Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 51
	OPINION OF LORD BANNATYNE in the cause RAYMOND ALLAN SINCLAIR McGREGOR Pursuer; against ALPHA AIRPORTS GROUP PLC Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Party

Defenders: Dawson; Simpson & Marwick

8 April 2010

Introduction

[1] The pursuer is a party litigant although he was originally represented by solicitors and counsel. On the basis of the written pleadings, as they presently stand, the pursuer seeks damages from the defenders for injuries which he sustained as a result of an accident while in the course of their employment at Inverness Airport on 18 June 2003. Said accident is averred to have been sustained as a result of his being required on that date to carry two cases of juice cartons which weighed around 12 kilograms each. The case is based on breach of regulation 4 of the Manual Handling Operations Regulations 1992 and the defenders' fault at common law.

Motion for expenses of the discharge of the proof in December 2009 and for caution for expenses

[2] The action came before me originally on 1 December 2009 for proof. At that time I discharged ex proprio motu the diet of proof. On my discharging the proof diet a motion in two parts was made at the Bar by counsel for the defenders: (1) for the expenses of the discharge of said diet and (2) for caution for expenses. The amount of caution which was eventually sought was £25,000. Both parts of the motion were opposed by the pursuer. These motions were continued to allow for various inquiries to be made by the Court into the pursuer's legal aid position and in order to allow the pursuer to take steps to obtain legal representation (he had not been legally represented since 20 January 2009). The matter finally came before me on 15 March 2010 at which stage the two parts of the motion were argued. On that date the pursuer was not legally aided and was still without legal representation. The pursuer represented himself. The defenders were represented by counsel, Mr Dawson.

Submissions of parties

The defenders

Motion for expenses of the discharged proof diet

[3] Counsel's position in relation to this part of the motion can be summarised briefly: the defenders were ready to proceed to proof on 1 December 2009 and the sole reason for the discharge was the position of the pursuer who at the outset of the diet of proof advised the Court: (1) he did not intend to lead evidence in support of the case which was on record but rather intended to lead evidence in support of a case based not on a single incident which had caused injury to his back, but on his having been required on a regular basis throughout the whole course of his employment to lift excessive weights (and in particular bars weighing approximately 80 kgs) thus causing injury to his back; (2) he had no medical witnesses cited in order to establish the nature and extent of his injuries and to prove any causal connection between them and any negligence on the part of the defenders, and (3) he had no report from and had not cited any expert witnesses in order to establish negligence on the part of the defenders such as an ergonomist.

[4] Mr Dawson submitted that it was on the basis of what the pursuer had advised the Court as above set out that the Court had thought it appropriate to discharge ex proprio motu the diet of proof in order to allow the pursuer to seek to deal with these difficulties and secondly obtain legal representation and advice in relation to the whole circumstances of the case. Against that background he submitted that the defenders were clearly entitled to the expenses of the discharge. The discharge was solely caused by the pursuer and was through no fault of the defenders.

Motion for caution for expenses

[5] At the outset of his submissions in support of this part of the motion Mr Dawson explained that it was a matter for the discretion of the Lord Ordinary as to whether caution should be found as a condition precedent for allowing a party to continue with proceedings.

[6] The whole circumstances had to be had regard to. Mere impecuniosity was not enough: Will v Sneddon Campbell & Munro 1931 SLT 125 and Thom v Andrew 1888 15R 780, Lord Young at 782. A litigant with a stateable case should only be effectively excluded from the Court by an order for caution with which he could not comply in exceptional circumstances; Stevenson v Midlothian District Council 1983 SC (HL) 56, Lord Fraser at 58. However, while making an order for caution on a party who is manifestly not in a financial position to meet it may appear to be draconian, justice has to be even handed, and, on the other side of the coin, it would be grossly unfair to oblige the defenders to carry on defending an obviously irrelevant action without any hope of recovering expenses if successful, particularly against an adversary who has shown that he is prone to table all kinds of procedural motions which have no merit and no justification: Rush v Fife Regional Council 1985 SLT 451, Lord Justice Clerk Wheatley at 453.

