Scottish Court of Session Decisions

The Public Authorities Protection Act 1893 (56 and 57 Vict. cap. 61), sec. 1, enacts—“Where after the commencement of this Act any action, prosecution, or other proceeding is commenced in the United Kingdom against any person for any act done in pursuance of or execution or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any alleged neglect or default .in the execution of any such act, duty, or authority, the following provisions shall have effect— (a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within six months next after the act, neglect, or default complained of, or, in case of continuance of injury or damage, within six months next after the ceasing thereof.…”

On 6th May 1898 the Clippens Oil Company. Limited, brought an actionagainst the Edinburgh and District Water Trustees incorporated under the Edinburgh and District Water-works Act 1869, in which they sought to recover £137,000 as damages for loss sustained in consequence of an interdict wrongously obtained against them by the defenders. The interdict complained of had been granted interim by the Lord Ordinary on the Bills ( Pearson) on March 16, 1897, and interdicted the pursuers“… (Second) from working and mining the seams of shale and other minerals, and of limestone and fireclay, in their lands of Straiton, and in the lands of Pentland leased to them, at any point within forty yards of the complainers' pipe-tracks or lines of pipes or bridge, as shown on the copy of the Ordnance Survey map produced herewith, or at least from working, mining, and away taking, or in any way interfering with the pillars or stoops of shale and limestone left by the respondents and their predecessors the Straiton Oil Company, Limited, in their workings on the said estates of Straiton and Pentland, so far as these pillars or stoops are under the complainers' pipe-track and line of pipes, or within forty yards thereof. …”

The pursuers pleaded, inter alia—“1 The pursuers having suffered loss and damage to the extent sued for in consequence of the interdict wrongously and illegally obtained at the defenders' instance against them, are entitled to decree in terms of the conclusions of the summons. 3. The defenders' pleas, in so far as founded on the Statute 56 and 57 Vict. cap. 61, should be repelled in respect that… (3) The defenders have not acted either in fact or in intention in pursuance or in execution of any authority or duty, whether statutory or otherwise, within the meaning of section 1 of the said statute. (4) The injury complained of was continuous up to the date of raising the present action, or at all events up to 3rd February 1898, and the present action was raised on 6th May 1898.”

The defenders pleaded, inter alia —“(1) The pursuers' averments are irrelevant and insufficient in law to support the conclusions

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of the summons. (4) Any losses which the pursuers may have sustained, having been caused through the pursuers' voluntary action, and not owing to the said interdicts, the defenders should be assoilzied. (5) The defenders should be assoilzied in respect that the pursuers are not entitled to work the minerals included in the said interdict of 16th March 1807 so as to injure the Crawley pipe, and the operations which were interdicted would, if they had continued, have resulted in injury to the said pipe. (7) In any event, the damages claimed are excessive. (8) The present action is excluded by section 1 of the Public Authorities Protection Act 1893, 56 and 57 Viet, cap. 61.” — [ Plea 8 for the defenders teas added by amendment in the Inner House, the pursuers' plea 3 being also added to meet it, and this branch of the case was heard before Seven Judges.]

With regard to the damage alleged to have been suffered the pursuers averred— “(Cond. 8) By the obtaining of said interdict, wrongously and illegally as aforesaid, the defenders caused loss and damage to the pursuers. The whole available mining developments were closed either immediately or within a few months from and in consequence of the granting of the interim interdict. It was found impossible, in consequence of the interdict, to carry on the shale mining and oil manufacture except at a ruinous loss, and the pits and works had to be closed on 14th July 1897. By this time the bing of shale, containing about 25,000 tons, which constituted a valuable insurance against strikes and mining risks, had been exhausted. The retorts had to be allowed to cool down and the refinery to stand, and thereby, and by remaining unused, to deteriorate, and about 1000 workmen had to be dismissed. These men had to seek employment elsewhere, and the mining and working population which used to surround the pursuers' works and live in the pursuers' houses disappeared, to the great detriment of the said works. While heavy expense has been incurred in keeping the pits free of water, and maintaining the leading mines, the workings generally fell rapidly out of order, and large expenditure is necessary to bring them into the like working condition as they were in at the date of the interim interdict. The whole property and plant of the company, which was then in full productive order, suffered seriously by being brought to a standstill and thrown out of use. Not only has it in itself deteriorated, but extraordinary expense is now necessary to re-start it and bring it up to its former efficiency. Moreover, while the company had a large and increasingly profitable business, including a well-established and extensive business connection, not only has it been unable, owing to the interdict to carry on its business, but the said connection itself has been lost, and much loss and outlay must now be incurred before it can be recovered and the company's business again restored to its profitable condition. The pursuers estimate their loss and damage on these heads at £137,000. The defenders repudiate all liability to the pursuers, and the present action has thus been rendered necessary.”

