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Cite as: [2014] CSIH 110, 2015 SLT 59, 2015 SC 368, [2014] CSIH 110A, 2015 GWD 1-4, [2014] ScotCS CSIH_110

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2014] CSIH 110A

XA144/13

Lady Paton

Lord Menzies

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD DRUMMOND YOUNG

in the Appeal

under section 239 of the Town and Country Planning (Scotland) Act 1997

HALLAM LAND MANAGEMENT LIMITED

Appellant;

against

a decision by RW Maslin, a reporter appointed by Scottish Ministers to determine an appeal under section 47 of the Town and Country Planning (Scotland) Act 1997 dated 30 October 2013

Respondents:

Act: Burnet; DLA Piper

Alt: Wilson QC, E Mackenzie; Scottish Government Legal Directorate

19 December 2014
[1] On 10 October 2012 the appellant applied for planning permission for a residential development on either side of Seafield Road, Blackburn, West Lothian. On 22 April 2013 West Lothian Council, the relevant planning authority, refused planning permission. The appellant thereafter appealed to Scottish Ministers under section 47 of the Town and Country Planning (Scotland) Act 1997. A reporter, Mr RW Maslin, was appointed to determine the appeal. On 30 October 2013 he issued a decision notice refusing the appeal, on the ground that the proposed development was contrary to the development plan and that no other material considerations existed that would justify approval of the proposed development as a departure from the plan. The appellant has appealed to the Court of Session against that decision in terms of section 239 of the 1997 Act. Scottish Ministers are the respondents in the appeal.

[2] The application related to an area of 6.5 hectares of land situated to the south east of Blackburn, West Lothian. The land lies on either side of Seafield Road (A705), and is largely farmland at present. The proposed development involved the construction of a residential development of approximately 120 houses, together with associated open space, landscaping and other works. The application was for planning permission in principle.

The planning legislation
[3] The statutory background to the present appeal is the system of strategic development plans and local development plans enacted by the Planning etc (Scotland) Act 2006, which enacted important amendments to the Town and Country Planning (Scotland) Act 1997. Those plans replace the old system of structure plans and local plans found in the 1997 Act. Strategic development plans are to be prepared for the areas around the four major cities; these are to address land use issues that cross local authority boundaries or involve strategic infrastructure. In the case of Edinburgh, the city and the south-east of Scotland are dealt with in what is known as the SESplan, prepared by the Strategic Development Planning Authority for Edinburgh and South East Scotland. That Authority (hereafter referred to as “the SESplan Authority”) consists of representatives of the six constituent local authorities in the south-east of Scotland. The form and content of a strategic development plan are found in section 7 of the 1997 Act, in its amended form. So far as material this provides as follows:

“(1) A strategic development plan is a plan in which is set out –

(a) a vision statement, being a broad statement of the strategic development planning authority’s views as to how the development of the strategic development plan area could and should occur and as to the matters (including the matters mentioned in subsection (4)) which might be expected to affect that development,

(b) a spatial strategy, being a broadly-based statement of proposals as to the development and use of land within the strategic development plan area, … and

(e) any other matter which the strategic development planning authority consider it appropriate to include.

…

(4) The matters referred to in subsection (1)(a) are –

…

(d) the infrastructure of that area (including communications, transport and drainage systems and systems for the supply of water and energy),

(e) how that infrastructure is used, and

(f) any change which the strategic development planning authority think may occur in relation to any of the matters mentioned in paragraphs (a) to (e)”.

[4] Each of the six constituent local authorities which make up the SESplan Authority has its own local development plan; for present purposes the West Lothian Local Development Plan is relevant. The form and content of local development plans are set out in section 15, which is in the following terms:

“(1) A local development plan is a plan in which is set out, for land in the part of the district to which it relates –

(a) a spatial strategy, being a detailed statement of the planning authority’s policies and proposals as to the development and use of the land,

(b) such other matters as may be prescribed, and

(2) Where the land is not within a strategic development plan area, a local development plan is also to set out a vision statement, that is to say a broad statement of the planning authority’s views as to how the development of the land could and should occur and as to the matters … which might be expected to affect that development”.

