EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Wheatley Lord Hardie Lord Marnoch	[2010] CSIH 15 P119/07 OPINION OF THE COURT delivered by LORD HARDIE in the cause MRS PATRICIA ANDERSON Petitioner and Reclaimer; against SHETLAND ISLANDS COUNCIL First Respondents: SCOTTISH WATER Second Respondents; And NICOLSON BROS Interested Third Party _______

Petitioner and Reclaimer: R.N.M Anderson,; Bonar Mackenzie WS

First Respondents: Gale QC; Ledingham Chalmers LLP

Second Respondents: McBrearty,; HBM Sayers

Interested Third Party: Mrs Hughes; Tods Murray LLP

16 February 2010

[1] This is a reclaiming motion against a decision of the Lord Ordinary to dismiss the petition at the instance of the petitioner and reclaimer for Judicial Review of alleged omissions by the first and second respondents to implement and discharge their duties in respect of drainage, sewerage and roads.

[2] The petitioner has resided at the heritable property known as The Sea Chest, East Voe, Scalloway, Shetland since it was built by her now deceased husband. The title to that property was originally in the sole name of the petitioner's husband but the petitioner is now the heritable proprietrix of it, her title having been completed by a Notice of Title in her favour dated 17 January 2008 and recorded in the General Register of Sasines for Orkney and Shetland dated 31 January 2008. The petition pre-dates the completion of the heritable title in favour of the petitioner by one year but before us the respondents and interested third party did not insist on the objection taken before the Lord Ordinary to the petitioner's title to pursue the present action by reason of her lack of infeftment. The Lord Ordinary had repelled their submissions in that regard and it is unnecessary for us to revisit them in light of the attitude adopted by the respondents and interested third party at the reclaiming motion.

[3] The Sea Chest is located below the B9074 public road leading from Scalloway to Tronda and is between that road and the sea. The plot of land occupied by The Sea Chest is relatively steep, with the access road to the property curving to accommodate that. Immediately to the south of that access road and following its curve there is an open drain which is designed to allow water to drain across and off the petitioner's garden terminating in an outlet pipe built into the western boundary wall. In or about 1995 following the construction of a bridge to the island the first respondents upgraded the B9074 road from a single track road to a double track road. The upgrading works included the construction of a single roadside drain on the eastmost side of the B9074 road immediately above the petitioner's property. The water in the roadside drain crosses the road in a culvert under the road and then reaches the boundary wall of the petitioner's land. The area immediately above the B9074 and the petitioner's property consists of a steep hill known as East Voe Hill. The composition of the hill is largely peat and when the upgrading works were carried out only a minimal amount of surface water entered the single roadside drain and was thereafter discharged through the culvert onto the land occupied by the petitioner. Following the upgrading of the B9074 road the interested third parties obtained planning permission from the first named respondents or their statutory predecessors to redevelop East Voe Hill from agricultural use to residential use. From 1990 there has been sporadic construction of houses in accordance with the planning permission. The petitioner avers that the individual householders "have simply, without any authority or statutory or other entitlement, fed the surface water run off from their houses, drives, roads and paved areas into the road drains from where the water runs under said culvert and on to the Sea Chest property." Consequently the petitioner alleges that the amount of surface water passing into the road drain and onto her land has increased with the result that the area surrounding the Sea Chest property is not being effectually drained of surface water. The petitioner alleges that there has been resultant extensive damage to the Sea Chest property involving subsidence of the house as well as erosion of land owned by the second respondents situated beyond the south west boundary of the petitioner's land and upon which the second respondents operate a pumping station. The petitioner avers that the erosion of that land has resulted in a loss of support for her boundary wall causing cracking to the wall and exposing the access road to the Sea Chest to the risk of collapse.

