEHC 654, Barrett J considered the proper interpretation of “ordinarily resident”. The plaintiff in that case was residing outside Ireland but claimed to be ordinarily resident in Ireland because he was an Irish citizen, was on leave of absence from a permanent job in Ireland and retained an address here.

33. Barrett J considered two alternative approaches to assess the meaning of ordinary residence, being what he described as the “dictionary definition” and the “S v. S approach”. He preferred the dictionary definition which ascribed the usual meaning of the adverb “ordinarily” to mean “usually”. He stated at para 12 of his judgment that : “This Court considers it would strain credulity to suggest that a gentleman who presently lives and works far outside Ireland, and who typically spends both his ‘working week’ and his weekends outside Ireland, can properly be described as ‘usually’ resident in Ireland, because he holds an Irish passport, lived here in the past and presently, it seems, manifests an intention to return in the future.”

34. I respectfully agree with the preference expressed by Barrett J to the interpretation of “ordinarily resident” for the purposes of O. 29. The plaintiff holds an Irish passport – but citizenship cannot be equated with ordinary residence ( see also McCarthy v Football Association of Ireland [2014] 10 JIC 1404 per White J at para 15). It is immaterial that the plaintiff lived here in the past or that he has expressed an intention to return in the future or even that he has returned for a defined purpose and limited period. Unless he in fact returns to live in Ireland on a long term basis he cannot be said to be ordinarily resident here. The evidence is that the plaintiff has been ordinarily resident in Monaco for in excess of ten years. I accept that if the plaintiff succeeds in his bid for the Presidency of Ireland then he will be required to move his ordinary residence to Ireland and at that point would become ordinarily resident here. Unless and until that occurs however it seems to me on the evidence before the court that the plaintiff is not currently ordinarily resident in Ireland but is rather here on a temporary and conditional basis.

35. Notwithstanding that (i) the parties have accepted the defendants have established a prima facie defence on the merits to the claim, and (ii) my view that the plaintiff is currently ordinarily resident outside of Ireland, the EU or Lugano Convention countries, the court still retains a discretion as to whether or not to order security for costs. Accordingly, the court must now consider the various special circumstances advanced by the plaintiff as a basis for refusal of an order against him.

6 Special Circumstances

a) The plaintiff has expressed an intention to return to live in Ireland permanently

36. I do not believe that the general intention expressed by the plaintiff on affidavit of an intention to return to Ireland permanently within a period of two years or even his most recent averment (through his solicitor) of an intention to return imminently to seek nomination in the hope of contesting the Irish Presidential election, is a basis for this court to refuse an order for security. Neither expression of intention changes the reality of where the plaintiff is currently ordinarily residing, namely Monaco. I accept that the plaintiff intends to move back to Ireland to seek nominations for the Presidency and to run a campaign here. Such a move however, unless it results in his election as President of Ireland, is likely on the evidence to amount to no more than a temporary change of residence which would not prevent an order for security being made against him.

37. Amongst the matters to which the court may have regard in exercising a discretion against ordering security is if a prima facie case has been made out by the plaintiff to the effect that his inability to give security flows from the wrong committed by the defendant. A version of this argument is advanced by the plaintiff in this case. In legal submissions on behalf of the plaintiff it was argued that “But for the actions of the Defendants, the Defendants would not be entitled to apply for security because the Plaintiff would be residing in the EU”. For the reasons below I do not accept that argument.

38. It seems to me that the recent indication from the plaintiff that he intends to return to Ireland to seek nominations to run for the Presidency is entirely at odds with his argument that but for the actions of the defendants he would be residing in Ireland. There appears to be no reason why the plaintiff could not previously have returned to live in Ireland even if Castlehyde was uninhabitable (which the defendants deny). Indeed that appears to be what the plaintiff’s recently expressed intentions may envisage.

39. The plaintiff indicates that he has other homes within the EU, including in Paris. Indeed he was intending to move there at one point and later to Valencia, but did not do so having taken advice. I see no basis on which the plaintiff was prevented from living within the EU because of the actions of the defendants.

40. I am further supported in my view that the plaintiff’s decision to live in Monaco is not caused by the actions of the defendants when I consider the evidence adduced regarding Castlehyde. The evidence is that the plaintiff continued to live in Monaco after the restoration works on Castlehyde were completed in May 2018 and for the following five and a half years before he claims to have discovered issues with those restoration works in October 2023. Therefore, throughout the period since 2014 when Castlehyde was available before the fire in 2016 and after its restoration in 2018 the plaintiff nevertheless continued to be ordinarily resident in Monaco.

41. Furthermore, in September 2023 before the alleged defects were discovered, the plaintiff, who was the Guarantor of the loan obligations assumed by Blackbird Film Productions Limited (“Blackbird”) to Novellus Finance Limited (“Novellus”), agreed to lease Castlehyde to Lord of the Dance Global Touring Limited at a minimum annual rent of €1,350,000., which rent would be used to repay the Novellus loan. Under clause

12.15 of the Novellus loan agreement Blackbird covenanted until all liabilities had been discharged that : “It will procure that the Guarantor [the plaintiff] or any person connected to the Guarantor shall not reside in the Secured Property [Castlehyde] as their principal private residence or on a temporary basis”.

42. By a signed Guarantor Acknowledgement the plaintiff agreed to abide by the terms of the Novellus loan agreement including this contractual commitment not to live in Castlehyde. Thus a commercial decision was taken by the plaintiff not to live in Castlehyde. This is not a decision he can attribute to the defendants’ actions. In his affidavit sworn 6 June 2025 at para 17 the plaintiff avers that “….Blackbird intended to contract with an outside production company to generate revenue which would have been used to repay Novellus”.. This confirms, in my view, that the commercial intention was for a third party lessee rather than the plaintiff to move into Castlehyde. This does not support the plaintiff’s contention that he was intent on returning to live in Castlehyde, but for the problems of which he became aware in October 2023.

