OUTER HOUSE, COURT OF SESSION [2008] CSOH 169
A515/08	OPINION OF LORD BRODIE in the cause TERENCE PATRICK EWING Pursuer; against TIMES NEWSPAPERS LIMITED Defenders: ________________

Pursuer: Party

Defenders: Dunlop; Ledingham Chalmers LLP

11 December 2008

Introduction

[1] The pursuer is a party litigant. He is resident in London. He has had the conduct of this action from the beginning, having been granted leave, in terms of Rule of Court 4.2(5), to proceed without there being a duly authorised signature to his Summons. The defenders are the publishers of the "Sunday Times" newspaper which, in a Scottish edition, is published in Scotland. The defenders also publish "Times Online", a website, and "News International Times and Sunday Times Digital Archive", another website. The defenders have a registered office in London. They have a place of business in Scotland.

[2] The pursuer seeks damages, declarator and interdict by reason of the various wrongs that he avers he has suffered by reason of the publication on 11 February 2007 in the Scottish edition of the Sunday Times and online of an article entitled "Heritage Fakers Hold Builders to Ransom".

[3] The pursuer has no previous experience of litigating in Scotland. However, it would appear that he has extensive experience of litigating in England. As long ago as 1991, he was described by Lord Donaldson MR as an "experienced and well informed" litigant: Henry J Garratt & Co v Ewing [1991] 1 W.L.R. 1356 at 1357E (where the Court of Appeal declined jurisdiction in an appeal instituted by the pursuer by reason of his having been previously declared a vexatious litigant).

[4] This is not the first instance of the pursuer raising, or attempting to raise proceedings against the present defenders arising out of the article of 11 February 2007. On 30 January 2008, the pursuer issued an application for leave under Section 42(3) of the Supreme Court Act 1981 to bring proceedings against the now defenders and others (the "English leave application"). The English leave application was made to the Queen's Bench Division of the High Court of Justice. It was the subject of an oral hearing on 19 June 2008 before Mr Justice Coulson. At that hearing, the pursuer advised Mr Justice Coulson that in addition to the English leave application, he had issued similar proceedings against the present defenders in Belfast and that he intended to raise similar proceedings in Scotland, as indeed has proved to be the case. After what appears to have been a very full hearing, in terms of a judgment dated 22 July 2008 Mr Justice Coulson declined to grant leave on the ground that the pursuer's proposed claims had no real prospect of success and/or were an abuse of the process of the court: Ewing v News International Ltd and Others [2008] E.W.C.H. 1390.

[5] The pursuer came to submit to me that I was not bound by the decision in Ewing v News International Ltd and Others. That may be correct. It is a decision of an English court of first instance which had to determine a different issue than that which I have to determine. However, it is a recent judgment of the English High Court in a question between the same parties who appeared before me and therefore carries very considerable weight. Insofar as Mr Justice Coleman stated something as being the fact, for the purposes of this application I have accepted that as a fact (and, indeed, I did not understand the pursuer to challenge the factual basis of Mr Justice Coleman's judgment). Where Mr Justice Coleman has stated the relevant English law, I have taken that statement to be correct.

Motion for caution

[6] The action came before me by way of a motion on behalf of the defenders to require the pursuer to find caution in the sum of £50,000, or such other sum as might to the court seem appropriate, as a condition precedent of his continuing these proceedings. The defenders were represented by Mr Dunlop, Advocate. The pursuer represented himself.