[4] The factual averments relating to the cause, nature and extent of damage to the petitioner's property are in dispute but they have resulted in a series of court actions. In 2005 the executor of the estate of Major Anderson, the petitioner's late husband, raised a small claim in Lerwick Sheriff Court seeking payment from the first respondents and the interested third parties as well as another third party of a sum restricted to £700 representing damages in relation to works necessary to prevent the collapse of the western boundary wall of the land occupied by the Sea Chest. On 14 August 2006 the Sheriff at Lerwick granted decree for payment of that sum by the first respondents to the executor and assoilzied the interested third parties and the other third party. In January 2007 the petitioner lodged the petition for Judicial Review which is the subject of this reclaiming motion. Following dismissal of the petition by the Lord Ordinary and pending the hearing of the reclaiming motion the petitioner raised an action in the Court of Session against the first and second respondents. The summons in that action was signetted on 13 August 2009. In that action the petitioner seeks damages against the first and second respondents jointly and severally or severally as well as an order in terms of section 46 of the Court of Session Act 1988 against the first and second respondents jointly and severally or severally requiring them "to reinstate the [petitioner] in her possessory rights by ordaining [the first and second respondents] to perform such act or acts as shall be necessary to prevent surface water run off emanating from the new houses.....being discharged onto the .... 'Sea Chest' property". The petitioner also seeks interdict against each of the respondents from "enabling and/or allowing water to be discharged from the culvert attached to the single roadside drain onto the...heritable property at Sea Chest....".

[5] In the petition for Judicial Review, the basis of the petitioner's action against the first respondents appeared to depend upon an alleged breach of their statutory duties as roads authority and separately as planning authority. However it became apparent in the course of submissions on behalf of the petitioner that the sole purpose of relying upon the planning regime was to emphasise the obligation of the planning authority to consult the second respondents as the water and sewerage authority before determining a planning application. As counsel for the petitioner submitted to us, the reliance on the planning regime was intended to make the argument stronger for calling the first and second respondents to account.

[6] When one has regard to the terms of the remedies sought by the petitioner in paragraph 3 of the petition it is clear that the remedies specified in paragraph 3(A)(1) to (3) inclusive are directed at the second respondents as the sewerage authority. The order for specific performance in paragraph 3(A)(3) specifically mentions the second respondents whereas the declarator sought in the two preceding sub-paragraphs simply refer to "the Respondents". As each of the declarators relate to the drainage of the area known as "The East Voe", Shetland in fulfilment of obligations under the Sewerage (Scotland) Act 1968 (as amended) it is clear that these remedies can only relate to the second respondents. Moreover it is apparent from the structure of paragraph 3 that in each of sections (A), (B) and (C) the petitioner seeks declarators against one of the respondents followed by an order for specific performance against that respondent. Following that approach the declarators sought in sub-paragraph (A) must relate to the second respondents against whom the order for specific performance is sought in paragraph 3(A)(3). The only remedies sought against the first respondents are contained in paragraph 3(C) and paragraph 3 (D)(2) and (3) which are in the following terms:

"(C)(1) Declarator that the entitlement of the First Respondents as Roads Authority under the Roads (Scotland) Act 1984 to create road drains extends only to that which is necessary for effectually draining the road.

(2) Declarator that Shetland Islands Council is not entitled to maintain a policy that they are entitled to allow other parties to feed their surface water into road drains created under statute by the First Respondents as Roads Authority and that their statement that they have no liability to exclude such water is ultra vires et seperatim unlawful.

(3) An Order for Specific Performance requiring the First Respondents, within 21 days or such other period as to the Court shall seem reasonable, to draw up a specification or plan which will effective (sic) drain the surface of said B9074 Road and to take such steps as to the Court may seem reasonable to exclude from the road drains under their control surface water being fed in by other parties.

(D) ....

(2) Declarator that as a result of the failure of the First Respondents to fulfil as condescended upon the duties incumbent upon them to be expected from them as a reasonable and competent Planning Authority, the Petitioner has suffered loss and damage and inconvenience.

(3) As Damages resulting from the failure of the First and Second Respondents, jointly and severally or severally, to perform their statutory duties, payment by the Respondents (jointly and severally or severally) to the Petitioner of the sum of FIFTY THOUSAND POUNDS (£50,000) STERLING (together with interest thereon at the rate of eight per centum per annum from the date of citation hereof until payment) or such other sum as may to the Court seem reasonable."

In view of the position adopted by counsel for the petitioner regarding the petitioner's case based upon the planning regime it seems to us that the claim for damages based upon alleged failures of the planning authority is irrelevant. Even if the first respondents failed to consult the water and sewerage authority, that failure would not entitle the petitioner to an award of damages for damage to her property caused by water discharged from the first respondent's drain. Having said that, that does not mean that the petitioner has no arguable claim for damages against the first respondents as roads authority if she can establish that an increased volume of water discharged from the roadside drain onto her property has resulted in damage to her property which is not de minimis. Indeed, as we observe below, senior counsel for the first respondents conceded liability in such circumstances, such liability stemming inter alia from the law of landownership and the responsibility which the first respondents, as roads authority, have for the water being discharged from their culvert. The sources of that water would, however, be irrelevant to that liability, as was submitted by senior counsel for the first respondents.