[7] Mr Dawson submitted that in the present case there were in light of the said authorities circumstances justifying an order for caution. He relied on: (1) the pursuer's impecuniosity when taken together with (2) the lack of merit in the pursuer's case and (3) the pursuer's behaviour in the course of the action.

[8] Turning to the pursuer's impecuniosity the position could be quite briefly put: he was unemployed, living on state benefits and had no savings. In these circumstances he submitted that he was clearly impecunious.

[9] As regards the second branch of his argument, it was his position that the pursuer's case was devoid of merit. It was his position that whether the pursuer's case was approached on the basis of his current pleadings or on the basis of the case which the pursuer advised he wished to advance (which was not on record) there was no merit in his case.

[10] As regards the case presently on record he conceded that given the case had reached the stage of proof the case was therefore both relevant and sufficiently specific. He, however, maintained that the pursuer's case as presently pled was without merit and explained under reference to Mackinnon Noter 1999 SCLR 767 that a motion for caution could be made at any stage.

[11] It was his position that although relevant the case had no merit in that the pursuer on the basis of the evidence he had available could not prove his case. It was his submission that at the stage of proof I was entitled to have regard to matters other than mere relevancy. It was his position that I was entitled to have regard to matters such as whether there was evidence available to the pursuer which could establish the pursuer's case as presently pled.

[12] In support of his position that there was no evidence to support the pursuer's case he firstly referred me to the procedural history of the case. In particular, he referred me to the following section of the procedural history:

1. The defenders' agents advised the pursuer's agents in August 2008 that they would not be prepared to make any offer in settlement of the claim but they would be prepared to allow the pursuer to abandon his claim with each party bearing its own expenses.

2. On 19 January 2009 that offer was reiterated.

3. At that time counsel for the defenders was informed certain advice had been tendered to the pursuer by his legal team in response to that offer and it was a possibility that the pursuer's solicitors would require to withdraw from acting.

4. On 20 January 2009 the pursuer's agents withdrew from acting.

5. A diet of proof was set down to commence on 27 January 2009.

Mr Dawson took from those circumstances that first the pursuer had been advised to take the walkaway offer; secondly, he had refused to accept that advice and therefore thirdly, his agents had felt it appropriate in those circumstances to withdraw from acting.

[13] Counsel submitted that from the foregoing procedural history a proper inference to take was that after investigation the pursuer's legal representatives had taken the view that there was no merit in the pursuer's case. He submitted that this was particularly so in circumstances where as at the date of withdrawal of the agents, which was shortly prior to a diet of proof, no expert reports and no list of witnesses or productions had been lodged by these agents. This he again submitted pointed to the fact that the pursuer's agents had been unable to obtain expert reports supporting the pursuer's position. All of the foregoing had led to the discharge of the proof on 27 January 2009.

[14] Mr Dawson then pointed out that the position remained the same as at the present date. The pursuer had lodged no expert reports either medical or ergonomic supporting his case. When considering the merits of the pursuer's case he submitted it had to be viewed in the context that the defenders had lodged an expert ergonomic report to the effect that the circumstances of the accident gave rise to no foreseeable risk of injury, together with orthopaedic and psychiatric reports that there was no causal link between the accident averred on record and the pursuer's averred injuries.

[15] Thus he submitted although the pursuer had been given more than a year since the discharge of the proof in January 2009, no such supporting evidence had been produced by him.

[16] In any event, the pursuer had made it clear that he did not intend at the proof to base his case on the present pleadings but rather that he intended to lead an entirely different case. Given all of the foregoing circumstances he submitted that the pursuer's case presently pled on record had no merit.

[17] As regards the case which the pursuer now wished to run, Mr Dawson submitted that there was equally no merit in that case.

[18] It was his position that in the first place it was highly unlikely that the pursuer would find an evidential basis to found a Minute of Amendment supporting this new case.

[19] Secondly, it was his position that it was highly unlikely that the pursuer would be allowed by the court to amend in order to put such a case on record. It was his position that the three year period in terms of section 17 of the Prescription and Limitation (Scotland) Act 1973 (hereinafter referred to as "the Act") had expired. The pursuer had not worked for the defenders since 8 February 2004 and accordingly assuming a continuing act or omission on the part of the defenders that date was the one on which the triennium commenced, therefore it had clearly expired on or about 8 February 2007.

[20] It was his position that how the Court should approach the question of allowance of the amendment post the expiry of the triennium was as set out by the Court in Pompa's Trustees v Edinburgh Magistrates 1942 SC 119, namely: that it was a matter for the discretion of the Court whether the Minute of Amendment should be allowed. That in deciding whether to exercise its discretion the Court should have regard to whether the Minute of Amendment caused the basis of the action to become different (Lord Justice Clerk Cooper at 125).

[21] It was his submission that the change in the action proposed by the pursuer was fundamental in nature and changed the whole basis of the action. It was thus his position that the Minute of Amendment was highly unlikely to be allowed.

[22] Turning to the behaviour of the pursuer Mr Dawson referred to the following: his actings leading to his no longer having legal representation; his failure to appear on a number of occasions in Court since he became a party litigant and his actings or non-actings leading to the discharge of the proof in December 2009. Mr Dawson, however, did not rely on the behaviour of the pursuer on its own being a factor of any real significance and it was clear that his primary submission regarding this matter was based on the pursuer's case being without merit when taken in conjunction with his impecuniosity.

[23] I raised with Mr Dawson in the course of his submissions the issue of the amount of caution which he was seeking. I was advised that the amount was based on the defenders' estimate of the cost of a proof lasting six days, that being the length of proof which had been fixed on 28 January 2010.

The pursuer

[24] I did not have the benefit of any detailed submissions from the pursuer. He has no experience of Court proceedings and has no knowledge of legal matters. He clearly had no understanding of the legal issues which I was being asked to consider in terms of either branch of the motion before me. He was wholly unable to be of any assistance to me in the consideration of the detailed legal issues before me.

[25] In his submissions he advised me that he was unemployed and in receipt of state benefits in the form of disability living allowance and incapacity benefit. He lived in rented accommodation. He had no savings. There was no real likelihood of his working in the near future. He was not in a position to meet any material award of expenses.

[26] He accepted that the case he wished to lead at proof was not that which was presently on record. His position rather was that throughout his employment with the defenders he had been required to lift excessive weights and the accumulation of this lifting of excessive weights had eventually led to injuries to his back. He made reference to having to lift on a regular basis bars weighing 80 kilograms. He advised me that at the proof diet in December 2009 and in the course of his submission in respect to this motion that he had had three witnesses, all lay persons, who, as I understood it were coming along to speak to the fact that during his period of employment he had regularly required to lift excessive weights. He accepted that in December 2009 he had not intended to lead any medical evidence. He now said that he intended to lead his GP and that he was prepared to agree the terms of a report by Mr Peter Gibson which had been prepared on behalf of the defenders (although I note previously on 26 November 2009 he was not willing to agree the terms thereof). As I understood it, he did not intend to lead any other expert medical evidence or other expert evidence.

[27] He advised the Court that to date he had been unable to obtain legal representation. His position was that his lack of legal aid together with the fact that he had previously had agents meant that it was impossible for him to obtain other legal representation. He advised me that he had recently written to a number of other firms to see if they would represent him but had not so far heard from them.

[28] So far as the motions were concerned it was his position that the defenders were carrying out "legalised bullying". He was not at fault for not having solicitors. He moved that he should not be found liable for the expenses of the discharge and that he should not be required to lodge caution for expenses.

Discussion

The motion for the expenses of the discharge

[29] I discharged the proof diet on 1 December 2009 for the following reasons as set out in the minute of proceedings of that date:

"To allow the pursuer to fully consider his position in respect that (1) the pursuer had indicated that he wished to develop a case which was not properly on record; (2) the pursuer had no medical expert witnesses; (3) the pursuer did not fully understand all of the aspects which require to be proved and (4) were the proof to proceed there would be a substantial number of objections. It was therefore not in the interests of the pursuer or defenders for the matters to proceed to proof today".

