Scottish Court of Session Decisions

[1] This is an appeal at the instance of the petitioner against the refusal of the Lord Ordinary to grant interdict against the respondents and their servants and agents, or anyone on their behalf, from demanding any toll from the petitioner in respect of the Skye Bridge between Kyle of Lochalsh and Kyleakin in Inverness-shire ("the crossing") with certain ancillary demands. The Lord Ordinary rejected the claim essentially on matters of substance and principle.

[2] In the Outer House the main argument submitted by the petitioner related to whether or not the authority given to persons collecting the toll so to do had been consented to by the then Secretary of State in relation to his power to grant assignations to persons other than himself to collect tolls, whether in writing or not. In his initial submissions to us the petitioner did not refer to that question to any material extent but rather raised separate questions which he elaborated in his reply to the respondents' submissions. In his final submissions counsel to the first respondents pointed out that the indulgence that the court had granted the petitioner as a party went far beyond what would be normally permissible in an appeal relating to specific grounds of appeal and the Lord Ordinary's opinion. Be that as it may, we will, however, deal with each of the matters that were submitted to us by the petitioner.

[3] Before doing so it is necessary to examine the legislative framework in some detail. Part II of the New Roads and Street Works Act 1991 ("the 1991 Act") introduced statutory powers whereby the Secretary of State or a local roads authority providing a new "special road" might be authorised to charge tolls by virtue of a "Toll Order". The Crossing is part of a "special road" provided by the Secretary of State. Section 27(2) of the 1991 Act provides that a Toll Order relating to a special road to be provided by the Secretary of State shall be made by the Secretary of State. Sub-section (3) provides that the making of such a Toll Order is subject to certain procedural requirements including those in Part IIA of Schedule 1 to the Road (Scotland) 1984 ("the 1984 Act"). Sub-section (4) of Section 27 states that, so far as practicable, the proceedings required by Part IIA of Schedule 1 to the 1984 Act shall be taken concurrently with the other statutory procedures for the making of a special road scheme. Sub-section (5) provides that the Secretary of State shall not make or confirm the scheme or the Toll Order unless he makes or confirms them both. Part IIA of Schedule 1 to the 1984 Act was inserted by Paragraph 96 of Schedule 8 to the 1991 Act, read along with Section 168(1) of the latter Act. It makes provision for advertisement of a proposal to make a Toll Order; for facilities for the public to inspect the draft Toll Order; and for interested parties to give notice to the Secretary of State of objections to the proposed Toll Order. Part IIA of the 1984 Act includes Paragraph 14A(3) which is in these terms:

The terms of sub-paragraph (3) of Paragraph 14A of Schedule 1 to the 1984 Act evidently stem from the provisions of Section 28 of the 1991 Act, which include the following:-

Section 37 of the 1991 Act provides thus:-

[4] In pursuance of the power given to him under Paragraph 14A(4) of Schedule to the 1984 Act, the Secretary of State on 26th September 1991 made The Assignation Statement (Prescribed Information)(Scotland) Regulations 1991 (S.I. 1991/2152) which came into force on 21st October 1991, being the date on which Sections 27 to 41 of the 1991 Act also entered into force. In Regulation 2, the expressions "Assignation Statement" and "Concessionaire" are duly defined in terms relating them to the statement and the proposed assignee referred to in Paragraph 14A(3) of Schedule 1 to the 1984 Act. Regulation 3 is in the following terms:-

[5] In addition there is one other legislative provision which is of importance to be found in Schedule 2 to the 1984 Act which contains four paragraphs relating to action that can be taken by a person aggrieved by the relevant Scheme or Order as the case may be. The important paragraph is 4 which is in the following terms:

[6] As the Lord Ordinary records the Secretary of State initiated procedures which resulted, in due course, on 26 June 1992 in the Special Road Scheme Order (S.I. 992/1499) and the Toll Order (S.I. 1992/1501) necessary to enable the construction of the bridge to proceed. These Orders were made following a public inquiry

[7] Article 3 of the Toll Order provides:

[8] During the course of the procedures leading up to the making of the Toll Order the Secretary of State provided an assignation statement as required by the legislation which statement no. is 7/4 of Process.

[9] On 1 November 1991 notices appeared in the press which gave general notice of the decision of the Secretary of State to charge tolls in respect of the bridge. They also gave notice that the Secretary of State had made a statement with respect to (a) the assignation of the rights to charge and collect tolls and (b) the persons to whom the rights were to be assigned. At the same time information was given as to where both the draft Order and the statement could be examined by any person claiming interest to do so. Further information was given as regards notice of objection to the making of the Order.

[10] The contractual arrangements relating to the construction of the bridge were complicated but the main documents were as follows:

[11] Against that background the submissions of the petitioner fall to be considered with regard to (1) the issue of consent; (2) the validity of the statement with regard to its form and content and (3) whether it had been properly published in terms of the legislation. Before dealing with each of those issues it has to be noted that the petitioner also raised a separate issue relating to the way in which the tolls being collected was accurately accounted for in terms of the provisions of the proposed Scheme, particularly in relation to the extent to which the backing bankers were taking their share. We do not propose to deal with this issue in any form since it was not shadowed in the pleadings nor in submissions before the Lord Ordinary, nor has any fair notice been given to the respondents that such a point would be taken. In any event, if it has any general bearing on matters at all, it is not a matter for this court. This is a further reason why it should not be considered at this stage of this process.

