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Cite as: [2004] ScotSC 25

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A116/03

JUDGMENT OF SHERIFF PRINCIPAL EDWARD F BOWEN QC

in the cause

EDWARD EDELSTEN CAIRNS

PURSUERS

against

THE CHIEF CONSTABLE, STRATHCLYDE POLICE

DEFENDER

Act: Party

Alt: Hennessy, Hennessy Bowie, Solicitors

GLASGOW, 2 April 2004. The Sheriff Principal having resumed consideration of the cause, refuses the appeal and adheres to the interlocutors complained of dated 3 July and 23 October 2003; finds the pursuer and appellant liable to the defender and respondent in the expenses occasioned by the appeal and remits the account thereof when lodged to the auditor of court to tax and to report thereon; remits the cause to the sheriff to proceed as accords.

NOTE:
[1] In this action the pursuer seeks an award of damages against the Chief Constable of Strathclyde Police, having amended the instance which originally convened only "Strathclyde Police" as defenders. The amount originally sued for was £3,775,332. That has been amended to £1,253,664. It is not in dispute that the pursuer is an undischarged bankrupt having been sequestrated at Glasgow Sheriff Court on 3 September 2002. By interlocutor dated 3 July 2003 Sheriff Matthews ordained the pursuer to lodge the sum of £3,000 as caution for expenses under certification that if said sum was not lodged decree of absolvitor made be granted. No caution was found and by interlocutor dated 23 October 2003 Sheriff Taylor granted decree of absolvitor. The present appeal brings both interlocutors under review, but is the interlocutor of 3 July which was the main subject of complaint.

[2] The motion for an order for caution was presented to the sheriff on four grounds. The first was that the pursuer was bankrupt. Secondly, it was said that he had unsuccessfully sued a number of parties arising out of the same basic facts as those arising in the present case. There had been awards of expenses made against him in other actions. These had not been paid. Thirdly, an earlier action had been raised by the pursuer against Strathclyde Police which had been abandoned on 8 July 2002. An award of expenses in that action assessed at £1,142 had not been paid. Finally, it was contended that the pursuer's pleadings demonstrated that the action was plainly irrelevant. The sheriff was referred to the case of McCue v Scottish Daily Record & Sunday Mail Ltd (No. 2), 1999 SLT 558 and in particular to a passage at p 559 where the Lord Justice-Clerk observed that the normal rule was 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". The sheriff concluded that no exceptional circumstances justified a departure from the normal rule in the present case. He observed that the pursuer's case was "hopelessly irrelevant and was bound to fail at debate".

[3] In advance of the appeal the pursuer and appellant lodged detailed written submissions which he read to the court at the appeal hearing. I have directed that these should be lodged and marked no. 19 of process. I pause to observe that this is the second occasion upon which the pursuer has conducted an appeal before me. On the previous occasion I observed that whilst he had applied himself assiduously to the preparation of his case his arguments tended to be over-complex to a point where the central issues tended to become obscured (Cairns v The Chartered Institute of Management Accountants, November 2000, unreported). As I view it the present appeal raises a question as to the extent to which the ability of a court to order a pursuer to find caution may be circumscribed by the provisions of Article 6(1) of the European Convention of Human Rights. Whilst the grounds of appeal and supporting arguments touch on that it is doubtful whether the question was addressed in a meaningful fashion. Instead the grounds of appeal and argument raise a whole range of complex issues and references to other articles in the Convention which have, in my judgment little to do with the issue in the present appeal.

