Act: Party

Alt: MacPherson, Solicitor Advocate; Simpson & Marwick

11 February 2014

[1] In this action brought without professional assistance in the sheriff court in Dumfries the pursuer craves the court (i) to ordain the defender to rectify certain police reports which he has obtained under the freedom of information legislation in February 2006 and to apologise "for the discrimination in" those reports, (ii) to grant decree against the defender in the sum of £10,000,000 sterling with interest at the rate of 7 per centum per annum until payment and (iii) to interdict the defender from publishing, issuing or circulating any police reports "which are discriminating or unfounded about the illegal sequestration and fraud of the heritable property on the pursuer's estate".

[2] It appears that on 11 February 1988, on 7 March 1988 and on 13 December 1988 officers of the then Dumfries and Galloway Constabulary prepared internal police reports respecting the circumstances in which the pursuer's estates were sequestrated and that further such internal reports were written in 1991 and 1998. The pursuer avers that statements contained in the reports respecting him are, among other things, untrue and calumnious. Having recovered this information in early 2006 by means of the Freedom of Information (Scotland) Act 2002, the pursuer then embarked upon a series of actions (about six in number) against the defender, the Chief Constable of that Constabulary, or his predecessors in office. All of these actions were ultimately unsuccessful, and in each case an award of expenses was made against the pursuer. Mr Duff accepts that he has not paid anything in respect of those expenses; that there is no prospect of his making any such payment ;and that there is no willingness on his part to do so.

[3] It is thus hardly surprising that on the raising of the present action in January 2013 and following the lodging of defences a motion was enrolled on behalf of the defender asking the court to ordain the pursuer to find caution for the defender's expenses. On 25 April 2013 the sheriff, having heard the pursuer in person and counsel for the defender, made an order requiring the pursuer to find such caution in the sum of £2,000 within seven days of that date. The pursuer, who accepts that he stated to the sheriff on 25 April 2013 that he would not be prepared to provide caution, failed to find caution, or offer consignation of the requisite sum, within the time limit specified. Accordingly the defender then enrolled a motion for absolvitor which was heard and granted on 16 May 2013. While it is against that final interlocutor that the pursuer now appeals, the defender readily and properly accepts that it is open to the pursuer to invite this court to review the interlocutor of 25 April 2013 which required the provision of security for expenses - see McCue v Scottish Daily Record and Sunday Mail Ltd 1998 SC 811. The appeal proceeded upon the basis that it was the order for caution of 25 April 2013 which was challenged by the pursuer, Mr Duff.

[4] An initial issue raised by Mr Duff in his grounds of appeal relates to the propriety of the representation of the defender by counsel instructed through a solicitor in the service of the local authority for the area. He referred us to County Council of Dumfries and Another v Phyn and Campbell (1895) 23 R 538. That case essentially concerned the entitlement of the local authority, and the chief constable, to give directions to the prosecuting authority as to the court in which any criminal charge might be brought. It is of no relevance to the present appeal. In the proceedings in the sheriff court in this case the defender was represented by counsel properly instructed by a solicitor with a practising certificate. No objection to the authority of counsel to appear was taken at the time. This initial issue is without merit.

[4] The pursuer otherwise maintained that the sheriff should not have ordained him to find caution in terms of the interlocutor of 25 April 2013. All of his previous actions against the defender had, he said, been blocked and frustrated by similar orders. A penniless litigant, such as he, should not be excluded from the court on the grounds of impecuniosity or poverty if the litigant had a stateable case. Reference was made to MacPhail, Sheriff Court Practice, (3^rd ed.) p395. Further, having regard to rule 22 of the sheriff court ordinary cause rules, the pursuer submitted that caution should not have been ordered in advance of a debate on the relevancy of his pleadings.