Submissions of parties

Defenders

[7] At the outset of his submissions, Mr Dunlop 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. The whole circumstances had to be had regard to. Mere impecuniosity was not enough: Will v Sneddon, Campbell & Munro 1931 S.C. 164 at 168, 170 and 171. A litigant with a stateable case should only effectively be excluded from the court by an order for caution with which he could not comply in exceptional circumstances: Stevenson v Midlothian DC 1983 S.C. (H.L.) 50, Lord Fraser at 58. However, while making an order for caution on a party who is manifestly not in a financial position to provide 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 S.L.T. 451, Lord Justice Clerk Wheatley at 453. There was no difference between defamation and other cases, the strength of the parties' respective positions in the litigation being a relevant factor: McCue v Scottish Daily Record & Sunday Mail Ltd 1999 S.C. 332 at 333E to 334D. That a party is required to provide security for expenses is not a contravention of Article 6 of the European Convention on Human Rights. While Article 6(1) secures the right to have a claim relating to civil rights and obligations brought before a court or tribunal, that right of access is not absolute; limitations may be placed upon it, provided that they pursue a legitimate aim and that there is a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved: Monarch Energy Ltd v Powergen Retail Ltd 2006 S.L.T. 743 at 746F, Miloslavsky v UK [1996] E.M.L.R. 152.

[8] Mr Dunlop submitted that in the present case there were exceptional circumstances justifying an order for caution. They could be grouped under three headings: 1. the pursuer's unreasonable behaviour, 2. the pursuer's impecuniosity and 3. the lack of merit in the pursuer's claim.

[9] So far as unreasonable behaviour was concerned, Mr Dunlop pointed to the fact that the pursuer had been declared to be a vexatious litigant in England and Wales. He immediately accepted that the English order did not have effect in Scotland in the sense of making the pursuer a vexatious litigant in this jurisdiction. That would require an order by the Inner House of the Court of Session on the application of the Lord Advocate, made in terms of the Vexatious Actions (Scotland) Act 1898. The fact that the pursuer had been held to be vexatious in England and Wales was nevertheless highly relevant. Mr Dunlop referred me to the judgment of Mr Justice Coulson in the English leave application, Ewing v News International Ltd and Others, for a history of the pursuer's persistent engagement in litigation subsequent to the order made against him in 1990. As appears from paragraphs 3 to 12 of that judgment, the pursuer has displayed a "voracious" appetite for civil litigation. He has made 22 applications in 17 separate actions since the order against him was made.

[10] Paragraph 10 of Mr Justice Coulson's judgment is in the following terms:

"It would be both unnecessary and tedious to set out in any greater detail the unhappy and largely futile nature of the claimant's serial litigation between 1989 and the present day [22 July 2008] suffice to say it has always been persistent and sometimes even absurd: one claim, involving the London Borough of Islington (C.R. v London Borough of Islington [1998] E.W.H.C. Admin 948) was concerned with a dispute that had already generated two previous sets of proceedings, relating to £92 in costs".

In addition, the pursuer has lodged objections to seventeen planning applications. At paragraph 83 of the judgment, Mr Justice Coulson characterised the pursuer as someone:

"obsessed with civil litigation, ... [who] will seek to commence proceedings about anything at all, whether he has a personal interest in the subject matter of the proceedings or not."

Mr Dunlop drew attention to what was said by Mr Justice Coulson at paragraph 84 of his judgment when he referred to the pursuer's stated policy whereby he deliberately causes the parties against whom he is proceeding to incur large sums unnecessarily by way of costs and then refusing to pay any costs ordered against him. The conclusion of Mr Justice Coulson was that:

"the evidence is overwhelming that, whatever the outcome of these claims, the claimant will not pay the (inflated) costs that he has caused the defendants to incur."

The pursuer had argued before Mr Justice Coulson that regard should not be had to his previous conduct. As appeared from paragraphs 51 to 54 of his judgment, Mr Justice Coulson rejected that contention. Mr Dunlop submitted that the prior behaviour of the pursuer was very relevant. That it had occurred south of the Border was not to the point. The pursuer's conduct in previous litigations, including recent previous litigations, had been deplorable and allowed an inference to be drawn as to how he was likely to conduct this action. Regard might also properly be had to the fact that the pursuer was a convicted fraudster, albeit that his conviction, which had led to sentence of 7 years imprisonment, had been imposed as long ago as 1981.

[11] Mr Dunlop turned to the pursuer's impecuniosity. The pursuer was not at present bankrupt, but had been found liable to the defenders in costs in respect of the application which had been made to Mr Justice Coulson in the sum of £22,500. The pursuer had been ordered to pay this sum by way of an interim payment on account of costs by 5 August 2008. No payment had been made and a statutory demand had been served on the pursuer under cover of letter dated 21 August 2008. The statutory demand had not been complied with by the pursuer. His position was accordingly equivalent to that of a notour bankrupt. The position of this "serial litigator", to use the expression employed by Mr Justice Coulson, appeared to be: "Can't pay, won't pay".

