McCue v Scottish Daily Record & Sunday Mail Ltd & Anor [1998] ScotCS 82 (30 November 1998)

McCue v Scottish Daily Record & Sunday Mail Ltd & Anor [1998] ScotCS 82 (30 November 1998)

The normal rule is that an undischarged bankrupt pursuer must find caution for expenses unless exceptional circumstances exist. In this case, the defenders admitted the article was inaccurate and did not justify the innuendo alleged by the pursuer. The relative strength of the pursuer's position and the lack of justification for the innuendo constituted exceptional circumstances. Therefore, the Lord Ordinary erred in requiring caution, and the reclaiming motion should be allowed.

Citation
[1998] ScotCS 82
Parties
Pursuer and Reclaimer: John McCue; First Defender and Respondent: Scottish Daily Record & Sunday Mail Limited; Second Defender and Respondent: Norman Silvester
Jurisdiction
Scotland
Judgment Date
30 November 1998
Procedural Posture
Reclaiming Motion (appeal) / Appeal Against Interlocutors Requiring Caution and Assoilzie
Outcome
Reclaiming motion allowed
Legal Topics
Caution for Expenses, Defamation by Innuendo, Bankrupt Pursuer's Right to Sue, Discretion to Ordain Caution, Justification in Defamation
Defamation Civil Procedure Bankruptcy Caution for Expenses Defamation by Innuendo Bankrupt Pursuer's Right to Sue Discretion to Ordain Caution Justification in Defamation

Case Brief

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Parties

John McCue

Pursuer and Reclaimer

Scottish Daily Record & Sunday Mail Limited

First Defender and Respondent

Norman Silvester

Second Defender and Respondent

Procedural Posture

Reclaiming Motion (appeal) / Appeal Against Interlocutors Requiring Caution and Assoilzie

Legal Issues

  1. 1 Whether an undischarged bankrupt pursuer in a defamation action should be required to find caution for expenses
  2. 2 Whether the Lord Ordinary erred in exercising discretion to ordain caution
  3. 3 Whether the merits of the defamation claim affect the requirement for caution

Ratio Decidendi

The normal rule is that an undischarged bankrupt pursuer must find caution for expenses unless exceptional circumstances exist. In this case, the defenders admitted the article was inaccurate and did not justify the innuendo alleged by the pursuer. The relative strength of the pursuer's position and the lack of justification for the innuendo constituted exceptional circumstances. Therefore, the Lord Ordinary erred in requiring caution, and the reclaiming motion should be allowed.

Court Disposition

Reclaiming motion allowed

Orders

  • Recall of interlocutors dated 10 September and 14 November 1997
  • Remit action to Outer House for Lord Ordinary to proceed as accords