Scottish Court of Session Decisions

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Cite as: [1922] ScotLR 85, [1922] SLR 85

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SCOTTISH_SLR_Court_of_Session

Page: 85↓

Court of Session Inner House First Division.

Tuesday, November 14. 1922.

[ Lord Anderson, Ordinary.

60 SLR 85

Gore

v.

Westfield Autocar Company, Limited.

(Reported ante 58 S. L.R. 488.)

Subject_1Process
Subject_2Poor's Roll
Subject_3Reclaiming Note against Advice of Senior and Junior Counsel
Subject_4No Probabilis Causa — Removal from Poor's Roll.

Expenses — Caution for Expenses — Poor's Roll — Reclaiming Note Presented against Advice of Senior and Junior Counsel and after Unfavourable Report by Reporters on Probabilis Causa Luigandi.
Facts:

A litigant in forma pauperis presented a reclaiming note contrary to the advice of his counsel, who had refused to sign it, and also against the advice of senior counsel appointed by the Dean of Faculty to consider whether a reclaiming note should be presented. The Court having as a special indulgence allowed the note to be received, thereafter, on the application of the defenders, remitted the case of new to the reporters on probabilis causa litigandi. The reporters having stated that in their opinion the case presented no probability of success whatever, the defenders presented a note craving the Court to remove the pursuer from the poor's roll. The Court ordered his removal from the roll.

Circumstances in which the Court, whilst removing a litigant, pursuer in an action of damages, from the poor's roll, refused to ordain him to find caution for expenses as a condition-precedent to proceeding with the reclaiming note.

Headnote:

Alexander Gore, 23 Albion Road, Edinburgh, pursuer, raised an action for breach of contract against the Westfield Autocar Company, Limited, Edinburgh, defenders.

The pursuer having been admitted to the poor's roll, proof was led, and on 24th May 1921 the Lord Ordinary ( Anderson) assoilzied the defenders.

Contrary to the advice of his senior and junior counsel and agents, the pursuer presented a reclaiming note, signed by himself and not by counsel, which on 15th June 1921 the Court allowed to be received as a special indulgence in the particular circumstances.

On 12th January 1922 the Court, on the defenders' motion, remitted the case to the reporters probabilis causa, who on 2nd November 1922 reported that in their opinion the pursuer did not any longer have a probabilis causa litigandi, and that he accordingly should not continue to have the benefit of the poor's roll.

On 14th November 1922 the defenders presented a note, in which they craved the Court to order the pursuer's removal from the poor's roll and to ordain him to find caution for the expenses of the cause as a condition of proceeding with the reclaiming note, and parties were heard in Single Bills of that date.

Counsel for the defenders cited the following cases:— M'Intosh v. M'Indoe, (1821) 1 S. 218; A B v. Fraser, (1836) 14 S. 1114; Robertson v. Meikle, (1890) 28 S.L.R. 18; Buchanan v. Ballantine, 1911 S.C. 1368, 48 S.L.R. 111.

Judgment:

Lord President—This case presents features altogether unusual and exceptional. The pursuer obtained the benefits of the poor's roll, but on more occasions than one the counsel and agents who were appointed for the conduct of his case have refused to go on with it. The present position is that there has been a proof before the Lord Ordinary and a judgment against which the pursuer has reclaimed, contrary to an opinion obtained from senior counsel appointed by the Dean of Faculty to consider the question whether a reclaiming note should be presented. This opinion only confirmed the advice already given to the pursuer by the counsel who had been supplied to him by the Court and who accordingly refused to sign the reclaiming note. These are certainly very unusual circumstances, and when they were brought to our notice some little time ago we thought it right before doing anything to remit anew to the reporters on probabilis causa litigandi to report on the present position of the case. A remit in circumstances similar, but not of course the same, is specially provided for in the Codifying Act of Sederunt in the case of a cause depending before a Lord Ordinary in the Outer House, but, of course, the powers of the Division, whether expressly defined in the Act of Sederunt or not, include the right to make such a remit. The reporters have reported, and their report is to the same effect as the opinions which had been formed by those to whom the conduct of the case was entrusted from time to time, and to the same

Page: 86↓

effect as the opinion of the senior counsel who was appointed by the Dean of Faculty, namely, that the case presents no probability of success whatever. In these circumstances the defenders in the action have moved for the removal of the pursuer from the poor's roll, and also for an order upon him that he should find caution for expenses as a condition of proceeding with the reclaiming note.

I am clear that in the particular circumstances of this case it would be wrong to allow the pursuer to remain on the poor's roll. On the other hand, I do not think that the circumstances would justify us in disabling him, if he chooses, from going on with his litigation by imposing a condition that he should find caution. I think therefore that he should be removed from the poor's roll, but that no order for caution should be made.

Lord Skerrington and Lord Cullen concurred.

The Court found and declared that the pursuer had forfeited the benefits of the poor's roll, and ordered him to be removed from the poor's roll, and quoad ultra refused the prayer of the note.

Counsel:

Counsel for Pursuer and Reclaimer—Party. Agent—Party.

Counsel for Defenders and Respondents— Garrett. Agents— T. & W. Liddle, Maclagan, & Cameron, W.S.
1922