[5] Section 22 of the 1997 Act, as amended, is also relevant; it provides for supplementary guidance in connection with strategic and local development plans. So far as material, section 22 provides as follows:

“(1) A strategic development planning authority may, under this subsection, adopt and issue guidance in connection with a strategic development plan and a planning authority may, under this subsection, adopt and issue guidance in connection with a local development plan (such guidance being, in either case, referred to in this Part as ‘supplementary guidance’).

(2) Regulations may make provision as to –

(a) procedures for, and as to consultation which must precede, the adoption of, and

(b) the matters which may be dealt with in,

supplementary guidance”.

Policy
Scottish Planning Policy
[6] Scottish Planning Policy (February 2010) sets out the central principles that inform planning decisions in Scotland. It is indicated that the system should be genuinely plan-led (paragraph 8), and that development plans should be concerned primarily with land and infrastructure (paragraph 14). Investment in infrastructure may be required in consequence of existing underprovision or planned growth, and should be addressed in development plans and not left to be resolved through the development management process (paragraph 16). Housing is considered from paragraph 66 onwards. The planning system “should contribute to raising the rate of new house building by identifying a generous supply of land for the provision of a range of housing in the right places” (paragraph 66). An assessment of housing need and demand should be carried out at “a functional housing market area level”, and the operation of the housing system as a whole should be considered (paragraph 67). The need for a generous supply of “appropriate and effective sites”, in order to meet need and demand, is emphasized (paragraph 70). In city regions such as the SESplan area, the strategic development plan should identify the housing land requirement for the plan area and indicate where land should be allocated in local development plans to meet requirements up to year 12 beyond the predicted year of plan approval (paragraph 72). The strategic development plan should also identify how much of the housing land requirement should be met by site allocations in the local development plan that are capable of development by the end of year 7; this approach built in a period of up to two years for the adoption of local development plans, and thus was intended to ensure a minimum of five years’ effective land supply at all times (ibid).

[7] Planning authorities should ensure that sufficient land is available to meet the requirements of each housing market area in full, unless there are serious local environmental or infrastructure constraints which cannot be resolved to allow development within the life of the plan (paragraph 74). “A supply of effective land for at least 5 years should be maintained at all times to ensure a continuing generous supply of land for house building” (paragraph 75). Later paragraphs make it clear that an important factor in approaching housing land supply is the provision of the necessary infrastructure. Thus housing land release is to be co-ordinated with investment in infrastructure including transport and educational investment (paragraph 77), and planning authorities should take account of the availability of infrastructure, including education facilities (paragraph 80).

SESplan and the West Lothian Local Plan
[8] The SESplan was approved on 27 June 2013, some two months after West Lothian Council’s decision on the present planning application. In the SESplan, the aims of the strategic development plan are set out at paragraphs 17 and 18. These include setting out a strategy to enable delivery of housing requirements to support growth and meet housing need and demand in the most sustainable locations. In relation to the spatial strategy, which is essentially concerned with determining where particular developments are to occur, West Lothian is identified as requiring work on secondary and primary education facilities.

[9] The critical policies on housing land are found at paragraphs 106-116 and in policies 5, 6 and 7. It is stated that in West Lothian land committed for housing development would permit 22,300 potential house completions, but a significant proportion of these might not be delivered before 2024, and some not until after 2032 (paragraph 109). Thus the figure of 22,300 does not indicate that the policy of five years’ supply of effective land will be satisfied. The SESplan authority carried out a housing need and demand assessment, which indicated that, in the period from 2009 to 2024, 48,490 households were likely to be generated within the city of Edinburgh. Environmental constraints and other restrictions on land availability within the city boundaries might mean that a significant proportion of these additional housing needs and demands would require to be met on housing land allocations in other parts of the SESplan area (paragraph 110). The necessary analysis had not been undertaken, and consequently policy 5 provided that the scale of those requirements would be confirmed in detail in supplementary guidance. That guidance would require to identify how the housing needs and demands of the whole SESplan area could best be met across each of the six LDP areas. Local development plans were to identify where further land was to be allocated so that the scale of the additional housing requirement for that area, as confirmed in the supplementary guidance, could be delivered (paragraph 113).

[10] Following Scottish planning policy, policy 6 provides that

“Each planning authority in the SESplan area shall maintain a five years’ effective housing land supply at all times. The scale of this supply shall derive from the housing requirements for each Local Development Plan area identified through the supplementary guidance provided for by Policy 5”.

