Orders for caution (pron. kay-shun) or consignation may be made by a court in two distinct situations:

• (1) A pursuer may obtain security requiring the defender to find caution for the whole or part of the sum sued for, or to consign in the hands of the court the whole or part of the sum sued for pending the final determination of the action. This may be appropriate where, ex facie, the debt is due but the defender claims deductions that are disputed or there is a dispute in relation to the pursuer’s title to sue and, therefore, caution or consignation is more appropriate than interim decree. This type of caution or consignation is not relevant to a book on costs and funding and is fully considered elsewhere.

• (2) Caution for expenses. Where a party is concerned about the other side’s ability to pay expenses in the event they are unsuccessful in proceedings, an order for caution or security can be sought. This requires the party against whom the order is made to lodge a bond of caution (or other form of security as ordered by the court) before they can proceed with the action. Caution for expenses can be sought under common law or, in the case of companies, under s. 726 of the Companies Act 1985.

The procedure regulating orders for caution or other security for expenses is to be found in Act of Sederunt (Rules of the Court of Session 1994) 1994 (RCS) r. 33 and Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993 (OCR) r. 27. An application requires to be made by motion setting out why the order is sought.

The court has a wide discretion on whether to order a party to find caution and will not make such an order unless the interests of justice appear to require it. There is no prescribed list of circumstances when such an order is appropriate, but some examples are outlined below. It is competent for any party to an action to seek an order for caution at any stage in the proceedings.

Orders to find caution against a pursuer will not normally be made unless special circumstances exist or the pursuer is an undischarged bankrupt or is a nominal pursuer.