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OUTER HOUSE, COURT OF
SESSION
[2009] CSOH 13
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A515/08
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OPINION
(2) OF LORD BRODIE
in
the cause
TERENCE
PATRICK EWING
Pursuer;
against
TIMES
NEWSPAPERS LIMITED
Defenders:
ннннннннннннннннн________________
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Pursuer: Party
Defenders: Lindsay; Ledingham Chalmers LLP
11 December 2008
[1] In terms of interlocutor dated 11 December 2008 I made an order requiring the pursuer to find caution for future
expenses, in the sum of г15,000 for reasons explained in my Opinion of that
date. The pursuer applied for leave to
reclaim that interlocutor in terms of Rule of Court 38.5. The motion for leave to reclaim came before
me on 7 January
2009.
Having heard the pursuer and Mr Lindsay, Advocate, on behalf of the
defenders I refused the application. I
gave my reasons for doing so at the time of announcing my decision orally in
open court. I was not requested to
provide them in writing. In terms of
Rule of Court 38.5(6) the decision of the Lord Ordinary to refuse leave to
reclaim shall be final and not subject to review. The pursuer has nevertheless requested my
reasons for dismissing the motion for leave to reclaim in writing. He did so by way of letter dated 21 January 2009 which was brought to my attention on 26 January 2009. I would briefly summarise
the argument before me and my reasons for refusing the motion for leave to
reclaim as follows.
[2] The pursuer began by acknowledging that
there was authority to the effect that a requirement, such as is found in Rule
of Court 38.5, to obtain leave to reclaim from the judge whose decision it
is proposed to challenge is not contrary to the guarantee of a fair trial which
is provided by Article 6 of the European Convention on Human Rights: Umair v
Umair 2002 S.C. 153. The pursuer went on to explain that if
granted leave he proposed to argue that the requirement that he find caution
was disproportionate and accordingly in contravention of his Article 6
rights because it effectively prevented access to the courts. The pursuer reminded me that the order had
been made at an early stage in the proceedings.
There had been no recovery of documents.
The Record had not closed.
Although the amount ordered was less than the defenders had sought, it
was nevertheless a large sum. He was
quite unable to pay it. Indeed, if the
sum ordered had been г1,500 rather than г15,000 he would still have been unable
to pay it. There were issues in the
present case that had not yet been considered by the Inner House and for that
reason alone it would be appropriate to grant leave to reclaim. It would be his submission to the Inner House
that I had erred in my assessment of his case but even so, I had accepted that
he had made out a case of defamation, albeit subject to a defence of Reynolds privilege. Quantification of that claim would be a
matter for a jury. In the whole
circumstances it was appropriate that leave to reclaim should be granted.
[3] Mr Lindsay, while recognising that
the matter was one for my discretion, submitted that the application should be refused. He reminded me that in the event that decree
of absolvitor was granted in terms of Rule of Court 33.10 by reason of the
pursuer having failed to lodge caution it would then be open to the pursuer to
reclaim as of right and that this would open up all previous
interlocutors: McCue v Scottish Daily Record
& Sunday Mail 1999 S.C. 332. So far as the pursuer's complaint that the
defenders' application for an order for caution had been made prematurely was
concerned, Mr Lindsay pointed to the fact that the adjustment period had
been near to its end and reminded me that the purpose of obtaining an order for
caution was to protect a party against a future expense, thus the longer he
delayed in his application the longer he would be unprotected. It could not be said that г15,000 was an
excessive sum given the likely cost of taking the action the length of a Procedure
Roll debate. As far as the complaint of
contravention of Article 6 of the Convention was concerned, it was
Mr Lindsay's submission that my making an order for caution was consistent
with the authorities and in particular Monarch
Energy Ltd v Powergen Retail Ltd
2006 S.L.T. 745 and Miloslavsky
v UK [1996] EMLR 152. Critically, the decision to make an order for
caution was a matter for the discretion of the Lord Ordinary. Nothing which had been said by the pursuer
indicated that in the present case that discretion had not been exercised
properly.
[4] In refusing the pursuer's application
for leave to reclaim, I laid aside the consideration that in the event of decree
of absolvitor being granted by reason of the pursuer failing to find caution he
would be able to appeal as of right and, in doing so, be able to open up all
previous interlocutors. I accepted, as
the pursuer had observed, that the Inner House has not yet had the opportunity
to pronounce upon whether the common law on caution for expenses is compatible
with the rights guaranteed by Article 6 of the European Convention. That said, no authority was drawn to my
attention which indicated that such a limitation on access to the courts
contravened Article 6, provided it was proportionate. Moreover the matter has previously been
considered in the Outer House by Lord Drummond Young in Monarch Energy Ltd v Powergen Retail Ltd supra. I would see my decision as following that of
Lord Drummond Young and the pursuer did not suggest otherwise. I regarded it as important that the decision
to order caution was one for my discretion and the Lord Ordinary's discretion
will only be overturned on appeal if its exercise was so unreasonable that no
reasonable Lord Ordinary properly directed would have so decided: Stevenson
v Midlothian District Council 1983
S.C. (H.L.) 50 at 52. In nothing which
the pursuer said was it suggested that there had been a failure to exercise
that discretion properly. Accordingly it
did not appear to me that the pursuer had put forward the basis upon which it
could realistically be said that he might succeed in his proposed reclaiming
motion. In these circumstances I
considered it appropriate to refuse the pursuer's motion.
