Scottish Court of Session Decisions

".... in a question with a stranger to the property an action may be raised by a superior as well as by a vassal, and by a landlord as well as by a tenant."

"Now, the issue in this case is whether there existed a public right of way for foot-passengers from a certain point C to a certain point D delineated upon the plan. That is a question whether the public had a right of way - that is, whether it was a public way for transit from one public point to another. I think that a public road is a public place from which a right of way may go, and at which a right of way may terminate. As we generally understand the question, it requires that it shall be from one public place to another - that is, it is a way by which the public are entitled to go from one public place to another. That is the meaning of a right of way. It is a place from where the public are entitled to be to a place where the public are entitled to be, as from one part of a public road to another part of a public road, or from one village to another village, and so forth. Now, I think that the termini taken here are termini which entitled the pursuers to have this matter investigated - that is, the alleged right of way is from one part of a public road to another part of a public road."

".... a right of way, and particularly a right of footway, through a man's ground, means not a right of promenading within that ground - going in at a certain point, and promenading indiscriminately over the ground, and coming away again. They must go through the ground from an entry at one place to an ish at another. And .... the two points where the ish and the entry are must be public places. I think a public road is a public place, in the sense in which that expression is used. But the two points must be public places. It will not do for people to enter the ground of a proprietor, and walk about in it as much as they choose, and come out where they entered. That will not make a right of way. The line of road must be a marked line."

"But certainly it cannot be said that it is a public place, or that the existence of this curious natural object constitutes that part of the sea-shore a public place in any other sense than the sea-shore is public in any part of it. Therefore, I am disposed to hold that, if there were nothing here except the frequent use of this supposed footpath as a means of obtaining access to this curious rock, that rock in itself, and the part of the sea-shore where it is situated, would not, in the legal sense of the term, as applicable to cases of this description, be a public place."

"Now, I have no difficulty in holding that that rock called the Rock and Spindle, or the Spindle Rock, is not a public place. It may in one sense be said to be on the shore, but it is not a part of the beach. The tide never flows over it; nobody says that it does. It is, so far as I see, a part of the private property of the proprietor of the adjoining ground. Although it happens to be a rock, it is not the less his property. It is no more a public place than any other rock along the shore. It may be more interesting and more curious than some rocks, but that will not make it a public place in the sense of its being the terminus of a public road."

"..... it is not sufficient to say that the market is a public place in the sense that the public cannot be excluded when markets are being held on 'market days' (generally four days in the week), and to be discreetly silent in face of a challenge about a fact of which the pursuers are better informed than anyone else, I mean as to whether they lock up the market during non-business days and hours and during the night to the exclusion of traffic and the public. That they are conscious that this limitation will strike at a full right of way appears from the modified claim ... 'The public have therefore acquired a public right of way over the said strip for the purpose of attending market and driving cattle to and from the market'. But the defenders are entitled to know quite clearly the full extent of the claim".

"Ex facie of the pursuers' averments the market is open for business on market days, generally four days in the week. Ex facie of the defenders' averments the entrance gates to the loading bank are and always have been shut and locked during the defenders' non-working hours. One might reasonably expect that there would be prolonged intervals of time during which in every week entrance to and egress from the market and the loading bank are in fact impossible and I do not doubt that the statements of fact abovementioned by each of the parties may be accepted pro veritate. If so, the question arises whether it is legally possible to prove the existence of a public right of way by evidence of public user asserted as of right over an area represented by the defenders' loading bank to and from which entrance and egress have been and continue to be closed by locked gates for long intervals each week at the pleasure of the owners of the loading bank."

