Scottish Court of Session Decisions

In August 1889 the Paisley Provident Co-Operative Society (Limited), incorporated under the Industrial and Provident Society Act 1876, presented a petition to the Dean of Guild Court at Paisley for a lining to their property at 48 Broomlands Street, Paisley, and for warrant to erect buildings conform to the plan produced.

The company called as respondents the conterminous proprietors, one of whom, Mr Crawford Buchanan, lodged objections. It appeared that the present application was identical with one presented in June 1889, except that whereas then the petitioners proposed to take advantage of the mean gable which stood half on their ground and half on the respondents', they now proposed to build entirely within their own ground.

The dispute which arose with the respondent in regard to the first proposal was settled by agreement, whereby the respondent enjoyed certain advantages. The petitioners obtained a decree for the proposed operations.

The petitioners explained that their present application had been rendered necessary by the respondent, who had demanded unreasonable conditions additional to those which had been included in the contract. In order to avoid litigation they preferred to confine their operations to their own ground.

The respondent pleaded—“The present application being, in respect of the former decision of the Court, in rem judicatam, should be dismissed.”

The Dean of Guild sustained this plea.

“ Note.—The present application to the Court contains no reference to the former one by the same petitioners relating to the same property. If the present were granted, the petitioners would hold two separate linings for erections on the same piece of ground. They would thus be in the position of having an option which of these they would act upon and carry out. This the Court cannot see their way to allow. The plea of res judicata urged by the respondent Buchanan does not precisely meet the position of matters, although it may be fairly said to cover it. Assuming that the petitioners have good reason for seeking to be allowed to depart to some extent from the plans previously sanctioned by the Court, they must take some means for having the former lining recalled or abandoned, or, it may be, supplemented.” ….

The petitioners appealed, and argued—There was no question of res judicata. They found that the agreement could not be carried out with the respondent, and chose to build entirely within their own ground, on fresh plans which did not interfere with the property of neighbours. The Dean of Guild had no jurisdiction to consider the effect of the former agreement between the parties.

The respondents argued—It was not the practice of the Dean of Guild to grant two linings for two different plans of building upon the same ground. If that was done it would be possible for a person to erect a building, part of which might be according to one plan and part according to the other. The whole building might be most objectionable, but the Court would not be able to interfere, as each part had been erected under a decree of the Dean of Guild Court. Here the petitioner had agreed with the respondent Buchanan to erect a building in a certain way, and plans were prepared under that arrangement, but when it was attempted to be enforced the petitioners refused, and sought to have other plans approved of. It might not be res judicata in the strict sense of the words, but what was meant was that the Court declined to give two linings for different buildings upon the same subject.

At advising—