[4] The pursuer did not, as I understand his position, dispute that he is bankrupt, and that there have been other actions arising out of the same factual background which have failed for one reason or another, with nothing paid to the successful parties. Central to his argument appear to be a contention, or at least a belief, that because he is alleging breaches of fundamental human rights he is entitled to an unqualified right of access to the courts. He repeatedly observed that his averments should be the subject of "investigation" and suggested somewhat unequivocally that any attempt to prevent this was unlawful or at least improper. It was on the basis that the present case contained allegations of breaches of fundamental human rights that he sought to distinguish the cases of McCue (supra), and the one Scottish case in which the effect of Article 6 as an order for caution was considered, namely William Dow (Potatoes) Ltd v Dow, 2001 SLT (Sh Ct) 37. He similarly sought to distinguish the case of Tostoy Miloslavsky v United Kingdom, 1995 EHRR 442 in which the European Court of Human Rights rejected the contention that a security for costs order impaired the very essence of the right of access to a court and was disproportionate for the purposes of Article 6. In fairness it has to be said that he also properly distinguished Tostoy on the basis that there had been no restriction on the right of access to the court at the stage of trial and the security for costs order was made in the Court of Appeal.

[5] In the case of William Dow (Potatoes) Ltd Sheriff Principal McInnes QC was required to deal with an appeal from a sequestrated defender who had been ordained to find caution of £5,000 in respect of a counterclaim for £325,000 for breach of contract which he had lodged in response to a claim for payment of £12,700 in respect of misappropriated funds from the company. One of the arguments was that the order for caution contravened Article 6(1) of the Convention being a disproportionate restriction on the defender's right of access to the court. That argument did not succeed. At para 4(6) of his judgment Sheriff Principal McInnes made reference to the observations of the European Court in Tostoy (supra) at para 59 which are in the following terms:

"The court reiterates that the right of access to the courts secured by Article 6(1) may be subject to limitations in the form of regulation by the State. In this respect the State enjoys a certain margin of appreciation. However, the Court must be satisfied, firstly, that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Secondly, a restriction must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved".

[6] Having considered this passage Sheriff Principal McInnes went on to arrive at the view that it was "not unreasonable" that the pursuer should have some reassurance that in the event of their success they would be able to recover at least a substantial proportion of the expense to which they would have been put by the defender pursuing claims for substantial sums in respect of issues requiring extensive investigation.

[7] There is no reason for me to take a different view of the law from that applied in William Dow (Potatoes) Ltd, and indeed I consider that the normal rule as set out in McCue v The Daily Record (supra) remains valid. That rule, it seems to me, simply requires to be applied in a manner which is consistent with the view of the European Court of Human Rights as set out in the paragraph above quoted in the case of Tostoy.

[8] In determining whether "the very essence of the right" of access to the court is impaired it is in my view legitimate to consider whether that right is sought to be exercised for the purpose of pursuing a claim which has at least reasonable prospects of success. If the case is plainly hopeless, as the sheriff here considered, the essence of the right is not impaired and indeed an order for caution, or security for costs to use the English expression, may well be a reasonable and proportionate response where such a type of claim is pursued. It does not seem to me to make any difference that the claim is in the nature of one asserting a breach of fundamental rights. The mere assertion does not give the claim an essential legitimacy. It is a proper step for the court at any level to consider whether the case has any prospect of success. I accordingly turn to consider whether the sheriff was justified in the view that the pursuer's case was hopelessly irrelevant and bound to fail at debate.

[9] I begin with the pursuer's pleas in law which are in the following terms:

"(1) The defender acted unfairly towards the pursuer and entered into unlawful means conspiracies to harm the pursuer. The pursuer is entitled to damages from the defender for resulting economic losses and aggravated damages therefore decree should be granted as craved.

(2) Even if the defender's predominant motive or intention was not to harm the pursuer, by entering into unlawful means conspiracies to harm the pursuer the defender is liable for resulting economic losses incurred and expected to be incurred by the pursuer plus substantial amounts for aggravated damages, having had an intention to harm the pursuer, therefore decree should be granted as craved.

(3) The sum sued for is a reasonable estimate of the pursuer's economic losses incurred and expected to be incurred, plus substantial amounts for aggravated damages as a result of the defender's unfair conduct towards the pursuer and involvement in unlawful means conspiracies to harm the pursuer. Decree should therefore be granted as craved."