This matter is taken further in policy 7, which is central to the present appeal. Policy 7 is in the following terms:

“Maintaining a five year housing land supply

Sites for greenfield housing development proposals either within or outwith the identified Strategic Development Areas may be allocated in Local Development Plans or granted planning permission to maintain a five years’ effective housing land supply, subject to satisfying each of the following criteria:

a. The development will be in keeping with the character of the settlement and local area;

b. The development will not undermine green belt objectives; and

c. Any additional infrastructure required as a result of the development is either committed or to be funded by the developer”.

“Infrastructure” is defined in the glossary as including schools needed to allow developments to take place.

[11] In relation to West Lothian, the SESplan states (paragraphs 88-90) that over 22,300 new homes are already committed in West Lothian. Significant investment in infrastructure, particularly education, was required to implement existing committed development, and further investment would be needed to support the strategic development plan strategy. That might be an obstacle in the short term, but West Lothian Council was working with developers and other interested parties to bring development forward. The scale of the housing requirements for West Lothian in the period from 2009 to 2019 and 2009 to 2024 would be determined by the supplementary guidance to be prepared under policy 5 and implemented through site allocations in the local development plan. Paragraph 90 then states:

“Such allocations will be focused in sustainable locations where infrastructure is either available or can be provided and in locations where there are no environmental constraints”.

Thus a shortage of education capacity in West Lothian is identified; steps are being taken to deal with this; but meanwhile allocations of housing land will be focused on the areas where the lack of infrastructure, including schools, does not create a problem. For reasons to be discussed, these considerations are important in the present case.

[12] The current West Lothian Local Plan, published in 2009, indicates that the Council intended to publish supplementary planning guidance on its approach to assessing the education implications of proposed housing development. Policy IMP 3 is as follows:

“Where appropriate in considering proposals for housing development, planning conditions and/or legal agreements will be required to:

a) Secure the provision of new schools or extensions … from developers where this is directly attributable to serving their proposed housing development; and/or

b) phase development, to manage demand on school places.

Where education constraints cannot be overcome there will be a presumption against housing development”.

The Reporter’s decision
[13] The reporter began by identifying the determining issues in the appeal as

whether there was a deficiency in the supply of land for new housing and whether the proposed development would help make good any such deficiency;
whether there was adequate school accommodation for children from the proposed development.

He reviewed the relevant provisions of SESplan, and commented that it was particularly important that sufficient land should be allocated and available for housing development in the period up to 2024 (paragraphs 22 and 32), and that five years’ effective housing land supply should be maintained at all times to ensure that delivery of housing is not unnecessarily constrained. Nevertheless, policy 6 stated that the scale of supply was to be identified through supplementary guidance. As that had not yet been approved, the reporter found that it was not possible at present to identify with certainty whether there was a shortage of effective land in West Lothian for new housing development in terms of the development plan (paragraph 33). Furthermore, the Housing Land Audit for 2012 identified an effective land supply for 14,281 dwellings, which might increase in the 2013 audit. In the local area, effective sites existed for 3,584 houses, but construction of only 1,266 was forecast for the five years from 2012-13 (paragraph 35). On that basis, the reporter found that the supply of effective housing land in West Lothian was adequate to meet current market demand for new houses. That was also the case in relation to the area local to the appeal site (paragraph 36). Thus the reporter resolved the first of the two issues against the appellant.

[14] In relation to the second issue, the adequacy of school accommodation, the Council contended that there was inadequate educational provision to serve the site, both at a primary and at a secondary level. So far as primary education was concerned, the reporter concluded that the local primary school lacked capacity to accommodate pupils from the proposed development. That had not been given as a reason for refusal of planning permission, apparently because there was a possible solution using developer contributions to provide additional capacity (paragraphs 50-51). More serious was the issue of secondary education. SESplan policy 7(c) stated that any additional infrastructure required as a result of the proposed development must be either committed or funded by the developer. A lack of education capacity at Bathgate Academy and St Kentigern’s Academy had been identified, and was the first reason given by the Council for refusal of planning permission. The appellant had submitted that the education capacity assessment relating to the two schools disclosed sufficient capacity to deal with the development, which would require approximately 25 secondary school places. The Council, by contrast, had submitted that, while there was spare capacity in the two schools, this was absent from the first year of secondary education. The intake in that year at Bathgate Academy in 2019-2020 would exceed capacity (paragraph 74), and that at St Kentigern’s Academy was moving towards maximum capacity. Proposed extension to Bathgate Academy had not yet been agreed with a public-private partnership contractor (paragraph 76).

