Anderson v Shetland Islands Council and another

An order requiring an appellant to provide security for appeal costs under Supreme Court Rules 2009, Rule 36(1), is discretionary and should be made sparingly. Impecuniosity alone does not justify an order. The court may, however, consider the appellant’s means together with the apparent merits of the appeal, the history and conduct of the litigation, unpaid costs and possible abuse of process. The cumulative effect may justify security although no single factor would suffice.

Rule 36 does not permit an appellant to require a respondent to provide security. Such an order would risk forcing an impecunious respondent to abandon a judgment obtained below without being heard on the appeal.

The appellant sought judicial review of alleged failures by two public authorities concerning drainage, sewerage and roads, claiming that surface water had undermined her house. The Lord Ordinary dismissed her petition as irrelevant: [2007] CSOH 82. The Extra Division refused her reclaiming motion and adhered to that decision: [2010] CSIH 15.

After the appellant appealed to the Supreme Court without requiring leave, each respondent applied under Rule 36(1) of the Supreme Court Rules 2009 for security for its appeal costs. The appellant, a 93-year-old litigant in person who had been refused legal aid, cross-applied for security from each respondent. The issue was whether either side should provide security and, if the respondents’ applications succeeded, in what amount and manner.

1. The appellant’s application was refused and the respondents’ applications were granted. Rule 36 of the Supreme Court Rules 2009 makes no provision for an appellant to require a respondent to provide security for appeal costs. Requiring an impecunious respondent to provide security could effectively compel acquiescence in an appeal against a judgment obtained below. In any event, both respondents were public authorities able to meet any costs order, and their conduct had not been obstructive or unreasonable.

2. Under Rule 36(1), security for costs lies within the Supreme Court’s discretion and orders are to be made sparingly. Scottish authorities on caution provided assistance because the appeal came from the Court of Session without requiring leave. Absolute impecuniosity is never sufficient by itself. Relevant considerations may include financial circumstances, the merits and nature of the proceedings, unreasonable conduct, unpaid awards of expenses and the history of the litigation. Their cumulative effect may justify security even though no individual consideration would suffice.

3. The cumulative circumstances compellingly supported security. There was doubt that the appellant could satisfy existing taxed awards of expenses, which exceeded the apparent value of her principal asset. The appeal appeared wholly without merit, had not obtained the required certification from two Scottish counsel, and did not answer the lower courts’ criticisms of the pleadings. It followed an unsuccessful appeal to the Inner House and raised no issue of general public importance. The simultaneous pursuit of a nuisance action seeking the same damages also made the proceedings arguably an abuse of process.

4. The sums sought by the respondents were excessive on the contemplated procedure. Because of the appellant’s age, location and lack of counsel, disposal on the papers was likely to be fairer and less costly than an oral hearing. A reasonable estimate was £20,000 for each respondent. The appellant was ordered to deliver a cheque for £40,000 to the Registrar, payable to the UK Supreme Court Security Fund, within 28 days.

1. United Kingdom Supreme Court: Granted the respondents’ applications for security for costs under Rule 36(1) of the Supreme Court Rules 2009, refused the appellant’s cross-application and ordered security of £20,000 for each respondent.

2. Extra Division of the Court of Session: Refused the appellant’s reclaiming motion and adhered to the Lord Ordinary’s interlocutor: [2010] CSIH 15.

3. Outer House of the Court of Session: The Lord Ordinary dismissed the judicial review petition because the averments were irrelevant: [2007] CSOH 82.