"It commences by alleging that the market is a public place, as is necessary if the market is to be the terminus of a public right of way. It continues by alleging that the public have had access to it for forty years without restriction, and proceeds at once to contradict this assertion by implication. It is stated that on market days (generally four days in the week) the pursuers have no power to exclude any member of the public from the market, whether he intends to do business there or not, and have never done so. I infer that on three days in the week and at night, the market being closed, the public are excluded from it. The market is owned by the pursuers and leased by a company which runs it. In my opinion a market leased to a company which fixes the days when it shall be open and which, I have no doubt, closes the market on other days and at night, a market to which the public have access, not unrestricted but limited to such times as the lessee dictates, is not a public place in the sense in which that term is used in the law of Scotland relating to public rights of way. No case has been cited to us in which a place to which the public had such restricted access was held to be a public place according to the law of Scotland. On principle it appears to me that such a place cannot be a public place in the sense of a proper terminus for a public right of way. If once a right of way is established it must be kept open for passage by the public at all times. If the public could be excluded from the termini of such a way at the will of the proprietors of the termini, the proprietors of the solum of the ground over which the way passed would be subjected to the burden of permitting the passage of the public over their lands to termini from which the travellers might find themselves excluded. This would be the antithesis of a public right of way which exists for the passage of the public at all times from and to places to which they have right of access as members of the public."

"One of the necessary characteristics of a public right of way is that it should run from one public place to another. The southern terminus of the access road is a public place, since it is the public road from Corpach to Kinlochiel. The pursuer must, however, also make averments from which it can be inferred that the northern terminus, namely the post office, is a public place. A public place is a place to which the public resort as a matter of right."

"One characteristic of all of these, as of a public highway, is that no private citizen has the right to exclude any member of the public from using them ..... Contractual obligations between the postal authorities and the sub-postmaster apart, there is nothing to prevent the proprietor ... or the tenant ... from asserting his or her possessory rights in the building in which the business is carried on and excluding members of the public from it. There are therefore no relevant averments that the northern terminus of the road is a public place and the road cannot be a public right of way."

"The concourse is an open area over which access can be gained to the terminal. The concourse is a public place to which members of the public have had recourse for more than twenty years. A public right of way exists over the private roads owned by the pursuers connecting the A79 and the said concourse. The said roads have been used by the public for more than twenty years. Reference is made to the Prescription and Limitation (Scotland) Act 1973 as amended, section 3(3)."

"Our whole system of pleading and of disposal of cases upon preliminary pleas must depend upon each party stating with candour what are the material facts upon which he relies and admitting the facts stated by his opponent which he knows to be true. As was said by Lord Justice Clerk Hope in Neilson v Househill Coal and Iron Company (1842) 4D 1187 at p 1193: 'The beauty of the Scotch system is that, without disclosing what is properly called evidence, you must at least state the line of defence, and the main facts and points in the inquiry on which you rest, so that the other party shall be fully able to investigate the case, and be prepared for it.' Whatever be the justification at an early stage in a case for the tabling of skeleton defences, it is destructive of the whole concept of our system of civil pleading for a defender to continue to maintain a blanket denial of pages of relevant averments and to adopt the attitude that she is entitled to make the pursuers prove every fact which they aver."

"A defender is under a duty to answer on matters which are clearly within his knowledge and he cannot, as counsel for the pursuer put it, duck the issue by simply ignoring the averments made against him. Defenders should honestly answer the case made and it would, I think, make a mockery of our court proceedings if defences of this kind were to be remitted to probation."

".... the stance of unqualified denial taken up by the defender in answer 3 .... is not one which the court should be obliged to accept since, in that answer, the defender has not approached the business of pleading with candour."

"(1) The purpose of this section is to ensure that so far as is possible (having regard to any relevant differences between the provisions concerned), questions arising under this Part in relation to competition within the United Kingdom are dealt with in a manner which is consistent with the treatment of the corresponding questions arising in Community law in relation to competition within the Community.

(2) At any time when the court determines a question arising under this Part, it must act (so far as is compatible with the provisions of this Part and whether or not it would otherwise be required to do so) with a view to securing that there is no inconsistency between -

(3) The court must, in addition, have regard to any relevant decision or statement of the Commission."

"In order to determine whether an undertaking has abused a dominant position on the market contrary to Article 86, it is necessary first to define the relevant market, secondly to determine whether the undertaking concerned is dominant on the market so defined, and, if so, finally to determine whether its conduct amounts to an abuse of that dominant position."