[7] By way of contrast the terms of the remedies sought against the first respondents in their capacity as roads authority and the submissions made by Mr Anderson on behalf of the petitioner depended upon the proposition that the first respondents had no power to allow surface water from some or all of the housing uphill from the petitioner's property to enter the roadside drains designed to drain surface water from the B9074 road. We consider that this approach is fundamentally flawed for a number of reasons. First it is impossible to know the source of water in a roadside drain. The petitioner acknowledges that, prior to the construction of any housing on the hillside, water flowed from the hill through the drain onto the petitioner's property. Any increase in flow since the drain was originally constructed may be attributable to many causes, including increased rainfall due to climate change as well as runoff from roofs and hard standing associated with the houses which have been built on the hillside. Second, section 7 of the Sewerage (Scotland) Act 1968 as amended by the Local Government etc (Scotland) Act 1994, the Water Industry (Scotland) Act 2002 and the Water Environment and Water Services (Scotland) Act 2003 ("the 1968 Act") provides inter alia:

"(1) Subject to the provisions of this section, a roads authority and Scottish Water may agree, on such terms and conditions as may be specified in the agreement as to the provision, management, maintenance or use of their sewers....or drains for the conveyance of water from the surface of a road or surface water from premises.

...

(3) A roads authority or Scottish Water shall not unreasonably refuse to enter into an agreement for the purposes of this section or insist unreasonably upon terms or conditions unacceptable to the other party...."

It is clear from those provisions that the first respondents not only have power to accept surface water from premises into their roadside drains but are positively encouraged to do so by entering into an appropriate agreement with the second respondents. Such arrangements permit a roads authority and Scottish Water to share each other's drains for the conveyance of surface water and thereby avoid the unnecessary waste of public expenditure, which would result from requiring each of them to have completely independent drainage systems. In light of the history of matters averred by the petitioner there may well have been some agreement along these lines between the first and second respondents, either express or implied, but, however that may be, the petitioner has no title or interest to inquire into the question whether any such agreement has been reached or, if so, the reasons for or terms of such agreement; and any such agreement or the lack of it cannot give rise to a cause of action on the part of the petitioner against either of the respondents. (Res inter alios acta aliis non nocet.)

[8] The third reason relates to the interpretation of section 31 of the Roads (Scotland) Act 1984 ("the 1984 Act"). Section 31 of the 1984 Act provides inter alia:

"(1) The roads authority may, for the purpose of draining a public road or proposed public road or of otherwise preventing surface water from flowing onto it -

(a) construct or lay, in it or in land adjoining or lying near to it, such drains as they consider necessary;

(b) erect and maintain barriers in it or in such land as aforesaid to divert surface water into or through any existing drain;

(c) scour, cleanse and keep open all drains in it or in such land as aforesaid;

(d) drain surface water from it into any inland waters (whether natural or artificial) or tidal waters.

(2) Without prejudice to subsection (1)(c) above, where any drain referred to therein was constructed or laid by the roads authority, they shall scour, cleanse and keep it open.

.....

(5) If a person, without the consent of the roads authority, alters, obstructs or interferes with any drain or barrier which has been constructed, laid or erected by the authority in exercise of their functions under subsection (1) above or which is under their control, then:

(a) the authority may carry out any work of repair or reinstatement necessitated by his action and may recover from him the expenses reasonably incurred by them in so doing; and

(b) without prejudice to their right to exercise that power, he commits an offence....."