[12] Moving to the third ground upon which he relied as establishing exceptional circumstances, Mr Dunlop submitted that there was no merit in the pursuer's claim. The pursuer's Summons contained eleven conclusions, fourteen articles of condescendence, nine pleas-in-law related to jurisdiction and a further twenty four pleas-in-law related to other matters. Following adjustment, there are now seventy articles of condescendence and thirty nine pleas-in-law. It is quite clear from his pleadings that the pursuer is seeking to ventilate multiple issues which are of peripheral relevance to his complaints against the defenders. Essentially, the cause or causes of action are the same as were relied on in the proceedings which are the subject of the English leave application. The pursuer alleges defamation, contravention of the provisions of the Data Protection Act 1998, breach of confidence and privacy and harassment in breach of the Protection from Harassment Act 1997. The pursuer takes issue with being described as a "professional nimby", although that is essentially what he was found to be by the Court of Appeal: R (Ewing and Another) v The Office of the Deputy Prime Minister [2006] 1 W.L.R. 1260 at 1270D. The article which is the subject of the action raises a matter of public concern, that being the activities of the "Euston Trust", a name used by the pursuer and his associate, Keith Hammerton. Issues of Reynolds privilege (Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127) and justification accordingly arise. As far as the internet posting is concerned, it would appear from Article 53 of condescendence that the pursuer and an associate made a special trip to Edinburgh in order to contrive the publication to them of the article. Even if the pursuer was to be successful, it is difficult to see what benefit he will achieve in this action. As Mr Justice Coulson observed in Ewing v News International Ltd and Others at paragraph 99, given that the pursuer is a convicted fraudster who was sentenced to a term of imprisonment of 7 years for a range of offences, it is difficult to see how, at least in relation to his business activities, the pursuer has a reputation which could be damaged by an article in a newspaper. Mr Justice Coulson accepted the submission that even if the pursuer succeeded in his proposed libel proceedings in England, he would only recover nominal damages. In that the pursuer has no presence in Scotland, he does not have a Scottish reputation to damage and Scots law does not recognise the remedy of nominal damages, his position in the present action would appear to be even weaker than in the proposed English proceedings. It is clear from articles 54 to 58 of condescendence that the pursuer is only suing in Scotland in respect of publication in Scotland and it is clear from article 61 of condescendence that the claim is for solatium only. Mr Dunlop submitted that the position in the present case was analogous to that considered by the Court of Appeal in Jameel v Dow Jones & Co Inc [2005] Q.B. 946. In that case the court had been prepared to strike out as an abuse of process, defamation proceedings where the claimant had suffered no actual damage to his reputation. That was not the remedy that Mr Dunlop was seeking in the present case, but in Jameel supra at 962F, Lord Phillips had mentioned the application of costs sanctions as an alternative remedy. That was something similar to an order for caution.

[13] In so far as the pursuer's present action was based on the Data Protection Act 1998, breach of confidence, breach of privacy or the Protection from Harassment Act 1997, Mr Dunlop commended the approach taken to essentially the same claims by Mr Justice Coulson in Ewing v News International Ltd and Others.

[14] Mr Dunlop concluded his submissions by renewing his motion for an order for caution in the sum of £50,000 as a condition precedent of the pursuer proceeding further with this action. When I enquired as to the likely expenses which would be incurred by the defender in taking the case to the conclusion of a Procedure Roll debate, Mr Dunlop advised me that the sum might be stated at about £15,000.

Pursuer

[15] Mr Ewing began by referring to the decision of the Privy Council in Ford v Labrador [2003] 1 W.L.R. 2082 and the citation there of the European Court of Human Rights in Kreuz v Poland Reports Judgements and Decisions 2001 - B.I., p129. Requiring a party to make a payment as a condition of access to the court which was excessive having regard to that party's means, is to impair the very essence of that party's right of access to the courts as secured by Article 6(1) of the European Convention on Human Rights. To require him to find caution of £50,000 would be effectively to deprive him of his right of access to the court.

