The pursuer was an undischarged bankrupt. The Lord Ordinary ordered him to find caution, although he was in receipt of legal aid. He said that he had had regard to the nature of the action and the pleadings, as well as to the fact that he was an undischarged bankrupt and had failed to pay the expenses awarded against him in a previous action.
Held: A decision to order caution was one for the court’s discretion and a 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. Evidence of impecuniosity was relevant, as was unreasonable behaviour and the fact that the pleadings did not disclose any arguable case.
Lord Fraser recommended reform of Scottish law with regard to supervision of administrative decisions.
Lord Fraser said: ‘It would clearly be wrong that a litigant with a stateable case should in effect be excluded from the court by an order with which he could not comply, unless in exceptional circumstances’ though in a case which is devoid of merits, that point loses most of its importance.
Judges:
Lord Fraser of Tullybelton
Citations:
1983 SC (HL) 50
Jurisdiction:
England and Wales
Cited by:
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Cited – Anderson v Shetland Islands Council and Another SC 29-Feb-2012
The claimant sought leave to appeal. Each party now sought security for costs against the other. Her action related to water damage to her house said to have been caused by road mprovements and building works erected by and with the approval of the . .
Lists of cited by and citing cases may be incomplete.
Scotland, Administrative, Litigation Practice
Updated: 06 May 2022; Ref: scu.448085