Scottish Court of Session Decisions

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Cite as: [1868] SLR 6_465, [1868] ScotLR 6_465

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SCOTTISH_SLR_Court_of_Session

Page: 465↓

Court of Session Inner House First Division.

Saturday, March 20 1868.

Lord Kinloch

6 SLR 465

Jenkins and Others

v.

Robertson and Others.

Subject_1Caution for Expenses—Right of Way—Dominus litis—Nominal Pursuer.
Facts:

Pursuers of declarator of right of way ordered to find caution for expenses as a condition of the action proceeding, it being proved that these pursuers had no means of their own, and were put forward by other parties who desired to escape from liability for costs.

Headnote:

This was an action brought by William Jenkins, shoemaker in Elgin; William Halket, gardener there; and Alexander Youngson and Alexander Simpson, labourers in Lossiemouth, for the purpose of establishing a public right of footpath along the banks of the Lossie, through the lands of the defenders. The case has been repeatedly before the public, the House of Lords having repelled a plea of res judicata, founded on the proceedings in a similar case at the instance of the Magistrates of Elgin; and the points now before the Court were two pleas stated by the defenders, and amounting substantially to this—(1) That the present pursuers were not the true domini litis, and that the cause should be sisted until the true domini litis were called; and (2) that, at least in the circumstances, the pursuers ought not to be allowed to proceed without finding caution for expenses. The last defence was principally insisted in. The Court, recalling the judgment of Lord Jerviswoode, allowed a proof of certain of the defenders' averments. It appeared that one of the pursuers had withdrawn from the action, and that two of the others did not know whether they were still pursuers or not.

Duncan and Rutherfurd for reclaimer.

Scott for respondents.

The following authorities were cited:— Ball v. Ross, 1 Scott. New Rep. C. P. 217; Evans v. Reid, 2 Adolph, and Ell. Q. B. 334; M'Ghee v. Donaldson, 1 June 1831, 10 S. 604; Fraser v. Dunbar, 6 June 1839, 1 D. 882; Walker v. Wotherspoon, 23 March 1843, 2 Bell Ap. 57.

The Lord President said that the pursuers were all in the position of working men, having no means but what they earned by manual labour. They sued a public right, and they had an undoubted title to do so. Jenkins, the pursuer, not only had a theoretically good title, but was practically, being a resident in Elgin, interested in the matter. There was no patrimonial interest on the part of the pursuers involved here. Now, it was completely established by the evidence that the pursuers did not furnish the funds for the litigation. The funds were raised by subscription, and the pursuers had been selected by this club of subscribers simply because they were poor men, and because, in the event of their failing in the action, the defenders would not get their expenses from them. Now, if the subscribers of the funds had themselves become pursuers, there would probably have been no room for the defenders' motion. But it was a very serious question when these subscribers proposed to put forward men with no means at all, in order to save their own pockets in the event of the defenders getting absolvitor,—and this apart from the peculiarities of the case, though this was undoubtedly a very hard case for the defenders. They had substantially succeeded in the former action, though unfortunately, owing to the way in which it had been ended, the matter was not res judicata. Formerly the pursuers were substantial; but here, unless the defenders' motion was granted, they, if successful in the end, would never get any of their expenses. In these circumstances it was just and equitable that the pursuers should find caution. There must be a power in every Court to give such an order, because the absence of it would lead to the most unjust and improper results.

Lord Deas and Lord Ardmillan concurred.

Judgment:

Lord Kinloch—There cannot be any doubt that the Court has power to order security to be found for costs, as the condition of a litigation being allowed to proceed. The power is one which must be exercised with great discretion and care. But the possession of it is undoubted. An equitable arrangement as to expenses, either by payment or security, and either in whole or in part, as a condition of judicial procedure, pervades the whole of our practical jurisprudence.

At the same time, it is important that it should be clearly understood that poverty in a ligitant is, by itself, no ground whatever for obliging him to find security for expenses. Some additional element,

Page: 466↓

such as divestiture by bankruptcy, or the like, has always been held indispensable. The poorest man in the country is entitled to be admitted to the Court without let or hindrance. By the institution of the Poor's-roll, there are established facilities for the case of the very poorest being heard and decided. If nothing had appeared in the present case except that four common working men were pursuing an action for enforcement of a public right of way, being an action which the law holds them entitled to pursue, the Court, I may venture to say, would not have listened to any proposal to have them ordained to find caution for expenses, as a condition of the action proceeding.

The peculiarity of the case is, that it has been clearly proved that the pursuers are not spontaneously pursuing this action on their own resources, but have been set forward by others, who remain in the background. And some of these are persons who were engaged in previous proceedings of the same kind, and who, being then foiled in their purpose, were desirous to have the proceedings which they themselves could not now raise, instituted in the name of new ostensible pursuers. The parties have been selected as pursuers for the express reason that they are so poor that they cannot be made worse than they are by any judgment against them for expenses, because such expenses they have no means to pay. William Jenkins, the only one of whom it is quite certain that he continues a pursuer, is not indeed a pauper in the strict legal sense, but he is only one shade above, having at the utmost nothing more than suffices for the sustenance of himself and his wife. It is proved that the action is carried on, not by any funds of the pursuers (for they have none), but by subscriptions derived from various parties desirous of maintaining the suit. What these parties substantially do is, to carry on the action in the name of the pursuers, with no liability (as is supposed) for expenses on their own part; and with the consequence to the defenders of being obliged to lay out large sums in litigation, without the prospect, if they are successful, of recovering any part of them from the nominal pursuers. The plan of so carrying on this action involves a state of things, as regards the defenders, than which nothing can be more unjust or unfair. I think the case loudly calls for such remedy as the Court can apply. There is great reason to doubt whether any other remedy be competent, during the progress of the suit, than that of ordaining the pursuers to find security for costs; and this remedy I think as fully competent as it is equitable and appropriate. If the more substantial parties who are lurking behind the pursuers are sincere in their desire to have the question brought to issue, and have a good opinion of the case, they, or one or more of them, will come forward and become security for the expenses. If they do not so come forward, the fact will form the strongest justification of the order now proposed to be made.

Counsel:

Agents for Pursuers— D. Crawford and J. Y. Guthrie, S.S.C.

Agents for Defenders— Gibson-Craig, Dalziel, & Brodies, W.S.
1869