Scottish Court of Session Decisions

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Cite as: [1923] SLR 486, [1923] ScotLR 486

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SCOTTISH_SLR_Court_of_Session

Page: 486↓

Court of Session Inner House First Division.

Saturday, May 26. 1923.

[ Lord Murray, Ordinary.

60 SLR 486

Nakeski Cumming

v.

Gordon's Judicial Factor.

Subject_1Expenses
Subject_2Caution for Expenses
Subject_3Motion that Pursuer be Ordained to Find Caution
Subject_4Motion Based on Expired Charge, Four Years Old, and on Parties' Relation to Past Litigation — Necessity for Statement of Grounds of Motion either on Record or by Minute.
Facts:

Where a motion for an order upon a pursuer, who was conducting his own case, to find caution for expenses was based upon the expiry of a charge upon a decree for expenses executed four years previously, and upon circumstances arising out of a former litigation between the parties, held that some formal and definite statement of the grounds of the motion, either on record or by way of minute, was necessary.

Headnote:

Michael Nakeski-Cumming, Edinburgh, pursuer, brought an action against J. Harold Macdonald, W.S., judicial factor upon the estate of the late Charles Gordon of Halmyre, defender, for payment of £960.

After the case had been called the defender lodged in process a copy of an extract of a decree against pursuer for the taxed amount of expenses for which he had been
Page: 487↓
found liable in a previous litigation, dated 15th July 1919, and relative charge, dated 5th November 1919, which had expired, and intimated to the pursuer that a motion would be made to ordain him to find caution for expenses.

On 27th February 1923, after the record had been closed, the Lord Ordinary ( Murray) ordained the pursuer to find caution to the extent of £25 sterling within fourteen days.

The pursuer having moved that a certain document should be accepted by the Court, as obtempering the order, his Lordship on 8th March 1923 refused the motion, and of new ordained the pursuer on or before the 15th day of March 1923 to find caution to the extent of £20 towards the expenses of the action, under certification that if he failed to do so, decree dismissing the action, with expenses against him, would be pronounced.

On 16th March 1923 the Lord Ordinary ( Morison), in respect that caution to the extent of £20 had not been found by the pursuer, dismissed the action.

The pursuer reclaimed, and the case was heard on 26th May 1923.

Judgment:

Lord President—This is a reclaiming note by the pursuer against an order upon him to find caution for expenses. It has been explained at the bar that the motion on which the order proceeded was based upon an expired charge, now some four years old, and upon certain circumstances arising out of former litigation between the parties. These grounds may be enough to justify the order for aught I know. But they are in dispute, and there is nothing in process—either by way of pleading on the record or by way of submission by minute—setting forth the special grounds on which the motion was supported. It is true that in the simple case of the sequestration of a pursuer the public notification of the sequestration is enough to justify the motion for intimation to the trustee, and the trustee's refusal to come in leads in ordinary course to an order for caution. But this simple procedure applies neither in practice nor in fairness (especially when the pursuer is conducting his own case) to a case which depends on circumstances so special as the expiry of a charge four years ago and the particular relations of parties to past litigation. In such a case some formal and definite statement of the grounds is necessary, either on record or by minute, which the pursuer can meet by an equally definite answer (if he has one), and on which the Court can proceed in disposing of the motion. In the present case the absence of any statement whatever leaves us in ignorance of the grounds on which the order was made, and without any means of deciding a dispute which is wholly unformulated. There is nothing for it, therefore, but to recall the interlocutors reclaimed against. And then the case must go back to the Lord Ordinary.

Lord Skerrington—I concur.

Lord Cullen—I concur.

Lord Sands—I concur.

The Court recalled the interlocutors of 16th March and 8th March, and the interlocutor of 27th February so far as it dealt with the question of caution, and remitted to the Lord Ordinary to proceed.

Solicitors: Agent for Pursuer and Reclaimer—Party.

Counsel:

Counsel for Defender and Respondent— Mackintosh. Agents— Morton, Smart, Macdonald, & Prosser, W.S.
1923