On the same matter the defenders in their statement of facts averred—“(Stat. 6) The interim interdict granted by the Lord Ordinary only prevented the pursuers from working and winning the seams of shale and limestone in their lands of Straiton and in the lands of Pentland leased to them at any point within 40 yards of the defenders' Moorfoot pipe. That interdict lasted from 16th March 1897 to the 18th September 1897. The interdict granted by the Lord Ordinary on 18th September 1897 only prevented the pursuers from working, winning, and away-taking the pillars or stoops of limestone left in the limestone workings on the estate of Straiton, as far as these pillars or stoops are under the defenders' pipe track or within 40 yards therefrom. That interdict was recalled on 3rd February 1898. At the date of the interim interdict, on 16th March 1897, there was abundance both of shale and limestone in the Clippens workings which the pursuers could have worked without breach of the interdict. The pursuers had abundance both of shale and limestone which they could have worked, and ought, in the ordinary course of the development of their field, to have worked between the 16th March 1897 and 3rd February 1898. There was no necessity whatever for the pursuers to stop their workings for any part of the said period in consequence of the said interdict. The development of their mineral field could have proceeded in the ordinary course, as it had done for years before, during the whole period when the said interdicts were in force against them. The pursuers closed their works voluntarily and not owing to the action of the defenders, or anything for which the defenders are responsible. The said interdicts caused them no loss whatever. The interdicts merely prevented the pursuers from working at one out of the many places where they could have worked with equal ease to themselves. It is believed and averred that the pursuers ceased working simply because the working of the said minerals had been and was at the time of stoppage unprofitable. The cost of production at the pursuers' works was greater than the prices realised by the pursuers for the articles produced, and this state of matters had prevailed almost w'ithout intermission since the date of the formation of the pursuers' company.”

A proof was taken.

At the proof the Lord Ordinary ( Pearson), on the ground of confidentiality, refused to ordain the defenders to produce a report by a Mr Gemmell, mining engineer, to the defenders, made on an inspection shortly after the interdict of 16th March 1897 of the mineral workings, the inspection having been obtained in virtue of the power conferred on water undertakers by section 26 of the Water-works Clauses Act 1847 (10 Vict. cap. 17), “for better ascertaining whether any such mines are being worked or have been worked so as to

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damage the said works,” to enter upon the lands Being mined.

The whole facts of the case are given in the opinions of the Lord Ordinary and the Lord President (infra).

On 18th March 1905 the Lord Ordinary decerned in favour of the pursuers for £15,000.

Opinion.—“In this action the pursuers seek to recover damages from the defenders in respect of an alleged wrongful interdict obtained by the defenders against them in the Bill Chamber on 16th March 1897.

“The pursuers had the right, partly as owners and partly as lessees, to work shale and limestone in the lands of Pentland and Straiton, through which the defenders' main pipe track passes on its way to Edinburgh. The track contains two pipes—(1) the Crawley pipe, laid in 1825 to introduce the water from Crawley Springs, under power contained in the Act of 1819: and (2) the Moorfoot pipe, laid in or about the year 1876, in pursuance of the Moorfoot Water Scheme. At the time of the interdict complained of it was assumed that both pipes were subject to the provisions of the Water-works Clauses Act; but it was afterwards found in an action of declarator that the defenders had a right to have the Crawley pipe supported apart from that Act. The defenders further acted on the erroneous assumptions that no notices had been served upon them under the Waterworks Clauses Act, and that the mineovvner who has worked the minerals within the ‘prohibited area,’ without first giving notice to the undertakers under section 22 of the statute, has thereby disabled himself from giving an effectual notice under the statute, with the result that the statutory inhibition becomes absolute, and the minerals must be left as they stand without compensation.

On these assumptions the defenders, for the safety of their pipe, presented a note of suspension and interdict in the Bill Chamber in March 1897 for the purpose (so far as need be here referred to) of restraining the pursuers ‘… [quotes second crave of note, quoted supra] …’They stated their willingness to find caution, and on 16th March 1897 the note was passed and interim interdict was granted in terms of the prayer on caution as offered. After proof decree was pronounced on 18th

eptember 1897, granting interdict as regards the limestone pillars, but refusing the prayer of the note as to the shale stoops. On a reclaiming note presented by the Water Trustees the prayer of the note was refused also as regards the limestone pillars on 3rd February 1898.

