Scottish Court of Session Decisions

Wilson v. Scottish Enterprise & Anor [2003] ScotCS 87 (28 March 2003)

OUTER HOUSE, COURT OF SESSION
A621/02	OPINION OF LORD EASSIE in the cause ANDREW WILSON Pursuer; against (FIRST) SCOTTISH ENTERPRISE and (SECOND) SCOTTISH ENTERPRISE RENFREWSHIRE Defenders:   ________________

 

 

Pursuer: Party

Defenders: McIlvride, Solicitor Advocate; Bennett & Robertson

28 March 2003

1. This is one of a number of actions to which the pursuer is a party and which arise out of the acquisition by the first defenders' statutory predecessors of title to subjects at Greenock Harbour.

Background

2. The background facts are that in 1987 the first defenders' predecessors - The Scottish Development Agency - obtained two conveyances of land from James Lamont & Co Limited (in receivership) and the Clyde Port Authority respectively and applied for first registration of those subjects under the Land Registration (Scotland) Act 1979. The subjects were in due course registered under title numbers REN 43834 and REN 42086 respectively. The pursuer and others objected to proposals by the first defenders to redevelop the harbour subjects thus acquired. They sought unsuccessfully to challenge the validity of the conveyance and hence the registered title - see Wilson v The Keeper of the Registers of Scotland 2000 SLT 267; and see also the unreported decision of the Extra Division of 28 February 2003 in the proceedings by the present pursuer and others against Inverclyde Council.
3. It appears that opposition to the redevelopment proposals led to local protests and, in light of those local protest activities, in 1991 the present defenders sought and obtained an interim interdict against, among other individuals, the present pursuer. The terms of the interim interdict may be derived from No. 7/31 of process and were as follows:

"from entering upon, occupying or remaining upon any part of the subjects at East India Harbour, Greenock, owned by the [present first defenders] being ALL and WHOLE those two discontinigous (sic) areas of ground at Dock Breast and East India Breast, Greenock in the county of Renfrew together with the dry dock and harbour known as East India Harbour, Greenock, extending together to 4.65 hectares or thereby and being the subjects shown within boundaries delineated in red on the plan annexed and signed as relative to a conveyance by the receiver of James Lamont & Co Limited in favour of Scottish Development Agency dated 30 November 1987; and in particular from erecting barriers or other forms of obstruction therein or thereon, from dismantling fencing, buildings or other properties therein and thereon belonging to the first or second [defenders] their agents, servants or anyone acting on their behalf or with their authority; from preventing access to said subjects and access therefrom; from obstructing or in anyway interfering with the activities of the [present defenders], their agents or servants or anyone acting on their behalf or with their authority in or around said subjects including persons engaged in carrying out demolition works being or to be carried out by persons instructed by or on behalf of the [present second defenders];"

The action for interdict was defended by among others the present pursuer. It was eventually abandoned by its pursuers [the present defenders] against certain parties in May 1997 and against the present pursuer - Mr Wilson - and others in July 1999, a proof before answer having previously been allowed.

4. In the meantime an alteration had taken place respecting the first defenders' ownership of the subjects conveyed by James Lamont & Co Limited, registered under title number REN 43834. Those subjects included at least part of the harbour basin. By a contract of excambion the first defenders disponed the whole subjects to the Crown Estate Commissioners who then reconveyed the subjects to the first defenders under exception of the river bed underneath the water within the harbour. Once effect had been given to that transaction in the Land Register, the first defenders, in February 1997, sought and obtained restriction of the territorial scope of the interim interdict to the areas remaining within their ownership.

The Pleadings

5. Against that background it is appropriate to set out the conclusions advanced in the present action. Ignoring the final conclusion for expenses, the conclusions are in these terms:

"1. For declarator that the defenders, jointly and severally or severally caused libellous damage to the reputation of the pursuer personally, and caused damage to his business by their actions, in the application for interdict, and by their malicious intent in maintaining the interim interdict imposed on the pursuer from 13^th November 1991, in cause number 0197/16/91, until 26^th July 1999.

2. For declarator, that the defenders are liable in damages to the pursuer as a consequence of wrongful and unlawful imposition of the said interim interdict.

3. For declarator, that the defenders actings in the unlawful removal and dismantling of the pursuer's vessels, was ultra vires.