43. The plaintiff says that since the Novellus loan was refinanced there is no contractual restriction on the plaintiff living in Castlehyde. The terms of this refinancing agreement were not exhibited by the plaintiff.

44. I believe that the decision of Sanfey J in Re Pasrm [2023] IEHC 149, which is relied on by the plaintiff, is entirely distinguishable on its facts. In that case, Mr Cyr had returned home to the US due to a threat or his belief of a threat that if he did not do so he would be reported as no longer an employee of Planitas and so would be deported due to visa difficulties. His absence from the jurisdiction could therefore be directly linked to the actions of Planitas. There is no similar fact pattern here. The plaintiff cannot attribute his ordinary residence in Monaco to actions on the part of the defendants.

b) Undue and prejudicial delay on the part of both Austin Newport and the Lloyd’s Defendants in bringing these applications

45. Delay in seeking security for costs can certainly constitute a special circumstance persuading a court not to make an order for security for costs even where the threshold criteria are met. As Morris J noted in Beauross v. Kennedy [1995] WSJC-HC 3854 : “… If the party seeking security has delayed to such an extent as to commit the other party to an amount and level of costs which it would never have become committed to had it known it was going to be required to provide security for costs and thereby altered its position to its detriment, then the court will not make the Order”

46. Clarke J (as he then was) in Moorview Developments Ltd v. Cunningham [2010] IEHC

30 confirmed at paras 3.4 and 3.7 that: “..if the defence is filed in a timely fashion, then it seems that the time for seeking security should be in around the same time as the defence is filed…… …. The incurring of expenditure by the plaintiff during the period of delay in bringing an application for security for costs is a relevant factor…. The plaintiff incurring costs in the intervening period ought to have been entitled to make its decision, as to whether to incur those costs, in the light of information, including the fact security for costs would have to be put up”.

47. There has certainly been a delay in bringing the present applications. The question is whether, on the facts, that delay is culpable and such as would constitute a special circumstance persuading this court to exercise its discretion against making an order for security for costs. This requires a consideration of the facts in this case as well as the explanation for the delay and its impact.

48. The Lloyd’s Defendants wrote to the plaintiff’s solicitors in relation to security for costs on 21 March 2024, being two weeks after the receipt by them of the statement of claim dated 11 March 2024 (amended on 12 March 2024). The correspondence noted that the plaintiff’s principal address was in Monaco and that in light of the charges registered against Castlehyde, the Lloyd’s Defendants were concerned that the plaintiff did not have sufficient unencumbered assets to satisfy any adverse costs order made in their favour. A request was made that the plaintiff identify and provide all details of his unencumbered assets in Ireland by 5 pm on 26 March 2024. If this information was not provided or was unsatisfactory the solicitors for the Lloyd’s Defendants confirmed that they “will advise our clients to apply for security for costs against your client..”.

49. The Lloyds’ Defendants say that from as early as 21 March 2024 the plaintiff was fully aware of their concerns regarding the sufficiency of his assets in the jurisdiction and that he was at risk from that point onwards. They say that every step the plaintiff took in the proceedings from then on was with the knowledge that the Lloyd’s Defendants were going to require him to provide security for costs if they could not be satisfied as to the adequacy of the plaintiff’s assets in the jurisdiction.

50. A response was issued by the plaintiffs solicitors on 26 March 2024. It did not address the specifics of the plaintiff’s assets at all. The correspondence confirmed that the various mortgages over Castlehyde had been fully repaid and that it was anticipated that the current mortgage would be repaid in October 2024. The letter continues : “Our client is an Irish citizen and has substantial property and fine arts in the jurisdiction. Our client had to vacate his home at Castlehyde due to inter alia the negligent acts and omissions of your clients and their breach of contract. Our client is currently residing in Monaco but, we are instructed that in May 2024 our client will be residing in Paris, France at his principal address.”

51. The solicitors for the Lloyd’s Defendants replied on 3 April 2024 requesting further details of the encumbrances on Castlehyde as well as the details of the substantial property and fine arts which had been referenced. The information was requested to be provided by 8 April 2024.

52. Evidence of the satisfaction of various mortgages was provided by the plaintiff’s solicitors who confirmed on 10 April 2024 that the only outstanding mortgage on Castlehyde was a mortgage in favour of Novellus in the sum of “circa 5.5 million euro”. The correspondence indicated that Castlehyde had been valued at €12.5 million by Sotheby’s International Realty in 2018 and that the plaintiff believed that if Castlehyde was fit for purpose it would have a then present value in the region of €17.5 million. The artwork was said to be unencumbered and was said to be known to the Lloyd’s Defendants as the previous insurers of it. No details of the artwork was however provided (and it does not feature at all in any later statements of affairs produced by the plaintiff). It was stated that having regard to the 2018 valuation alone and the remaining Novellus mortgage there was over €6 million of unencumbered equity in Castlehyde.

53. On 23 April 2024 the plaintiff’s solicitors advised that “Our client has now confirmed that as of 28 April 2024 he will be taking up residence in Valencia, Spain. The issue of security of (sic) costs simply does not arise. Our client, Michael Flatley, is a citizen of the Republic of Ireland, will be residing in the EU and has substantial assets in the State.

Accordingly, any application for security of (sic) costs is bound to fail and will be vigorously opposed by our client.”

54. Enquiries continued to be made by the solicitors for the Lloyd’s Defendants seeking specific details for the purposes of deciding if a security for costs application was necessary. The Lloyd’s Defendants delivered their defence on 31 May 2024.

55. On 18 June 2024 the plaintiff’s solicitors advised that “Our client is not currently residing in the EU. Upon consideration of advices, he has decided to remain residing in Monaco and then in Ireland once Castlehyde has been restored”. That correspondence said that it would be unjust for an application for security for costs to be brought at that stage given that proceedings had issued in December 2023. It was indicated that a further valuation of Castlehyde was being prepared and would be available “in the next few weeks”.

