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Widow ordered to find security for costs for Supreme Court appeal

29 February 2012

A 93-year-old widow has been ordered to find a total of £40,000 security for costs to take a case to the UK Supreme Court that three justices today described as an "appeal that appears to be wholly without merit".

Lord Hope, Lord Kerr and Lord Reed made the order in the case brought by Mrs Patricia Anderson against Shetland Islands Council and Scottish Water. Mrs Anderson is seeking judicial review of what she claims are failures by the respondents to discharge their duties under statute in respect of drainage, sewerage and roads, which have led to the stability of her house being undermined by surface run-off water.

Her action had been held plainly irrelevant by the judge at first instance and the Inner House in the Court of Session, who had some difficulty making sense of her averments, and she had already incurred a total liability in expenses of over £120,000, which she said exceeded the value of her house.

Mrs Anderson did not require leave to bring her appeal, but the respondents respectively asked the court for £50,000 and £40,000 as security for their further costs. In reply Mrs Anderson sought security of £5,000 from the respondents.

Speaking for the court in dismissing Mrs Anderson's application, Lord Hope said that not even a bankrupt defender was required to find caution for expenses and the application was entirely without merit. "To require an impecunious respondent to find caution would be, in effect, to force him to acquiesce in the appeal against the judgment which was in his favour in the court below." And there was no question as to the respondents' ability to meet any order for costs.

On the other hand there was a "compelling" case for Mrs Anderson to be ordered to find security, because of the doubt over her ability to meet the existing awards, her inability to obtain legal aid or to find any Scottish counsel willing to say that her appeal was reasonable, the fact that one appeal had failed and leave would almost certainly have been refused for the present appeal had it been required, and the proceedings could arguably said to be an abuse of process since she was also bringing an action for nuisance which if soundly based, would give her the same remedy.

The cumulative effect of these points more than justified the order, which would be made in the sum of £20,000 for each respondent.

Click here to access the court's decision.


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