"41. ...it would ... be necessary .... in order to plead the existence of an abuse within the meaning of Article 86 of the Treaty ...... not only that the refusal of service comprised in home delivery be likely to eliminate all competition in the daily newspaper market on the part of the person requesting the service and that such refusal be incapable of being objectively justified, but also that the service itself be indispensable to carrying on that person's business, inasmuch as there is no actual or potential substitute in existence for that home-delivery scheme.

42. That is certainly not the case even if .... there is only one nationwide home-delivery scheme in the territory of a Member State and, moreover, the owner of that scheme holds a dominant position in the market for services constituted by the scheme or of which it forms part.

43. In the first place, it is undisputed that other methods of distributing daily newspapers, such as by post and through sale in shops and kiosks, even though they may be less advantageous for the distribution of certain newspapers, exist and are used by the publishers of those daily newspapers.

44. Moreover, it does not appear that there are any technical, legal or even economic obstacles capable of making it impossible, or even unreasonably difficult, for any other publisher of daily newspapers to establish, alone or in co-operation with other publishers, its own nationwide home-delivery scheme and use it to distribute its own daily newspapers.

45. It should be emphasised in that respect that, in order to demonstrate that the creation of such a system is not a realistic potential alternative and that access to the existing system is therefore indispensable, it is not enough to argue that it is not economically viable by reason of the small circulation of the daily newspaper or newspapers to be distributed.

46. For such access to be regarded as indispensable, it would be necessary at the very least to establish, as the Advocate General has pointed out at point 68 of his Opinion, that it is not economically viable to create a second home-delivery scheme for the distribution of daily newspapers with a circulation comparable to that of the daily newspapers distributed by the existing scheme."

"It is clear from paragraphs [43] and [44] of Bronner that, in order to determine whether a product or service is indispensable for enabling an undertaking to carry on business in a particular market, it must be determined whether there are products or services which constitute alternative solutions, even if they are less advantageous, and whether there are technical, legal or economic obstacles capable of making it impossible or at least unreasonably difficult for any undertaking seeking to operate in the market to create, possibly in co-operation with other operators, the alternative products or services. According to paragraph [46] of Bronner, in order to accept the existence of economic obstacles, it must be established, at the very least, that the creation of those products or services is not economically viable for production on a scale comparable to that of the undertaking which controls the existing product or service."

"7. 'A relevant product market' comprises all those products and/or services which are regarded as interchangeable or substitutable by the consumer, by reason of the products' characteristics, their prices and their intended use.

8. 'Relevant geographic markets' are defined as follows -

'The relevant geographic market comprises the area in which the undertakings concerned are involved in the supply and demand of products or services, in which the conditions of competition are sufficiently homogenous and which can be distinguished from neighbouring areas because the conditions of competition are appreciably different in those areas.'"

"41. A dominant undertaking which both owns or controls and itself uses an essential facility, i.e. a facility or infrastructure without access to which competitors cannot provide services to their customers, and which refuses its competitors access to that facility or grants access to competitors only on terms less favourable than those which it gives its own services, thereby placing the competitors at a competitive disadvantage, infringes Article 86, if the other conditions of that Article are met. A company in a dominant position may not discriminate in favour of its own activities in a related market ...... The owner of an essential facility which uses its power in one market in order to strengthen its position in another related market, in particular by granting its competitor access to that related market on less favourable terms than those of its own services, infringes Article 86 where a competitive disadvantage is imposed upon its competitor without objective justification.

This was accepted by Sealink through its subsidiary SHL when it stated that no agreement would be given to vary schedules if this compromised its ability to provide an acceptable level of service to all port users ... This is particularly so where the physical configuration of the port has obliged operators to accept differences in the services they are offered by the operator of the essential facility, in order to maximise its efficient utilisation.