It can be seen from the above that section 31(1) authorises the first respondents to construct such drains as they consider necessary to drain a public road or to prevent surface water from flowing onto the road. Their powers include a power to lay drains on adjoining land. Section 31(2) obliges the first respondents to scour, cleanse and keep open any drain constructed by them. Senior counsel for the first respondents accepted that, if Major Anderson had not made provision for the water from the roadside drain to flow through ornamental garden features on his land, the first respondents would have been obliged to lay such drains as they considered necessary across the petitioner's land to deal with water being discharged from the roadside drain at the boundary of the petitioner's property. Moreover senior counsel accepted that the first respondents would have had a continuing obligation to scour, cleanse and keep open the roadside drains and any drains laid by them across the petitioner's land. The purpose of the powers conferred upon the first respondents by section 31(1) is inter alia to prevent surface water from flowing onto a public road. The Act does not specify or restrict the sources of such surface water. Accordingly, if surface water flows from the roofs and hard standing of some or all of the houses which have been built uphill from the petitioner's house and there is a risk that such surface water may flow onto the public road the first respondents are entitled to divert the surface water into or through the existing roadside drain (section 31(1)(b)).

[9] Mr Anderson sought to derive comfort from section 31(5) of the 1984 Act, quoted above, although he had not advanced any comparable argument before the Lord Ordinary. However, we do not consider that this statutory provision assists the petitioner in any way. In the circumstances specified in section 31(5) a person commits an offence and the first respondents may carry out repair or reinstatement works at the expense of the person who alters, obstructs or interferes with any drain without the consent of the first respondents. Whether such an event has occurred is the sole concern of the first respondents and the petitioner again has no title or interest to inquire into that matter. Even if such an event has occurred the power to carry out repair or reinstatement works at the expense of the offender is discretionary and cannot be enforced by a third party.

[10] As stated above, the approach of the petitioner to possible remedies for alleged damage caused by the water discharged from the first respondents' drain is, in our opinion, wholly misconceived. This is nowhere more clearly illustrated than by the terms of the Minute of Amendment introduced on her behalf at the hearing before us to enable Mr Anderson to rely upon section 31(5) of the 1984 Act. Having referred to the terms of section 31(5) the averments in the Minute of Amendment are to the following effect:

"Said Householders altered, obstructed or interfered with the roadside drain constructed by the First Defenders alongside the B9074 road in said locality by feeding into said roadside drain various pipes and ditches carrying off the surface water which would otherwise have approached their houses and also the surface water running off their roofs and driveways. That said Householders have done so would be evident to the First Defenders on reasonable inspection and the First Defenders would then have been empowered under Section 31(5) to carry out any work of repair or reinstatement and ought to have done so but have omitted or failed to do so. As a result, said surface water now surges downwards in periods of heavy rainfall. No water passes from said houses directly onto the Petitioner's property. Instead, all of said water which is now 'owned' or "controlled" by the First Defenders is channelled and increased in force by passing from said roadside drain into said culvert passing under said road. Said culvert does not discharge into any existing or established watercourse but instead discharges directly onto the private property of the Petitioner where it causes damage. It was the failure of the First Defenders to prevent alteration, obstruction or interference with said roadside drain which has directly caused said damage to the Petitioner's property. Further, since the run-off of surface water from the roofs and driveways and car parking areas of said houses is contaminated with pollution in the form of a variety of sediments, hydrocarbons, metals, salts and pathogens harmful to people and to wildlife, by the above actions said roadside drain has become a public drain or sewer which then becomes the responsibility of the Second Defenders subject to any agreements between the First and Second Defenders relating thereto."

The petitioner recognises that the water from the roadside drain which passes into the culvert is "owned" or "controlled" by the first respondents. Instead of seeking a remedy for the discharge of that water onto her property the petitioner seeks to limit the sources of water in the drain. For reasons already explained that approach is wrong. Moreover insofar as the petitioner asserts that the roadside drain has become a public drain or sewer because the water from the roofs, driveways and parking areas of the houses is contaminated in the manner specified, that assertion does not bear scrutiny. Water draining from the surface of a road will similarly be contaminated yet the 1984 Act permits a roads authority to drain such surface water into a drain, as distinct from a public sewer.