4. For payment by the defenders jointly and severally or severally to the pursuer for loss of use and profit in the sum of THREE HUNDRED THOUSAND POUNDS (£300,000) STERLING with the interest thereon from the date of citation until payment.

5. For payment by the defenders jointly and severally or severally to the pursuer for damage to status and reputation in the sum of ONE HUNDRED THOUSAND POUNDS (£100,000) STERLING with the interest thereon from the date of citation until payment".

6. The averments made by the pursuer in the Condescendence annexed to the summons contain much that is simply a further rehearsal of the contentions previously advanced and judicially rejected respecting the alleged invalidity of the first defenders' title but which is not pertinent to what is sought in the conclusions of this action. Stripping the pleadings of that, and other plainly irrelevant material, it appears that the essentials of the case which the pursuer seeks to advance in this action fall under three heads, namely:-

(1) The interim interdict was wrongfully obtained.

(2) In presenting their application for interim interdict the present defenders made statements defamatory of the present pursuer; and

(3) In causing their agents to remove, in January 1996, two vessels, namely the dumb barge '510U' and the MV 'Max', the defenders committed what is described as an unlawful and 'ultra vires' act.

It is convenient to examine each of these branches separately.

Wrongful interim interdict

7. In his pleadings the pursuer puts forward as a ground for the interim interdict's having been wrongfully obtained the challenge to the pursuer's title advanced in the other proceedings to which reference has already been made and the fact that a portion of what was conveyed to and registered by the defenders under Title REN 43834 was subsequently conveyed to the Crown Estate Commissioners as the outcome of the contract of excambion. In so far as concerns these grounds for contending the interim interdict to have been wrongly obtained, Mr McIlvride, the solicitor for the defenders who appeared in the exercise of his extended audience rights, pointed out, in my view correctly, that the registered proprietor in possession has right and title to sue for such an interdict, particularly where the opposing party has no proprietorial claim (see Wilson v The Keeper of Registers 2000 SLD 267, 274G). It is however unnecessary to discuss those grounds further since, as respects the third ground, namely the abandonment of the action of interdict, Mr McIlvride volunteered that in light of that abandonment it had to be accepted by the defenders - and was accepted by the defenders -that the interim interdict had been wrongly obtained. The defenders' solicitor explained that the action had been abandoned because it proved impossible to trace the witnesses upon whom the defenders had relied to speak to the participation by the pursuer in the activities alleged in the action for interdict. That however was a background explanation and, as Mr McIlvride accepted, the reason for the abandonment of the action of interdict was not as such material.
8. Given that it was accepted that the interim interdict was thus wrongly obtained, the question arising was whether there were any relevant averments of patrimonial loss suffered by the pursuer in consequence. There were, said Mr McIlvride, no such averments and accordingly for that reason this branch of the action was not relevantly pled. In that respect the solicitor advocate for the defenders referred to the litigation between The Clippens Oil Company Limited v The Edinburgh and District Water Trustees reported at (1906) 8F 731, 751 and 1907 S.C.(H.L.) 9, especially per Lord Collins, 14. Reference was also made by Mr McIlvride to Aird v Tarbet School Board 1907 S.C.305. It was submitted that before damages might be recovered for the imposition of a wrongful interim interdict it was necessary that the addressee of the interdict had suffered patrimonial loss by reason of an interference in his patrimonial rights.
9. In my opinion the defenders' solicitor-advocate is correct in that submission. In the course of his address, Mr Wilson pointed out that there were averments of loss contained within the pleadings which he had presented. However, it is clear that those averments are of loss consequent not upon the interim interdict but solely upon the alleged unlawful and ultra vires act of dismantling the MV "Max" and the dumb barge 510U carried out by agents of the defenders when they allegedly cut the anchor chains then securing the vessels and removed them to an adjacent harbour, all of which occurred on or about 31 January 1996 (see Article 12 of Condescendence). The averments of loss are to be found only in Article 14 of Condescendence and are plainly tied to that act of dismantling. Accordingly while the defenders accept that, in the event, they were unable to justify the obtaining of the interim interdict against the present pursuer, there are, in my view, no relevant averments advanced by the pursuer to the effect that he thereby suffered any patrimonial loss by reason of any interference with his proper patrimonial interests caused by obedience to the interim interdict. In the absence of such averments the declarator sought in the second conclusion is without practical consequence. In his oral address the pursuer did not suggest that he had suffered any loss other than that to which reference is made in Article 14 of the Summons. Damages do not flow automatically from the wrongful obtaining of an interim interdict. It is necessary to prove that the grant of the interim interdict caused actual patrimonial loss. As already indicated there is no suggestion by the pursuer that such damage was sustained. Accordingly this branch of the present action is, in my view, irrelevant and falls to be dismissed.