42. The owner of the essential facility, which also uses the essential facility, may not impose a competitive disadvantage on its competitor, also a user of the essential facility, by altering its own schedule to the detriment of the competitor's service, where, as in this case, the construction or the features of the facility are such that it is not possible to alter one competitor's service in the way chosen without harming the other's. Specifically, where, as in this case, the competitor is already subject to a certain level of disruption from the dominant undertaking's activities, there is a duty on the dominant undertaking not to take any action which will result in further disruption. That is so even if the latter's actions make, or are primarily intended to make, its operations more efficient. Subject to any objective elements outside its control, such an undertaking is under a duty not to impose a competitive disadvantage upon its competitor in the use of the shared facility without objective justification ....."

"12. The refusal to allow Euro-Port A/S .... to operate from Rodby has the effect of eliminating a potential competitor on the Rodby - Puttgarden route and hence of strengthening the joint dominant position of DSB and DB on that route.

According to the case law of the Court, an abuse within the meaning of Article 86 is committed in cases where, without any objective necessity, an undertaking holding a dominant position on a particular market reserves to itself an ancillary activity which might be carried out by another undertaking as part of its activities on a neighbouring but separate market, with the possibility of eliminating all competition from such undertaking ...

Thus, an undertaking that owns or manages and uses itself an essential facility, i.e. a facility or infrastructure without which its competitors are unable to offer their services to customers, and refuses to grant them access to such facility is abusing its dominant position.

Consequently, an undertaking that owns or manages an essential port facility from which it provides a maritime transport service may not, without objective justification, refuse to grant a shipowner wishing to operate on the same maritime route access to that facility without infringing Article 86."

"The US essential facilities doctrine has developed to require a company with a monopoly power to contract with a competitor where five conditions are met. First, an essential facility is controlled by a monopolist. A facility will be regarded as essential when access to it is indispensable in order to compete on the market with the company that controls it. The following have for example been held to be essential facilities: railroad bridges serving the town of St Louis; a local telecommunications network; a local electricity network. Secondly, a competitor is unable practically or reasonably to duplicate an essential facility. It is not sufficient that duplication would be difficult or expensive, but absolute impossibility is not required. Thirdly, the use of the facility is denied to a competitor. That condition would appear to include the refusal to contract on reasonable terms. Fourthly, it is feasible for the facility to be provided. Fifthly, there is no legitimate business reason for refusing access to the facility. A company in a dominant position which controls an essential facility can justify the refusal to enter a contract for legitimate technical or commercial reasons. It may also be possible to justify a refusal to contract on grounds of efficiency."

"Even big businesses are entitled to win in the market place. Even big businesses are entitled to take rational decisions which are beneficial to them and harmful to competitors or others in the market. Businesses which hold a dominant position are allowed to continue to hold a dominant position and to take the benefit of the advantages which that dominant position gives them. What they are not entitled to do is abuse the dominant position."

"The defenders are only one of a number of commercial operators who bring travellers into (sic) airport land. Other such commercial operators include nearby hotels, private bus companies (including Stagecoach), taxi operators and airport long stay car park shuttle bus operators. In all material respects the other commercial operators' use of the access to the airport and vehicle bays on the terminal concourse is identical to the defenders'. They use the terminal concourse as an identifiable drop off and collection point for their customers."

"Esto the pursuers have otherwise an absolute right to control access to the airport, which is denied, by virtue of said control the pursuers are dominant suppliers of an essential input or facility required to operate in the market for car parking at the airport (whether the market is defined as long stay car parking alone, or extended to include short stay car parking)."

"Use of the airport roads, such as the use made by the defenders as hereinbefore condescended upon, is not essential to the provision of such services outwith the curtilage of the airport. Passengers carried from an off-site car park, like the defenders', could be dropped off and picked up outwith the said curtilage. In particular, they could be dropped off and picked up at the bus stops on either side of the A79 near the station. There is pedestrian access and egress to (sic) the terminal. From the bus stops it can be conveniently obtained via the station and overhead footbridge or via the footpaths on the A79 and over the airport ground. Such passengers could be carried to the terminal building over the airport roads by taxi or other public service vehicle. The defenders' use of the airport roads is merely suitable and advantageous to the conduct of their business. It is not essential to enable them to compete in the downstream market, whether for the provision of services for such transport or only car parking. Refusal to allow such use would not result in the elimination of competition in either such market."