SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Mackay of Drumadoon Lord Marnoch	[2010] CSIH 67 A515/08 OPINION OF THE LORD JUSTICE CLERK in the cause TERENCE PATRICK EWING Pursuer and Reclaimer; against TIMES NEWSPAPERS LIMITED Defender and Respondent: _______

Act: Party

Alt: Dunlop; Ledingham Chalmers

29 June 2010

The action

[1] The pursuer sues for "unlimited damages/solatium including actio iniuriarum" in respect of an article published by the defender on 11 February 2007 in the Sunday Times Scotland edition and on two related websites. He alleges inter alia that the defender is guilty of "the delict of libel and/or harassment" of him under the Protection From Harassment Act 1997 (the 1997 Act); and further, or in the alternative, is guilty of "the delicts of breach of confidence and/or privacy and/or breach of and/or the Data Protection Principles under ... the Data Protection Act 1998 and/or harassment under ... [the 1997 Act] including the publication of a clandestine (sic) obtained photograph" of him printed with the article complained of. There are various other conclusions that need not concern us.

The alleged defamation

[2] The essential points in the article complained of are that a body called the Euston Trust, with which the pursuer is associated, took a secret payment of £10,000 to drop its objections to a £16 million development in Weston-super-Mare; that the Euston Trust had objected to dozens of developments across Britain since its inception four years earlier and was suspected of taking money from other builders; that the pursuer told the Sunday Times that he intended to target the £2 billion redevelopment of derelict rail yards at Kings Cross and that in September 2005 at a meeting with a firm of housebuilders the then secretary of the Euston Trust, Keith Hammerton, said that he believed that the pursuer had often taken payments from other developers. According to the article, the minutes taken by an independent solicitor recorded a comment by Mr Hammerton that he had suspected for some time that the pursuer had received payments from developers to pull out of intended judicial review challenges. The article recorded that the pursuer emphatically denied having been offered, or having taken, payments from developers and said that Mr Hammerton, from whom he had dissociated himself, had not passed on the £10,000.

The pursuer

[3] The pursuer lives on benefits. In 1981 he was convicted of 21 counts of theft and forgery and sentenced to seven years imprisonment. He has a long history of litigations in the English courts. On 21 December 1989 the High Court, taking into account 37 actions raised by him, declared him to be a vexatious litigant and made him subject to a civil proceedings order (Supreme Court Act 1981, s 42(1)). One reason for the making of the order, but not the only one, was that in the course of an action against his landlord for harassment and unlawful eviction the pursuer had said the following in a letter to the landlord's solicitors:

"I will not in any event comply with any order for payment or taxation order ... I shall knowingly and wilfully be defaulting on all debts owed to your trash wetback clients and the trash Law Society."

Another similar remark was:

"I shall of course be deliberately seeking to pursue vexatious objections, simply for the purpose of building up a further legal bill in respect of which you and the Law Society will be billed."

In taxation proceedings after another of his actions, he wrote to the Treasury Solicitor as follows:

"It is my policy on taxation to make the proceedings deliberately as expensive and convoluted for the opposition as I can possibly make them with every conceivable objection and point being taken, no matter how minor ... I can also assure you that I intend to make the proceedings in the Westminster County Court as embarrassing as I possibly can for your client and your department."

Since the civil proceedings order was granted, the pursuer has sought leave of the High Court to institute proceedings in at least 19 other claims, in almost all of which leave has been refused.

History of the present claim

[4] On 19 June 2008 the pursuer applied to the High Court for leave to institute proceedings against News International Ltd, the present defender and others in respect of the article and the website postings to which I have referred (Ewing v News International Ltd and Ors [2008] EWHC 1390 (QB)). On 22 July 2008 Coulson J made a finding that the pursuer was a serial litigator who was obsessed with civil litigation and whose stated policy was not to pay the costs of those who successfully defeated his claims. Coulson J refused the application on the ground that the pursuer's claims were statute barred but that, even if that had not been the case, they had no real prospect of success and/or constituted an abuse of the process of the court; and that in addition, in relation to the internet postings, that there was no evidence of publication (ibid, at para 124). Coulson J ordered the pursuer to pay £22,500 by way of an interim payment of costs to the defendants. The pursuer has appealed against that decision.