[16] Mr Ewing then sought to demonstrate that his claim was a proper one, put forward in proper form. He was not pleading special damages. Rather, what was sought were what in England would be described as damages at large. He did not know why things should be any different in Scotland. He had had difficulty in finding any precedents for Scottish styles of pleading and accordingly thought it best to do things in the way that they are done in England and Wales. He did, however, understand that much more precise pleadings were required in Scotland than in England and he had attempted to plead his case with that in view. As appeared from article 4 of condescendence, there had been substantial publication in Scotland. Damages at large were presumed. Article 9 identified the words which the pursuer alleged were defamatory. He accepted that there was no direct allegation against him, rather it was a matter of innuendo. He was not pursuing the bit about "professional nimbys". The main sting of the defamation was the insinuation by way of innuendo that he had either demanded money or received money in return for dropping objections to planning applications. Mr Dunlop had not addressed the question as to whether the article might bear that meaning. There was also the innuendo that he had somehow been involved in receipt of money by his former associate, Mr Hammerton. That people may not have had a high opinion of him and that he may have raised actions which did not have merit, were nothing to the point. The defenders had failed to produce any documentary evidence that he had demanded or received money. Whereas Mr Hammerton had written a letter in September 2005 claiming that the pursuer had received the sum of £9,000, this was not true. Mr Ewing would be seeking production of Mr Hammerton's accounts with a view to demonstrating this. Mr Foggo, the author of the article complained of, had contacted him to obtain various pieces of information. A jury might wish to infer from his dealings with Mr Foggo that a duty of confidentiality arose. He had been the subject of clandestine tape recording and clandestine photography. The expression "target Kings Cross", although used by him, had been taken out of context. The publication of his photograph was a breach of his right to privacy. As appeared from productions that had been lodged with the court, the defenders had been put on notice by him that the allegations against him were false. To publish in the face of his denial went to the question of responsible journalism and therefore Reynolds Privilege. This action had been raised prior to the issue of Mr Justice Coulson's judgment and, in any event, only related to the pursuer's "Scottish damages". There was a triable and justiciable issue here in relation to qualified privilege. Mr Ewing would apologise if he had written letters in the past in intemperate terms (as had been referred to by Mr Justice Coulson). He accepted that he had brought cases which had not succeeded but the important question was whether this was a case which might have merit. Proceedings were at a relatively early stage. There had been no disclosure. He was not alleging actual damage but he did plead hurt feelings. In relation to qualified privilege, he made reference to Seaga v Harper [2008] 3 W.L.R. 478, Charman v Orion Publishing Group Ltd [2007] 1 All E.R. 622, Charleston v News Group Newspapers Ltd [1995] 2 A.C. 65, Loutchanski v Times Newspapers Ltd [2002] Q.B. 321 and Galloway v The Telegraph Group [2006] E.W.C.A. Civ. 17. Mr Justice Coulson had made reference to the prospect of the unedifying spectacle of a "spat" between Mr Ewing and his former associate. Mr Ewing stressed that he had only briefly associated with Mr Hammerton before discovering that he was guilty of sex offences committed in the 1970s. However, it was the defenders who relied on Mr Hammerton for their defence of justification. Accordingly, Mr Ewing was obliged to attack his character. That Mr Justice Coulson had not granted leave to the pursuer to proceed in England and that his claim for defamation in England was subject to limitation, are not reasons to prevent him litigating in Scotland: Kennedy v Aldington and Others [2005] C.S.O.H. 58.