Briefly stated, the position of the pursuers' company at the time the interim interdict was granted was this—They had been in existence since 1903, when they had taken over the mineral rights of a previous company. They had had a bad time and had never paid a dividend, but, on the contrary, had incurred considerable losses. The oil trade had been passing through a trying period, and prices were about their lowest in 1897 and 1898. The company had been advised to erect new and improved retorts but had not the money to do it. Further, they had had one misfortune after another—first, a crush in the main shale, which ultimately closed the workings in that seam and compelled them to resort to an inferior seam known as the Broxburn shale. Then the mine had been flooded with water, and much trouble was experienced through this and the stoppage of the pumps. These difficulties, however, had been met so far as possible, and the company were in course of transferring their workings from the Broxburn to the more profitable main shale which had by this time been opened up again, when the interdict was obtained.

The workings were in some parts so near the interdicted area that the first thing the company did was to stop working and call in skilled advisers as to what they ought to do. In the result they resumed working at certain faces, and went on with a small and rather uncertain output from the workings and the bing, until July, when they ceased work. The cessation of work in the mining department of course affected the crude oil department and the refinery, with the result, as they allege, that the whole works were stopped, the retorts and machinery rapidly deteriorated, and are now useless, and their business connection was broken up. They therefore claim as for total loss; and large as the amount concluded for is, Mr Armour, their secretary and manager, says it will cost two or three times as much as is concluded for to put the business back where it was.

The defenders do not admit that they are liable at all; and it will be convenient to consider first their plea that they should be assoilzied, or otherwise that the damages should be merely nominal. They contend that it rests, in the first instance, on the company as pursuers to make out their case of wrongful interdict, and that the pursuers have failed to do so. I proceed to consider the arguments adduced on each side on this part of the case.

The pursuers found, in the first place, on the fact that the interim interdict was recalled by the Lord Ordinary as regards the shale pillars (which are the things mainly in question here), and by the Inner House as regards the limestone also. They contend that if an interim interdict is recalled causa cognita, this necessarily infers that the interdict was wrongful, except in the case of an interim interdict obtained for the preservation of the status quo, without touching the merits of the dispute. I am disposed to agree in the argument that in the general case the fact that an interim interdict is recalled by the Court is prima facie evidence that it was wrongfully obtained. But the defenders contend that it was within the exception, and that the sole purpose of the interdict was to maintain the existing state of possession until the legal rights of parties were determined. This appears to me to be a rather inadequate way of describing the position. The Trustees, it is true, had been

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for many years ill possession of the water mains, for a purpose which could only be served by their being left practically undisturbed. But it was equally open to the company to say that they and their predecessors had been in fidl possession of the minerals, in the only possible way, namely, by working and using them; and the very words of the interdict stopped them from further interfering with the stoops within a certain area. Interdict in such terms appears to me much more like an anticipation of the merits of the dispute than a preservation of the status quo.

Then the pursuers point out that the interdict was applied for and obtained upon a quite erroneous statement both of the facts and the law, it being mainly founded on the assumptions already referred to as to the alleged failure of the company to serve notices under the Water-works Clauses Act, and as to the legal effect of their not having served such notices. The defenders can hardly challenge this statement of the original position; but they urge in reply that it has since turned out that they had a perfectly good ground in law for obtaining an interdict in substantially the same terms, although they were then ignorant of their rights. They point to the fact already mentioned that they have since obtained a judgment to the effect that one of the two water mains (the Crawley pipe) has of itself a right to be maintained and protected against injury from the pursuers' workings, apart altogether from the Water-works Clauses Act; and they urge that an interdict cannot be wrongful if it prevents what the party interdicted had no right to do, although it may proceed on wrong grounds. I cannot accept this reply of the defenders to the full effect contended for. It might, and probably would, be otherwise if the Crawley declarator case had rested upon the decision in the Outer House; for then the company would be under an interdict against working a block of minerals which substantially included the subject of the interdict now in question. But on a reclaiming-note, while the Trustees' right to have their pipe supported was affirmed, the responsibility for supporting it was laid on the company in general terms, without reference to any given area, and on the footing that any area defined beforehand might prove to be too much or too little for the purpose. Accordingly there is nothing in the terms of the ultimate decision in that case which enables the trustees to affirm that the interdict against injuring the Crawley pipe is co-extensive with the interdict now in question. It may turn out to be so; and it was pointed out that at the inception of these disputes the company and its officials expressed themselves pretty strongly as to the imminence of the risk, at a time when they were wishing the Trustees to buy a block of minerals and were holding them liable for a possible flooding of the mines. This may be taken into account in the assessment of damages; but I cannot hold that the Crawley declarator case has had the effect of justifying the interdict now challenged if that was otherwise wrongful when it was obtained.

Further, the pursuers contend that, even failing these two grounds of liability, and on the assumption that it is to be determined on the whole circumstances of the case, they are still entitled to decree. In the view I take it is not necessary to pursue this further, but as both parties have founded on the antecedent circumstances as conclusive in their favour, perhaps I should express my opinion upon them. It is, that while the circumstances strengthen the view I have above indicated in favour of the pursuers, I should not be prepared to hold that they were of themselves enough to decide the case in favour of the pursuers apart from the considerations to which I have already adverted. It might have been otherwise if the pursuers' allegations of bad faith on the part of the Trustees had been well founded. It is suggested that the interdict was not obtained in good faith for the protection of the pipe, but for the oblique purpose of crippling the company to force them to come to terms. It is pointed out that none of the Trustees have come forward to justify what was done, or to explain on whom the responsibility for obtaining the interdict really rests. But I take it that the Trustees as a body perhaps naturally relied on their expert advisers in matters of law and mining, and that the result is simply that they are to be held as committed to all that was done in their name. No doubt what they did was done in pursuance of a plan; but the ultimate object of their plan was to secure the safety of the pipes. The fact is that both parties were pushing their supposed rights to an extreme point, with the view of doing their duty to their constituents; the Trustees holding to the position that they were entitled to have the minerals left unworked, owing to the failure to give notice under the Water-works Clauses Act; and the company maintaining that while their further working would in all probability result in serious subsidence, the Trustees would be liable not only for the breaking of the pipes but for the resulting inundation of the mine. On the one hand it is no good answer on the part of the Trustees to say that they were doing their duty by their constituents in obtaining their interdict; but on the other I think it hardly lies with the company to accuse the trustees of acting in bad faith in the matter. I credit each party with acting up to their lights at the time in the way of safeguarding the interests committed to them.

The defenders might have had a complete answer to the pursuers' case if they had shown that the pursuers could have worked on in the mine and maintained their output without a breach of interdict, and that they failed to do so. If this could be shown, it would be difficult for the pursuers to recover any damages, as they would be themselves responsible for the stopping of their works, which was the proximate cause of the damage. Accordingly

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the defenders maintain that the interdict was only directed against working the shale in the ordinary sense, that is, so as to maintain the output, and did not prohibit the driving of levels through the interdicted area, either by way of opening them out in the old roads, or by driving new levels through the dip end of the stoops. Further, they say that even if the terms of the interdict should be held to extend to such workings, they could have at least opened out the levels in the old roads without interfering with the shale pillars. In my opinion, it is proved that the company would have incurred grave risk of breach of interdict if they had taken either of the courses suggested; and if the Trustees had intended that their interdict should not prevent the driving of levels through the interdicted area, they should have made this plain. It must be kept in view that it is by virtue of the Water-works Clauses Act that the stoppage of working after notice is subject to the reserved right of the mineowner to drive levels through the prohibited area, while the interdict now in question was obtained on the representation that the Water-works Clauses Act did not apply to the case owing to the company's failure to give notice.

