Scottish Court of Session Decisions

The Defence of the Realm Regulations Consolidated, section 8, D (Order in Council 23rd May 1916, Statutory Rules and Orders 1916, No. 317) enacts—“Any company, authority, or person supplying, or authorised to supply, water, light, heat, or power, shall, if so required by the Admiralty or Army Council or the Minister of Munitions, supply water,

Page: 692↓

light, heat, or power to any factory, building, camp, or other premises belonging to or used for the purposes of the Admiralty or Army Council or the Minister of Munitions, and shall carry out such works and render such service as may be directed by the Admiralty or Army Council or the Minister of Munitions for the purpose of enabling such a supply to be given either by themselves or by some other such company, authority, or person: Provided that a company, authority, or person shall not be required under this regulation to supply water, light, heat, or power to premises within the area of supply of any other company, authority, or person except with the concurrence of the appropriate Government department, and if any question arises as to which Government department is the appropriate Government department the question shall be finally determined by the Treasury. If any company, authority, or person fail to comply with a requisition under this regulation, the company, authority, or person shall be guilty of an offence against the regulations. …”

George Grieve, 30 Argyle Place, Edinburgh, and others, master plumbers in Edinburgh, pursuers, brought an action against the Edinburgh and District Water Trustees, defenders, wherein they sought to have it declared “that the defenders are not entitled to engage in the trade or business of plumbing, and, in particular, but without prejudice to the foregoing generality, are not entitled to accept any voluntary employment by, or make any contract with, the owner or occupier of any premises supplied or to be supplied by them with water, under which the defenders undertake, with or without consideration, to furnish or fit in or near such premises any pipes, valves, cocks, cisterns, sanitary or other appliances, or any article whatsoever for or in connection with the supply of water to such premises or for or in connection with the use, disposal, or discharge of such water in or from such premises, other than such as are required to bring into the said premises a supply of water or to regulate the same,” and to obtain a corresponding interdict.

The pursuers pleaded, inter alia—“1. The operations complained of being ultra vires of the defenders, decree of declarator should be pronounced as concluded for. 2. The defenders having refused to desist from said and similar ultra vires acts, both for the present and for the future, interdict should be pronounced as craved.”

The defenders pleaded, inter alia—“3. The pursuers' averments being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed. 4. The work complained of having been executed on behalf of and in compliance with the request of the War Office in the national interest, the defenders should be assoilzied. 5. In respect of the Defence of the Realm Regulations condescended on, the pursuers are not entitled to decree of declarator and interdict as concluded for.”

The facts are given in the opinions ( infra) of the Lord Ordinary ( Ormidale), who on 13th February 1917 allowed a proof.

Opinion.—“In this action certain master plumbers in Edinburgh seek to have it declared that the Edinburgh and District Water Trustees are not entitled to engage in the trade or business of plumbing, and in particular are not entitled ‘to accept any voluntary employment by, or make any contract with, the owner or occupier of any premises supplied or to be supplied by them with water, under which the defenders undertake, with or without consideration, to furnish or fit in or near such premises any pipes, valves, cocks, cisterns, sanitary or other appliances, or any article whatsoever, for or in connection with the use, disposal, or discharge of such water in or from such premises, other than such as are required to bring into the said premises a supply of water or to regulate the same,’ and that the defenders ought to be interdicted accordingly. The conclusion I have quoted was introduced by way of amendment.

The dispute between the parties has arisen in consequence of certain work done by the defenders in the course of giving effect to a request made to them by the military authorities to provide a supply of water to three military camps situated at Duddingston, Dreghorn, and Glencorse. Duddingston is within the defenders' limits of compulsory supply. Dreghorn is beyond these limits, but within their limits of supply. Glencorse, again, is beyond these latter limits, but is within the area which the defenders are entitled to supply by agreement. Nothing, in my opinion, turns on the difference in locality of the camps. They are all within the area of supply, and the actions dealing specially with the supply of water either on requisition or by agreement do not, so far as the present question is concerned, appear to me to extend or vary the powers conferred by the statutes on the defenders with reference to the supply of water within the limits of compulsory supply.