56. Various reminders issued in relation to that promised valuation and ultimately it was received by the solicitors for the Lloyd’s Defendants on 17 September 2024. The plaintiff cannot rely on his own delay in providing a valuation of his property in the face of numerous and repeated requests by the defendants. The valuation provided was prepared by Humphrey Hogan & Associates following a site visit by them on 3 September 2024. That valuation is dated 12 September 2024. The instruction to value Castlehyde appears to have been issued to them by Flatley (BVI) Ltd with an address in the British Virgin Islands.

57. The market valuation provided by Humphrey Hogan & Associates for Castlehyde was €20 million (and was reconfirmed by them as the value as at March 2025). I will refer to this valuation as the Hogan Valuation.

58. On 9 December 2024 the solicitors for the Lloyd’s defendants wrote to the plaintiff’s solicitors following media reports concerning an injunction obtained by the plaintiff and Blackbird against Novellus on 5 December 2024 preventing Novellus from taking any further steps to take possession of Castlehyde following a default in loan repayments by Blackbird. Copies of the pleadings were sought and provided to the defendants in January 2025 following an application to the commercial court.

59. In the papers filed in the Novellus proceedings the defendants became aware of a statement of affairs which had been filed by the plaintiff as at 7 September 2023. In that statement of affairs Castlehyde was valued by the plaintiff at stg £8 million and a loan was disclosed on it of stg£ 4,950,000 leaving an equity interest of stg £3,050,000.

60. The papers in the Novellus proceedings also included a detailed valuation on Castlehyde prepared by Sherry FitzGerald on the instructions of Novellus which ascribed a market value of €8.5 million to Castlehyde and its surrounding lands as at 29 August 2023 (the “Sherry Fitzgerald Valuation-1”).

61. Given the obvious discrepancy between the Hogan Valuation and the Sherry FitzGerald Valuation-1 and the valuation specified in the plaintiff’s Statement of Affairs provided to Novellus, the solicitors for the Lloyd’s Defendants wrote to the plaintiff’s solicitors to express their concerns regarding the Hogan Valuation. They also noted that the refinancing of the Novellus loan had increased the plaintiff’s level of indebtedness secured on Castlehyde. Requests were made for full details of the new loan agreement, including the balance outstanding and the level of interest payable. Request was also made for the provision of an up-to-date independent valuation of Castlehyde. The Lloyd’s Defendants renewed their request for security under O. 29 requesting that same be provided by 24 March 2025, which it was not. Ultimately the Lloyds’s Defendants issued their motion seeking security on 2 April 2025.

62. The fact pattern in relation to Austin Newport is largely similar. A request for information on unencumbered assets in the jurisdiction was first made by letter dated 8 April 2024, preserving the right to seek security for costs if the information was not provided or proved inadequate. In a response dated 12 April 2024 the plaintiffs solicitors confirmed “Our client intends to move to Paris in May of this year”. Austin Newport do not appear to have been told this move did not in fact occur.

63. The response dated 12 April 2024 also provided similar details to Austin Newport on the valuation of Castlehyde as had been provided to the Lloyd’s Defendants. Further enquiries continued to be made and Austin Newport were provided with the Hogan Valuation in September 2024.

64. Austin Newport gained access to the papers in the Novellus proceedings on 17 January 2025. They then became aware of the discrepancies in the Castlehyde valuations provided to Novellus and the increased amount outstanding on the Novellus loan of €6.641 million as well as the threat to appoint a receiver over Castlehyde and that no value had been attributed to fine art and effects in the statement of affairs provided by the plaintiff to Novellus. By letter dated 14 March 2005 Austin Newport requested that the plaintiff provide security for costs before the 24 March 2025. No response was received and Austin Newport issued their motion for security on 2 April 2025.

65. The plaintiff complains that the defendants effectively abandoned security for costs in 2024 and submits that the defendants delayed until discovery had been provided before seeking security for costs. He also says they had the Novellus proceedings since January 2025 and made no attempt to bring their applications until discovery was made. He says the defendants were on notice of the Novellus facility for over a year and had the Hogan Valuation since September 2024. The latter points do not however in my view assist the plaintiff’s argument.

66. The defendants were prompt in flagging the possibility of seeking security for costs and so the plaintiff knew from delivery of his statement of claim that this was a real possibility he would have to face. There was much engagement between the parties over the ensuing months. Quite apart from the confusion created by the plaintiff’s assurances that he was moving to live in the EU, it was the defendants’ understanding, based on the information supplied by the plaintiff’s solicitor as at September 2024, that the valuation of Castlehyde was €20 million and that there was a secured Novellus facility of €5.5million on that property. Had both figures been correct that would have left more than sufficient equity in Castlehyde to cover the defendants’ legal costs if successful and so there was no basis to bring a security for costs motion even though they knew the plaintiff resided in Monaco. It was only when the defendants uncovered materially different information on receiving the Novellus proceedings that they renewed their concerns regarding the existence of assets in the jurisdiction to meet an order for costs if one were made against the plaintiff.

67. There was undoubtedly a delay between the issue of these proceedings (and indeed the request for security on 21 March /8 April 2024) and the issue of the security for costs motions on 2 April 2025. I must however take all of the foregoing factors into account in assessing how I should deal with this delay.

68. A significant factor in relation to any consideration of delay is the question of what prejudice has been caused to the plaintiff as a result of that delay.

69. The defendants argue, relying on Sweeney v. VHI [2025] IECA 15, that the plaintiff must show that he would have decided to conduct this litigation differently had he known that the defendants were seeking security for costs. I am satisfied he has not done so. I am also satisfied that in this case the plaintiff was on notice of the issue of security for costs almost from the very outset of these proceedings in March 2024 and he made his decisions accordingly. There is no evidence at all that the defendants ever abandoned their request for security.

70. Looking at all the evidence in the round I do not believe that the delay in issuing the motions for security amounts to a special circumstance requiring the refusal of an order against the plaintiff in this case. The request for security was raised promptly. The plaintiff ‘s side did not engage in a straightforward manner with the queries raised. They represented that the plaintiff was moving to the EU. After some delay on their part they provided the Hogan Valuation as the up to date value without reference to the significantly lower valuations and statement of affairs that had been exchanged with Novellus in September 2023. The intention was that the defendants would rely on the Hogan Valuation. The plaintiff cannot complain of delay because the defendants relied on the information he provided to them and held off issuing motions based on that information.