[15] The reporter concluded that the Council’s approach, focusing on the first year of secondary education, was more convincing; when a pupil came to enrol in the school, it was availability of a place in a particular year that was crucial, not the school’s total roll (paragraph 79). The Council’s forecast of demand was informed by numbers of pupils in each year in the relevant feeder primary schools, numbers which were known quantities (paragraph 80). Furthermore, current forecasting in relation to Bathgate Academy for 2012-2022 predicted the construction of 847 houses while assuming that a further 367 houses supported by the development plan would not proceed (paragraph 83). On that basis, the number of pupils entering secondary education would be greater than capacity, and that would be exacerbated if house building were to increase. The appellant had placed reliance on measures that the Council had in mind such as increasing capacity of Bathgate Academy and the construction of a further denominational school (paragraph 85). Nevertheless, uncertainties surrounded any rearrangement of educational provision; in particular it was essential not to pre-empt statutory consultation in relation to the schools, and in addition local authority finances were in a difficult state. Consequently the reporter could attach little weight to the possibility that new capacity would become available at the two secondary schools in question. His conclusion was therefore that the two schools, Bathgate Academy and St Kentigern’s Academy, did not have adequate capacity to accommodate the additional secondary school pupils likely to arise from the proposed development (paragraph 86).

[16] The reporter further noted that the supplementary guidance required by policy 7 of SESplan had not yet been approved. This meant that it was not possible at present to identify with certainty whether there was in West Lothian shortage of effective land for new housing development in terms of the development plan. He held, however, that the supply of effective housing land in West Lothian and in the area local to the appeal site was “adequate to meet current market demand for new houses” (paragraph 87). He therefore found that the proposed development was not justified in terms of maintaining a five years’ supply of effective housing land. That meant that policy 7 was not activated. Even if there had been a shortage of effective housing land and the policy were activated, the lack of secondary education capacity meant that criterion (c) of policy 7 would not be satisfied (paragraph 89). In relation to the West Lothian Local Plan, the reporter referred to policy IMP 3 (see paragraph [12] above), and concluded that because of the lack of capacity at the two secondary schools the proposed development did not accord with that policy.

Appellant’s challenge to Reporter’s decision; and respondents’ reply
[17] For the appellant it is contended that the reporter erred in concluding that it was impossible to reach a conclusion on five years’ effective supply of housing land in West Lothian. The reporter concluded that, in the absence of the guidance referred to in policies 5 and 6 of SESplan, it was not possible to identify with certainty whether there was a shortage in West Lothian of effective land for new housing development in terms of the development plan. The appellant submits that there was nevertheless certainty about the minimum housing requirements for West Lothian, and the only uncertainty was as to the extent of additional housing that might be required to deal with Edinburgh’s additional housing needs. Thus the reporter ought to have been able to identify the minimum figure required to meet West Lothian’s needs on a five-year basis. He did not do so, however; instead he had found that the supply of effective housing land in West Lothian was adequate to meet current market demand for new houses. That did not accord with policy 6, which referred to the five-year supply. The documents available to the reporter demonstrated that the five years’ supply was inadequate. The West Lothian Housing Land Audit for 2012 disclosed that the five years’ supply was only 3,418 houses. The established need for West Lothian over the period from 2009-2019 was 11,420 houses; that figure appeared from the SESplan examination report (page 182). There had been very limited completions by the date of the decision notice. Thus the reporter could readily have determined that there was no adequate five years’ effective supply of housing at that date.

[18] Counsel for the appellant drew attention to five other recent appeals, two in Edinburgh and three in East Lothian, where an exercise along the foregoing lines had been carried out by reporters, including the present reporter. He also referred to a report prepared by surveyors, Rettie & Co, which indicated that the rate of completion of new housing in West Lothian had fallen significantly in recent years and was now well below the levels that were required for future population, especially in view of the rate of household formation. Specifically, the number of households was projected to increase by nearly 880 per year over the period 2008-33, but the current new build completion rate was running at only 60% of that. That would result in a significant shortfall. Thus it was clear that the supply of new housing was not keeping up with demand, contrary to the policy on housing found in Scottish Planning Policy (see paragraphs [6] and [7] above).