The pleas of ‘No title to sue’ and ‘All parties not called’ were not insisted in.

The pursuers aver (condescendence 5), inter alia, that the defenders ‘entered into contracts with the military authorities to do the said work and provide the greater part of the material required, particularly the laying of the pipes, the supply of all pipes, whether cast iron, lead, or galvanised iron, the cocks, water valves, sprays for baths, flush cisterns, and fittings for the sinks, ablution benches, water-closets, urinals, and other appliances, and the execution of the whole plumbing work required in connection with the introduction of water to these camps. The whole of the work to be done, including the laying of the communication pipes and the supply of all material, pipes, and fittings in connection with these water supplies is entirely plumbing work of the kind ordinarily performed by plumbers.’

The defenders answer, inter alia, ‘that in or about the beginning of October 1915 the Division Officer charged with the erection and fitting up of the said camps called on the defenders, explained that the said camps were most urgently required, and as they could not be used until an adequate

Page: 693↓

supply of water was introduced, requested the defenders, in the aforesaid exceptional circumstances, to provide and lay down the necessary piping and apparatus. The defenders agreed to do so, but the only water appliances provided by them for said camps were taps, stop-cocks or valves, and hydrants, with surface boxes for the same. The defenders, owing to their stock of pipes and other materials, were able to meet the requirements of the military authorities with greater expedition than any outside contractor. They executed the work on the basis of actual cost and solely in the public interest to facilitate undertakings of national importance in connection with the present war.’

It is further averred by the pursuers that work of identical nature and the supplying of materials similar to those required in connection with the aforesaid water supplies have also been undertaken by the defenders for the military authorities at Warrender Park School, Castlehill School, and at other places in Edinburgh. This is denied by the defenders.

There is therefore a dispute in fact as to the exact nature and extent of the work performed by the defenders. It might turn out after inquiry that the work actually done was not of the nature of ordinary plumbing work such as is complained of by the pursuers, and was not therefore in any view ultra vires of the defenders.

The defenders, however, plead that the pursuers' averments are irrelevant, that the work complained of having been executed in compliance with the request of the War Office in the national interest, they should be assoilzied, and that in respect of the Defence of the Realm Regulations the pursuers are not entitled to the declarator and interdict concluded for.

The general contention of the pursuers is that ‘the defenders have no power under their private Acts or otherwise’ to perform work of the kind condescended on, their duties being confined ‘to the laying of public water mains and making the necessary openings in these to admit of a supply of water being conveyed through communication pipes to the consumer's premises,’ and the first question I have to determine therefore is whether this contention is sound. The question of the defenders' right to fit and lay communication pipes would also have fallen to be determined as the conclusion for interdict was originally framed, but it is not now directly raised, and I do not propose to deal with it. The de quo, as measured by the interdict sought for and the averments in condescendence 5, is the plumbing work connected with the distribution and disposal of the water after it has been brought up to and introduced into the premises where it is to be consumed.

It is unnecessary to review seriatim the various sections of the many Acts of Parliament to which I was referred by Mr Watson. Much of the argument founded on them has been rendered abortive by the substitution of the amended conclusion for declarator for the conclusion originally in the summons. That was done after the argument was delivered. In my judgment declarator could not have been granted in the terms originally craved. It was much too wide and sweeping, and struck at work which was clearly intra vires of the defenders.