[11] In all the circumstances we have concluded that the petitioner's averments against the first respondents are irrelevant. However we wish to record that in the course of his submissions senior counsel for the first respondents accepted that if Major Anderson had not laid ornamental drains in his garden to deal with the water being discharged by the roadside drain at his boundary wall the first respondents would have been obliged to lay an adequate drain across the first petitioner's land. Moreover he accepted that if the water thereafter increased, resulting in damage to the petitioner's property, the first respondents would have been liable at common law and under section 31 of the 1984 Act to compensate the petitioner for such damage. That concession appears to differ from the position adopted by senior counsel for the first respondents before the Lord Ordinary. At that stage it appears that his submission was that any action should be for abatement of nuisance at common law and that if there was a claim against the first named respondents it was not for breach of statutory duties. (Lord Ordinary's opinion paragraphs 178 and 179). However that may be, we were advised by senior counsel for the first respondents that there was in any event a factual dispute between the parties as to whether damage had been caused to the petitioner's property by reason of an increase in the discharge of water from the roadside drain. For a time we hoped that that matter could perhaps be resolved by some form of agreed remit to a man of skill but that did not prove possible in the course of the reclaiming motion. Nevertheless there may be scope for such a remit in the future, particularly as the petitioner has commenced an ordinary action against the first and second respondents arising out of the same factual dispute.

[12] The petitioner's case against the second respondents is in two parts. The first part is reflected in the remedies sought in paragraph 3(A) of the petition which are in the following terms:

"3(A)(1) Declarator that the Respondents are under a duty in terms of section 1(1) of the Sewerage (Scotland) Act 1968 (as amended) to provide, at reasonable cost, sewers or drains that will effectually drain the area in 'The East Voe', Shetland to which this Petition relates, and that they have omitted or failed to do so.

(2) Declarator that the Respondents are not entitled to maintain a policy that they owe no duties to provide a surface water drainage system in the area known as "The East Voe", Shetland, and that their statement that they have no liability in that respect is ultra vires et seperatim unlawful.

(3) An Order for Specific Performance requiring the Second Respondents to implement the duties incumbent upon them under section 1(1) of the Sewerage (Scotland) Act 1968 (as amended) by drawing up (within 21 days or such other period as shall seem reasonable to the Court) a plan providing, at reasonable cost, a system for effectually draining that area of the East Voe, Shetland marked as Zone 3 on the SIC Burra and Trondra Proposal Map of surface water; and thereafter to implement said plan as soon as reasonably practicable."

Section 1(1) of the 1968 Act is in the following terms:

"(1) Subject to the provisions of this Act, it shall be the duty of Scottish Water to provide such public sewers...as may be necessary for effectually draining its area of domestic sewage, surface water and trade effluent and to make such provision, by means of sewage treatment works or otherwise, as may be necessary for effectually dealing with the contents of its sewers...."

The obligation imposed upon the second respondents is to provide such public sewers as may be necessary for effectually draining the area of domestic sewage, surface water and trade effluent. In reaching a decision as to what is necessary we consider that the second respondents should determine what is required by owners of premises in the area and what other means are available in the area for effectually draining it of surface water. The need to provide public sewers is determined by the demand of owners in the area to connect to such sewers. In terms of section 12(1) of the 1968 Act an owner of premises in the area is entitled to connect his drains and private sewers with the sewers of the second respondents but the second respondents cannot require any owner of premises to connect his private drains and sewers to the public sewers. Moreover the need for increased capacity in the public sewers may be obviated by separating surface water from domestic sewage and trade effluent and draining the surface water into drains, including drains for the conveyance of water from the surface of a road. As we have observed above, the second respondents have power to enter into an agreement with the first respondents for the use of the first respondents' roadside drains for the conveyance of surface water from premises (1968 Act section 7). For the reasons given above the petitioner has no title or interest to inquire into the terms of any such agreement but there can be no doubt that the effectual drainage of an area might involve the discharge of surface water from the roofs and hard standing of houses into roadside drains. Once surface water is discharged into such drains, as appears to be accepted by the petitioner in her averments introduced by the Minute of Amendment specified above, the obligation of the second respondents in respect of that water ceases as it becomes the responsibility of the first respondents. Thereafter, as was acknowledged by senior counsel for the first respondents, it is their responsibility to dispose of the water in such a way that it does not cause damage to third parties. The second respondents have taken steps to effectively drain the area, including the use of the first respondents' drain. If any damage has occurred to the petitioner's property it appears from her pleadings to be attributable to the discharge of water from the first respondents' drain. In these circumstances the petitioner's case against the second respondents based upon their alleged breach of their duties under section 1(1) of the 1968 Act is irrelevant.

[13] The second ground of action is reflected in the orders sought by the petitioner in paragraph 3(B) of the petition which are in the following terms:-

"(B)(1) Declarator that the Second Respondents are under a duty to maintain the sewerage pipeline within the area of land owned by them on 'The East Voe', Shetland and that they have omitted to do so.