It was not a matter in dispute that the defenders were in a position at that time to proceed to proof. This was not the first occasion on which a proof in this case had been discharged. As earlier stated a previous proof diet had been discharged on 27 January 2009 in order to allow the pursuer to obtain legal representation. The case thereafter called on a number of occasions in Court. The pursuer was advised by the Court of the importance of obtaining legal representation and of being in a position to proceed to proof in December 2009.

[30] The principle upon which the Court approaches expenses is set out by Lord President Cooper in Howitt v Alexander & Sons 1948 SC 154 at 157:

"An award of expenses according to our law is a matter for the exercise in each case of judicial discretion, designed to achieve substantial justice, and very rarely disturbed in appeal. I gravely doubt whether all the conditions upon which that discretion should be exercised have ever been, or ever will be, successfully imprisoned within the framework of rigid and unalterable rules, and I do not think that it would be desirable that they should be. In McLaren on Expenses the principle is laid down upon the authority of a number of cases that 'if any party is put to expense in vindicating his rights he is entitled to recover it from the person by whom it was created, unless there is something in his own conduct that gives him the character of an improper litigant in insisting on things which his title does not warrant'."

It broadly follows from the above principle that the general rule is that expenses follow success or put another way whoever has caused the expense should pay the cost. However, there are exceptions to this general rule where other factors are present which render it impossible to do substantial justice by following the general rule.

[31] In the case before me it is clear that it was entirely due to the pursuer's inability to proceed with the proof that the proof was discharged by the Court. In these circumstances in the absence of any other factors it follows that the defenders should be awarded the expenses of the discharge.

[32] In my judgement there are factors present which mean that in doing substantial justice between the parties it would not be appropriate to award the defenders the expenses.

[33] These factors flow from the fact that the pursuer at the time of the discharge of this proof was a party litigant. The pursuer is not what has been described in other cases as a serial litigant, who has considerable knowledge of the law both substantive and procedural. Rather, as I have said earlier in this opinion, he is a first time litigant who has from what I could see no knowledge of the law whatsoever. He appears in my judgement to be entirely at sea in seeking to represent himself. He in addition appears to have significant medical difficulties both physical and mental. On the day of the proof which I discharged he turned up ready with witnesses to proceed with the proof. However his lack of knowledge of the law and in particular his failure to understand: (1) the significance of the written pleadings in the case and (2) what he required to prove and how he could do this meant that the Court required to take the view that the proof could not proceed.

[34] Given the above factors I do not believe that in seeking to do substantial justice it would be appropriate to find the pursuer liable for the expenses of the discharge of the proof. These factors in my opinion outweigh the general rule, which favours the awarding of these expenses to the defenders. In the whole circumstances and for these reasons I believe that in order to do substantial justice as regards the issue of expenses it is appropriate to make an award of no expenses due to or by either party in relation to the discharge of the proof.

Motion for caution for expenses

[35] The starting point for a consideration of this part of the defenders' motion is the pursuer's impecuniosity. It is quite clear, on the information before me, that any award of expenses in this action will, unless the pursuer is successful to some extent in the action, not be met. That, as Mr Dawson immediately recognised, is not determinative of the question as to whether caution should be ordered. The question comes to be: are there other circumstances present which make this an appropriate case for the fixing of caution as a condition precedent for further procedure?

[36] In approaching this question I recognise that in exercising the discretion to require caution, a balance requires to be struck as between the interests of the party faced with an impecunious opponent in not being put to uncontrolled and irrecoverable expense and the interests of the impecunious party to have his claim considered by the Courts. This balancing exercise is recognised in both Rush v Fife Regional Council and in Stevenson v Midlothian District Council. However, it is clear from both of these cases that in carrying out that balancing exercise an important factor is this: whether there is any merit in the impecunious litigant's case.