Defamation

10. The allegation of defamation is to be found in the opening sentence of Article 18 of Condescendence, which is in these terms:-

"The defenders used, or caused utterance of, malicious falsehoods against the pursuer in their action against the pursuer in cause number 0197/16/91 [the interdict action] by alleging criminal acts of the theft of 10,000 roof slates, dismantling fences, intimidation, physical and verbal abuse of contractors and employees, as these averments were of a criminal nature, the defenders ought to have made complaints to the police to investigate and make relevant charges against the pursuer if found to be substantiated, rather than civil action for interdict".

Mr McIlvride submitted that statements made in judicial proceedings such as the interdict action enjoyed qualified privilege and that it was therefore necessary for the pursuer to aver and prove malice. In that respect, a bald averment of malice was insufficient. It was essential for a pursuer to set forth in averment facts and circumstances from which it could properly be deduced that the defamatory statement had been made from improper, ultroneous motives. In that respect Mr McIlvride referred to Scott v Turnbull (1884) 11R 1031 and Mitchell v Smith 1919 S.C.664.

11. As I understood him, the pursuer - who is not inexperienced as a party litigant - recognised the existence of qualified privilege and the need for proper averment of malice. His pleadings (Article 8 of Condescendence) contain the following averments, upon which he founded,:-

"The pursuer avers that the action taken in the above noted cause [the interdict action] against the pursuer was malicious for the following reasons (1) the proposed works at the harbour required powers of control that the defenders did not possess, i.e. power regulate and manage vessel movements and other actions of administration in a public harbour that are properly conducted by a harbour authority authorised by statute under the Harbours Act 1964, (2) the action of interdict and application for interim orders provided a solution to the defenders' lack of powers without having to rely on the third parties, e.g. police investigation, (3) the first defenders knew or ought to have known that their title was defective, with regard to those parts of the subjects covered by water to which the interdict was applied were not owned by them, (4) the action was raised against six individuals one of whom is the present pursuer at the relevant time there was over one hundred boats using the East India Harbour, the pursuer contends that he was selected at random for this action of interdict in order to set an example and deter other harbour users by the use of force or fear of financial penalties in the form of legal fees and damages, they used force or fear of Court action in an application for penalties against the pursuer, for breach of interdict, which was served in January 1996, and later abandoned".

In my view, as Mr McIlvride pointed out, these averments are insufficient to constitute relevant averments of malice in the proper sense required to support an action of defamation allegedly committed in the course of judicial proceedings. Heads (1) and (3) if sound - which I stress I do not accept to be sound - might indicate a basis whereon the application for interdict was challengeable. They indicate nothing more. Head (2) is manifestly irrelevant since the pursuit of civil remedies is not dependent on any prior exhaustion of complaint to the criminal authority. Head (4) is also manifestly irrelevant for the purpose of inferring personal malice and the bringing of proceedings for an ultroneous motive as opposed to bringing proceedings against the pursuer as a party whom the present defenders then believed in their capacity as pursuing the interim interdict action to be a protestor. Accordingly, this branch of the pursuer's action is also irrelevantly pled.

12. Additionally, it is to be noted that there are no averments of loss consequent upon that alleged defamation. The declaratory conclusion therefore lacks any operative content in terms of averments. The petitory conclusion contained in Conclusion 5 equally lacks any averments in its support. Further, the alleged defamatory statement was made in 1991. Were there to be any claim for damages - or if averments in support of such a petitory claim could be detected within the pursuer's pleadings - it would be time barred in terms of section 18A of the Prescription and Limitation (Scotland) Act 1973, as amended.
13. For all these reasons the action, so far as concerned with defamation within the judicial proceedings for interdict, must be dismissed.