“The next question is as to the point of time down to which the interdict thus wrongfully obtained was wrongfully insisted in. The determination of this is vital to the question of the amount of damages. The pursuers maintain that the date is to be fixed not earlier than 3rd February 1898, the date of the final judgment of the Inner House on the reclaiming note, and they say that by that time their business was ruined and their business connection gone past recall. The interdict had to do with both shale and limestone stoops, and as already mentioned the judgment on the merits in the Outer House granted interdict as to the limestone, while as regards the shale pillars the reasons of suspension were repelled and the prayer of the note refused. Now, it was the Trustees who reclaimed, and the pursuers contend that the effect of the reclaiming note was to suspend the whole interlocutor, including the implied recal of the interim interdict quoad the shale, and to set up again the original interim interdict. There is singularly little authority on this point of practice. In the ordinary case of an action of declarator and interdict where no order for interim regulation is in use to be granted at the outset, I have no doubt that on a reclaiming note the Inner House would have power on incidental motion to make such interim orders as might be necessary. They would not be bound to hold the reclaiming note as simply suspensive of the whole Outer House judgment, but would be entitled to impose interim regulations as to possession or use, which would enable them in the end to do complete justice between the parties. I am unable to see why a case should be differently treated in this respect at the same stage merely because it originated in the Bill Chamber. Reclaiming notes in the Bill Chamber itself stand on quite a different footing, and are subject to special regulations. But when a case originating in the Bill Chamber has been decided causa cognita upon the passed note, the Bill Chamber procedure as to interim interdict is exhausted, and upon a reclaiming note being lodged, the question of interim regulation ought to be regarded, not from the point of view of an interim interdict originally imposed, which was granted periculo petentis and on ex parte averments, but from the point of view of what the Lord Ordinary has decided on the merits. If a reclaiming note operates to suspend the whole interlocutor in the sense contended for, then a judgment as to interdict, pronounced causa cognita on the merits, would or would not be operative meanwhile, according as interim interdict had or had not been originally granted in the Bill Chamber. I think the true view is that the interim interdict was not revived by the reclaiming note, and that if the company had desired meanwhile to work the shale pillars, either as a whole or so far as was necessary in the driving of through levels, this was a matter to be judged of by themselves, or to be regulated by the Court on an incidental application under the reclaiming note if objection was taken by their opponents.

It remains to assess the damages. The pursuers claim as for a total loss, their main contentions being that the interdict operated (1) to interfere with the working of shale to the extent (after July) of stopping the output, which of course affected and ultimately stopped all the departments of their business; (2) to interfere with the development of their plan for working the mines, which had to be fixed with a view to future developments; and (3) to interfere with the development and ultimately with the existence of their business connection, owing to the paralysing effect of the uncertainty as to how long the interdict would last. Now, it would be difficult, if a date so late as February 1898 were selected, to say that the company had not suffered a loss comparable with the large sum concluded for. I am not impressed by the suggestion that they abandoned the workings in Broxburn shale suddenly and without good reason, or that they did so in order to work nearer the pipes and so compel the trustees either to interdict them or to purchase a block of the minerals. It is, I think, made out that the main shale was more profitable to the company. Nor can I blame the company for pausing for a fortnight or three weeks after the interdict was served in order to take skilled advice as to their position, and also as to the propriety of keeping up their output by resorting to the bing of shale which had been saved up to provide for the event of strikes and similar risks. But on the other hand it is in evidence that the deterioration goes on at a rapidly increasing rate, and that matters could with a moderate expenditure have been preserved almost entire till the middle of September without much detriment to the plant or even to the business.

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It seems clear that a claim for a total loss, if that date be taken, is quite out of the question, and that the pursuers must submit to a very large reduction in their claim. It is by no means certain on the evidence that they would have been in a position to avail themselves of the prosperous time which followed a few months later. The company had been impecunious from the very first; they had never paid a dividend; prices were at their lowest in the year 1897-1898; and in May 1896 they were obliged for want of money to forego the erection of new and improved retorts, which might have enabled them to tide over the bad times, and to be ready to take advantage of the returning prosperity. The evidence leaves in considerable doubt the question whether they would have been able, if all had gone on uninterruptedly, to take advantage of the rise in prices, and to hold their own with other companies. In a case where such considerations affect the result it is obviously impossible to assess the damages with precision, or otherwise than as would be done by a jury. This is a case in which, unless the damages are to be merely nominal, one has to deal with pretty large figures, for the amount claimed as for a total loss is £137,000, and this is coupled with an intimation that a sum of £300,000 or £400,000 would not fully reinstate the pursuers. I have considered the question of the amount in the light of the evidence, and in view of the general considerations to which I have already alluded; and the conclusion at which I arrive is that I ought to award a sum of £15,000. I therefore give decree for that amount. And as the defenders treated the case not as raising a mere question of the amount of damages but as one in which they claimed absolvitor, I think the pursuers should have their expenses without modification.”

The pursuers reclaimed.

The defenders also reclaimed.

