Stevenson v Midlothian District Council
| Jurisdiction | England & Wales |
| Judge | Lord Fraser of Tullybelton,Lord Simon of Glaisdale,Lord Keith of Kinkel,Lord Bridge of Harwich,Lord Templeman |
| Judgment Date | 10 February 1983 |
| Judgment citation (vLex) | [1983] UKHL J0210-4 |
| Docket Number | No. 2. |
| Court | House of Lords |
| Date | 10 February 1983 |
[1983] UKHL J0210-4
House of Lords
Lord Fraser of Tullybelton
Lord Simon of Glaisdale
Lord Keith of Kinkel
Lord Bridge of Harwich
Lord Templeman
My Lords,
The appellant is the pursuer in an action against the Secreary of State, as the first Defender, and Midlothian District Council, as the second Defenders and respondents. The pursuer is an assisted person and has been in receipt of legal aid at all stages of the action, including the appeal to your Lordships' House, with a contribution to the legal aid fund assessed at nil. Before the record was closed the Lord Ordinary (Lord Cowie) ordained the pursuer to find caution of £1,000 in respect of the respondents' expenses. The pursuer, whose disposable income is less than £1,500 per annum and consists mainly of an invalidity pension from the State, did not find caution within the period of four weeks fixed by the Lord Ordinary's Interlocutor. He is an undischarged bankrupt. The Lord Ordinary "in respect that the pursuer has failed to find caution" assoilzied the second defenders (the respondents) from the conclusion of the summons. The first defender has never taken any part in the proceedings and he was not represented at the hearing of the appeal in your Lordships' House.
The substantial issue in the appeal is whether the Lord Ordinary's Interlocutor, dated 27th February 1981, ordaining the pursuer to find caution and fixing its amount at £1,000 was a proper exercise of his discretion, or whether, as the appellant contends, the Lord Ordinary erred in law and went beyond the proper bounds of his discretion. The Lord Ordinary has written a note stating his reasons for exercising his discretion in the way that he did. But, for procedural reasons to which I need not refer in detail, the note was not written until about May 1982, more than a year after he had made the order, and in the note of his Lordship mentioned that, not unnaturally, he found it very difficult to recall his specific reasons after such a lapse of time. On 2nd June 1982 the first division of the Court of Session (the Lord President, Lord Cameron, and Lord Avonside) refused the appellant's reclaiming motion against the Lord Ordinary's Interlocutor. The Lord President, delivering the opinion of the division, said that there appeared to be no grounds for interference with a decision taken in the exercise of the Lord Ordinary's discretion.
The action is the latest round in a long struggle between the appellant and the respondents in their capacity of district planning authority under the Town and Country Planning (Scotland) Act 1972 ("the 1972 Act"). I hope it will be the last. The appellant lives in a caravan which stands on land beside Mavisbank House at Polton near Lasswade. Mavisbank House is a small mansion house standing in about 70 acres of land. The house was gutted by a fire in 1973 and is now only a shell. The house and land belong to the appellant's daughter who lives in the United States of America, and the appellant occupies part of the land with her permission. We were not informed how much land was used by the appellant, but I understand that it is only a small part of the 70 acres. On that part he has formed what I may be permitted to call a dump for old motor cars, caravans and associated debris. The respondents as local planning authority consider that the dump is seriously injurious to amenity and on 24th February 1978 they served on the appellant a "waste notice" under section 63 of the 1972 Act, requiring him to abate the injury to amenity by removing the old motor vehicles etc. within 28 days and by thereafter maintaining the land in a neat and tidy condition to their satisfaction.
The appellant appealed against the notice to the Secretary of State under the procedure provided by Section 85 of the 1972 Act, as he was entitled to do by Section 63 (3) (as amended by the Local Government (Scotland) Act 1973 Section 184 and Schedule 23, paragraph 20). On 16th November 1979 the Secretary of State, after an inquiry, dismissed his appeal and upheld the waste notice. There is no right of appeal against the decision of the Secretary of State—see section 231 1(e) of the 1972 Act—and accordingly the appellant has raised this action concluding for declarator that the Secretary of State had no power to entertain the appellant's appeal, for reduction of the decision of the Secretary of State dismissing the appeal, for reduction of the waste notice, and for interdict against the respondents from taking steps in respect of his non-compliance with the waste notice and in particular from entering on the land and taking any steps required by the notice. I shall return later to the terms of the first conclusion. The summons was signetted on 29th October 1980.
Mr. Cullen who appeared for the appellant in this House, but not in the Court of Session, expressly accepted that the decision on whether to order caution was one for the discretion of the Lord Ordinary. He frankly recognised that, if the appeal was to succeed, he had to show that the Lord Ordinary had been clearly wrong in exercising his discretion in the way he did. The Lord Ordinary's note, after mentioning the difficulty of recalling his reasons, proceeds as follows: —
"To the best of my recollection, however, my attention was drawn to the nature of the action and the pleadings, and I was informed that the pursuer was an undischarged bankrupt and had failed to pay the expenses awarded against him in a previous unconnected action.
Bearing all these factors in mind, it seemed to me to be appropriate to ordain him to find caution for the expenses of this action.
Counsel for the pursuer attempted to persuade me that, since the pursuer was on legal aid and obviously had no means, it was not appropriate to ordain him to find caution because, if he failed in his action and expenses were awarded against him, they would be modified, probably to nil, in terms of section 2(6)(e) of the Legal Aid (Scotland) Act 1967.
While I consider this to be a factor to take into account, I did not think that it outweighed the other factors, particularly because, in the first place, I was not at that time in a position to foretell what the pursuer's financial position might be when the provisions of section 2(6)(e) would have to be applied, and, in the second place, even if the pursuer had no income at that time, it would not necessarily follow that his liability would be modified to nil or even to any great extent."
None of the factors which the Lord Ordinary tells us that he took into account was in my opinion irrelevant, nor does he appear to me to have overlooked any factor which would have been relevant. I did not understand Mr. Cullen to contend to the contrary. His criticism was that the Lord Ordinary's approach had been wrong, but I do not think that the criticism really amounted to more than saying that his Lordship had made a wrong assessment of the relative weight to be given to the various factors. If that is, as I think, the true effect of the argument for the appellant, it must fail unless the assessment is wholly unreasonable, because such an assessment is essentially a matter for the judge's discretion.
Mr. Cullen submitted that the proper approach would have been to start from a general rule that, where a party is in receipt of legal aid, he should not be called on to find caution unless there are special circumstances. There appears to have been a rule to that effect in the days before legal aid when a litigant on the poor's roll was generally not ordered to find caution—see MacLaren on Court of Session Practice page 274. But in MacLaren on Expenses at page 11 the chapter on "Caution for Expenses" begins with this sentence:
"The whole matter of caution is pre-eminently one of discretion."
I do not consider that any assistance is to be derived from the practice with...
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