[37] I turn to consider whether there is any merit in the pursuer's case. I turn first to consider whether there is any merit in the case as presently pled. The starting point here is that it is conceded by Mr Dawson that as presently pled the pursuer's case is both relevant and sufficiently specific.

[38] I am, however, persuaded by the submissions of Mr Dawson that despite being relevant nevertheless the pursuer's case may be without merit. In particular I accept his submission that it is proper to look at the evidence which the pursuer has available to him and to consider whether on the basis of that evidence he has any prospects of success.

[39] The pursuer has to establish that there was a risk of injury arising from the carrying out of the lifting operation averred on record. As regards this he offers no expert evidence to support such a conclusion. Having regard to the fact that he previously had agents who investigated this matter and that he has had a considerable length of time where he has not had agents to look into this question and no such evidence has been forthcoming, it seems highly unlikely that any such evidence supporting his position will be put forward on this issue. The defenders on the other hand have an expert ergonomist, Joanne Crawford, who has prepared a report No.7/10 of process, the conclusions of which include the following:

"7.1 From the summons and precognitions it is currently unclear what Mr McGregor was doing when the accident occurred. If it was lifting a stack of polystyrene cups this is not a risk of injury under the Manual Handling Operations Regulations (1992 as amended 2004).

7.2 The data supplied regarding the lifting of juice cartons has been total weights of either 12 or 24 kgs. According to both intra-abdominal pressure calculations and biomechanical analysis, the weights lifted are not perceived to present a risk of injury as they fall within predictive limits from two sources".

The pursuer also has to establish that the accident he avers on record has caused the injuries averred on record. As presently advised the pursuer does not appear to be in a position to lead any medical evidence to that effect. He has indicated that he is perhaps prepared to agree the terms of a medical report prepared on behalf of the defenders by Mr Peter Gibson, Consultant Orthopaedic Surgeon. This is no.7/3 of process. It is not intended by the defenders that Mr Gibson should be led at the proof, he having retired. The defenders intend to lead another orthopaedic expert. However, even if the defenders were prepared to agree the terms of this report, I note the following in the conclusions:

"I think one would expect that following the type of accident he had in June 2003, Mr McGregor would have had at worst a lumbar sprain, a musculo-fascial sprain of some sort which one would expect to produce acute low back pain which would have lasted two or three months at most. His current level of complaints and his state on physical examination is difficult to explain on the basis of his injuries. There is no doubt that he presents as a person who is significantly disabled but the physical signs do not match with the history or the investigations which have been carried out. He presents with all of the inappropriate physical signs that one would expect in patients with non-organic back pain".

It cannot be said that the terms of that report in any real sense support the pursuer. It has to be borne in mind that the pursuer is seeking damages of £383,500. He is not seeking damages for some minor lumbar sprain.

[40] The defenders on the other hand rely on first a report from Mr I Mackay, Consultant Orthopaedic Surgeon which is no.7/11 of process and the conclusions of which include the following:

"I find it hard to consider that the specific events of 18 June 2003, whether carrying the cartons of juice, each weighing around 12 kilograms, or in particular carrying boxes containing polystyrene cups, would in the normal spine cause any problems whatsoever. I think that if symptoms did develop with these activities his back must be considered to have been in a very vulnerable state, particularly when it is recorded that he developed back pain not when bending but lifting the box of polystyrene cups with his back straight according to the history given to Mr Somerville, the treating Consultant Orthopaedic Surgeon, on 5 December 2003. At the very most a minor strain of soft tissues, i.e. muscles or ligaments, could have occurred specifically during that activity or he simply had a flare up of his low back/leg symptoms which had been recurrent problems to varying degrees since well before his operation. It does not seem to me that the specific events of 18 June 2003 in themselves would have caused any symptoms beyond a very few months at most in the above situation".

The terms of that report do not support the pursuer's position on record that the lifting which he carried out caused a back injury and in particular that it caused a back injury producing acute back pain which has continued since that incident to date and will continue in the future. At best the report might support a flare up of already existing back/leg symptoms which carried on for a few months.