Argued for the defenders and respondents—(1) On the plea under the Public Authorities Protection Act 1893, sec.—The statute from which flowed the defenders' rights, viz., The Edinburgh and District Waterworks Act 1869 (32 and 33 Vict. cap. 144), by its third section incorporated the Commissioners' Clauses Act 1847 (10 Vict. cap. 16), and section 64 thereof enabled the defenders to take proceedings; thus they were performing here a public duty under a statute and were entitled to the benefit of the Public Authorities Protection Act 1893— Kennedy v. Police Commissioners of Fort William, December 12, 1877, 5 R. 302, 15 S.L.R. 191, per Lord Ormidale; Greenwell v. Howell and Another, [1900] 1 QB 535; Spittal v. The Corporation of Glasgow, June 17, 1904, 6 F. 828, 41 S.L.R. 629, per Lord Trayner, adopting the opinion of the President (Jeune) in the case of the Ydun, [1899] Prob. 236; Christie v. Corporation of the City of Glasgow and Others, 7 S.L.T. 41. The protection afforded by the Act received a very wide interpretation— Chamberlain & Hookham, Limited v. Bradford Corporation, 83 L.T.R. [1900] 518. The pursuers had failed to bring their action within the required six months of the continuing injury, which lasted from the 16th March till 18th September 1897, the date of the Lord Ordinary's interlocutor. Their duty was to bring the action even though the interdict had not been finally disposed of in the Court of Session, the process in that Court having no suspensory effect—Earl of Mansfield v. Aitchison, December 11, 1829, 8 S. 243; Cochrane v. Hamilton, March 3, 1847, 9 D. 794. The interim interdict was superseded when judgment was pronounced causa cognita on September 18, 1897. The test was, if the pursuers had worked the limestone after 18th September which interdict would they have breached ? The punctum temporis to be looked to was the date of interlocutor not extract— Roberts v. Earl of Rosebery, December 7, 1825, 4 Murray 1; and after 18th September the defenders could not have worked the limestone but might have worked the shale. The cause of complaint therefore ceased on 18th September 1897. The opinion of Lord President Inglis in the case of the Glasgow City and District Railway Company v. Glasgow Coal Exchange Company, Limited, cit. infra, in which the case of Torrance v.The Edinburgh and District Water Trustees was mentioned, showed that the interdict granted causa cognita by the Lord Ordinary was not suspended by a reclaiming note to the Inner House. That it was competent and indeed the proper course when a judgment causa cognita had superseded interim interdict to have recourse a second time to the Bill Chamber was shown by the case of Mackenzie v. Gilchrist, July 2, 1830, 8 S. 1002. On appeal to the House of Lords also interdict might be again applied for; the case of Innes v. Innes, June 13, 1829, 7 S. 762, and the case of Laird v. Miln, November 16, 1883, 12 S. 54, showed that an interim interdict fell without special recal on an advising being delivered causa cognita. As to the competency of issuing extract before the expiry of the reclaiming days, see the case of Young v.Bell, May 22, 1850, 12 D. 939. The pursuers action was barred by the plea under the Public Authorities Protection Act 1893, and the decree of the Lord Ordinary should be recalled and the defenders assoilzied. (2) On the merits.—The Water Trustees were in possession of the right of support, as had now been proved by the Crawley declarator— Edinburgh ana District Water Trustees v.Clippens Oil Company, Limited, November 27, 1900, 3 P. 156, 38 S.L.R. 121, December 7, 1903, 6 F. (H.L.) 7, 41 S.L.R. 124, and the pursuers' operations threatened to disturb that possession. No damages could be given in respect of an interdict the purpose of which was to prevent inversion of a state of possession— Glasgow City q.nd District Railway Company v. The Glasgow Coal Exchange Company, Limited, July 14,1885, 12 R. 1287, 22 S.L.R. 903, per Lord President Inglis; Moir v. Hunter, November 16, 1832, 11 S. 32. The interdict was not wrongous, since it did not prevent the pursuers doing anything which was their right— Mudie v. Miln, June 12, 1828, 6 S. 967; Jack v. Begg,

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October 26, 1875, 13 S.L.R. 17—nor was it wider in its terms than the Crawley interdict— Edinburgh and District Water Trustees v. Clippens Oil Company, Limited, ut supra. The fact of the pursuers having wrongly construed the interdict as preventing them from driving levels through the “rooms” below the pipe track had caused them loss, but for that loss the defenders could not be held liable. In no case were the pursuers entitled to damages for total or constructive loss, as the works need not have been discontinued if judicious development and working of the mineral field had been exercised and the plant renewed as it should have been. Some extra expense would have served to save the business, which was however at the time far from profitable. The impecuniosity of the business caused the stoppage, and it was vain to claim damages for a business destroyed.