[5] At about this time the pursuer travelled to Scotland where he downloaded the internet versions of the article and read a hard copy of it in a public library. In June 2008 he raised the present action. The defender moved the court to ordain the pursuer to find caution in the sum of £50,000 as a condition precedent to his continuing the action. On 11 December 2008, Lord Brodie ordained the pursuer to find caution in the sum of £15,000. That sum was intended to cover the defender's probable expenses up to the procedure roll stage. On 7 January 2009 Lord Brodie refused the pursuer leave to reclaim. The pursuer failed to find caution. On 15 January 2009 Temporary Judge Wise, QC, having been assured by the pursuer that he could not and would not find caution, granted decree of absolvitor.

[6] At about that time the pursuer, seeking to be defamed in Northern Ireland, travelled to Belfast, downloaded the same versions of the article and read a hard copy of it. He then served two writs on the present defender in the High Court of Northern Ireland. He sought the same remedies and made the same allegations as in the present action. On 21 January 2010 Coughlin LJ struck out the claims (Ewing v Times Newspapers Ltd [2010] NIQB 7, at paras [29]-[30]; [36]-[37]). The pursuer has appealed against that decision too.

The reclaiming motion

[7] The pursuer reclaims against the interlocutors of 11 December 2008 and 15 January 2009. The validity of the second interlocutor depends on the validity of the first (cf McCue v Scottish Daily Record & Sunday Mail Ltd 1999 SC 332).

Lord Brodie's reasoning

[8] The Lord Ordinary's starting point was the pursuer's admitted impecuniosity. In England, he had failed to comply with the interim costs order and a statutory demand had been made under section 268 (1) of the Insolvency Act 1986. The sum demanded remained unpaid. Ewing v News International Ltd and Ors (supra) showed that this was not an isolated failure. It was beyond question that the pursuer would fail to meet any award of expenses against him in this action. Requiring the pursuer to find caution in a reasonable sum would not contravene article 6 of the European Convention on Human Rights. The pursuer had no reputation in Scotland. He had gone to some trouble to expose himself to the publication. Any harm that he had suffered could not be substantial. While it could not be said that the defamation aspects of the action were unstatable, they were without serious merits. For the other heads of claim, the pursuer had failed to plead a statable case. This was an artificial litigation. The defender faced substantial expense in defending a claim of, at best, small value with no hope of recouping its expenses if successful. The pursuer's history was that of a determined recreational litigant with little regard for the constraints that the courts had attempted to impose, no appreciation of the proportionality of his actions and no concern for the financial interests of others.

Submissions for the pursuer

[9] The pursuer submits (1) that an order to find caution for expenses is per se a denial of access to justice and is therefore a breach of article 6 of the Convention; (2) that in any event it was unfair of the Lord Ordinary to make the order before the record was closed because the pursuer might still adjust his pleadings to meet the Lord Ordinary's criticisms and, if necessary, defend them at a debate on relevancy; and (3) that the pursuer's criminal record, which is long in the past, should not deny him the opportunity to seek damages for what he considers to be seriously defamatory statements that infringe his Convention rights. On this last point, the pursuer did not put forward any detailed Convention-based argument.

Conclusions

Article 6

[10] In my opinion, the primary proposition for the pursuer is unfounded. The right conferred by article 6 in relation to access to justice is not absolute and unqualified (Teltronic-CATV v Poland, app no 48140/99, European Court of Human Rights, 10th January 2006). It is subject to the rights of the other party to be protected against being put to irrecoverable expense by an impecunious and irresponsible litigant. That protection is a legitimate aim to which a requirement to find caution is properly directed. Moreover, since impecuniosity alone is not a sufficient reason for requiring caution, since the amount of caution can be reviewed by the court at any stage and since the court must take into account the apparent merits of the parties' cases (Stevenson v Midlothian District Council, supra; Rush v Fife Regional Council 1985 SLT 451; McTear v Imperial Tobacco Ltd, 1996 SC 514), there is, in my view, a reasonable relationship of proportionality between the legitimate aim and the means by which it is achieved.