[12] We can also deal shortly with the issue of consent since, as we have indicated, it was only briefly dwelt upon before us. It is to be noted that the Lord Ordinary decided the question debated before him on an assumption that there had been no written consent by the then Secretary of State to any purported assignation from the original concessionaire to the persons actually collecting the tolls. However, at the end of his opinion he did, on an obiter basis, express the view that in fact no such consent had been given.

[13] The argument before the Lord Ordinary effectively depended upon an interpretation of the OMA which, given that its existence and provisions lay within the knowledge of the Secretary of State, could be sufficient to amount to an acceptance by him that he was agreeable to the involvement of the persons actually involved in the operation and maintenance of the crossing and the collection of the tolls.

[14] There is a long history of litigation in relation to this whole matter. Included in that history is the decision in Alexander Smith and Others v. P.F. Dingwall unreported 16 December 1999, a decision of the High Court of Justiciary in relation to prosecutions against the appellants for not paying the tolls, the opinion being issued by Lord Sutherland. His Lordship dealt with this argument, which was presented to him by the current petitioner as an appellant in that case. His Lordship, having considered the contractual position between the parties which we have already set out above, expressed the opinion that it did not constitute any form of assignation as between the concessionaire and the persons collecting the toll but merely pointed to the existence of an agency agreement in practice. The argument presented before us did not extend beyond the submission presented before the High Court of Justiciary. Nothing said to us persuades us that Lord Sutherland's opinion was in any way ill-founded in his conclusion that the issue of written consent did not arise. We agree entirely with Lord Sutherland and we would simply gratefully adopt his Lordship's reasoning in that part of the opinion where his Lordship dealt with the issue of written consent did not arise.

[15] We therefore turn to deal with the issues that were focused by the petitioner and reclaimer before us.

[16] The reclaimer's principal attack on the validity of the assignation statement was based on the fact that it was not a probative document and was not dated nor was it signed by the Secretary of State. Furthermore, it contained inaccuracies as a matter of fact, not least referring to a different name in respect of the purported assignee. Since, at the end of the day, on the face of it, a person different to that named in the original statement was apparently collecting the tolls the whole process was invalid, it was submitted, because the assignation statement should have been at least updated. He went so far as to suggest that as a consequence a criminal offence was being committed.

[17] Leaving aside the fact that this proposition appeared to be based upon the argument that the right to collect tolls had to be assigned to the collecting company with the written consent of the Secretary of State, which we have already rejected, it fails on a separate ground. It was accepted that the reclaimer in terms of the second Schedule to the 1984 Act, has not timeously made any attempt to attack the validity of the Order or the procedural requirements adopted in relation to the Order in the manner prescribed by that Schedule. It follows that paragraph 4 of the Schedule, upon which counsel for the respondents relied, effectively acts as an ouster clause to deny jurisdiction to this court now to consider any questions of validity of the Scheme, the relevant time limit having long since expired. The general effect of such a clause was considered by Lord Cameron of Lochbroom in Pollock v. Secretary of State for Scotland 1993 S.L.T. 1173 where, after a careful examination of the relevant authorities, his Lordship concluded inter alia that in the absence of bad faith the statutory time limit for an aggrieved person contesting the validity of a Scheme or Order in relevant circumstances did not oust but did limit the jurisdiction of the court, the provision clearly intending to bar any challenge from whatever source it might come after the expiry of the time limit.

[18] We entirely endorse that approach which completely disposes of the substance of the issues raised by the reclaimer in this respect.

[19] However, for the sake of completeness we note that this point was also considered in Smith supra and on page 12 of his opinion Lord Sutherland, inter alia says:

[20] There is nothing we can usefully add to that analysis and it therefore follows that even if paragraph 4 of Schedule 2 to the 1984 Act did not defeat the reclaimer's position or if in some way he was able to get round it, his argument is of no substance.

[21] We would just add that, as regards the so-called change of apparent concessionaire it is clear the change is one of in name only which can be clarified by reference to the Register of Companies. We observe that in the Schedule for Service appended to the present petition the second respondents are designed as having been formerly Skye Bridge Tolls Limited.

[22] That leaves only the issue of publication. Here the submission was that what was done by way of advertisement, to which we made reference, was insufficient and there should have been a proper statutory instrument procedure whereby the documents in question were printed and laid before Parliament being statutory instruments.

[23] We can deal with this matter very shortly. It is quite clear that what is essential is the preparation and publication in the normal sense of the word of the assignation statement together with the draft Order and intimation to the public as to where they may be inspected. That plainly was done. That, in our opinion, is the end of the matter since we do not consider that the procedures that apply to the publication of statutory instruments proper apply in this context at this stage of the process. In any event, we consider that the width of paragraph 4 of Schedule 2 to the 1984 Act is such that this is again properly to be categorised as a challenge to the validity of the Scheme or at least the statement and this again cannot now be made at this stage of the process, being well beyond the statutory time limit.

[24] In these circumstances we are of the opinion that there is no merit in any of the points presented to us by the reclaimer whether within or without the scope of the original reclaiming motion. Accordingly, the appeal will be refused.