[19] In relation to educational provision, it was submitted on behalf of the appellant that the reporter’s decision was flawed by his failure to address the question of housing need. Once that was determined, it then became a matter of balancing educational capacity against the proven need for new housing. That exercise could only be properly carried out once it was determined that there was a shortfall in the provision of the five-year supply of effective housing land.

[20] For the respondents it was submitted that the conclusion reached by the reporter was one that was reasonably open to him. In particular, he was entitled to conclude that the appellant’s site was not effective owing to the unavailability of educational infrastructure to serve the development. On that basis the grant of planning permission would not conform to policy 7 of SESplan if regard were had to qualification (c), to the effect that any additional infrastructure required as a result of the development should be either committed or funded by the developer. The evidence before the reporter disclosed that Bathgate Academy and, to a lesser extent, St Kentigern’s Academy, lacked sufficient capacity in the first year of secondary education to accommodate the development. On that basis the reporter was entitled to treat the unavailability of secondary educational infrastructure as the issue determinative of the appeal.

[21] It was further submitted for the respondents that on the evidence put before him the reporter was entitled to conclude that it was impossible to reach any conclusion on the provision of effective sites for housing over the next five years until the supplementary guidance contemplated in the SESplan was available. Only then could it be said what the total demand for housing in West Lothian was likely to be. Furthermore, it was in the light of the totality of such demand that appropriate sites should be chosen as an aspect of the spatial strategy in SESplan; “spatial strategy” denotes the determination of which particular sites are appropriate for different forms of development.

Educational provision and SESplan Policy 7(c)
[22] It is convenient to begin by considering the question of educational provision in the area of Bathgate and Broxburn. Policy 6 of the SESplan provides that each planning authority in the SESplan area should maintain a five years’ effective housing land supply at all times, on the basis of the housing requirements of each local development plan area identified through supplementary guidance. Policy 7, dealing with the maintenance of a five years’ housing land supply, applies to sites for greenfield housing development; the present site falls into that category. The policy is that such sites may be granted planning permission to maintain a five years’ effective housing land supply provided that three specific criteria are met. Criterion (c) is that any additional infrastructure required as a result of the development should be either committed or funded by the developer. “Infrastructure” is defined in the glossary as including schools. Consequently it is clear from the terms of the SESplan that, as a matter of policy, if the present site is to be developed adequate educational provision must be available. In the absence of such provision, the site does not provide “effective” housing land supply as contemplated by Scottish Planning Policy and by the SESplan. That accords with common sense; a housing development of the sort contemplated is likely to be occupied in part by families with school-age children, and accommodation must be found for them in local schools. Furthermore, paragraph 90 of SESplan, dealing specifically with West Lothian, states that site allocations for housing development will be focused in locations where infrastructure, which includes schools, is available or can be provided (see paragraph [11] above). That confirms the need for adequate educational provision if development is to be approved.

[23] The reporter concluded (at paragraphs 79-86 of his decision letter, which are summarized in paragraphs [14] and [15] above) that the two secondary schools in the area, Bathgate Academy and St Kentigern’s Academy, did not have adequate capacity to accommodate the additional secondary school pupils likely to arise from the proposed development. Detailed reasons, based on the submissions made on behalf of the appellants and West Lothian Council, are provided. The reporter notes that the appellant’s approach to education focused on comparisons between forecast total demand for places in each of the two schools and the total capacity of each school. The council’s approach, by contrast, concentrated on the demand for places in the first year of secondary education, comparing likely demand from the development with capacity in that year. The reporter found the Council’s approach more convincing. We are of opinion that he was fully entitled to take such a view. Two reasons may be given in support. First, by concentrating on the first year of secondary education, it is possible to establish whether there are adequate places for children at the stage when they enter secondary education. If such places are lacking, it is clear that educational provision is inadequate. Secondly, the Council’s numbers were based on information derived from the feeder schools to Bathgate Academy and St Kentigern’s Academy, namely the local primary schools. Those numbers are, in the reporter’s words (paragraph 80), “known quantities rather than forecast quantities”. Thus they may be used with a confidence that is lacking in other types of estimate or forecast.

