Anderson v Shetland Islands Council and another
Lord Hope, deputy president, Lord Kerr and Lord Reed
Appeals – Supreme Court – Security for costs – Appellant’s petition for judicial review dismissed at first instance and on appeal in Scottish Court of Session – Appeal to Supreme Court – Appellant unable to find two Scottish counsel to certify notice of appeal as reasonable and legal aid refused – Whether appellant or respondents entitled to order requiring other party to give security for their costs of the appeal – Order made against appellant
The appellant presented a petition for judicial review in the Scottish Court of Session complaining of failures by the first respondent council and the second respondent water authority in discharging their duties in respect of drainage, sewerage and roads. She claimed that, as a result of those failures, the stability of her house in Shetland had been undermined by an increase in surface water run-off from land above her house and she sought damages in that regard. The appellant was 93 years old and the litigation was conducted by her son pursuant to a power of attorney. The petition was dismissed by both a Lord Ordinary and the Extra Division, both of which found the appellant’s averments to be irrelevant and her claim misconceived: see [2007] CSOH 82 and [2010] CSIH 15. Costs were awarded against the appellant in a total sum of £120,000, which exceeded the value of her house.
The appellant appealed to the Supreme Court, under section 40(1)(a) of the Court of Session Act 1988. Leave was not required to bring such an appeal. Meanwhile, she also brought a new action in nuisance against the respondents in the Court of Session, seeking damages and an order that the respondents carry out works. The court directed appellant’s son to cease acting for her as her counsel in those proceedings; the Lord Ordinary found that the son’s conduct was unreasonable and obstructive and that there had been no proper, critical independent appraisal of his mother’s case: see [2011] CSOH 187.
The appellant was unable to find two Scottish Counsel willing to certify her notice of appeal to the Supreme Court as reasonable, as required by Supreme Court Practice Direction 4.2.2; however, the court permitted her notice to be received so that she could apply for legal aid. Legal aid was subsequently refused.
The respondents applied for an order, under CPR 36(1), requiring the appellant to give security for their costs of the Supreme Court appeal in the sums of £50,000 for the first respondents and £40,000 for the second respondent. The appellant sought an order that each of the respondents lodge security for her costs in the sum of £5,000.
Held: The respondents’ application was allowed; the appellant’s application was refused.
When the appellate jurisdiction had been transferred from the House of Lords to the Supreme Court, there had been a departure from the former strict requirement for the appellant to give security for costs unless it were legally aided or that requirement were waived by the respondent. In the Supreme Court, the making of an order for security for costs was at the discretion of the court, and such orders would be made sparingly: see r 36(1) of the Supreme Court Rules 2009 and Supreme Court Practice Direction 4.7.1. Assistance on how the discretion should be exercised could be derived from decisions of the Scottish courts about the finding of “caution”, the Scottish word for security. Impecuniosity was relevant although it was never the sole reason for making a party find caution. The history of the litigation could be taken into consideration, as could the conduct of the claimant, the nature of the pleadings and whether they disclosed an arguable case: Ritchie v M’Intosh (1881) 8 R 747, Will v Sneddon Campbell & Munro 1931 SC 164, Stevenson v Midlothian District Council 1983 SC (HL) 50 and Rush v Fife Regional Council 1985 SLT 451 considered.
The appellant’s application for security for her costs was without merit. Rule 36 made no provision for an appellant to apply for an order that the respondent give security for the costs of the appeal. If an impecunious respondent were required to find caution, the effect would be to require it to acquiesce in the appeal against a judgment that had been in its favour in the court below. Consequently, not even a bankrupt defender was required to find caution for expenses: Johnstone v Henderson (1906) 8 F 689 and Ferguson v Leslie (1873) 11 SLR 16 considered. Even if were open to the court to make such an order, there were no grounds for doing so in the instant case, where the respondents were both public authorities, there was no question as to their ability to meet any order for costs that might be made against them and there had been nothing obstructive or unreasonable in their conduct of the case.
The respondents were entitled to orders that the appellant give security for their costs of the appeal. The case for such an order was compelling, given that: (i) there was doubt about the appellant’s ability to satisfy the awards of costs that had already been made against her in the proceedings; (ii) the appeal appeared to lack merit, given that the appellant was unable to find any Scottish counsel willing to certify it as reasonable, legal aid had been refused, her son was incapable of providing her with independent legal advice and the notice of appeal did not answer the criticisms made of her pleadings made in the court below; (iii) one appeal had already taken place in the Inner House of the Court of Session and, had permission been required for a further appeal, it would have been refused; and (iv) the proceedings were arguably an abuse of process where the appellant was, at the same time, pursuing an action in nuisance that would, if soundly based, give her a remedy in damages that was the same as the one she sought in the instant proceedings. The appellant was ordered to give security for costs in the sum of £20,000 for each respondent. That was a reasonable estimate of the amount of security required on the assumption that the appeal would be dealt with on written submissions.
