Terence Patrick Ewing v. Times Newspapers Limited [2010] CSIH 67

The pursuer and reclaimer had sued for "unlimited damages/solatium including actio iniuriarum" in respect of an article published by the defender and respondent on 11 February 2007 in the Sunday Times Scotland edition, and on two related websites.

The court recounted that the pursuer and reclaimer had a long history of civil litigation, with the High Court of England and Wales declaring him to be a vexatious litigant on 21 December 1989.

On 19 June 2008, the pursuer and reclaimer applied to the High Court for leave to initiate his action against the defender and respondent in the English courts. This application was refused. Around this time, the Inner House noted the pursuer and reclaimer had travelled to Scotland, where he downloaded the internet version of the article concerned, and also read a hard copy of the article at a public library. The pursuer then raised the present action in the Scottish courts. From the outset, the defender and respondent moved the court to ordain caution in the sum of £50,000 as a condition precedent to continuing the action. This motion was granted by the Lord Ordinary, Lord Brodie, in December 2008, and was intended to cover the pursuer's probable expenses up to the procedure roll stage. In January 2009, having been assured by the pursuer that he could not and would not find the caution, the court granted decree of absolvitor. The pursuer reclaimed against these decisions.

The pursuer and reclaimer argued that (i) an order to find caution for expenses is per se a denial of access to justice and is therefore a breach of Article 6 ECHR; (ii) 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 have adjusted his pleadings, and if necessary, defend them in a debate on relevancy, and (iii) that the pursuer's criminal record should not deny him the opportunity to seek damages for what he considered to be serious defamatory statements.

In considering the pursuer and reclaimer's first submission, the Inner House considered that the Article 6 ECHR right to access to justice was not unqualified, nor absolute. The court noted it was subject to the rights of the other party to be protected against being put to irrevocable expense by an impecunious and irresponsible litigant. The court added that such protection is a legitimate aim, to which a requirement to find caution is properly directed. In relation to the pursuer and reclaimer's second submission, the Inner House noted that the distinction drawn on the timing of the order for caution was of no significance, noting that if the action was unlikely to succeed in any event, it was right that the court should grant caution at an early stage of proceedings; otherwise, the purpose of the caution itself would be defeated. Finally, the Inner House opined that the proper test to be applied when considering the pursuer's reputation, is whether the Lord Ordinary exercised his discretion as no Lord Ordinary could reasonably have done. The Lord Justice-Clerk Gill, in delivering the opinion of the court, noted that Lord Brodie had given a careful account of his reasons for ordering caution, and that he could see no reasons to suggest that his decision was unreasonable. Reclaiming motion refused; defender's motion for expenses granted.