[5] In order to judge whether the case advanced by the pursuer was stateable the sheriff was entitled, and bound, to look at the merits of the case as disclosed on the pursuer's pleadings. In that respect significant, virtually insuperable problems arise. Firstly, what is sought in the first crave is plainly outwith the powers of the sheriff and therefore that crave is incompetent. Secondly, in so far as the action might be said to be about defamation, the reports of which the pursuer complains are internal police documents which were never published or circulated; or indeed made known to the pursuer until he deliberately sought them under the freedom of information legislation in 2005. The pursuer accordingly does not aver any publication and does not link the existence of those reports to any loss of reputation which he has suffered. Moreover and importantly, qualified privilege plainly attaches to the making of these internal reports. No attempt is made by the pursuer to make any relevant averments of malice sufficient to displace that privilege, and given the internal nature of the reports it is difficult to conceive that such averments could be made. There is no averment of any prospect of publication of the reports by the defender which would be necessary to support the third crave.

[6] Additionally, the sheriff was also entitled to have regard to the fact that the pursuer's action, so far as based on a claim in defamation- and there is no other evident competent basis - was time-barred in terms of section 18A of the Prescription and Limitation (Scotland) Act 1973. The pursuer became aware of the reports in question in February 2006. The three year period stipulated in that section had long expired before this action was raised. Mr Duff suggested that the earlier series of actions raised by him might interrupt the flowing of time and thus keep his claim alive beyond the three year limitation period. That, however is to misunderstand the nature of limitation of actions, as opposed to the short negative prescription. The pleadings for the pursuer do not seek to invoke the exercise of the court's discretionary power under section 19A of the 1973 Act to allow the action nonetheless to proceed. Nor did Mr Duff advance to us any reasons for which the sheriff might have been so persuaded. The action is, on its face, plainly ill-conceived and irrelevant, with no realistic prospect of its obvious defects ever being capable of being cured. Taken with the history of the repeated actions being raised, but failing, and the failure of Mr Duff to meet any part of the expenses awarded against him, that means that there was never any prospect of the court's exercising that discretionary power in favour of the pursuer. The premise underlying Mr Duff's submission that a litigant with a stateable case should not be denied access to the court on the ground of impecuniosity, namely that he, Mr Duff, had a stateable case is thus not well founded. In reaching that conclusion we recognise the intensity of the pursuer's feelings respecting his sequestration some decades ago, and his longstanding desire to have his grievances further explored in court but neither that intensity of feeling nor that longstanding desire enable a court to depart from the rules of law and court proceedings .

[7] While, in the case of the impecunious pursuing litigant, the evaluation of the extent to which that litigant may have a stateable case is an important element in considering whether caution should be required, in exercising the discretion to order a pursuer to find caution for expenses a sheriff is also entitled to take into account other relevant factors. In the present case the pursuer has numerous unsatisfied decrees against him for payment of the expenses of his unsuccessful actions against the defender. Those actions all concerned the same perceived grievances. They have clearly involved considerable sums of money which have gone unpaid, at public expense. In these circumstances the sheriff was fully entitled to have regard to the real risk that further sums would require to be met out of public funds in the defence of a yet further unstateable action on essentially similar grounds to those which had previously failed.

[8] Mr Duff also contended under reference to rule 22 of the sheriff court ordinary cause rules that it was not open to a sheriff to require the finding of caution prior to the hearing of a debate on the relevancy of the pleadings. This, we have to say, is a plain misunderstanding of that rule. There is nothing in it, or elsewhere, which debars making a requirement to find caution at a stage prior to a debate on the relevancy of parties' pleadings. In this regard it is to be noted that the requirement made by the sheriff on 25 April 2013 was for the pursuer to find security for a sum, relatively small in terms of litigation costs, of £ 2000. Confining the requirement to that sum reflects an intention to adopt a staged approach with the pursuer being required to find security only for the defender's expenses of the debate. That was a proportionate and reasonable approach, which was well within the exercise of the sheriff's discretion.

[9] For all of these reasons the appeal must be refused.