[17] Mr Ewing accepted that if the allegation of taking money was true, then his claim based on breach of privacy would fail. However, the defence of qualified privilege did not apply as a defence to a claim of infringement of his rights to privacy: Mosley v News Group Newspapers Ltd [2008] E.W.H.C. 1777. Even if the defenders were to succeed in a defence of qualified privilege, there remained the fact they had used clandestinely taken photographs. Mr Ewing had only found out that the "Sunday Times" was published in Scotland in April 2008 when he discovered a back copy of the "Sunday Times" in a library. That is why he had not commenced proceedings earlier. Mr Justice Coulson had thought that the privacy claims stood or fell with the defamation claim. Rather, the position was that, after the decision in Mosley, a claim for infringement of privacy should be regarded as freestanding. Mosley sets out an expectation of privacy. If Mr Ewing was not guilty of taking a bribe then he had an expectation of privacy which should have been respected. He referred to Aubry v Editions Vice-Versa Inc [1998] 1 S.C.R. 591, Theakston v MGM Ltd [2002] E.W.H.C 137 [2002] E.M.L.R. 22, Campbell v MGM Ltd [2003] Q.B. 633, [2004] 2 A.C. 457, Douglas v Hello! Ltd [2001] Q.B. 967 and Lord Brown v Associated Newspapers Ltd [2007] E.W.C.A. Civ. 295.

[18] In relation to the harassment claim, Mr Ewing did not concede that there had not been repetition. There had been publication of the article in hard copy. Numerous customers would have made successive purchases and, in any event, it was also published on the website. Reference was made to Thomas v News Group Newspapers Ltd [2002] E.M.L.R. 4 and Gentoo Group Ltd v Hanretty [2008] E.W.H.C. 627.

[19] Mr Ewing accepted that he was not "a man of means". However, he sought access to the courts. The defenders must "put up or shut up". If he was not given an opportunity to make his case, the defamation would be repeated. The purpose of the action was to prevent further publication. He wished access to justice. Posing a requirement to lodge caution would stifle his claim and would deny him the rights guaranteed by Article 6(1) of the European Convention. This was not the crackpot case of some vexatious litigant. The defenders had chosen to publish this material. They were the authors of their own misfortune. Mr Ewing said that he was not proud of his criminal conviction in 1981, but this is being put forwards as an excuse to prevent him presenting his case.

[20] After the hearing the pursuer sent to my clerk, under cover of letter of 22 October 2008, copies of the decisions of the European Court of Human Rights in Kreuz v Poland, 19 June 2001, Application no 28249/95 and Von Hannover v Germany, 24 June 2004, Application no 59320/00 together with what he described in his letter as "some case notes from some text books regarding special damages and claims for damages where the tort is actionable per se." In his letter he goes on to observe:

"This relates to the position in English law, and I have no doubt that it is equally applicable to delicts in Scottish law, although I haven't had time to research the matter more thoroughly."

The pursuer sent further material under cover of his letter of 26 October 2008 and again under cover of letter dated 26 November 2008.

Discussion

[21] The starting point for a consideration of the defenders' motion to ordain the pursuer to lodge caution is the pursuer's impecuniosity. The pursuer made no offer of any form of security for expenses. He described himself as not being a man of means. Further information is available. Mr Justice Coulson made an order on 22 July 2008 requiring the pursuer to pay £22,500 to News International Limited and the present defenders by 5 August 2008 by way of interim payment of costs in relation to the English leave application. As at 21 August 2008 this was unpaid and on that date a statutory demand for payment was made upon the pursuer under section 268 (1) of the Insolvency Act 1986. The sum demanded remains unpaid. This instance of failure on the part of the pursuer to pay in respect of a costs order made against him does not stand in isolation, as appears from paragraphs 5, 11, 84, 85 and 106 of Mr Justice Coulson's judgement. At paragraph 11 Mr Justice Coulson said this: "I find as a fact that the [present pursuer] is a serial litigator who does not pay the costs of those who successfully defeat his claims." With almost disarming candour Mr Ewing expressed his regret about immoderate things that he had said in the past and which had been quoted by Mr Justice Coulson. Giving due weight to this expression of contrition on the part of the pursuer, on the information before me there seems to be no question that any award of expenses against the pursuer in this action will not be met. That, as Mr Dunlop immediately recognised, is not determinative of the question as to whether caution should be ordered but I see there as being value in noting what it means. Litigation is a costly business; costly in time, trouble, anxiety and money for the litigants and costly in resources for the court. The power of the court to award judicial expenses payable by one party to another to some extent ameliorates the adverse consequences of this by allocating some of the purely financial cost to the party who has occasioned it by raising or defending an action on a basis which is found to be unjustified or initiating a procedural step unnecessarily or unsuccessfully. I say "to some extent" because party and party judicial expenses are usually less than the expense actually incurred in the litigation and time, trouble and anxiety are not compensated at all. As well as partly defraying the financial outlays of the successful party, the court's power to award expenses acts as a discipline promoting efficient procedure in that it provides a sanction, both through making an award and determining the basis for taxation, in the event of conduct which has been unnecessarily wasteful of time or money. One such situation is where a party has failed to beat a tender but there are many others where the court may wish to penalise unreasonable or culpable conduct. As is obvious, it is only where there is a realistic prospect of it being paid that an award of expenses is available either as a means of compensation or as a sanction. Where a litigant is impecunious his opponent will incur cost which will not be defrayed even if the opponent is entirely successful and the court will be deprived of its most obvious means of discouraging the waste of resources, both public and private. Fixing caution as a condition precedent for further procedure is a way of redressing the position in the appropriate case. The question therefore comes to be: is this an appropriate case?