(2) Declarator that Second (sic) Respondents are not entitled to maintain a policy that they owe no duty to maintain the sewerage pipeline or the land in which they are infeft or vested in the area known as "The East Voe", Shetland, and that their statement that they have no liability in that respect is ultra vires et seperatim unlawful.

(3) An Order for Specific Performance requiring the Second Respondents to restore the land formerly covering the sewer pipeline hereinafter condescended upon that is owned or vested in them and which has been eroded by water and to do so, within 21 days or such other period as shall seem reasonable to the Court, by appointing a suitably qualified and independent Engineer with instructions to take into account the needs of all affected Parties and to draw up a specification for the repair of damage to the surrounding area, the restoration of said sewerage pipeline to its former condition, and the introduction of suitable measures to prevent any repetition; and thereafter to implement said specification as soon as reasonably practicable."

The petitioner avers that in 1985 the first respondents acquired land between the southern boundary of the petitioner's land and the sea for the purpose of erecting a pumping station to connect to a sewer which was constructed in 1990. The first respondents maintain that the pumping station and the land on which it is built have been transferred to and vested in the second respondents. In support of the remedies sought the petitioner avers:

"As a result of a combination of the disturbance of the ground to install said sewer and the vastly increased volumes of water coming down, all of that ground has now been eroded by the excessive volumes of water and the sewer pipe is hanging exposed in the air where it constitutes an environmental hazard."

This aspect of the petitioner's case must depend upon an alleged breach by the second respondents of their duties under section 2 of the 1968 Act which provides inter alia:

"2....it shall be the duty of Scottish Water to inspect, maintain, repair, cleanse, empty, ventilate and where appropriate renew all sewers....sewage treatment works and other works vested in it....."

The duty of inspection, maintenance and repair in terms of section 2 relates to the sewers, sewage treatment works and other works vested in the second respondents. The petitioner does not aver that any such works have been damaged nor does she aver that the soil erosion is affecting the works, apart from exposing a pipe. Even allowing for the relaxed approach to pleadings in Judicial Review proceedings envisaged by Lord Hope of Craighead in Somerville v Scottish Ministers 2008 SC (HL) 45 at paragraph 65 this aspect of the petitioner's case against the second respondents is so essentially lacking in specification as to be plainly irrelevant.

[14] In light of our decision which will result in the refusal of the reclaiming motion, it is unnecessary for us to determine the scope of Judicial Review proceedings where other remedies exist and are being pursued, particularly where these remedies are similar to the remedies sought in the petition for Judicial Review. Suffice it to say that the mere existence of a delictual remedy against a statutory body does not automatically mean that the aggrieved party also has the remedy of Judicial Review, which is usually concerned with the lawfulness or reasonableness of decisions taken by a statutory body subject to the supervisory jurisdiction of this court. We would only add that in the course of his submissions Mr Anderson invited us to remit the case back to the Lord Ordinary to enable him to undertake an inquiry at large. The justification for such a course of action was claimed to be the observations of Lord Hope of Craighead in Somerville, op. cit, to the following effect:

"....the degree of precision and detail in written pleadings that has traditionally been looked for in other forms of action in Scotland is not to be looked for in petitions for judicial review......The core requirement is simply this. The factual history should be set out succinctly and the issues of law should be clearly identified. The aim is to focus the issues so that the court can reach a decision upon them in the interests of sound administration and in the public interest, as soon as possible."

We do not consider that Lord Hope of Craighead intended to exclude the possibility of the court dismissing a petition on grounds of relevance where the petition is manifestly irrelevant. In the course of his submissions Mr Anderson seemed to suggest that it would be appropriate to have an inquiry at large, akin to a public inquiry, by an administrative judge, as he suggested occurred in some foreign jurisdictions. Whatever may be the situation in other jurisdictions, our procedure requires a petitioner to identify the issues of law for determination by the court as Lord Hope of Craighead clearly recognised in the passage quoted above.

[15] When the case was at avizandum our attention was drawn to the decision of the Supreme Court in Barratt Homes Limited v Welsh Water [2009] UKSC 13. We have given consideration to that judgment and have concluded that it does not alter the views expressed above. Accordingly we shall refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary.