Cautionary tale of English serial litigant in Scotland

Ewing v Times Newspapers Ltd [2008] CSOH 169, a decision of Lord Brodie issued on 11 December 2008, is worthy of note, not only as a case about an English party litigant somewhat at sea with Scots law and procedure, but also as a tacit acknowledgement that Scots law recognises a civil right to privacy.  

Mr Ewing raised a Court of Session action against Times Newspapers seeking damages, declarator and interdict in respect of their publication, in the Scottish edition of the Sunday Times and online, of an article entitled “Heritage fakers hold builders to ransom”, in which he was described as a “professional nimby”.  He claimed on the basis of defamation, contravention of the provisions of the Data Protection Act 1998, breach of confidence and privacy, and harassment in breach of the Protection from Harassment Act 1997.  Lord Brodie notes that “The pursuer's Summons contained eleven conclusions, fourteen articles of condescendence, nine pleas-in-law related to jurisdiction and a further twenty four pleas-in-law related to other matters. Following adjustment, there are now seventy articles of condescendence and thirty nine pleas-in-law” (para 12).  Although counsel for the defenders challenges the relevancy of several of Mr Ewing’s claims, there is no suggestion that Scots law does not recognise breach of privacy as a wrong.  But Lord Brodie concludes that so far as concerns the privacy claim the pursuer’s action was unlikely to succeed because in the circumstances averred he could have had no reasonable expectation of privacy (para 28).  In other words, it fails on substantive grounds rather than because the right to privacy is unknown to Scots law.  In the end, the action is allowed to go forward only on the defamation issue. 

The main point of the decision, however, is whether Mr Ewing should be required to provide caution before being allowed to proceed in this way.  This was because he is a serial litigant in England, who had been held to be a vexatious litigant in that jurisdiction, and because he had made essentially the same claims about the article in question in an English action, Ewing v News International Ltd and Others [2008] EWCH 1390, which had been struck out by Coulson J on the basis that there was no real prospect of success and the action was an abuse of the process of the court.  There were also concerns about the pursuer’s impecuniosity.  Lord Brodie granted an order that the pursuer provide caution of £50,000, holding that this was an exceptional case such that the order did not constitute a denial of the Article 6 ECHR right to access to a court.