[41] Over and above the physical injury the pursuer also pleads that his psychiatric condition has worsened as a result of the accident. Again as matters presently stand the pursuer offers no expert medical opinion in support of that contention. The defenders on the other hand produced two medical reports from a consultant psychiatrist, Dr Alan Carson, 7/8 and 7/9 of process. The conclusions of 7/9 of process contain the following:

"In Mr McGregor's case, as stated in my original report, there are a number of reasons for believing that conscious false reporting may be playing a significant part. ...

I thus think it is likely, although cannot confirm on clinical examination alone, that Mr McGregor is deliberately exaggerating his symptoms. ...

I also think that there is an issue about the mechanism of injury. I simply don't think it is credible that lifting a stack of cups could alter the course of somebody's health to any significant degree. There is of course a clear history of established back problems obviously I defer to my orthopaedic colleagues in terms of the description and prognosis, but it does seem reasonable to assume that there will be a degree of nociceptive pain for Mr McGregor on a long term basis and it may well be that this is the nidus upon which he has developed a rather ingrained persecutory set of beliefs that it was all the fault of a relatively minor accident. I do not however think this is anything to do with the incident in question and if it had not been that I think he would have found something else to focus on. I think this man's primary problem is his personality....".

Again the above report in no way supports the pursuer's position.

[42] Accordingly, it appears at present, that there is available to the defenders a substantial body of expert evidence which in order to be successful in this case as presently pled the pursuer must overcome. The pursuer at present, and there is no reason to believe that the situation will change, has no expert evidence supporting his averred position in relation to the described issues. Against that background I regard there as being no likelihood of the pursuer being successful in his case against the defenders on the basis of the present pleadings. It is my opinion that the pursuer's case on the basis of the present pleadings can be properly described as being entirely without merit. I am confirmed in my view that his case is without merit having regard in addition to the procedural history which very much tends to support the view that there is no merit in the pursuer's case as presently pled.

[43] I believe I am entitled to come to a view on the prospects of the pursuer's case being successful by examining his evidence or more properly his lack of evidence in that I am not being asked to decide at this stage on two competing sets of evidence, one put forward on behalf of the pursuer and one put forward on behalf of the defenders. Had that been the situation I accept that I would not, prior to the stage of leading evidence, be in a position to come to a concluded view on the merits of the pursuer's case. However, that is not the situation here, rather what I am being asked to do is to look at the question of the sufficiency of evidence which the pursuer offers and to decide whether that evidence could be described as sufficient. In my view for the reasons which I have above stated, there is no way that the evidence available to the pursuer could be described as sufficient. In the whole circumstances the pursuer's case as presently pled is devoid of merit.

[44] The pursuer's position, in any event, is that he will not seek to lead evidence in support of the case as presently pled. Rather, as I have said, he will offer to amend to advance a case based on the whole history of his employment with the defenders during which he claims to have regularly been required to lift excessive weights. In these circumstances, this is a further factor, which confirms me in my view that there is no merit in the pursuer's case as presently pled.

[45] I turn now to consider the merits of the pursuer's case should he, as he states he intends to do, seek to amend to the effect I have already described. As I understand he will then offer an amendment saying that it is as a result of a continuing act or omission on the part of the defenders that he sustained his injuries.

[46] Before the pursuer could present such a Minute of Amendment he would require to obtain evidence supporting him in putting forward such an amendment. He states that he has witnesses who can speak to excessive weights being required to be lifted by employees such as him during the entire course of the period of his employment with the defenders. I understand that these are other employees or ex-employees of the defenders or persons who were otherwise present at the airport. As presently advised he again has no expert medical evidence supporting causation. Nor do I understand him to have any expert evidence in relation to the issue of foreseeability of risk. I think it unlikely that he will obtain such evidence. However, I do not think at this stage I can wholly rule out his obtaining such supporting evidence. Accordingly for the purposes of this opinion I am prepared to assume that the pursuer may be able to obtain sufficient evidence to support such a case and to properly present a Minute of Amendment of the type which he seeks to put forward.

