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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bell & Anor v McMillan & Anor [2000] ScotCS 332 (22 December 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/332.html Cite as: [2000] ScotCS 332

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[1] In these appeals the appellant appeared on his own behalf. The appeals concern actions raised by the appellant in the sheriff court, the first action being raised in the sheriff court at Kilmarnock and the second action in the sheriff court at Ayr. In each action, the sheriff pronounced decree of absolvitor upon the failure of the appellant to find caution conform to a prior order of the sheriff. In each appeal the appellant moved us to sustain the appeal, to recall the interlocutors granting decree of absolvitor and ordering caution and to remit back to the sheriff to proceed without any order for caution.

[2] This action was raised in the sheriff court at Kilmarnock in about January 2000. It bears to be brought against the first respondent as the petitioner in a petition for sequestration of the estate of the appellant and against the second respondent as the interim trustee and thereafter the permanent trustee appointed by the court conform to the petition. It seeks payment by the respondents of the sum of £150,000 "as damages for pecuniary loss due to litigation and the loss of title to the pursuer's heritable property...in terms of the legal maxim damnum injurium (sic) datum..." It suffices to say that the action proceeds upon complaints relating to the grant of the petition for sequestration in the sheriff court at Kilmarnock in January 1998. Subsequent to the award of sequestration the appellant sought recall of the sequestration by way of a petition in the Court of Session. The petition was dismissed at first instance (see Bell v. McMillan 1999 SLT 947) and an appeal against the dismissal was subsequently refused by this court in an unreported opinion dated 7 January 1999.

[3] Following the raising of the action giving rise to the present appeal, the respondents moved the sheriff to ordain the appellant to find caution for the expenses of the action. On 23 March 2000 the sheriff ordered the appellant to find caution in the sum of £2000 within 28 days of that date. At the same time he issued a note setting out the reasons which had led him to do so. Subsequently the appellant sought leave to appeal against the order for caution. The sheriff refused leave to appeal on 7 April 2000 and again set out his reasons for doing so in a note. On 26 April 2000 the sheriff granted a motion for the respondents seeking decree of absolvitor in respect that the appellant had failed to find caution as ordered.

[4] Before this court the appellant argued that the sequestration process had been fundamentally flawed in that there had been some 27 flaws in the procedure which had been followed in it. In particular, the appellant identified a failure to establish his apparent insolvency at the time of the award of sequestration upon service of a demand for payment conform to section 7(1)(d) of the Bankruptcy (Scotland) Act 1985. It was these flaws which entitled him to seek reparation as a wrong done to him. An action for reparation was a competent action (see Miller v. City of Glasgow D.C. 1989 SLT 44). That being so, he should be able to pursue such an action without the imposition of an order for caution (see Cooney v. Kirkpatrick 1989 SLT 457). In ordaining him to find caution the sheriff had erred and, in particular, had erred in requiring him to find caution in the sum fixed. The appellant made reference to the speech of Lord Fraser in Stevenson v. Midlothian D.C. 1983 SC (HL) 50 in which Lord Fraser had said that it would be wrong that a litigant with a stateable case should in effect be excluded from the court by an order for caution with which he could not comply, other than in exceptional circumstances. The appellant submitted that to do otherwise would be to contravene the principle, set out in Article 6 of the European Convention of Human Rights, which gave every person a right to a fair and impartial hearing.

[5] We note that it is not in dispute that the sequestration process still continues and that, as indicated before, the appellant has failed in an attempt to have the award of sequestration recalled. We further note that the appellant did not take issue with the proposition that an undischarged bankrupt may be required to find caution as a precondition of being permitted to continue with an action even where he is not suing for the benefit of his estate. In that event his bankruptcy is a relevant factor, as evidence of his impecuniosity. We also note that, contrary to the appellant's submission, the award of sequestration properly proceeded upon a charge for payment of sums due by the appellant under an extract decree for taxed expenses conform to section 7(1)(c)(ii) of the 1985 Act (see Bell v. McMillan above). The remaining complaints relating to the process of sequestration do not give rise, in our opinion, to any stateable case for reparation for any wrong done to the appellant. Before the sheriff it appears to have been contended that taken separately or together these complaints constituted a personal action for slander by reason that they amounted to an allegation that he was an undischarged bankrupt, when he was not so. No other explanation was placed before us as to what formed the ground of action. In our opinion, the sheriff was well founded in his determination, in his note appended to the interlocutor of 23 March 2000, that the appellant's pleadings contained no relevant averments of slander. Furthermore, there are no averments which link the appellant's complaints with one or other of the respondents in such a way as to distinguish their actings as the basis for wrongs giving rise to loss or damage, let alone how any loss or damage is to be computed. On the whole matter, the sheriff was, we consider, fully justified in his view that the appellant had no stateable case and that it was appropriate to order the appellant to find caution. In reaching this decision, the sheriff was entitled to take into account that the action before him was only one of a series of actions in which the appellant had not paid the expenses awarded against him. He noted that in a case before this court, the appellant had been asked to find caution of £2000. In our opinion, the sheriff was entirely justified in concluding that, looking to all the circumstances, an order for caution in that sum was also appropriate in the present action. Nothing said by the appellant persuades us that such an order infringes his rights under the Convention. The order is made to protect the other parties to his action, and those whom they may represent, and to ensure that, if the action is to proceed further, they have security against any order for expenses that may be made in their favour.