71. The delay in this case is thus entirely different to the delay which arose in Smyth v. O’Shea Fishing Company [2015] IEHC 360, a case relied on by the plaintiff. In Smyth the defendants had knowledge that Mr Smith was resident in Australia but nevertheless delayed in bringing their application for security until after Mr Smyth had incurred significant legal costs. There was no suggestion that Mr Smyth had withheld any information or otherwise deprived the defendants of information needed to bring their application.

72. In Moorview, a decision also relied on by the plaintiff, Moorview had incurred the expense of making discovery “against a background of not having been told security for costs was going to be sought”. This scenario is not mirrored in the present case.

73. The plaintiff says that there was a delay between the defendants getting the Novellus proceedings in January 2025 and issuing their motions in April 2025 during which time they “allowed discovery to continue and costs to accrue”. I am not persuaded that the plaintiff has suffered any prejudice as a result of this delay of approximately 2 and a half months or that it was a culpable delay bearing in mind the need to review the Novellus material and the correspondence between the parties prior to the issue of the motions. The plaintiff has not identified any specific prejudice or anything he would have done differently had the motions issued earlier. He was on notice from an early stage of the request for security and took his decisions in the knowledge of that request, and in circumstances where, on his own evidence, he is in a position to discharge all legal costs arising. Had there been no explanation for the delay between the issue of requests and the motions the court may well have taken a different view. In this case however the delay in issuing the motions has been explained by the defendants and the plaintiff’s actions and representations were an integral part of that delay.

c) The plaintiff has ample assets in the jurisdiction to meet any award of costs

74. In Ditt O Neill J held that “..the determinative factor entitling a defendant to seek an order for security for costs in Irish law is that the plaintiff both resides and has his assets outside the jurisdiction of the Irish courts, or to put it another way, does not have assets within the jurisdiction”.

75. Given that the rationale for an order under O. 29 is to address the difficulty of enforcement of any costs order, the relevance of assets within the jurisdiction is obvious. Assets within the jurisdiction are amenable to enforcement here, thus avoiding the need for any further protection to be provided to a defendant.

76. The plaintiff avers on affidavit that he is a “man of means” and “able to pay costs”4. The defendants say that these are bare assertions not backed up by credible evidence and so there is an issue between the parties on this point. While the defendants accept that there is some equity available in Castlehyde (clearly an asset within the For example para 58 of his affidavit sworn 25 April 2025 jurisdiction), they say that this is insufficient to meet any award of costs likely to be made in their favour and that the plaintiff has not discharged the burden of proof he has on this point.

77. There is no direct authority on the question of the level of assets that may avoid the need for a security for costs order. Most caselaw simply refers in a binary way to the existence or non-existence of assets in the jurisdiction. Insofar as the quantum of assets is concerned regard may be had to the dicta of White J in Jack F. Mc Carthy III v. Football Association of Ireland [2014] IEHC 666, where at para. 13 he stated in relation to the determinative factor for the exercise of the court’s discretion: “In my opinion, this can only be the impossibility of enforcement of a costs order against the plaintiff in question, or substantially increased difficulty or expense in enforcing such costs order as compared to the enforcement of such an order against a plaintiff resident in Ireland or who had sufficient assets in Ireland”. (emphasis added)

78. In Heaney v. Malocca [1958] IR 111 Maguire CJ at page 115 noted that a special circumstance justifying the refusal of a security for costs order included “where there is shown to be ample assets within the jurisdiction” (emphasis added). It appears that that statement was strictly obiter as the matter was decided on other grounds and there was no evidence that the plaintiff had any assets in the state.

79. In Malone v. Brown Thomas Limited [1995] 1 ILRM 369 Hamilton CJ noted that the plaintiff had maintained two bank accounts in the state although the level of funds in those accounts was not specified. While this was noted to be a relevant fact in the case, it does not feature as one of the identified circumstances cited by the court in exercising its jurisdiction to refuse an order for security for costs. The extent to which this factor may have influenced the court in the exercise of its discretion is unclear.

80. Insofar as there is any guidance available therefore it is in rather general terms, being framed in terms of “sufficient assets” or “ample assets” in the jurisdiction. There may be little, if indeed any, real distinction between the two phrases although “ample” may have a slightly more generous connotation appearing to convey that there is more than enough assets or that there are plentiful assets here. Counsel for the Lloyd’s Defendants argued that “ample assets” was “not assets that might get you there on the nose, not assets that might get you there if you ignore some crucial questions”.5 My preference is the idea of sufficient assets as it appears to me to be a clearer phrase – it obviously requires a consideration of both the assets and liabilities attaching to them in order to determine the sufficiency of what remains available for enforcement purposes should the defendants succeed in obtaining a costs order in their favour. The court cannot however be a guarantor of ultimate sufficiency. All that can be done is to assess the evidence of assets provided to the court at a point in time and to weigh it against the evidence of the likely level of costs incurred or to be incurred by the defendants seeking security.

81. Three broad groups of relevant assets are identified by the plaintiff. These are (i) his rights to the Lord of the Dance, (ii) his whiskey business and (iii) his interest in Castlehyde. I will consider the evidence on each.

(i) Rights to Lord of the Dance

82. The plaintiff averred in his affidavit sworn 25 April 2025 (at para 3) that this asset was worth €200 million. The April 2025 statement of affairs produced for the plaintiff in these proceedings and exhibited to his affidavit ascribes a value to these rights of €200,000,000 with a debt of €1,400,000 leaving a net asset value of €198,600,000. This valuation differs from the plaintiff’s statement of affairs dated 7 September 2023 Transcript 8 July 2025 page 9 lines 14-16.

in the Novellus proceedings which values the “100% ownership of “Michael Flatley Inc” to include Lord of the Dance, Lord of the Dance 25, Celtic Tiger, Feet of Flames, Corporate Touring and Dance Lord at stg£90,000,000 (approx. €104 million as at September 2023) with no liabilities secured against such rights.