Unlawful activity

14. The third principal branch of the action relates to losses said to have been suffered by the pursuer in consequence of the alleged unlawful actions by agents of the defenders on 31 January 1996, those actions consisting in the act of dismantling whereby those agents - "removed anchors and gear from the decks of the aforementioned vessels, cut the anchor chains which were securing the vessels, to the seabed or solum of the harbour, outwith the navigable river channel, and within the bounds of the outer northern most sea wall at the entrance to the harbour, thereby rendering them insecure and unseaworthy, and contrary to the terms of The Harbours Act 1964, unlawfully removed them to an adjacent harbour" (Article 12 of Condescendence). There are also averments suggestive of a deprivation of access to the vessels, and, particularly, equipment and gear. In the course of his oral address, the pursuer - Mr Wilson - explained that his complaint in that respect was that he had been denied access to the gear and equipment necessary for the operation of the vessels (which had been safely removed to a nearby harbour) until May 1996.
15. In his submissions respecting this branch of the case, the solicitor advocate for the defenders pointed to the difficulty in knowing what was the supposed ultra vires nature of the alleged act. The references to The Harbours Act 1964 were plainly misplaced. In Article 13 of Condescendence there was a reference to alleged breaches of conditions in a licence issued by the Department of Transport under section 34 of the Coastal Protection Act 1949. But, said Mr McIlvride, the conditions of that licence did not confer any right upon the pursuer. However, more importantly, since the condition invoked was one requiring the provision of alternative harbour facilities and since it was plain from the pursuer's averments that alternative facilities for the vessels were in fact provided, the indication of a breach of licence conditions was thus plainly irrelevant. Additionally, and with perhaps greater emphasis, Mr McIlvride founded on two points, namely (a) doubt as to whether the pursuer, in the absence of denial of the defenders' averments, had himself suffered loss as opposed to a loss suffered by a limited company and (b) on any view the claim for damages had prescribed.
16. Point (a) flows from averment by the defenders in their Answer 12 and prima facie vouched by the correspondence lodged in process that in January 1996 solicitors then acting for the pursuer wrote in express terms to the effect that the vessels in question were not owned by the pursuer but by a separate legal persona, Clyde Commercial Services Limited. It was stated that the company had arranged alternative berthing facilities at Bowling. That position was further maintained in subsequent proceedings for breach of interdict. The pursuer in his present pleadings in this action does not deny those averments. Accordingly, said Mr McIlvride, the pursuer must be held to have admitted that the vessels, and consequently any losses resulting from the dismantling and removal were suffered not by him, but by Clyde Commercial Services Limited.
17. In Article 14 of Condescendence the pursuer avers that, as respects the MV "Max", he had undertaken a long term bare boat charter for 10 years from July 1994. No reference is made to the existence of any such charter in the correspondence and answers to the complaint of breach of interdict. On a standard view of his pleadings, the position adopted by the pursuer is unacceptably equivocal. His oral address did nothing to resolve that equivocation. Accordingly in their present state, and on this point, and having regard to the fact that this is an ordinary action, I would be inclined to the view that, absent any offer to amend, the action would fall to be dismissed on the ground that the failure to deny or explain that earlier correspondence implies that any loss suffered was suffered by a different legal person, namely Clyde Commercial Services Ltd.
18. Be that as it may, it appears to me that on any view the pursuer can have no answer to the defenders' plea that any claim for damages arising out of the unlawful act allegedly committed in January 1996 has prescribed. It is clear that, whatever might have been the unlawful nature of the act of dismantling, it produced immediate loss in January 1996 when the vessels were removed, by severance of their anchor cables and their removal, with associated gear to the alternative harbour. As I understood it, the pursuer agrees that he, in whatever capacity, obtained access to the gear in question in May 1996. Having regard to the decision and speeches of the House of Lords in Dunlop v McGowans 1980 S.C.(H.L.) 73 it is plain that any cause of action would have accrued at the latest in May 1996. The present action was not commenced until March 2002. The only claim for damages averred and advanced in this action is accordingly one which has prescribed in terms of the five year prescription under section 6 of the Prescription and Limitation (Scotland) Act 1973..
19. In these circumstances I shall dismiss the action by upholding the second, fifth and sixth pleas-in-law for each of the respective defenders.