I cannot, however, hold that the averments of the pursuers are irrelevant to infer the order now asked. I have carefully considered the sections founded on, and I come to the conclusion that except in connection with one class of houses the defenders neither explicitly nor inferentially are entitled to engage in ordinary and original or initial plumbing work at or inside premises which are being supplied with water. The exception I refer to is work in connection with houses of an annual value not exceeding £10. For supplying these with water special provision is made by sections 44 to 47 of the Water-works Clauses Act 1847, which fall to be read into and along with the defenders' private Acts. In none of the other sections is provision made for the defenders entering premises and executing plumbing work therein other than remedial or corrective plumbing work, e.g., they may enter a house for the purpose of inspection, and they may repair a defective cistern, and so on. They may also enter a house for the purpose of cutting off the water supply in certain stated circumstances. Section 58 of the Act of 1874, which indicates that internal fittings or apparatus may be the property of the Trustees, must have reference to houses of an annual value not exceeding £10. As I read the Acts there is no warrant for the defenders coming into competition with persons engaged in the ordinary business of plumbers with regard to water fittings and appliances inside a house or other premises. That is what in effect they are said to have done at the camps and schools in question.

That being so it remains to consider whether their powers are to any extent enlarged by the provisions of section 8 D of the Defence of the Realm Regulations. That section is to be found on p. 25 of the Defence of the Realm Manual published in July 1916.

The right of the defenders to plead these Regulations is challenged on the ground that they have not been required by the Army Council, as provided by section 8 D, to provide a supply of water—they have only been requested. That is true in fact. They were only requested, not required. The military authorities, however, could have translated their request into a requisition, which the defenders could not have refused to obey without committing an offence against the Regulations. It appears to me that they were entitled on the call of the military authorities to agree to provide a supply of water as they did without insisting on a formal requisition to do so being served upon them, and that by so doing any protection or any extension of their powers otherwise conferred by the Regulations was in no way affected. In my opinion, while it was open, no doubt, to the defenders to refuse to comply with a mere request, it is

Page: 694↓

jus tertii for the pursuers to plead the want of a strict and formal compliance with the terms of the section.

The interdict as now asked does not necessarily strike at all and every voluntary agreement which the defenders may enter into with the military authorities or anyone else. It depends on the subject-matter of the agreement whether the thing that the defenders agree or contract to do is within their powers, and the question therefore comes to be—Is the effect of section 8 D to enlarge the powers and duties of the defenders as a water authority? In my judgment it is not. I cannot read the Regulations as conferring on the Army Council any right to compel the defenders, as an authority supplying water, to execute any work which they are not as such an authority otherwise empowered to perform. The words ‘supply water’ in section 8 D have no other meaning than the words ‘supply water’ in the defenders' private Acts. They can be compelled, or can agree, to ‘supply water’ and to execute the works and render the services necessary to provide the supply to the stated premises, but nothing more. They have supplied water when they have brought it up to the premises, and they cannot as an authority supplying water be compelled or agree to provide and fit the apparatus necessary for its distribution and disposal within the premises. It is against work of that description that the declarator and interdict now sought are directed.

I sympathise with the view expressed by the defenders that such work could be done by them with greater despatch and greater convenience to the military authorities than by anyone else, and it is to be regretted that in existing circumstances the pursuers should have deemed it expedient to take exception on technical grounds to work which appears to me to have been performed in the public interest, and without any possibility of material detriment to the interests of the pursuers either in the present or in the future. I think the undertaking offered by the defenders might have been accepted, but as it has not been I must allow a proof for the ascertainment of just exactly what was the work done by the defenders at the various camps and schools.

On 26th July 1917 the Lord Ordinary, after the proof, pronounced the following interlocutor:—“Finds and declares in terms of the declaratory conclusion of the summons as amended; and decerns: Interdicts, prohibits, and discharges the defenders, and all other persons acting under them or by their authority, from engaging in the trade or business of plumbing, and in particular from doing any of the acts or things which in terms of the foregoing decree of declarator they are not entitled to do; and decerns.”

Opinion.—“I have already expressed the view that the defenders have no statutory authority—except to the very limited extent mentioned in my former opinion—to engage in what may, shortly put, be termed ordinary plumbing work. I have further held that a requisition on them given by the military authority to supply water to any building, or camp, or other premises to be used for the purposes of the Army Council does not extend the powers conferred upon the defenders by their statutes to the effect of giving them the right, in obedience to such requisition, to engage in plumbing work.