83. The plaintiff says he owns all of the rights and intellectual property for Lord of the Dance and all of his other global shows outright. He avers that “..wherever I am, so too is located the value of Lord of the Dance”. The Lloyd’s Defendants say there is no evidence that the plaintiff is a shareholder in the companies identified by the plaintiff.

84. It is unclear what is comprised in the “rights to the Lord of the Dance” or what the ownership structure of these rights are or indeed how the plaintiff holds this asset. Furthermore there is no evidence that this asset is located in Ireland or within an EU or Lugano jurisdiction. It appears on the plaintiff’s evidence that this asset is located wherever he is. There is conflicting information provided by the plaintiff as to the value of this asset. No formal valuation or valuation methodology has been provided by the plaintiff in respect of it. It is not evident how this asset could be amenable to enforcement in Ireland, the EU or a Lugano state in respect of a judgment against the plaintiff personally. In all the circumstances it does not appear that this asset is one that the court can take into account in assessing the sufficiency of assets within the State (or elsewhere within the EU or Lugano jurisdictions) such as to render an order for security for costs unnecessary.

(ii) Flatley Whiskey

85. Flatley Whiskey is ascribed a value of €10,000,000 in the plaintiff’s April 2025 statement of affairs with a debt secured to “the Comer Group” of €1,000,000 (although no charge yet appears to be registered in their favour) leaving a net asset value of €9,000,000. The plaintiff says he is a 100% owner of this whiskey business and that it is based in Ireland – having its registered office here. However the 100% shareholder of Flatley Whiskey Limited is Flatley Whiskey Holdings Limited, the sole shareholder of which is Eamonn Garvey. The plaintiff is not listed as a shareholder or director of either company.

86. The value attributed to Flatley Whiskey is set out in a short letter from the plaintiff’s accountants, K+A Accountants, dated 27 May 2025. This refers to corporate entities Flatley Whiskey Limited and Flatley Whiskey Holdings Limited. There is however no formal valuation report provided by the plaintiff. The letter from K+A Accountants refers to the valuation of this “group of companies, owned by Mr Michael Flatley.” The valuation is said to be “the accumulation of all project costs since inception, to include set up costs, legal and copyright costs, brand design and consultancy expenditure, staff procurement, product launch and manufacturing costs. It also includes retained profits from sales to date and current bonded stock held, which has a current open market value in excess of €2 million”. It continues “[F]urthermore, the product is on sale for over one year and is performing well, which increases the inherent brand value. In this context, in our opinion, the valuation of €10 million is both proportionate and reasonable”.

87. There are no filed accounts for either company. Flatley Whiskey has apparently been trading for over a year. However there is no evidence before the court of its profitability or what dividends have or may be expected to be paid. There is no inventory of the stock in hand. Any such stock would of course be owned by the relevant company and not by the plaintiff. There are no details of trading income. Nor are there any details of trading liabilities of Flatley Whiskey Limited other than a registered mortgage debenture dated 18 February 2025 in favour of Galveston Investments S.A..

88. In addition to all those concerns, the plaintiff has not provided evidence of his ownership of this asset and he bears the burden of proof on this point. Even if an order for the sale of shares was obtained, the plaintiff is not the legal owner of those shares. No practical enforcement option is evident even if a party secured an order against such shares in a private limited company. In all the circumstances it does not appear that this asset is one that the court can take into account in assessing the sufficiency of assets within the State such as to render an order for security for costs unnecessary.

(iii) Castlehyde

89. The true area of focus therefore is the valuation of Castlehyde. This is clearly an asset in the State and it is not disputed that it is owned by the plaintiff (although the court has not seen evidence to confirm this). Any equity in Castlehyde would be available to the defendants for the purpose of enforcement of an order for costs made in their favour against the plaintiff – assuming of course that this equity had not been charged in favour of another party.

90. Castlehyde is a unique property. That of course makes it difficult to value with any degree of precision. There has been strikingly different evidence provided to the court on the market value of Castlehyde, including on behalf of the plaintiff himself. He avers at para 57 of his affidavit sworn 25 April 2025 that Castlehyde is valued at “either €12,000,000 or €20,000,000”. That is a differential of €8 million and must call into question the range of figures suggested. To further complicate matters from the plaintiff’s perspective he produced a statement of affairs for Novellus valuing Castlehyde at stg £8million as at September 20236. While his counsel said he was not relying on that valuation for the present application, it nevertheless remains a valuation Applying average rate of exchange of €1.16 to £1 in September 2023 this figure is approximately €9.28 million of Castlehyde that the plaintiff’s own advisers produced and which he relied on for other purposes. I must therefore attribute some weight to it.

91. The plaintiff exhibited a statement of affairs prepared by K+A Accountants (who had also prepared the statement of affairs for Novellus) as exhibit MF13 to his affidavit sworn 25 April 2025. That statement of affairs is undated but it issued to the plaintiff’s solicitors on 24 April 2025 and purports to represent an accurate statement of affairs for the plaintiff as at that date. There are obvious issues with this document, apart from the fact that it is barely legible. It contains no detail or explanations to back up the various entries. It identifies three groups of assets only namely, Castlehyde, Flatley Whiskey and Lord of the Dance. Castlehyde is valued at €20million with an indication that there is a debt to the Comer Group of €7,890,560. The net value is then stated to be €8,050,000 which of course does not tally on the basis of the other two figures. There is no explanation as to how the valuation of Castlehyde has changed so significantly from the September 2023 statement of affairs they also produced (where it was valued at the equivalent euro amount of approximately €9.3million).

92. No assets at all are specified in the April 2025 statement of affairs under “any other assets” which expressly includes bank accounts, pensions and trusts.

93. The papers in the Novellus proceedings included a detailed valuation on Castlehyde prepared by Sherry FitzGerald on the instructions of Novellus which ascribed a market value of €8.5 million to Castlehyde and its surrounding lands as at 29 August 2023 (the “Sherry Fitzgerald Valuation - 1”).

