WILLIAM DOW (POTATOES) LIMITED v. WILLIAM DOW [2001] ScotSC 6 (13th February, 2001)

WILLIAM DOW (POTATOES) LIMITED v. WILLIAM DOW [2001] ScotSC 6 (13th February, 2001)

It is competent and appropriate in this case to restrict the order for caution to the counterclaim only, as the counterclaim is not inextricably linked to the principal action and the defender, being bankrupt, should not be deprived of the opportunity to defend the principal action. The sum of caution is fixed at £5,000 for the counterclaim, which is reasonable and proportionate. No expenses are due to or by either party in respect of the appeal.

Citation
[2001] ScotSC 6
Parties
Pursuer and Respondent: William Dow (Potatoes) Ltd; Defender and Appellant: William Dow
Jurisdiction
Scotland
Procedural Posture
Civil (ordinary Cause) / Appeal Against Interlocutor Ordering Defender to Find Caution for Expenses
Outcome
Appeal allowed in part; order for caution restricted to counterclaim only.
Legal Topics
Caution for Expenses, Counterclaim Procedure, Bankruptcy and Sequestration, Right of Access to Court (echr Article 6)
Civil Procedure Employment Law Insolvency Caution for Expenses Counterclaim Procedure Bankruptcy and Sequestration Right of Access to Court (echr Article 6)

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 12 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

William Dow (Potatoes) Ltd

Pursuer and Respondent

William Dow

Defender and Appellant

Procedural Posture

Civil (ordinary Cause) / Appeal Against Interlocutor Ordering Defender to Find Caution for Expenses

Legal Issues

  1. 1 Whether a bankrupt defender can be ordered to find caution for expenses
  2. 2 Whether caution can be restricted to a counterclaim only
  3. 3 Compatibility of caution order with Article 6.1 ECHR

Ratio Decidendi

It is competent and appropriate in this case to restrict the order for caution to the counterclaim only, as the counterclaim is not inextricably linked to the principal action and the defender, being bankrupt, should not be deprived of the opportunity to defend the principal action. The sum of caution is fixed at £5,000 for the counterclaim, which is reasonable and proportionate. No expenses are due to or by either party in respect of the appeal.

Court Disposition

Appeal allowed in part; order for caution restricted to counterclaim only.

Orders

  • Defender ordained to find caution in the sum of £5,000 for expenses of the counterclaim within fourteen days, failing which the counterclaim may be dismissed and the principal action may proceed.
  • Remit to the Sheriff to proceed as accords.