Ewing v Times Newspapers Ltd [2009] ScotCS CSOH

OUTER HOUSE, COURT OF SESSION

[2009] CSOH 13

A515/08

OPINION (2) OF LORD BRODIE

in the cause

TERENCE PATRICK EWING

Pursuer;

against

TIMES NEWSPAPERS LIMITED

Defenders:

________________

Pursuer: Party

Defenders: Lindsay; Ledingham Chalmers LLP

11 December 2008

[1] In terms of interlocutor dated 11 December 2008 I made an order requiring the pursuer to find caution for future expenses, in the sum of £15,000 for reasons explained in my Opinion of that date. The pursuer applied for leave to reclaim that interlocutor in terms of Rule of Court 38.5. The motion for leave to reclaim came before me on 7 January 2009. Having heard the pursuer and Mr Lindsay, Advocate, on behalf of the defenders I refused the application. I gave my reasons for doing so at the time of announcing my decision orally in open court. I was not requested to provide them in writing. In terms of Rule of Court 38.5(6) the decision of the Lord Ordinary to refuse leave to reclaim shall be final and not subject to review. The pursuer has nevertheless requested my reasons for dismissing the motion for leave to reclaim in writing. He did so by way of letter dated 21 January 2009 which was brought to my attention on 26 January 2009. I would briefly summarise the argument before me and my reasons for refusing the motion for leave to reclaim as follows.

[2] The pursuer began by acknowledging that there was authority to the effect that a requirement, such as is found in Rule of Court 38.5, to obtain leave to reclaim from the judge whose decision it is proposed to challenge is not contrary to the guarantee of a fair trial which is provided by Article 6 of the European Convention on Human Rights: Umair v Umair 2002 S.C. 153. The pursuer went on to explain that if granted leave he proposed to argue that the requirement that he find caution was disproportionate and accordingly in contravention of his Article 6 rights because it effectively prevented access to the courts. The pursuer reminded me that the order had been made at an early stage in the proceedings. There had been no recovery of documents. The Record had not closed. Although the amount ordered was less than the defenders had sought, it was nevertheless a large sum. He was quite unable to pay it. Indeed, if the sum ordered had been £1,500 rather than £15,000 he would still have been unable to pay it. There were issues in the present case that had not yet been considered by the Inner House and for that reason alone it would be appropriate to grant leave to reclaim. It would be his submission to the Inner House that I had erred in my assessment of his case but even so, I had accepted that he had made out a case of defamation, albeit subject to a defence of Reynolds privilege. Quantification of that claim would be a matter for a jury. In the whole circumstances it was appropriate that leave to reclaim should be granted.

[3] Mr Lindsay, while recognising that the matter was one for my discretion, submitted that the application should be refused. He reminded me that in the event that decree of absolvitor was granted in terms of Rule of Court 33.10 by reason of the pursuer having failed to lodge caution it would then be open to the pursuer to reclaim as of right and that this would open up all previous interlocutors: McCue v Scottish Daily Record & Sunday Mail 1999 S.C. 332. So far as the pursuer's complaint that the defenders' application for an order for caution had been made prematurely was concerned, Mr Lindsay pointed to the fact that the adjustment period had been near to its end and reminded me that the purpose of obtaining an order for caution was to protect a party against a future expense, thus the longer he delayed in his application the longer he would be unprotected. It could not be said that £15,000 was an excessive sum given the likely cost of taking the action the length of a Procedure Roll debate. As far as the complaint of contravention of Article 6 of the Convention was concerned, it was Mr Lindsay's submission that my making an order for caution was consistent with the authorities and in particular Monarch Energy Ltd v Powergen Retail Ltd 2006 S.L.T. 745 and Miloslavsky v UK [1996] EMLR 152. Critically, the decision to make an order for caution was a matter for the discretion of the Lord Ordinary. Nothing which had been said by the pursuer indicated that in the present case that discretion had not been exercised properly.

[4] In refusing the pursuer's application for leave to reclaim, I laid aside the consideration that in the event of decree of absolvitor being granted by reason of the pursuer failing to find caution he would be able to appeal as of right and, in doing so, be able to open up all previous interlocutors. I accepted, as the pursuer had observed, that the Inner House has not yet had the opportunity to pronounce upon whether the common law on caution for expenses is compatible with the rights guaranteed by Article 6 of the European Convention. That said, no authority was drawn to my attention which indicated that such a limitation on access to the courts contravened Article 6, provided it was proportionate. Moreover the matter has previously been considered in the Outer House by Lord Drummond Young in Monarch Energy Ltd v Powergen Retail Ltd supra. I would see my decision as following that of Lord Drummond Young and the pursuer did not suggest otherwise. I regarded it as important that the decision to order caution was one for my discretion and the Lord Ordinary's discretion will only be overturned on appeal if its exercise was so unreasonable that no reasonable Lord Ordinary properly directed would have so decided: Stevenson v Midlothian District Council 1983 S.C. (H.L.) 50 at 52. In nothing which the pursuer said was it suggested that there had been a failure to exercise that discretion properly. Accordingly it did not appear to me that the pursuer had put forward the basis upon which it could realistically be said that he might succeed in his proposed reclaiming motion. In these circumstances I considered it appropriate to refuse the pursuer's motion.

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ewing v Times Newspapers Ltd [2009] ScotCS CSOH_13 (30 January 2009) URL: http://www.bailii.org/scot/cases/ScotCS/2009/2009CSOH13.html Cite as: 2009 GWD 8-134, [2009] CSOH 13, [2009] ScotCS CSOH_13

Scottish Court of Session Decisions