94. The author of the Sherry Fitzgerald Valuation-1 was Ms Harriet Grant. Ms Grant was later instructed by Austin Newport to prepare an updated valuation on Castlehyde and she produced her detailed valuation report dated 7 May 2025 in which she valued the property at €8.5 million (the “Sherry Fitzgerald Valuation -2”). Ms Grant swore an affidavit in these proceedings exhibiting her report on 9 May 2025.

95. Another valuer, Ms Deirdre Bonus of QRE Real Estate, prepared a valuation of Castlehyde on behalf of the Lloyd’s Defendants on 7 May 2025 in which she valued the property as at 9 May 2025 in the amount of €10,500,000. (the “QRE Valuation”). Ms Bonus swore an affidavit in these proceedings on 9 May 2025 exhibiting her report. Ms Bonus did not inspect Castlehyde and her report is criticised by the plaintiff for that reason. The report is however compiled as a Red Book valuation and contains numerous comparator properties and other market information.

96. Neither valuer was cross-examined on her affidavit by the plaintiff’s lawyers.

97. The plaintiff relies on the Hogan Valuation for Castlehyde of €20 million.. This valuation was prepared following a site visit and guided tour of Castlehyde on 10 September 2024. It confirms “.. that the property has been lovingly restored under the supervision of the OPW, Heritage Ireland and Cork County Council to an exceptionally high standard”.

98. The Hogan Valuation was not put on affidavit by its author but was simply exhibited by the plaintiff to his own affidavit. Accordingly the author could not be cross-examined on it. Unlike the other valuations, there are no comparator properties identified in the Hogan Valuation. The Hogan Valuation notes that the plaintiff put Castlehyde on the market for sale in 2015 with an asking price of €20 million but the property did not sell.

99. Looking then at liabilities secured on Castlehyde, the plaintiff confirms at para 38 of his affidavit that Blackbird obtained a loan from Novellus for €5,500,000 in September 2023, which was secured on Castlehyde. He says the Novellus loan is repaid and that the total mortgage on Castlehyde is €7,900,000 (para 42 of his affidavit) secured in favour of the Comer Group who refinanced the Novellus loan. That figure includes the sum of €1.4million which is lodged in court in the Novellus proceedings. The plaintiff says that part of that figure is likely to come back to Blackbird as it is a disputed amount.

100. Under the terms of the Novellus loan agreement the interest rate was 14% - comprising 4.25% above the specified margin of 9.75%. The court has no evidence of the interest rate applicable under the refinancing arrangements of the Novellus loan and the plaintiff has not provided this information, although requested to do so by the defendants. The extent to which interest is continuing to accrue on the facility secured on Castlehyde is not therefore known, nor does the court know whether such interest is being serviced or is being added to the secured sum.

101. While there was a suggestion in correspondence that the plaintiff has other properties in EU jurisdictions such as France and Spain, no information at all was provided by the plaintiff to the court on the specifics of those properties. If the plaintiff had done so then the court would have taken those assets into account as being assets within the EU where an Irish judgment could be easily enforced. This would be a logical extension of the Proetta judgment. Because I have no information whatsoever on any EU or Lugano assets I must however confine my analysis of available assets to Castlehyde.

102. Against that evidence of assets in the jurisdiction I have to consider the evidence of the likely costs which will be incurred by the defendants in defending these proceedings and more particularly what level of costs they might expect to be awarded on a party and party basis, if successful.

103. A schedule of estimated costs was prepared by Behan & Associates costs accountants on behalf of Austin Newport which is exhibited as Exhibit KG9 to the affidavit of Kathy Gilmore sworn 1 April 2025. This estimates a figure of €1,194,372 (excluding VAT) as the level of party and party costs likely to be incurred by Austin Newport. The estimate correctly deals only with costs incurred post the initial request for security for costs. It estimates a trial in the region of 10 days and anticipates a number of expert witnesses. The plaintiff objects to this estimate pointing out that the costs accountants did not file an affidavit and that the estimate was merely exhibited to another person’s affidavit. Of course the same could be said of the Hogan Valuation.

104. A detailed schedule of estimated legal costs was prepared on behalf of the Lloyd’s Defendants by Abacus Law Costs Consultants (Michael Monaghan). Total party and party costs are estimated at €1,762,806.50 (excluding VAT) in respect of costs incurred and to be incurred if the proceedings continue to trial, and assuming a hearing of five weeks (20 days).

105. Total estimated costs of €99,470 were incurred before 21 March 2024, being the date when the plaintiff was first put on notice of a request for security for costs by the Lloyd’s Defendants. That figure ought to be discounted for the purposes of this security for costs application, thus reducing the estimate of costs to €1,663,336.50. This estimate also envisages the necessity for expert evidence.

106. The difference in these costs estimates appears largely to be due to a difference in the estimated length of the trial. Austin Newport’s estimate is based on a 10 day hearing whereas the Lloyd’s Defendants envisage a 20 day hearing. At this point this court cannot say which estimate of time is likely to be more accurate and the plaintiff has not engaged at all on this question. Given however the complexity of the issues involved and the fact that the security for costs application alone took two days, it is not inconceivable that a trial of all the issues could take up to 20 days at hearing. For present purposes I will work with the figures that have been provided by the defendants’ costs accountants albeit that they are based on different trial period estimates.

107. Counsel for the plaintiff argues that these estimates can have no bearing on the court’s assessment as to what the likely costs of trial may be and that they cannot have a bearing as to what the quantum of costs for the purpose of assessing security for costs would be.7 I do not agree. While the costs estimates have been exhibited to affidavits sworn by others, they are the only evidence of costs that is before the court. The plaintiff has averred to the fact that he has incurred “significant costs” in dealing with these proceedings. However, the plaintiff has provided no evidence whatsoever on the quantum of the costs he has incurred or what he expects he will incur up to the end of the trial. Neither did the plaintiff challenge the defendants’ legal costs estimates in his affidavits. Had he done so, there would have been an opportunity for the defendants to have their costs accountants swear affidavits in a similar manner to the valuers they instructed.