[22] I proceed on the basis that the pursuer would be unable to pay anything approaching a substantial award of expenses against him because of his impecunious state. He certainly said nothing to disabuse me of what appears to the obvious inference to draw from his failure to make payment in response to the statutory demand under section 268 (1) of the Insolvency Act 1986. That is not in itself reason to order him to find caution but it is, as I have said, the starting point and an element which, for the reasons that I have attempted to set out above, must form part of a consideration as to whether caution is appropriate in this case: Will v Sneddon, Campbell & Munro supra at 168, 170 and 171. In so saying I recognise, as did Mr Dunlop in his submissions, that in exercising the discretion to require caution, a balance requires to be struck as between the interest of the party faced by an impecunious opponent of not being put to uncontrolled and unrecoverable expense and the interest of the impecunious party to have his claim considered by the courts. Ordering caution on someone who is manifestly not in a financial position to provide any sum of substance is effectively to deny him access to the court. That may appear to be draconian: Rush v Fife Regional Council supra at 453. Where the impecunious litigant has a stateable case, it might amount to a denial of justice. Reflecting the importance of a party with a case being able to pursue that case before the courts Lord Fraser puts the matter this way in Stevenson v Midlothian District Council supra at 58:

"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."

Mr Dunlop was prepared to accept that as the test of exceptional circumstances was that which he had to meet.

[23] Parties very properly referred me to article 6 of the European Convention on Human Rights. It was the pursuer's contention that to impose on him an order for caution which in all likelihood he would be unable to comply with 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. He referred to the decision of the Privy Council in Ford v Labrador [2003] 1 WLR 2082.

[24] It may be that to impose an inordinate requirement to pay a sum of money as a condition of taking proceedings or taking proceedings further may impair the very essence of a party's right of access to the courts. That is what was held to have occurred in Ford v Labrador and in Kreuz v Poland supra which was referred to in Ford. As was said in Kreuz and in the case of Teltronic-CATV v Poland, application number 48140/99, European Court of Human Rights, 10 January 2006, article 6(1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal and accordingly embodies the "right to a court", of which the right of access, that is the right to institute proceedings before a court in civil matters, constitutes one aspect. However, as Lord Drummond-Young pointed out in Monarch Energy Ltd v Powergen Retail Ltd supra, the "right to a court" is not absolute. Limitations, including financial ones, may be placed on party's access to a "court" or "tribunal", as long as the limitations pursue a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved. Among the examples of permissible limitations given in Teltronic-CATV v Poland supra at paragraph 47 is requiring security for costs. In my opinion the rule of Scots law identified by Mr Dunlop which provides that a party with a stateable case will only be required to find caution in exceptional circumstances meets a legitimate aim (protecting parties against unrecoverable cost incurred in defending dubious claims and providing the courts with means of controlling unreasonable conduct) by proportionate means (security only for past and immediately future judicial expense, imposed at the discretion of and under the control of the court having regard to the whole circumstances including the reasonableness of the conduct of the party who is required to find caution). In my opinion 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.

