Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/2004/235.html
Cite as: [2004] ScotCS 235

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Cairns v. The Chief Constable Strathclyde Police [2004] ScotCS 235 (22 October 2004)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Kirkwood Lord MacLean Temporary Judge Sir David Edward	XA57/04 OPINION OF THE COURT delivered by TEMPORARY JUDGE SIR DAVID EDWARD in APPEAL From the Sheriffdom of Glasgow and Strathkelvin at Glasgow by EDWARD EDELSTEN CAIRNS Pursuer and Appellant; against THE CHIEF CONSTABLE, STRATHCLYDE POLICE Defender and Respondent: _______

 

 

Act: Party (Pursuer and Appellant)

Alt: Macpherson, Solicitor Advocate; Simpson & Marwick, W.S. (Defender and Respondent)

22 October 2004

[1]      This is a motion to ordain the appellant to find caution in the sum of £15,000 in respect of the expenses of the present appeal. The appellant is an undischarged bankrupt and it is not in dispute that the normal rule is that a pursuer who is an undischarged bankrupt should be required to find caution unless there are exceptional circumstances which lead the court, in the exercise of its discretion, to decide otherwise (McCue v. Scottish Daily Record & Sunday Mail Ltd., 1999 S.C. 332).

[2]      In exercising its discretion the court must keep in mind that the effect of an order to find caution of a substantial amount might be to make it impossible for the appellant to continue with the action. In a case where an action has serious merits this would be a matter of great importance. It would clearly be wrong that a litigant with a stateable case should, in effect, be excluded from the court by an order for caution with which he could not comply - see the speech of Lord Fraser of Tullybelton in Stevenson v. Midlothian District Council, 1983 S.C. (H.L.) 50. Lord Fraser went on to observe that in a case which is devoid of merits, that point loses most of its importance.

[3]      This appears to be the test applied by the European Court of Human Rights in Tolstoy Miloslavsky v. U.K. [1995] 20 EHRR 442. The merits, or lack of merits, of the action must be considered in deciding whether the measure, in this case of ordering caution, would amount to a denial of justice.

[4]      In the present case, both the sheriff and the sheriff principal, in considering the motion for caution in the Sheriff Court, correctly applied their minds to the question whether the appellant's action is devoid of merit. The sheriff reached the conclusion that the pleadings were hopelessly irrelevant and the sheriff principal, having independently reviewed the pleadings, reached the same conclusion.

[5]      Having ourselves considered the pleadings as they stood in the Sheriff Court, we have reached the same conclusion and do not feel it necessary to add to what has been said by the sheriff and the sheriff principal.

[6]      The appellant, however, was allowed, without opposition, to amend his pleadings to add the words

"Copies of the relevant documents are included in the productions and are held to be incorporated in the pleadings and referred to for their terms brevitatis causa".

This, he says, means that in order to discern whether his case is devoid of merit, the court must look not only at the terms of the record, but also at all the documents produced.

[7]      We do not accept that submission. While there are undoubtedly circumstances where it is appropriate, for the sake of brevity, to incorporate by reference a document in a party's pleadings, it is quite another thing to produce a bundle of documents and invite the court to regard each and every one of them as constituting part of his pleadings without giving the slightest indication of what part of what document is relied on (cp. the observations of Lord Macfadyen in Royal Bank of Scotland v. Holmes 1999 SLT 563 at p. 570E-I).

[8]      The appellant also argued, on the basis of Tolstoy, that an action cannot be regarded as devoid of merit without a full and thorough evaluation of the relevant factors. He seemed to contend that this required a full investigation into the factual background and this has certainly not occurred in this case. In our opinion that submission misunderstands both the meaning of what was said in Tolstoy and the Scottish procedure of relevancy.

[9]      Scottish procedure makes it possible for a court to decide whether, if all the averments of a party are assumed to be true, that party would be entitled to the remedy sought, or to advance the defence put forward. If the answer is "No", it is unnecessary to proceed to any further examination of the facts. We consider this procedure is fully consistent with the requirements of Article 6 of the Convention and we further draw attention to the fact that the expression used by the court in Tolstoy was "a full and thorough evaluation of the relevant factors" and not a full and thorough investigation of such facts as the litigant chooses to aver.

[10]      In this case there has, in our opinion, been a full and thorough evaluation of the relevant factors. The appellant's pleadings, even as they now stand, are hopelessly irrelevant and consequently there would be no denial of justice in requiring him, as a condition of proceeding with his appeal, to find caution. We consider, however, that it would not be consistent with the requirements of justice to fix the amount of caution at the sum of £15,000 as claimed by the respondent. Bearing in mind the estimated length of the hearing we consider that the appropriate figure is £5,000.

[11]      We will accordingly ordain the appellant to find caution in the sum of £5,000 in respect of the expenses of the appeal to be lodged within 28 days of this date.