[47] However, I note that the pursuer was last employed by the defenders on or about 8 February 2004. Accordingly any amendment would come outwith the period of 3 years in terms of the Act.

[48] It is clear that in the foregoing circumstances the decision as to whether the amendment should be allowed remains one for the discretion of the Court. However, the guiding principle which the Court must have in mind when considering whether such a Minute of Amendment should be allowed is whether the basis of the action is changed by the proposed Minute of Amendment or as it has been put by the Court on another occasion has the foundation of the case been altered or merely the superstructure?

[49] In the present case I have not had the benefit at this stage of seeing the proposed Minute of Amendment. However, the lines of any such amendment are reasonably clear from what the pursuer has said: it would alter the case from one in which an injury was occasioned on a single date as a result of a single act of negligence to one where the injury resulted from an ongoing omission or act by the defenders over the time that the pursuer worked for them. That change would alter the basis of the action in that: the material circumstances whereby the pursuer avers the injury occurred would be radically changed, from an accident on a single date to a continuing course of negligence over his whole working history with the defenders. The case would no longer be about the same accident if the proposed Minute of Amendment were allowed. I am accordingly of the clear view that there is no real likelihood of such a Minute of Amendment being allowed and no real prospect of such a case being advanced.

[50] Thus in my opinion on neither of the possible bases on which the pursuer's case could be advanced can I say that he has any prospects of success. In my view on either of these bases the pursuer's case is devoid of merit. In these circumstances I believe that it is appropriate that the pursuer should be ordered to lodge caution for expenses.

[51] The defenders' counsel in passing sought to rely on the behaviour of the pursuer as providing an exceptional circumstance which also justified the lodging of caution. Had the submissions made on behalf of the defenders turned solely on the basis of the pursuer's behaviour I would not have ordered the lodging of caution. In my judgement the behaviour which was relied upon by the counsel for the defenders was not of such a nature and extent as to show that the pursuer's behaviour was such as to justify the lodging of caution for expenses.

[52] Lastly in relation to the issue of whether I should order the lodging of caution for expenses I was not addressed on the issue of the effect of Article 6 of the European Convention on Human Rights. I considered whether there was a possible argument in terms of Article 6 which could have been mounted by the pursuer, namely: that to order him to lodge caution was effectively to deny him access to the Courts which would be a contravention of his rights in terms of Article 6 of the Convention. Very helpfully the arguments in relation to this issue are discussed by Lord Brodie in Terence Ewing v Times Newspapers Limited 2008 CSOH 169 at paragraph 24. For the same reasons as set forth by Lord Brodie at paragraph 24 of his Opinion I hold that to require the pursuer to find caution in a reasonable sum in the event of the test laid down in Stevenson v Midlothian District Council being met would not be to contravene the pursuer's Article 6 rights.

[53] In relation to the issue of caution there is one final matter and that is the quantum of any caution which should be lodged and the time within which it should be lodged. Mr Dawson sought for the sum of £25,000 to be lodged. This was based on a calculation of the costs of a 6 day proof. I am of the view that this approach was not the correct one in the circumstances for calculating the quantum of caution which should be lodged. In my view the pursuer has made it clear that he intends to lodge a Minute of Amendment. On his following this course, this case will be effectively decided by the decision of the Court as to whether that Minute of Amendment should be allowed. The issues as to whether that Minute of Amendment should be allowed are short and sharp and the rules which govern them well established. In these circumstances it appears to me that the sum which should be lodged to cover future expenses should be sufficient only to cover a short procedural hearing before the Court at which a decision as to whether the Minute of Amendment proposed by the pursuer would be allowed. If that is not allowed that will effectively end the matter. In these circumstances I believe that an appropriate sum to be lodged as caution would be £1,000. Given the particular financial circumstances of the pursuer, I do not believe that 28 days would be sufficient for him to raise what will be for him a very substantial sum of money, although much less than what was requested by the defenders. In these circumstances I believe that he should be allowed 3 months in which to raise this particular sum and lodge it in Court rather than the 28 days, which I accept is normal in such circumstances.