108. The costs estimates are detailed, particularly the estimates provided by Abacus which break down the costs between identified time periods. In fact much of the legal costs identified have already been incurred because of the advanced status of the proceedings. The estimated aspect therefore concerns the trial preparation and the hearing itself. The figures include items that may not prove to be necessary, such as the stamp duty on adjudicating any award of costs. Equally however the estimates do not include other costs which might potentially arise, such as the costs of appealing this court’s order in the present application. The estimates deal with all likely party and party costs and not the figure that is proposed by way of security.

109. In broad terms, the combined estimated legal costs on a party and party basis (arising after the initial requests for security for costs were made and including a trial – varying between 10 and 20 days and post judgment adjudication of any costs order) is Transcript Day 2 p45 lines 10-14.

approximately €2.86 million for both Austin Newport and the Lloyd’s Defendants. This is only an estimate albeit one prepared by the combined efforts of experienced legal costs accountants. It is the only evidence of legal costs before the court.

110. Assuming the validity of that estimate, and in light of the admitted charge of €7.9 million on Castlehyde, what then is the remaining equity available in Castlehyde to meet an award of costs of that magnitude?

111. If the Hogan Valuation of €20 million was accepted there would indeed be sufficient assets in the jurisdiction to meet such an award. However, I do not accept the Hogan Valuation as the best evidence in this case for a number of reasons. The Hogan Valuation is a complete outlier-valuing Castlehyde at over double a number of other valuations-including one provided by the plaintiff to Novellus. While the Hogan Valuation purports to be an open market valuation, that purpose is further refined as being “for mortgage lending purposes” (Para 2.1) . The report refers to reliance on information supplied by the operations director of Flatley Group but this information is not detailed in the report. The Hogan Valuation contains information regarding the sale efforts in 2015 and an offer said to be rejected by the vendor. This information does not accord with any averments made by the plaintiff in this case or with any of the media reports cited in the Hogan Valuation. This type of hearsay material is not expected in an independent market valuation.

112. There are no comparable properties referenced in the Hogan Valuation. While there is general language regarding interest from overseas buyers and market conditions, no specifics of other market sales are set out, in contradistinction to the Sherry FitzGerald Valuation-2 and the QRE valuation.

113. The Hogan Valuation references certain media reports noting that Castlehyde was put on the market for sale for €20 million (including contents) in 2015. The property did not sell at that time. It was later re-marketed in 2018 with a significantly reduced asking price of € 12.5 million but did not sell. The Hogan Valuation was initially dated 12 September 2024 and was reaffirmed as the relevant valuation as at 28 May 2025. The K+A statement of affairs for the plaintiff dated 23 April 2025 notes the market value of Castlehyde at €20 million but provides no detail or explanation.

114. There are a number of other valuations which estimate the market value of Castlehyde in an entirely different price range. Looking at those valuations in terms of the lowest first indicates as follows: –

115. Sherry FitzGerald valuation-1 : prepared for Novellus and dated 6 September 2023 values Castlehyde at €8.5million. It relies on information provided by CBI Europe, business manager for the property owner. The detail of that information is not separately identified. It sets out a full description of the accommodation including floorplans and several photographs of the rooms, outbuildings, lands and historical features. It sets out details of rights-of-way, Castlehyde’s protected status, land zoning and environmental aspects (including flood plains). It outlines a detailed economic overview as at May 2023 and references nine large country estates sold between 2019 and 2023 by way of comparable properties with a detailed description in each case.

116. Sherry Fitzgerald Valuation -2 : this valuation was prepared for Austin Newport and is dated 7 May 2025. It was prepared on a desktop basis but by the same valuer (Ms Grant) who prepared the Sherry FitzGerald valuation-1 . It is in very similar format but the information is updated to 2025. Additional comparable sales are identified including three significant estate sales at prices ranging from €35 million to €17 million. Eight country house sales are set out being sales which occurred between 2021 and 2023. This valuation also references three properties then currently offered on the open market by way of comparison. It provides a valuation of Castlehyde as at 5 May 2025 of €8.5 million.

117. K+A issued a one-page statement of affairs for the plaintiff as at 7 September 2023 (a copy was included in the Novellus proceedings) in which they provide a valuation of Castlehyde at sterling £8 million. At the relevant exchange rate this equates to approximately €9.3 million. No details or supporting documentation is provided.

118. The QRE valuation is dated 9 May 2025 and values Castlehyde on behalf of the Lloyd’s Defendants at €10.5 million market valuation as at 7 May 2025. This valuation is prepared as a desktop Red Book valuation and is expressed to be for the assessment of loan purposes. Seven properties are discussed by way of comparative recent sales of properties sold or properties on the market for sale between 2023 and 2025.

119. The authors of both the Sherry FitzGerald Valuation -2 and the QRE Valuation put their valuations on affidavit. The plaintiff did not cross-examine either one of them but would have had an entitlement to do so. The Hogan Valuation was not deposed to by its author. While there was a reference made by the plaintiff’s solicitors in correspondence to a 2018 valuation of Castlehyde at €18 million, no valuation report was provided in these terms.

120. In my opinion, the best evidence before the court is the valuations deposed to on affidavit being the Sherry FitzGerald Valuation-2 and the QRE Valuation. I have a slight preference for the detail set out in the Sherry FitzGerald Valuation-2, particularly by reference to the comparator properties and also because that valuation reflects a prior physical inspection of Castlehyde including detailed floor plans and photographic evidence. However, in the interests of being fair to all parties I believe the appropriate course is for me to take a midway point between these two valuations and ascribe for present purposes a valuation of €9.5 million to Castlehyde. This figure correlates closely with the valuation provided on behalf of the plaintiff to Novellus in September 2023.