Having so far determined the questions raised by the parties to this case there remained, among other matters in regard to which the parties were at variance, the question whether the defenders had in fact, in connection with the work performed by them at the camps and schools mentioned on record, engaged in plumbing work.

The proof which has now been led was directed in the main to that question of fact, but there has also been ascertained in the course of it the circumstances under which the defenders undertook not only to supply the various premises condescended on with water, but also to provide and instal the apparatus necessary for the distribution and disposal throughout the various premises of the water so supplied by them.

The evidence quite clearly discloses that the defenders did engage in work which was work usually performed by plumbers, and therefore outwith the statutory powers of the defenders. I did not understand that this was disputed by the defenders, for although questions were put in cross-examination to several of the master plumbers and other witnesses called for the pursuers, especially with reference to the supplying and laying of the heavier kinds of iron piping, it was not suggested in argument that the other fittings installed by the defenders did not clearly answer the description of ordinary plumbing work.

The general rule is that after the Water Trustees have put in the connection on the main when there is no meter, or where there is a meter after they have supplied and fitted it, the plumber does all the rest. The water authority's work, as Mr Lightbody phrased it, consists of outside the meter.

I do not therefore propose to examine in detail the evidence on these matters. It appears that the proportion of the expense incurred at the three camps in connection with piping was for piping above 1 inch, shown red on the plans, £2570, as against £910 for the fittings and for lead and galvanised iron piping of 1 inch and less, shown green on the plans. But the weight of the evidence is to the effect that, up at any rate to 6 inch, plumbers are able and accustomed to deal with cast iron piping.

Even in regard to 6-inch piping, Mr Reid candidly admitted that it was within the competency of plumbers to handle and lay it, provided only they had men available who were experienced in that particular detail of work.

The point ultimately made was rather that the Water Trustees were in the habit of handling and laying the heavier classes of piping, that they had men in their employment experienced in dealing with it, and further, that they had in stock at the start of the undertaking a considerable amount of cast iron pipes and bends, and were so possessed of greater facilities than

Page: 695↓

plumbers for putting through the necessary installation at the camps. But the bulk of the cast iron piping was not 6 inch or 4 inch but 3 inch, and the inference I draw from the evidence is that the work could have been done just as easily and just as expeditiously by plumbers. The pursuers' witnesses referred to priority certificates as enabling them quickly to get materials from the manufacturers, but these were not in vogue so early as October 1915. That presumably was because there was not the same shortage of material as there was later, and there is certainly no evidence that there would have been in fact any difficulty in plumbers getting all that was required at that date.

Accordingly the only plea which the defenders' counsel asked me to sustain was the fourth—‘The work complained of having been executed on behalf of and in compliance with the request of the War Office in the national interest the defenders should be assoilzied.’

Now there can be no doubt that the circumstances out of which this dispute between the plumbers and the Water Trustees has arisen were very special. The country is at war, and the considerations attending the question whether an interdict should be granted are certainly very different from those arising in time of peace. Private interests must frequently, to some extent at least, yield to public interest, and whether a public body like the Edinburgh and District Water Trustees acted strictly within their statutory powers does not fall to be scrutinised with the same particularity as in ordinary times. But giving all due weight to the special circumstances attending their arrangement with the military authority, I am unable to sustain the plea in question.

With regard to the supply of water to the King's Park encampment in August 1914, a matter which is not covered by the present action, but which marks the inception of the working arrangement entered into by the military authorities with the defenders, there does appear to me to have been such urgency as to have justified the action taken at that time of the Water Trustees.

But so far as the camps and schools in question are concerned it seems to me, as I have already said, that the work done by the defenders could, so far as it involved plumber work, have been as well done and as expeditiously done by plumbers. The order given, or, to speak more accurately, the proposal made by the military authorities to the defenders, was given or made in complete ignorance of the limited scope of the duties and functions of the Water Trustees. They were desirous of having to deal with only one agent for the work, but they left it to the Trustees to carry out the arrangements made with them in the ordinary course of their duties. I have no doubt that if the Trustees had explained to the military authorities that the execution of the plumbing work was beyond their statutory powers the military authorities would either themselves have arranged with a plumber or plumbers or asked the good offices of the Trustees to make the necessary arrangements for them.

