Fraser v. M'Murrich [1923] ScotLR 57 (24 November 1923)

Fraser v. M'Murrich [1923] ScotLR 57 (24 November 1923)

The pursuer, being an undischarged bankrupt whose trustee declined to sist as a party, failed to establish exceptional circumstances justifying a departure from the general rule requiring caution for expenses. The difficulties arose from the pursuer's own actions, not from any misconduct by the defender or his agents. The Lord Ordinary's decision was based on incomplete information and is displaced by the full facts now before the court.

Citation
[1923] ScotLR 57
Parties
Pursuer: Donald Fraser; Defender: Robert S. M'Murrich
Jurisdiction
Scotland
Judgment Date
24 November 1923
Procedural Posture
Civil / Reclaiming Motion (appeal) Against Lord Ordinary's Interlocutor Refusing Motion for Caution for Expenses
Outcome
Lord Ordinary's interlocutor recalled; pursuer ordained to find caution for expenses as a condition of proceeding.
Legal Topics
Caution for Expenses, Bankruptcy and Litigation Rights, Personal Injury Damages, Court Discretion in Procedural Orders
Civil Procedure Bankruptcy Personal Injury Caution for Expenses Bankruptcy and Litigation Rights Personal Injury Damages Court Discretion in Procedural Orders

Case Brief

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Parties

Donald Fraser

Pursuer

Robert S. M'Murrich

Defender

Procedural Posture

Civil / Reclaiming Motion (appeal) Against Lord Ordinary's Interlocutor Refusing Motion for Caution for Expenses

Legal Issues

  1. 1 Whether an undischarged bankrupt pursuer must find caution for expenses as a condition of proceeding with an action for damages when the trustee declines to sist as a party
  2. 2 Whether the circumstances of the case are sufficiently exceptional to justify dispensing with the general rule requiring caution

Ratio Decidendi

The pursuer, being an undischarged bankrupt whose trustee declined to sist as a party, failed to establish exceptional circumstances justifying a departure from the general rule requiring caution for expenses. The difficulties arose from the pursuer's own actions, not from any misconduct by the defender or his agents. The Lord Ordinary's decision was based on incomplete information and is displaced by the full facts now before the court.

Court Disposition

Lord Ordinary's interlocutor recalled; pursuer ordained to find caution for expenses as a condition of proceeding.

Orders

  • Recall of Lord Ordinary's interlocutor refusing caution for expenses
  • Pursuer ordered to find caution for expenses