[25] I turn to consider whether the pursuer is a litigant with a stateable case. As I understand his pleadings the pursuer avers that he has suffered injury by the publication in Scotland on 11 February 2007 of a newspaper article with associated photographs, both in hard copy and on-line. The pursuer is careful to distinguish this publication, in the Scottish edition of the newspaper, from publication of a very similar article in the English edition of the same newspaper which was the subject of the English leave application. It is obviously difficult to maintain purely geographic distinctions based on place of sale when considering publication on-line but what the pursuer complains of in his pleadings are the "web site versions" of "the article" (article 10 of Condescendence, emphasis added). His complaint is therefore restricted to the two forms of publication of the Scottish edition. He made a visit to Edinburgh City Library on 9 April 2008 in order to have the article viewed and downloaded by his companion (articles 52 and 53 of Condescendence). I understand that companion to be the same person who was described by Mr Justice Coulson at paragraph 102 of his judgement as "the vexatious litigant who is acting in concert with the [pursuer] in relation to these proposed claims." Similarly, I understood the pursuer to have explained that he had searched out an archive copy of the Scottish edition of the newspaper in a library. It is the contention of the pursuer that the publications of which he complained amounted to a variety of delicts on the part of the defenders: defamation, contravention of the provisions of the Data Protection Act 1998, breach of confidence, infringement of the right to privacy, and harassment in breach of the Protection from Harassment Act 1997. I have already mentioned the pursuer's reliance on publication of the Scottish edition of the newspaper in Scotland. The purely local effect of what the pursuer characterises as delicts was emphasised when, during his submissions he expressly limited himself to a "Scottish claim" and to "Scottish damages". It is true that the pursuer does not limit the remedies sought to damages. He also concludes for declarator and interdict. However, in relation to all the conclusions, according to the pursuer, this action is purely concerned with such harm as he may have suffered in Scotland. That was the approach of the pursuer in Kennedy v Aldington and Others supra. It was the view of Temporary Judge Coutts QC in that case that there was nothing intrinsically wrong with such an approach to damages, albeit that it gave rise to difficulty in computation: supra at paragraph [52]. For present purposes I shall accept that as being so. The result would seem to be that, insofar as the pursuer has no identified connection with Scotland, such harm as he may have suffered or may apprehend there cannot be substantial.

[26] With the pleadings still at the Open Record stage I am not able to conclude that the pursuer's case is unstateable in all of its aspects. By that I mean that I cannot exclude the possibility that it might succeed to some extent. That said, it appears to me that it is very far from an action with "serious merits", to repeat the expression found in the speech of Lord Fraser in Stevenson v Midlothian District Council supra at 58.

[27] I proceed on the basis that the pursuer may make out a case of defamation but that, for reasons touched on above, any damages that might be awarded in respect of hurt feelings and, to the extent that this is truly a separate head, loss of reputation, would be modest. I recognise that the defenders may very well have a defence of what was referred to in argument as Reynolds privilege (cf Adams v Guardian Newspapers Ltd 2003 SLT 1058). In computing damages I would anticipate the court having regard to the fact that, in relation to hurt feelings, the pursuer went to some trouble to expose himself to publication of the Scottish edition and, in relation to damage to reputation, the fact that the pursuer either has no Scottish reputation because he is unknown in this jurisdiction or, given the history disclosed in Mr Justice Coulson's judgement, it was not previously unsullied.