121. A valuation of €9.5 million, allowing for a secured debt on that property of €7.9 million, results in a net equity of €1.6 million (ignoring any costs of realisation). On the evidence, this sum would be insufficient to cover the defendants’ costs in the event that they succeed in these proceedings. I appreciate that all the various numbers could change, upwards or downwards. The court must however make its best estimate based on the evidence produced by the parties. The plaintiff best knows his own asset position. The burden of proof is on the plaintiff to demonstrate that he has sufficient assets in the jurisdiction (or elsewhere within the EU/Lugano countries) to meet an adverse costs order against him in these proceedings. He has failed to discharge that burden of proof insofar as this application is concerned.

d) The plaintiff’s right of access to the courts would be inhibited by an order for security

122. The plaintiff says that the defendants are trying to deny him access to the court and are bringing this application to frustrate his claim. This contention does not however sit easily with the plaintiff’s insistence that he is a man of means and is in a position to discharge any costs order made against him. For example, the plaintiff says that “..it is unnecessary to seek security for costs as I can pay costs” (para 43 of his affidavit sworn

25 April 2025). While it is often the case that an order for security for costs might stifle a claim and prevent a plaintiff advancing their case, this is something the courts are very live to in weighing the balance of justice between both sides. Recognising the constitutional right of every citizen of access to the courts it has been well recognised in many cases, including in Malone, that no unnecessary monetary obstacle should be placed in the path of those who seek access to the courts. This factor does not however appear to be an issue in this case as, on the plaintiff’s own evidence, he will be able to meet any order for costs (and thus any order for security) made against him. There is no basis therefore to contend that an order for security against the plaintiff will impact on his right of access to the courts or his ability to progress this litigation.

e) The plaintiff is a man of his word and can and will pay any costs if ordered to do so

123. The plaintiff says that the request for security for costs is “inappropriate, designed to embarrass me and, at this junction in the proceedings, tantamount to an abuse of process by the Defendants” (para 48 of his affidavit sworn 25 April 2024). He also avers that he is “..a man of means and a man of my word and able to pay costs” (para

58 of his affidavit).

124. It is important to stress that the security for costs regime under O. 29 is not linked to an assumption that a party against whom security is ordered is dishonest or likely to take steps to evade payment of an order made against him. There is no impugning of character in making an order for security. Rather this is a procedural remedy potentially available to a defendant sued in the Irish courts by a plaintiff who is ordinarily resident outside the jurisdiction of the State, the EU or a Lugano Convention signatory state. The rationale for ordering security under O. 29 is based on the jurisdictional challenge in enforcing any order for costs made by the Irish courts against such a plaintiff – it is not based on an assumption that the plaintiff will take steps to avoid paying a costs order made against him.

125. I have no reason to doubt the plaintiff’s assertion that he would pay any costs if ordered to do so. O. 29 on its face makes no assumption at all as to the character or financial circumstances of a plaintiff against whom an order for security is sought. The court is seeking to balance the interests of both parties. If a plaintiff succeeds he recovers the securityif a defendant succeeds he has access to the security in part satisfaction of any costs order in his favour.

126. No part of the necessary proofs involve a finding that a plaintiff would not pay or is not a man of his word. It would be entirely erroneous to draw such a conclusion from the fact that a plaintiff was ordered to provide security for costs under O. 29.

7 Conclusion and next steps

127. On the evidence, the plaintiff is not at this time ordinarily resident in Ireland but is rather here on a temporary and conditional basis. The defendants’ actions have not caused the plaintiff to live in Monaco. It is accepted that the defendants have a bona fide defence to these proceedings. The threshold requirements for an order under O. 29 are satisfied, leaving it to the plaintiff to establish special circumstances warranting the refusal of an order for security against him.

128. The plaintiff has failed to establish such special circumstances in light of my findings on each claimed circumstance.

129. In my view, on the facts of this case, delay is not a special circumstance warranting refusal of the relief sought. The defendants have provided a reasonable explanation for their delay in bringing these applications. They were entitled to rely on the information and assurances provided to them by the plaintiff. Once the defendants became aware of contrary information they moved with reasonable haste to issue their motions, having flagged at an early stage to the plaintiff their intention to seek security for costs. The plaintiff pursued this litigation in the knowledge of and at risk of that request being pursued if the information he provided was later contradicted.

130. It is the plaintiff who has the relevant information about the extent of unencumbered assets he owns which are located in this jurisdiction or elsewhere within the EU or a Lugano signatory state so as to establish he has sufficient assets against which a successful defendant could enforce a costs order. The existence of such assets would amount to a special circumstance such that there would be no necessity for this court to make an order for security. The plaintiff has not discharged the burden of proof on this point.

131. Given the plaintiff’s own evidence of his ability to pay all costs incurred, I am satisfied that an order for security against the plaintiff will not impact on his right of access to the courts or his ability to progress this litigation.

132. No part of the necessary proofs for an order under O. 29 involve a finding that a plaintiff would not pay or was not a man of his word.

133. I therefore make an order directing that the plaintiff should provide security for costs to Austin Newport and to the Lloyd’s Defendants.

134. There remains a separate issue as to the quantum of the security that should be provided taking into account all relevant circumstances. In accordance with the practice in the commercial list, the amount of that security should be fixed by this court rather than the Master.

135. I give the parties liberty to file written submissions regarding how the court should fix the quantum and conditions of the security to be provided by the plaintiff in respect of each motion. Submissions should be filed and exchanged with each other by 4pm on Friday 7 November 2025.

136. The matter will be listed for mention before me on Friday 14 November at 10:00 am. I will at that time hear oral submissions from the parties as to the quantum, conditions and nature of the security to be provided. The parties remain free in the meantime to agree the terms of security between them.

137. Submissions in relation to the costs of this application for security may also be advanced to the court on 14 November and, if necessary, may be included in the written submissions to be filed by 7 November.

138. Finally, if it transpires that the plaintiff succeeds in his Presidential ambitions and thereby becomes ordinarily resident in this jurisdiction, I give him liberty to apply to vacate the order for security for costs made against him on the basis that the grounds for the making of the order no longer apply.