Argued for the pursuers—(1) On the plea as to the Public Authorities Protection Act 1893.—An interim interdict granted in the Bill Chamber and continued at passing of the note remained effectual, notwithstanding that the Lord Ordinary causa cognitarecalled it and refused the note, until (a) the expiry of the reclaiming days if no reclaiming note was presented, or (b) the final decision of the Inner House if a reclaiming note was presented. The proceedings in an ordinary suspension or in an application for interdict uti possidetis might be referred to as analogies. If the defenders' view were sound a respondent in any of these proceedings would only need to reclaim to render nugatory the protection which the Court considered the complainer ought to have. The original interdict therefore continued till the final decision by the Inner House on 3rd February 1898. The argument that another application to the Bill Chamber was open to a complainer against whom a Lord Ordinary had given an adverse decision causa cognita was impossible. Lis alibi pendens would be pleaded. The same litigation would be in both Outer and Inner Houses. It was manifest from the form of the bond of caution that the interim interdict was intended to stand until discussion of the case by the Inner House. The Court of Session though divided with the Outer and Inner House was one Court; its judgment was not obtained until a Lord Ordinary's interlocutor became final, or until the Inner House decerned on a reclaiming note; a reclaiming note was not an appeal but a mode of obtaining re-hearing. As to what was covered by the Public Authorities Protection Act, it was not every act or default in the execution of a public duty which the statute protected— Sharpington v. Fulham Guardians, [1904] 2 Ch 449; M'Phie v.Magistrates of Greenock, December 10, 1904, 7 F.. 246, 42 S.L.R. 190; Lyles v.Southend-on-Sea Corporation, [1905] 2 KB 1, per Vaughan Williams (L.J.); Cree v.St Pancras Vestry, [1899] 1 QB 693. A wrongful interdict obtained in defence of property belonging to a statutory body was not a default committed in the execution of a statutory duty any more than a breach of a contract entered into in the execution of its functions by a statutory body. If the defenders' argument was correct the pursuers should have raised their action within six months of the date of the interim interdict, and—it might be—before the note had been disposed of either by the Lord Ordinary or by the Inner House. In that case the pursuers would have required immediately on raising their action to have obtained a sist; to that it might effectually be pleaded that the action was premature and ought not to be persisted in. A wrong could not be sued on till the conditions from which it appeared that a wrong had been done had been established, and the pursuers were entitled to reckon from that date—in the present case the 3rd February 1898. (2) On the merits.—The interdict was wrongous, malicious, and cut at the output of the company, involving destruction to the crude oil works and refinery and so also to the company's business. The case of Hay's Trustees v. Young, January 31, 1877, 4 R. 398, 14 S.L.R. 282, showed the nature of the remedy by interdict, and that of Wolthekker v. Northern Agricultural Company, December 20, 1862, 1 Macph. 211, per Lord Justice-Clerk Inglis, showed the responsibility which lay on the applicant for that remedy. On a sound construction of the interdict presently in question the pursuers were absolutely cut off from doing anything within the forbidden area beneath the pipe track which might affect or interfere with the pillars of shale, and it was not in the mouth of those who obtained it to plead any ambiguity in it against those who were bound to avoid any breach of it. The pursuers would only be barred from recovering by bad faith or unreasonable conduct. The defenders pleaded that they were defending an existing state of possession, but this was not so; they had a right of support, but the minerals which gave the support were not theirs, nor would the argument of status quo avail them, since the pursuers were working the minerals while the pipe was in its former condition of instability. The interdict was obtained by misrepresentations as to the true state of matters. Had the defenders pleaded their right of support at common law the pursuers would have been at liberty to drive levels through the area from which the interdict excluded them entirely. Under the interdict as obtained, it was impossible for the pursuers to attempt to drive levels through the interdicted area either in the old “rooms” or through the old “stoops.” The extent of the wrong was not to be measured by comparing the interdict granted with that which might have been granted. It was wrongous in its effects in view of the cases of Robinson, &c. v.North British Railtoay Company (disting, the case of Moir v. Hunter, ut supra), March 10,1864, 2 Macph. 841; Kennedy v. Police Commissioners of Fort-William, ut supra— Fife v. Orr, October 16, 1895, 23 R. 8, 33 S. L.R. 1; and the case of Miller v. Hunter, March 23, 1865, 3 Macph. 740, 1 S.L.R. 39,

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laid down the rule that an interdict reclaimed against and recalled is ipso facto wrongous. Moreover, the evidence showed that the defenders had obtained the interdict maliciously, and in face of advice by their expert advisers that a much narrower and less harmful interdict was all that was necessary to protect their pipes. The pursuers had a duty to take the advice of skilled persons as to the best method of carrying on operations in the circumstances arising from the interdict; that advice they had taken and acted on. Yet they had suffered loss owing to a diminished output and consequent stoppage of crude oil works and refinery, deterioration of plant, and loss of business. They should be put in the same position they would have been in had the interdict not been obtained— Livingstone v. Rawyards Coal Company, February 13, 1880, 7 R. (H.L) 1, 17 S.L.R. 387. Accordingly the pursuers were entitled to damages as concluded for— Ballachulish Slate Quarries Company, Limited v.Grant, July 10, 1003, 5 F. 1105, 40 S.L.R. 791, was also quoted.