[11] I conclude therefore that the requirement of caution under Scottish civil procedure is not per se a breach of the pursuer's rights under article 6 (Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442, at paras 59 and 61; Cairns v Chief Constable of Strathclyde Police XA57/04, 22nd October 2004; Monarch Energy Ltd v Powergen Retail Ltd 2006 SLT 743, at para [12]). The decision whether or not to ordain the pursuer to find caution is therefore within the discretion of the court.

Was caution ordered at too early a stage?

[12] The pursuer has submitted that whereas in Tolstoy Miloslavsky v United Kingdom (supra) there was a full trial of the action and the question of security for costs arose only at the appeal stage, in this case the Lord Ordinary pre-empted the pursuer's opportunity to put his pleadings into proper Scottish form and to defend them at a hearing on relevancy.

[13] In my opinion, the distinction drawn by the pursuer is of no significance. If the pursuer is impecunious and if it seems unlikely that the action will succeed, it is right that the court should require caution at an early stage. If the court could consider that question only after there had been a debate on relevancy, the purpose of caution would be defeated.

The test and the pursuer's reputation

[14] The test to be applied in this court is whether the Lord Ordinary exercised his discretion as no Lord Ordinary could reasonably have done (Stevenson v Midlothian District Council, supra; McTear v Imperial Tobacco Ltd, supra). The Lord Ordinary has given a careful account of his reasons for ordering caution. I can see nothing in those reasons to suggest that his decision was unreasonable.

[15] That is sufficient to dispose of the reclaiming motion; but I would add that in my opinion the Lord Ordinary's decision was right. The fact that the pursuer is a convicted fraudster, though relevant, is not in my view a decisive consideration. There are obvious questions as to whether the Euston Trust is a valid legal entity with bona fide aims and objects; whether its true purpose is to oppose planning applications in order to obtain pay-offs from developers; and whether the pursuer has raised this action in order to obtain a nuisance value settlement. In my view, it is unnecessary for us to pursue these questions in deciding this appeal.

[16] All that I need say is that the pursuer agrees that he is impecunious; and that there is an abundance of evidence that he is a serial litigator, with a long and well-documented record of mischievous and irresponsible litigations. In these litigations and in numerous applications to the High Court for leave to institute proceedings he has inflicted untold costs on those whom he has sued. Ministers of the Crown, the Director of Public Prosecutions, the Security Service, the Registrar of Companies, the Criminal Injuries Compensation Board, the Legal Services Ombudsman, local authorities and developers are among his many victims.

[17] The present action arises because the pursuer came to Scotland to acquire a cause of action. He has no connection with Scotland and has no apparent reputation here to defend. If he should have suffered hurt feelings when he read the article here, his hurt is self-inflicted. Even if there were to be a vestige of merit in the claim, this action would be disproportionate to its value (cf Jameel v Dow Jones & Co Inc [2005] QB 946, L Phillips MR at para 69; Khader v Aziz 2010 WL 2470646, at para 32).

[18] The pursuer has inflicted needless expense on the defender. He has imposed a needless burden on the overstretched resources of this court. It is time to bring down the curtain on this action before further time and money are wasted.

Disposal

[19] I propose to your Lordships that we should refuse the reclaiming motion and grant the defender's motion for expenses.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Mackay of Drumadoon Lord Marnoch	[2010] CSIH 67 A515/08 OPINION OF LORD MACKAY OF DRUMADOON in the cause TERENCE PATRICK EWING Pursuer and Reclaimer; against TIMES NEWSPAPERS LIMITED Defender and Respondent: _______

Act: Party

Alt: Dunlop; Ledingham Chalmers

29 June 2010

[20] I agree with the reasons given by your Lordship in the chair for refusing the reclaiming motion and have nothing to add.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Mackay of Drumadoon Lord Marnoch	[2010] CSIH 67 A515/08 OPINION OF LORD MARNOCH in the cause TERENCE PATRICK EWING Pursuer and Reclaimer; against TIMES NEWSPAPERS LIMITED Defender and Respondent: _______

Act: Party

Alt: Dunlop; Ledingham Chalmers

29 June 2010

[21] I agree entirely with the Opinion delivered by your Lordship in the chair.