The application was determined on the written submissions of the parties.
Sally Dobson, barrister
Appeals – Supreme Court – Security for costs – Appellant’s petition for judicial review dismissed at first instance and on appeal in Scottish Court of Session – Appeal to Supreme Court – Appellant unable to find two Scottish counsel to certify notice of appeal as reasonable and legal aid refused – Whether appellant or respondents entitled to order requiring other party to give security for their costs of the appeal – Order made against appellantThe appellant presented a petition for judicial review in the Scottish Court of Session complaining of failures by the first respondent council and the second respondent water authority in discharging their duties in respect of drainage, sewerage and roads. She claimed that, as a result of those failures, the stability of her house in Shetland had been undermined by an increase in surface water run-off from land above her house and she sought damages in that regard. The appellant was 93 years old and the litigation was conducted by her son pursuant to a power of attorney. The petition was dismissed by both a Lord Ordinary and the Extra Division, both of which found the appellant’s averments to be irrelevant and her claim misconceived: see [2007] CSOH 82 and [2010] CSIH 15. Costs were awarded against the appellant in a total sum of £120,000, which exceeded the value of her house.The appellant appealed to the Supreme Court, under section 40(1)(a) of the Court of Session Act 1988. Leave was not required to bring such an appeal. Meanwhile, she also brought a new action in nuisance against the respondents in the Court of Session, seeking damages and an order that the respondents carry out works. The court directed appellant’s son to cease acting for her as her counsel in those proceedings; the Lord Ordinary found that the son’s conduct was unreasonable and obstructive and that there had been no proper, critical independent appraisal of his mother’s case: see [2011] CSOH 187.The appellant was unable to find two Scottish Counsel willing to certify her notice of appeal to the Supreme Court as reasonable, as required by Supreme Court Practice Direction 4.2.2; however, the court permitted her notice to be received so that she could apply for legal aid. Legal aid was subsequently refused.The respondents applied for an order, under CPR 36(1), requiring the appellant to give security for their costs of the Supreme Court appeal in the sums of £50,000 for the first respondents and £40,000 for the second respondent. The appellant sought an order that each of the respondents lodge security for her costs in the sum of £5,000.Held: The respondents’ application was allowed; the appellant’s application was refused.When the appellate jurisdiction had been transferred from the House of Lords to the Supreme Court, there had been a departure from the former strict requirement for the appellant to give security for costs unless it were legally aided or that requirement were waived by the respondent. In the Supreme Court, the making of an order for security for costs was at the discretion of the court, and such orders would be made sparingly: see r 36(1) of the Supreme Court Rules 2009 and Supreme Court Practice Direction 4.7.1. Assistance on how the discretion should be exercised could be derived from decisions of the Scottish courts about the finding of “caution”, the Scottish word for security. Impecuniosity was relevant although it was never the sole reason for making a party find caution. The history of the litigation could be taken into consideration, as could the conduct of the claimant, the nature of the pleadings and whether they disclosed an arguable case: Ritchie v M’Intosh (1881) 8 R 747, Will v Sneddon Campbell & Munro 1931 SC 164, Stevenson v Midlothian District Council 1983 SC (HL) 50 and Rush v Fife Regional Council 1985 SLT 451 considered.The appellant’s application for security for her costs was without merit. Rule 36 made no provision for an appellant to apply for an order that the respondent give security for the costs of the appeal. If an impecunious respondent were required to find caution, the effect would be to require it to acquiesce in the appeal against a judgment that had been in its favour in the court below. Consequently, not even a bankrupt defender was required to find caution for expenses: Johnstone v Henderson (1906) 8 F 689 and Ferguson v Leslie (1873) 11 SLR 16 considered. Even if were open to the court to make such an order, there were no grounds for doing so in the instant case, where the respondents were both public authorities, there was no question as to their ability to meet any order for costs that might be made against them and there had been nothing obstructive or unreasonable in their conduct of the case.The respondents were entitled to orders that the appellant give security for their costs of the appeal. The case for such an order was compelling, given that: (i) there was doubt about the appellant’s ability to satisfy the awards of costs that had already been made against her in the proceedings; (ii) the appeal appeared to lack merit, given that the appellant was unable to find any Scottish counsel willing to certify it as reasonable, legal aid had been refused, her son was incapable of providing her with independent legal advice and the notice of appeal did not answer the criticisms made of her pleadings made in the court below; (iii) one appeal had already taken place in the Inner House of the Court of Session and, had permission been required for a further appeal, it would have been refused; and (iv) the proceedings were arguably an abuse of process where the appellant was, at the same time, pursuing an action in nuisance that would, if soundly based, give her a remedy in damages that was the same as the one she sought in the instant proceedings. The appellant was ordered to give security for costs in the sum of £20,000 for each respondent. That was a reasonable estimate of the amount of security required on the assumption that the appeal would be dealt with on written submissions.The application was determined on the written submissions of the parties.
Sally Dobson, barrister