There was no such clamant necessity as the fourth plea would indicate, either in fact or as represented to the Water Trustees. The undertaking appears to have been embarked on as a matter of business after negotiation beween the parties. This is nowhere better indicated than in the letter from Messrs Leslie & Reid to Lieutenant Baird Laing, in which the arrangements and terms are summed up by the former.

The urgency spoken to by Colonel Molony and Lieutenant Baird Laing was an urgency arising, not from enemy action at all but, so far as I can judge, from the prolonged inaction of the higher military authorities. The hutted camps in question were required for the occupation of men who had during the summer months been under canvas. That they would require winter quarters was known long before the summer was over, but the military authorities at headquarters made no start to provide these until October, when the men had been or were being withdrawn from the various canvas camps, with the result that they had to be temporarily lodged in schools and other buildings. That headquarters may have been fully occupied with war business of a more serious nature is very likely, but they only realised that it was necessary to have hutted camps late in the day, and that they consequently required to have them completed in a hurry did not constitute such a condition of urgency that a week or two's further delay could possibly have made any real difference to the country.

I think the defenders are right when they say that it was not for them but for the military authorities to determine whether the matter was one of urgency, and that they were bound to accept the representation of the military authorities and act accordingly, but I am satisfied that the nature of the urgency was disclosed from the first to the Water Trustees. If so, then there was no invocation of the maxim salus populi suprema lex, and obviously there was no necessity for the defenders going beyond their statutory powers and executing work they were not by common law entitled to perform.

Even if the military authorities had issued, as Colonel Molony suggested that they might have issued—I think he had in view the King's Park water supply of August 1914—in the event of the Trustees refusing to give their assistance, a martial law order, and the Trustees had still declined to obey thinking they had no power to obey, and the military authorities had then taken the Water Trustees' pipes and done the work themselves, they would have found themselves possessed of an absolutely negligible quantity of plumbers' materials, and would still have required to call plumbers in aid.

According to Colonel Molony, who appeared to me to state the military position with frankness and moderation, he

Page: 696↓

assumed that the Trustees would make arrangements for the carrying out of the work. ‘I did not regard the defenders as plumbers. They were capable of getting plumber work done by plumbers.’

Lieutenant Baird Laing explains the nature of the urgency in the sense I have indicated. The convenience to him of the arrangement made with the Water Trustees was obvious. He had no staff to prepare plans and specifications, and what he did was to ask the defenders to help him and to carry out on terms the work for the War Department. He went to them for the whole work because he knew no plumbers in Edinburgh. He knew also that he might rely on the defenders to act fairly and squarely by him.

That the defenders were actuated by a perfectly laudable motive I have no doubt at all. There is no ground whatever for suggesting that they were prompted to act as they did by any desire to deprive plumbers of their legitimate work. They found the military authorities in a difficulty and they agreed to help them out of it as best they could, but they could have helped them just as well if they had limited their own operations to ‘supplying’ the water required in the sense of their statutes, leaving the provision of the apparatus and fittings necessary for its distribution and disposal to the plumbers.

The facts of the case are not in my judgment relevant to raise the question of the royal prerogative. Anxiety to get a thing quickly done because the doing of it has been too long delayed does not provide an occasion for the exercise of the royal prerogative. I do not therefore examine the authorities cited by Mr Wilson on this topic.

In the light of what has been disclosed by the proof, the concluding sentence of the undertaking offered by the defenders should not have been added. Had it not been I should have refused interdict. As matters stand, however, the pursuers are in my judgment entitled to the declarator and interdict craved.

The declaratory conclusion as amended has been so framed as to avoid any conflict with the statutory powers and duties of the defenders. That I think is the effect of the introduction of the word ‘voluntary’ to qualify any employment or contract in connection with plumbing work.