[24] Policy 7(c) states that any additional infrastructure that might be required as a result of the proposed development must be either committed or funded by the developer. It is a matter of agreement that no additional provision at Bathgate Academy or St Kentigern’s Academy is committed at present. If, in order to satisfy the SESplan policies (policies 5 and 6) on housing land, additional housing land has to be made available in the vicinity of Bathgate and Blackburn, provision will clearly have to be made for the expansion of secondary schools in the area, either Bathgate Academy and St Kentigern’s Academy or other schools that can serve the new developments. Nevertheless, nothing has been done at present. The appellant stated to the reporter (paragraph 4.10 of its grounds of appeal statement) that the Council’s education services had indicated that, if the application were to be supported, it would be appropriate to attach planning conditions and seek developer contributions for any required extensions to schools. The appellant stated that that was normal practice, and that the appellant would be happy to accept such conditions.

[25] It is no doubt correct that in many cases conditions can be attached to a grant of planning permission to ensure that proper educational provision is made. Nevertheless, as the respondents submitted, extending a school is a complex matter. The extension of a secondary school requires elaborate consultation with a range of interested parties. In almost every case a question must arise as to whether one school or another school is to obtain the extension. It is likely that the Council itself will have to make a significant financial commitment, and more than one school may be in competition for the additional finance. Furthermore, an extension to a secondary school, in particular, is likely to serve several different housing developments, and therefore the cost of the extension should normally be divided among a number of developers. It is not obvious that that could happen in the present case. In addition to these factors, perhaps the most important consideration is that an extension to a secondary school is likely to involve substantial building works, which must be planned and completed before any additional demand can be met. Consequently it cannot be supposed that an offer of a contribution is sufficient to solve the fundamental problem of lack of educational capacity. The increased capacity must be properly planned, and must be capable of completion by the time when any development is occupied.

[26] Those features are clearly absent in the present case. The Council stated in their submission to the reporter (response to appeal, (paragraph 5.5) that extensions to primary schools were funded, in progress or planned to progress; necessary school consultations had already been completed, although further consultation would be required. Thus there were primary school solutions in the Blackburn primary schools. Nevertheless, in the Council’s words, “there are no current solutions at secondary level and potential solutions are outwith council control”. As far as Bathgate Academy was concerned, an extension was currently programmed for 2017/18 (paragraph 4.7), but the Council had not entered into a contract with the public-private partnership operator of the Academy that would enable the planned extension to go ahead. Consequently it was not certain that the extension would go ahead. Even if it did, there would not be sufficient capacity to cope with the demand for places arising from the appeal site together with places arising from existing committed development. The Council further observed (paragraph 5.7) that the size of the site at Bathgate Academy might ultimately prevent extension, funding was generally unsecured, and consultations to adjust educational arrangements could not be pre-empted. Consequently the number of school age children arising from the proposal could not currently be supported by the Council’s education authority.

[27] In our opinion these are factors that the reporter was plainly entitled to take into account. In his decision letter he noted (paragraphs 76-77) that the Council had stated that the proposed extension to Bathgate Academy had not been agreed with the public-private partnership contractor, the school and the community. The cost of the extension was as yet unproven through an agreed feasibility study, and any capacity increase might need dispensation from the Scottish Government. In relation to St Kentigern’s Academy, placement pressure was building up through the primary schools. It was possible that a new denominational school might be built, but the current situation was uncertain. In conclusion, the reporter stated (paragraph 85):

“The Appellant places some reliance on measures that the Council has in mind, such as increasing the capacity of Bathgate Academy and commencement of construction of a third denominational secondary school. In view of the various uncertainties surrounding any rearrangement of educational provision, including need not to pre-empt statutory consultation and the difficult state of local authority finances, I attach little weight to the possibility that new capacity will become available at Bathgate Academy and St Kentigern’s Academy in the short-term. Even if some new capacity were to become available, an increase in house-building activity on sites identified for development could leave little or no surplus to permit development of windfall sites such as the Appellant’s site”.

We are of opinion that, in view of the evidence that was available, that conclusion cannot be faulted; it was plainly one that the reporter was entitled to reach. In all the circumstances, and in view of the strength of the submissions made by the Council to the reporter, we do not consider that there is any realistic possibility that a different conclusion might have been reached in respect of capacity in the local secondary schools.