[28] A common feature of the remaining elements of the pursuer's case: breach of obligations of privacy and confidentiality, contraventions of the provisions of the Protection from Harrassment Act 1997 and Data Protection Act 1998, is the failure by the pursuer to set out in any comprehensible way in his pleadings the basis upon which he avers that delictual liability has been incurred. It is true that the pursuer produced to the court a mass of documentation and photocopies of decided cases but, whatever may be the practice in other jurisdictions, in Scotland the court expects to be able to understand what a party's case is about and, indeed, to be able to make some sort of assessment of its strength, from his pleadings. As far as the case-law was concerned the pursuer's technique was to refer to the citation and to supply a photocopy but do no more. No attempt was made to establish any proposition by reference to this authority or in any other way to explain its relevance. I am therefore in the position where these elements of the pursuer's case are obscure. As far as the breach of privacy and the Protection from Harassment Act aspects of the case are concerned I would respectfully agree with the assessment made by Mr Justice Coulson in Ewing v News International Ltd and Others. Mr Justice Coulson's judgement was issued just before that of Mr Justice Eady in Mosley v News Group Newspapers Ltd supra but I do not see that latter decision impacting on what was said in the former as to the absence of any expectation of privacy on the part of the pursuer in the circumstances here. I am therefore of the view that the breach of privacy and harassment cases cannot succeed. I do not go that distance in respect of the breach of confidence and contravention of the Data Protection Act cases but that is because there is so little pled in support that I cannot make any meaningful assessment of them. The result is therefore the same in respect of all the elements of the case other than defamation: the pursuer has failed to plead what I would regard as a stateable case.

[29] Because of the view that I take of the defamation element of the pursuer's case: that it is stateable, I approach the application for an order for caution on the basis that I should only exercise my discretion to make an order if I am satisfied that exceptional circumstances obtain. I am so satisfied. As I have already indicated, while it is conceivable that the pursuer might succeed in establishing that he has been defamed, he has failed to plead any other reasonably relevant and specific case. The defamation case is not one that has "serious merits". By that I mean that it is difficult to discern any real interest that the pursuer needs to protect or harm for which he is entitled to other than negligible reparation. I see this as an artificial litigation. If the pursuer has no "Scottish reputation", and he does not offer to prove that he has, then this action only relates to hurt to feelings. If the pursuer's feelings have been hurt by publication of the Scottish edition it is only because he has deliberately contrived that they be hurt by ensuring publication to himself. Moreover, the defenders may well have a good defence available to them by reason of Reynolds privilege. That the pursuer is impecunious is unchallenged. He has already failed to pay an award of costs made against him in favour of the defenders. He would appear to be insolvent. Accordingly, the defenders are faced with the prospect of incurring very substantial expense in defending a doubtful claim of at best small value when it is judged in financial terms with no hope of recouping that expense should that defence be successful. The point was put well by Mr Justice Coulson at paragraph 109 of his judgement in Ewing v News International Ltd and Others:

"Realistically, giving the claimant permission in this case to bring proceedings under s 42 (3) may be tantamount to entering judgment against the defendants, because they may then conclude that, in all the circumstances, there was no commercial advantage to them in defending the claim. They would only incur costs in doing so, which costs, even if they won, they would not be able to recover. It might therefore be necessary for them to pay off the claimant, regardless of the rights and wrongs of the original story and no matter how strong their defence and the difficulties that the claimant faces in recovering anything other than nominal damages. In my judgment, such an outcome would be an abuse of the process of the courts."

The final factor to which I have had regard is the unreasonable behaviour of the pursuer as demonstrated by the history disclosed in paragraphs 3 to 29, and 83 to 91 of the judgement of Mr Justice Coulson in Ewing v News International Ltd and Others not only in relation to that case but going back to at least 1990. What emerges from that history is a picture of a determined recreational litigant with little regard for the constraints that the courts have attempted to impose, no appreciation of the proportionality of his actions and no concern for the financial interests of others. He was made the subject of a Civil Proceedings Order, as defined in section 42 (1) of the Supreme Court Act 1981 as long ago as 1990 by reason of his having made at least 25 vexatious claims. That order has not diminished the pursuer's appetite for serial litigation. None of that bodes well for the manner in which he is likely to conduct this action in a jurisdiction with which he has no previous experience.

[30] In the circumstances set out above I consider it to be in the interests of justice to make an order for caution for future expenses, as provided by chapter 33 of the Rules of Court, to be lodged within four weeks of the date of the interlocutor making the order. I shall limit the amount of caution to £15,000, that being the estimate of the expenses of the defenders in taking the action the distance of Procedure Roll debate.