Sections 63 of the 1869 Act, 34 of the 1876 Act, and 29 of the 1847 Act, were alone referred to as conferring powers on the Water Trustees which would be struck at.

The argument on these sections was not developed. But under section 63 the Water Trustees are bound to supply water to various classes of consumers, although the price may be made a matter of arrangement. The amended conclusion safeguards any operation of the nature specified or the use of apparatus required for its performance. Section 34 is a repair section, and excludes the idea of voluntary employment or contract. Section 29 is rather more difficult. It appears to give the Water Trustees authority to enter on private land with the consent of the owners and occupiers thereof for the purpose of laying such pipes as they are entitled to lay on land dedicated to public use. It does not, however, give them any right even with consent to execute the plumber work, which is the subject of the declarator and interdict.

Accordingly I shall find and declare in terms of the declaratory conclusion as amended, and grant interdict in corresponding terms.”

The defenders reclaimed, and argued—The question at issue had no reference to trading as plumbers, but to placing the resources of the water authority at the disposal of the War Office. The Water Trustees, who never contracted to do plumbing work, were justified in assenting to the military authorities' request for the assistance of their resources. At the present time such a request was equivalent to a requisition, it imported that there was a duty to perform and overrode statute. At a time of national emergency it was the supreme prerogative of the Crown to enter into possession of property and requisition services, and this prerogative was fully exercised by any order emanating from a a naval or military officer appointed to deal with the matter— in re a Petition of Right, (1915) 3 K.B. 649, per Avory, J., at p. 651, and Cozens-Hardy, M.R., at p. 659. There existed a suprema lex where the salus populi was concerned. In view of the existing state of affairs and the present military necessities, the military authorities had rightly represented the execution of the work in question as a matter of great urgency. That being so, the present was a case for the exercise of the royal prerogative, which was not limited to a case of actual invasion necessitating instant action— in re a Petition of Right ( cit.), per Warrington, L.J., at p. 666. Anything done in accordance with a royal proclamation was legal, and if the conduct of the water authority was approved of by the military authorities the Court had in the present circumstances no power to intervene. The defenders never contracted or desired to do work of the nature described in the declaratory conclusions, and the decree of declarator and interdict ought to be recalled. Counsel further cited the following authorities— Magistrates of Edinburgh v. Warrender, (1863), 1 Macph. 887, per Lord Justice-Clerk Inglis at p. 892; Mackay's Manual of Practice, 374; Encyclopædia of the Laws of England, voce “Prerogative” and “Proclamation”; Blackstone's Com. i, 240; Ridges, Constitutional Law, 168; Anson's Law of the Constitution, ii, 52; Chitty on the Prerogative, (1820) 49.

Argued for the respondents—A body of trustees such as the defenders were, acting under a statute, were not intra vires in spending money on purposes which were not authorised by that statute. That was a general rule and the defenders had failed to show cause why it should be displaced. No situation of real urgency had arisen and the defenders were not in possession of any special facilities for the execution of the work. Work of that nature was merely

Page: 697↓

ordinary plumbing work the undertaking of which was admittedly a novelty for the defenders. There were sufficient plumbers to do all the work that was done here. Even if the Water Trustees, employing their own materials and labour, could introduce a supply of water into the camps, plumbers were required to get it out again by drainage, &c. The defenders simply tendered for the work, which neither under statute nor at common law had they any power to do. The War Office did not ask the defenders to do the work, far less did it requisition their services. The defenders were not entitled to extend their sphere of operations beyond the particular purpose for which they were created by statute. What they were not expressly or impliedly authorised to do they must be held to be prohibited from doing— D. & J. Nicol v. Dundee Harbour Trustees, 1915 SC (HL) 7, 52 S.L.R. 138. The Defence of the Realm Regulations did not empower the defenders to undertake work outwith their statutory powers, nor to compete, as they had done here, with tradesmen skilled in that class of work. In re a Petition of Right ( cit.) did not apply to the present case.

At advising—