As a focus of the propositions in law upon which the action is founded, which is the purpose of pleas in law, the terms of these pleas give some hint as to the bewildering nature of the averments which proceed them. (Insofar as these pleas relate to "aggravated" damages it should be noted that the word "aggravated" has been deleted by amendment from each article of consideration in which it appears and the amount sought has also been reduced).

10] In a commendably succinct analysis of the thrust of the pursuer's case the sheriff described it as follows:

"His loss was said to have arisen because of the police force's failure properly to investigate financial irregularities at Enterprise Ayrshire Ltd in 1993 and complaints about his treatment while a patient at Gartnavel Royal Hospital where he claims to have been assaulted. There are complaints about collusion and ill-treatment of him by police officers. The police are alleged to have conspired with other agencies, preventing the pursuer from gaining employment, affecting his health and endangering his life".

That synopsis is gleaned from articles 2 to 18 of condescendence. Article 2 commences by referring to certain documents which according to the pursuer "indicate that the defender had failed to carry out its obligation to make adequate independent inquiry into the pursuer's allegation of financial irregularities at Enterprise Ayrshire Ltd in 1993". It goes on to aver that the defender "had colluded with that company to cover up fraudulent activity unfairly to the detriment of the pursuer's representation". The next article, which is of some length deals with allegations of fraud against Scottish Enterprise Ayrshire and certain inquiries and procedural steps taken following an allegation made by the pursuer about the accounting practices of that organisation. Article 4 refers to a letter from the Crown Office to the pursuer stating that the procurator fiscal at Kilmarnock had confirmed that there was "no trace of a report having been received in relation to the alleged criminal activity" by a director of Enterprise Ayrshire Ltd. Article 5 again refers to a document disclosed to the pursuer by the Crown Office. It is described as "prepared by the defender" with the pursuer "referred to as a potential threat to the defender". The article proceeds "That is an unjustified categorisation of the pursuer which may have placed the life of the pursuer in jeopardy in breach of the defender's positive obligation towards the pursuer under article 2 of the European Convention on Human Rights". It continues:

"The pursuer's determined efforts to obtain adequate and fair action from the defender, in accordance with the defender's obligations and the pursuer's civil rights, was unreasonably misinterpreted by the defender, resulting in more unfairly hostile and disproportionate conduct by the defender towards the pursuer".

[11] The sheriff is accordingly correct that the substance of the pursuer's complaint is that Strathclyde Police failed to take the action he considers appropriate on a complaint made by him of alleged fraud on the part of his employers (Scottish Enterprise Ayrshire). From the terms of article 5 there appears to be a complaint by the pursuer that his allegations have been "unreasonably" misinterpreted by the police. If he was referred to as a "potential threat" to the police it is difficult to follow the logic of the suggestion that this placed his life in jeopardy. Article 6 proceeds to narrate that the defender "tacitly colluded" with Enterprise Ayrshire Ltd and Scottish Enterprise "by remaining silent when there was a duty to counter the false public statements issued on the outcome of the defender's investigation". It goes on to complain that the defender "did nothing to refute" certain "false" press reports. It goes on to conclude that "the defender thereby indicated its tacit collusion and willingness to allow the pursuer's reputation to be damaged by those misrepresentations of its findings indicating the operation of an unlawful means conspiracy" All this I take to amount to allegation that Strathclyde Police failed to contradict press reports with which the pursuer takes issue. That, he maintains, amounted to "collusion" with his former employers.

