Scottish Court of Session Decisions

At advising—

Lord Justice-Clerk—I see no reason for compelling the pursuer to go on the poors-roll when she is willing to go on with her action at her own expense, and if this is sound 1 do not think that she need find caution because she is in a state of poverty.

I have no desire to go against the authority of the case of Hunter v. Clark, but in this case I am not of opinion that we should compel the pursuer to find caution.

Lord Young—I am of the same opinion. In a sense it is always in the discretion of the Court to order a party to find caution—whether defender or pursuer—and that discretion will be exercised wherever it may appear that justice requires it. This, however, will only occur in exceptional circumstances. It is the practice to apply this discretion where a party seeks to raise an action who is divested of his property, the reason being that he is usually seeking to recover something for himself which is included in his conveyance to another. I remember Lord Mackenzie pointing out, however, that absolute impecuniosity will never be taken as the sole ground for making a party find caution. I certainly entertained some hesitation at one time of the debate as to whether by receiving 1s. 6d. a-week there was not an implied assignation to the Parochial Board. But I dismiss this, because, after all, the allowance must be a casual one, and she is probably under no obligation to repay even if she should succeed in the present action. It may perhaps be a hard thing for one party to have to litigate with another who has no funds, but after all there are innumerable instances of it, and, I repeat, it is no ground to order the pursuer here to find caution. In regard to the judgment in the case of Hunter v. Clark, we must, I think, hold that the Court were there in possession of certain circumstances which led them to exercise their discretion in the way they did. To send this case to the reporters probabilis causa when the pursuer does not wish to have an agent and counsel given to her, in order to determine whether she has a probable cause of action, and if she has probable cause of action to allow her to litigate, and if not to prevent her from litigating, is a course of procedure which I do not think we can sanction. It would require a special Act of Parliament to authorise us to do so.

Lord Craighill—I concur in the result at which your Lordships have arrived. If this case had been the same as Hunter v. Clark I should have had difficulty in coming to a different conclusion from that arrived at by their Lordships of the First Division. But here there is one material point of difference, which is, that the pursuer is suing for the loss of the husband to whom she looked for support, and whose death has therefore made her a pauper. The law is very tender in making persons find caution, and even in the case to which Lord Young has alluded, where there has been divestiture, as in the case of cessio or a trust-deed, if the trustee refuses to take up the litigation the Court may permit the action to be raised without caution. But mere poverty is never a ground for requiring caution, and even if it were I should make an exception in the present case.

Lord Rutherfurd Clark—I must say I cannot distinguish this case from that of Hunter v. Clark, but nevertheless I concur in the result arrived at by your Lordships.

The Lords accordingly allowed the pursuer to proceed to adjust issues for the trial of the case.