[6] We would only add that some point appeared to be taken before the sheriff at the hearing on 26 April 2000 to the effect that in a previous interlocutor a continued options hearing had been set down for that date. It was then submitted that the motion to grant decree of absolvitor was incompetent and premature. We are satisfied, upon a consideration of the terms of the Ordinary Cause Rules, in particular Rule 27.9, that the sheriff correctly held that, since the appellant admitted that caution had not been found as ordered, such a hearing no longer had a part to play in the process and, accordingly, the motion was competent.

[7] This action was raised in the sheriff court at Ayr in November 1999. In it the appellant craves the court to ordain the respondents to pay the sum of £50,000 jointly and severally "as damages resulting from litigation and stress relating to the estate of the late Mrs. Janet McLanachan, the loss being both pecuniary (resulting from litigation) and non pecuniary (resulting from stress and the loss of a good name) in terms of the legal maxim damnum injuria datum". The first respondent is sued as the curator ad litem appointed to the late Robert Burns Cumming Fulton on 10 August 1992. Mr. Fulton was the liferent beneficiary of the trust estate of the late Mrs. Janet McLanachan. In July 1992 Mr. Fulton had raised an action of count, reckoning and payment against the two trustees for the said estate of whom the appellant was one. The second respondent is sued as the interim judicial factor appointed to the trust estate of the late Mrs. Janet McLanachan on 27 September 1994 upon the petition of the first respondent as curator ad litem aforesaid for the sequestration of the said estate, for the appointment of an interim judicial factor and for removal of the appellant as trustee. Subsequently on 20 July 1995 Mr. Fulton died. On 12 December 1995 the second respondent's appointment as interim judicial factor was recalled. Thereafter on 10 September 1997 the second respondent presented a note to this court seeking exoneration and discharge as interim judicial factor on said estate. The appellant objected to exoneration and discharge but following a hearing on 9 January 1998 the Lord Ordinary granted the prayer of the note. The appellant thereafter appealed against the decision of the Lord Ordinary. On 11 March 1998 the appeal was refused. On 6 May 1999 a further appeal by the appellant against an award by the Lord Ordinary of the expenses of the hearing on the note in favour of the second respondent, was also refused.

[8] On 23 December 1999 the sheriff, in the absence of the appellant, granted a motion on behalf of the respondents ordaining the appellant to find caution for the expenses of this action in the sum of £4,000 within 28 days. It appears that this motion had not been intimated to the appellant. On 16 March 2000 the sheriff principal allowed an appeal at the instance of the appellant against the sheriff's interlocutor. At the hearing before the sheriff principal, the appellant invited the sheriff principal not only to remit back to the sheriff but to do so upon the basis that caution should not be ordered. In the event, the sheriff principal decided to remit the cause to the sheriff to consider the first respondent's motion. The appellant argued before us that the sheriff principal was wrong to do so. We do not agree. The course adopted by the sheriff principal was entirely correct. It enabled the sheriff to consider the matter anew in the light of any submissions that the appellant might wish to put forward. But, in any event, the appellant sought to appeal to this court against the decision of the sheriff principal and on 20 April 2000 it was determined by this court that the appeal was incompetent and the case was remitted to the sheriff to proceed as accords. In addition, the appellant was found liable to both respondents in the expenses incurred by the appeal. On 8 June 2000 the sheriff, having heard the parties, ordained the appellant to find caution in the sum of £4,000 within 14 days from that date as a condition precedent of further procedure. On 13 July 2000 the sheriff, having heard parties, in respect that the appellant had failed to obtemper the order for caution, granted decree of absolvitor.

[9] In support of his appeal, the appellant submitted that the action was a competent action and that the averments were relevantly stated, that the action was one of a personal nature and therefore that no caution should be ordered (under reference to the decision in Cooney v. Kirkpatrick) and that, in any event, it was in the interests of justice that the action should be allowed to proceed without the necessity for caution (under reference to the decision in Stevenson v. Midlothian D.C.).

[10] In our opinion, these submissions are misconceived. In the first place, the action is founded upon complaints in relation to an action for count, reckoning and payment which was properly proceeded with and upon a further petition for removal of the appellant from the office of trustee which was granted by the court. In his grounds of appeal the appellant appears to take issue with the manner in which the courts have exercised their "undoubted discretion" since 1995 to date and with the basis upon which caution has been granted in other proceedings in Ayr Sheriff Court. But an action of the present kind is no basis for challenging such matters. As Mr Marshall for the respondents suggested, the present action constitutes no more than a catalogue of complaint about other judicial proceedings. Indeed, it is impossible from the pleadings to discern any basis upon which it could be said that such proceedings were directed to the appellant other than in a representative character, as opposed to him personally. Furthermore, there is nothing in the pleadings which connects the complaints with any effect upon the appellant which could sound in loss and damage to him personally. Accordingly, we are satisfied that there is no stateable case put forward by the appellant on any of the matters referred to by him in his pleadings, such as to support the crave of the initial writ, and that the action is devoid of merit.

[11] That would, in itself, be sufficient for the disposal of the appeal. But we are fortified in refusing this appeal by certain further considerations, namely, that the appellant is an undischarged bankrupt, that he has been subject to other orders for caution in other actions with which he has failed to comply and that, in particular, at least one of these orders was made in the face of a failure to pay the expenses awarded against him in a previous action. In the end of the day, the amount fixed for caution was a matter for the sheriff in the whole circumstances of the case. Standing the nature of this action and having regard to the appellant's conduct in the actions to which reference was made in the pleadings, including his frequent and, in the main, unsuccessful resort to appeal, we consider that in fixing the amount as he did, the sheriff cannot be said to have erred in the exercise of his discretion.

[12] For the above reasons, both appeals have been refused.