[12] Condescendence 8 alleges a conspiracy by the defender "by unlawful means" with the Chartered Institute of Management Accountants, solicitors (sic) Allan & Overy, and Maclay Murray & Spens, Scottish Enterprise and Mr Nigel Ross, Advocate, to defeat the pursuer's case against the Chartered Institute of Management Accountants. This article develops the allegations against Maclay Murray & Spens, Scottish Enterprise and Mr Ross but gives no further detail as to the manner in which Strathclyde Police were involved in the "conspiracy". Article 9 again appears to implicate Strathclyde Police in a conspiracy with the Scottish Executive, Enterprise Ayrshire Ltd and Scottish Enterprise. This appears to be on the basis of the existence of a report by Detective Sergeant Waters on Enterprise Ayrshire in the possession of the Scottish Office which according to the averments "indicates that the defender was in collusion with the Scottish Office on the matter". Article 10 goes on to aver that the defender acted in concert with others "by circulating defamatory statements about the pursuer based on the falsehoods relating to the aforementioned financial irregularities, unfairly classifying the pursuer as a persistent correspondent". These "falsehoods" are not specified.

[13] Articles 11 to 14 of condescendence develop the pursuer's complaints at considerable length. In essence, however, what remains is not that the defender's officers failed to investigate an alleged crime in a situation where that step ought to have been taken, but that the various investigations - whether carried out by the police or by others - have resulted in the conclusion that they were unfounded or at least could not be substantiated. This, the pursuer appears to take as an actionable slight on his character.

[14] Article 15 is in the following terms:

"The defender acted in concert with Gartnavel Royal Hospital to harm the pursuer by unlawful means in refusing to carry out its obligations adequately to investigate the allegations made by the pursuer about his treatment in the care of Gartnavel Royal Hospital, which breached the pursuer's rights under the European Convention on Human Rights incorporated in the Human Rights Act 1998 and which had a suspicion of racial and religious motivation. The pursuer's crime report, subsequently allocated crime reference ECCOO161202, was not adequately acted upon by the defender. Confirmation of the details of the pursuer's allegations were given to the defender in writing dated 13 December 2002. The pursuer was injured while under conditions of restricted freedom in the care of a public authority. Under such circumstances the State Authorities have an obligation to carry out adequate independent inquiry into the allegations, including involving the pursuer's family, according to Article 3 of the European Convention on Human Rights as interpreted in decisions by the European Court of Human Rights".

Reference in the succeeding paragraph to "two alleged assailants" is the nearest one comes to clarifying what all this is about. It appears that the pursuer made an allegation of assault whilst detained in Gartnavel Royal Hospital. Again the complaint is not that it was not investigated but that it was "not adequately acted upon". There is no specification of the "inadequacy".

[15] Reading all these averments as charitably as one can, bearing in mind that the pursuer is a party litigant I am left in no doubt that the sheriff was entirely correct in his view that the case is hopelessly irrelevant. Frankly, the averments make little sense. To the extent that they do make any sense there is a complete lack of specification as to what it is that the defender's officers failed to do other than that they appear to have reached conclusions which did not meet the satisfaction of the pursuer. That is no basis for a reparation action whether it is founded on allegations of "fundamental breaches of human rights" or not. It does not require a debate to reach the view that the pleadings are irrelevant; that is obvious simply by reading the record.

[16] In these circumstances I consider that the sheriff was perfectly correct to reach the conclusion that there were "no" exceptional circumstances which would justify refusal to make an order for caution. Indeed the circumstances were quite the opposite. Not only were the pursuer's claims, particularly when the sheriff dealt with the case, extravagant in the extreme but he was pursuing the action against a background of a series of unsuccessful cases in which those he had sued had recovered nothing. It is not in the public interest that an individual should be allowed to proceed in such a manner. As indicated in the case of Tostoy Miloslavsky a domestic court is entitled to a margin of appreciation in respect of the limitations to which the right of access to the courts secured by Article 6(1) may be subject to limitations. Sheriff Matthews was entitled, and well justified, to conclude that an order for caution was a reasonable and proportionate requirement before this case went further.

[17] It only remains to add that Sheriff Taylor had no alternative other than to grant absolvitor when caution was not found. The appeal against both interlocutors must fail, and expenses will follow success.