[28] It follows that the reporter was entitled to conclude that insufficient capacity was available in local secondary schools to support the proposed development, and accordingly that planning permission would not conform to policy 7(c) of SESplan. The reporter was in our view entitled to treat that factor as determinative of the appeal. On that basis we are of opinion that the present appeal must be refused.

[29] We should also refer to the reporter’s conclusion on the local development plan policy IMP 3 (see paragraph [12] above). That policy makes it clear that housing developments must take account of the availability of school places, and that where appropriate contributions should be sought from developers in order to provide new schools or extensions. Where that cannot be done, the presumption is to be against housing development. That is in accordance with policies 6 and 7 of SESplan, and indeed reflects the obvious fact that new housing developments require educational provision. The reporter also founded on this policy in deciding against the development. In our opinion he was fully entitled to do so, for reasons that are broadly in line with those that apply to the policy 7(c) of SESplan.

Five years’ supply of effective housing in West Lothian and SESplan policies 6 and 7
[30] The lack of adequate educational provision is sufficient to determine this appeal. Nevertheless, we will briefly consider the primary argument for the appellants, dealing with the maintenance of a five years’ supply of effective housing land in West Lothian in accordance with SESplan policies 6 and 7. The argument for the appellants was that on the information that was currently available it was possible to determine that in West Lothian there was a shortage of effective land for new housing development in terms of the SESplan and the existing local development plan; the five years’ supply contemplated by Scottish Planning Policy and the SESplan did not exist. The only uncertainty that existed was as to how great an increase in the provision in West Lothian might be required to take account of Edinburgh’s additional housing needs. Such an increase was contemplated by paragraphs 108-113 and policy 5 of SESplan, and would be dealt with in the supplementary guidance contemplated in policies 5 and 6. The shortage in West Lothian, by contrast, was known already. Consequently the reporter had erred when he held that until the supplementary guidance was provided it was not possible to know with certainty whether there was a shortage of effective housing land in West Lothian.

[31] Specifically, it was submitted on behalf of the appellants that the West Lothian Housing Land Audit for 2012 indicated that over the five years between 2012 and 2017 the total effective supply of land in West Lothian was sufficient for 3,418 houses. The corresponding figure for 2012/2019 was 4,859. The SESplan examination report, dated 12 April 2013, disclosed (at page 182) that the assessed housing requirement for West Lothian during the 10 years from 2009 to 2019 was 11,420. That, it was submitted, demonstrated a serious shortfall. The figure appearing in the SESplan examination report was housing to meet West Lothian’s own needs, without taking into account overspill housing from Edinburgh. The supplementary guidance would deal with the need for overspill housing, but that would merely exacerbate the existing situation. The appellants further referred to a housing market report on West Lothian prepared by Rettie & Co, surveyors; the findings in the report were not challenged by the respondents. The report estimated the growth of population in West Lothian over the period from 2001 to 2035 and the new build housing starts and completions in West Lothian between 1997 and 2012. This disclosed that annual starts had fallen significantly over the period since about 2006, and completions had fallen similarly. The result was that housing completions in that period were well below required levels given the rate of household formation. Demographic statistics suggested that the shortfall would worsen. On present figures, at least 880 houses per annum were required. The projected supply over the next five years, 3,418 houses, or just under 700 houses per annum, was not adequate. This, it was submitted, demonstrated that the shortage of effective housing land in West Lothian was clearly apparent even before any supplementary guidance was produced.

[32] Counsel for the appellants referred to other recent appeal decisions by reporters in Edinburgh and East Lothian in which the reporter had been willing to hold that a shortage of effective housing land was demonstrated even in the absence of the supplementary guidance or any final figure that took account of demand from Edinburgh. Three of these related to land in East Lothian; they were appeal decisions relating to Ferrygate Farm, North Berwick (2 October 2013), Dovecote Farm, Haddington (11 October 2013), and Beveridge Road, Belhaven, Dunbar (16 October 2013). Two related to land in Edinburgh; these were appeal decisions relating to Edmonstone Estate (21 March 2013) and Muir Wood Road, Currie (19 June 2013). In relation to the East Lothian decisions, in the first two the Council had accepted that a shortfall existed. They changed their position in the third appeal, but in this case the reporter still found that a shortfall existed in respect of local demand in East Lothian. In each of the Edinburgh decisions the reporter held that there was a considerable shortfall in the effective five-year housing land supply in Edinburgh. In the second he held that it was not possible to establish an accurate five-year effective land requirement without the forthcoming SESplan supplementary guidance which would provide housing requirements for each council area; despite that, he considered it safe to anticipate a shortfall in the five-year effective supply in Edinburgh in the light of current conditions.