At the debate in the Inner House counsel for the pursuers raised the question of nonproduction onthe alleged ground of confidentiality of Mr Gemmell's report, and argued— In the circumstances of the case the pursuers were entitled to know what was before the defenders at the time they applied for interdict and during the period they insisted on keeping it up, so far as it had a bearing on their state of knowledge. The report was obtained in virtue of the Waterworks Clauses Act 1847, and a complete disclosure on the pursuers' part was entailed inasmuch as there was a right to inspect their workings. It was only equitable that a full disclosure should be made by the defenders. The report might have advised the defenders to suggest that the pursuers drive levels through the rooms and that that would not take away from the support which was necessary. If that were so and the advice were unheeded the defenders could not have been in good faith in their actings. The doctrine of confidentiality was not to be extended beyond documents relating to the claim actually the subject of litigation. Mr Gemmell's report should be produced.

On this question of confidentiality the defenders argued—The pursuers put too narrow a limitation on confidentiality. It applied to advice given on a question which may be litigated in future. The report was irrecoverable in the interdict action, and the present was a mere continuance there of. Nor was there here any averment that facts had come to the defenders' knowledge which would have enabled them to withdraw the interdict and that they had not done so. The report in question was merely a piece of evidence and might well be incomplete without the presence of Mr Gemmell, the framer thereof. The report should not be produced.

Lord President —This is a motion for the production of a report which was made by Mr Gemmell to the defenders, The circumstances under which Mr Gemmell made the report were these:—Under the Water-works Act the defenders had the right of sending a person to inspect the works with the view to reporting on them. They did so, and this report was given in respect of the right of access thus obtained. The report was presented to the defenders a few days after the action had been begun, and the Lord Ordinary refused to allow the report to be produced upon the ground that it was obtained after the action had been begun, and consequently must be looked upon as one of the steps in the litigation, and therefore fell under the ordinary objection of confidentiality.

In an ordinary case I have no doubt that would be sound, but the present action is somewhat peculiar. I do not rest the matter on the somewhat technical ground that the action then being litigated was distinct from the present action and that therefore there was no confidentiality connected with this action.

The distinction to my mind is that in an ordinary action the person's state of knowledge or mind is neither here nor there. A man is entitled to stand on his right whatever the state of his mind may be. But in this action—being an action of damages for wrongous interdict—it is open to contend that the state of knowledge of the present defenders—the promoters of the interdict—has a great deal to do with the question whether they were wrong in keeping up the interdict. That may become of moment because of the peculiar position of the remedy of interim interdict. Interim interdict is a matter which in one sense is always before the Court. There is no incompetence in renewing motions on the subject from time to time. I do think therefore that the state of mind and knowledge of these parties a few days after interim interdict was granted and before the record had been made up in the note of suspension and interdict may have an important bearing on the question which we are trying.

Therefore I am of opinion that this report should be produced. But I do not think that it ought to be produced de plano, because, as I have put the matter on this question of the state of knowledge of the parties, it may be objected that the report contains other matters which are confidential. Therefore without deciding at the present moment whether any part of it is to go in, I think the Court should read the report and then decide the question how far it is to go in.

Lord M'Laren I agree, subject to your Lordship's last observation to the effect that there may be matters of a confidential character in this report which may have to be excluded. The purpose of sending Mr Gemmell to inspect was, as I understand, that he might report to the Water Trustees whether the interim interdict was being faithfully observed by the mine owner. Such a report would in the ordinary case have no relevancy in an action of damages. In the present case I think it may have

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relevancy, and may indeed be decisive on one of the points of the case (I mean the possibility of a restricted working) if it contains elements bearing on that question. Whether it has such elements we do not know. It may also have a bearing on the question whether the Water Trustees were willing to use the interdict in a reasonable way and to endeavour to co-operate to minimise the inconvenience to the company and the consequent claim of damages that might arise against themselves. On both grounds I think the document admissible.

Lord Kinnbar concurred.

At advising—