ERIC NGUYEN v. SEARCHNET ASSOCIATES LTD [1999] ScotSC 18 (15th June, 1999)

ERIC NGUYEN v. SEARCHNET ASSOCIATES LTD [1999] ScotSC 18 (15th June, 1999)

The sheriff's order for caution was fatally flawed as it was based primarily on the pursuer's nationality and residence, contrary to Article 12 of the Treaty of Rome. There was no cogent evidence of substantial difficulty in enforcing a judgment in another member state to justify the order. Community law required the sheriff to disregard nationality and residence as grounds for caution, and the remaining factors did not meet the high threshold for such an order.

Citation
[1999] ScotSC 18
Parties
Pursuer and Appellant: Eric Nguyen; Defenders and Respondents: SearchNet Associates Limited
Jurisdiction
Scotland
Procedural Posture
Civil Appeal / Appeal Against Interlocutors Ordering Caution for Expenses and Decree of Absolvitor
Outcome
Appeal allowed
Legal Topics
Security for Costs, Discrimination on Grounds of Nationality, Direct Effect of EU Law, Enforcement of Judgments, Procedural Fairness
Civil Procedure European Union Law Security for Costs Discrimination on Grounds of Nationality Direct Effect of EU Law Enforcement of Judgments Procedural Fairness

Case Brief

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Parties

Eric Nguyen

Pursuer and Appellant

SearchNet Associates Limited

Defenders and Respondents

Procedural Posture

Civil Appeal / Appeal Against Interlocutors Ordering Caution for Expenses and Decree of Absolvitor

Legal Issues

  1. 1 Whether the order for caution for expenses against an EC national residing in another EC member state breached Article 12 of the Treaty of Rome (prohibition of discrimination on grounds of nationality)
  2. 2 Whether the sheriff erred in law by relying on the pursuer's nationality and residence as grounds for ordering caution
  3. 3 Whether other factors justified the order for caution

Ratio Decidendi

The sheriff's order for caution was fatally flawed as it was based primarily on the pursuer's nationality and residence, contrary to Article 12 of the Treaty of Rome. There was no cogent evidence of substantial difficulty in enforcing a judgment in another member state to justify the order. Community law required the sheriff to disregard nationality and residence as grounds for caution, and the remaining factors did not meet the high threshold for such an order.

Court Disposition

Appeal allowed

Orders

  • Interlocutors of 13 January 1999 and 9 February 1999 recalled
  • Proof of parties' respective averments allowed de novo