[33] Counsel submitted that these decisions indicated that reporters were quite capable of determining that there was a shortfall in the five-year effective housing land supply despite the existence of the supplementary guidance. He referred to the decision in R (Fox Strategic Land and Property Ltd) v Secretary of State for Communities and Local Government, [2012] EWCA Civ 1198, where it was held that the existence of prior decisions was a valid ground for quashing the decision under consideration in that case. At paragraph 12 of the decision Pill LJ stated, quoting the earlier case of North Wiltshire DC v Secretary of State for the Environment, [1992] 65 P & CR 137, at 145:

“In this case the asserted material consideration is a previous appeal decision. It is not disputed in argument that the previous appeal decision is capable of being a material consideration. The proposition is, in my judgment, indisputable. One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system”.

[34] We agree with those views. We consider that the earlier appeal decisions referred to in the present case are plainly significant. They demonstrate that reporters have been willing, in current circumstances, to decide that there was a material shortage in the five-year supply of effective housing land notwithstanding that supplementary guidance had not been issued. We are accordingly of opinion that the reporter was in a position to determine whether there was a shortage of effective housing land, and should have done so. Furthermore, we consider that the figures summarized in paragraph [31] above demonstrate that in West Lothian, even without allowing for Edinburgh overspill, there was a demonstrable shortage in the five years’ supply. The reporter should therefore have reached a conclusion to that effect. What he did, however, was to hold that, because the supplementary guidance had not yet been approved, “it is not possible at present to identify with certainty whether there is in West Lothian, in terms of the development plan, a shortage of effective land for new housing development” (paragraph 33). We consider that that conclusion was erroneous. The reporter went on to hold (paragraph 36) that the supply of effective housing land in West Lothian was adequate to meet current market demand for new houses. That did not, however, address the critical question that he had to address under SESplan policies 6 and 7, namely whether there was a shortage in the five-year supply of effective housing land. On this basis, we would have allowed the appeal against the reporter’s decision had it not been for the lack of educational provision, as discussed above.

Conclusion
[35] Nevertheless, we are of opinion that the reporter was fully justified in refusing the appeal on the basis of the lack of educational provision in the vicinity of the site. That clearly did not satisfy policy 7(c). For that reason we will refuse the appeal.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2014] CSIH 110

P869/13

Lady Paton

Lord Menzies

Lord Drummond Young

OPINION OF THE COURT

delivered by LADY PATON

in the Petition of

MARTIN CLARK and JAQUI CLARK

Petitioners and Reclaimers;

against

TRIPADVISOR LLC

Respondents:

for an order under the Administration of Justice (Scotland) Act 1972, section 1(1A)

Petitioners and Reclaimers: G Henderson; Gillespie Macandrew LLP

Respondents: O’Brien; Brodies LLP

19 December 2014

Introduction

[1] The petitioners own and run a guest house at Kinlochleven near the West Highland Way in Scotland. The respondents are an American company incorporated under the law of the state of Massachusetts. They operate a website which inter alia posts details of hotels, guest houses, and bed-and-breakfasts, together with ratings and comments by guests.

[2] The respondents aver that the petitioners registered with their website on 2 June 2011, and in so doing, expressly acknowledged and accepted the respondents’ Terms of Use. Whilst that averment is met by a general denial and an explanation that it was the petitioners’ predecessors who registered, counsel for the petitioners advised this court that it was not disputed that the petitioners had “ticked the box” on the website which had the effect of binding them by the respondents’ terms and conditions. However it was explained that they had ticked the box only because they could not otherwise make progress on the website. As a result, counsel submitted, the contra proferentem rule of construction should apply (see paragraph [14] below).

[3] In February and March 2012, unfavourable reviews of the guest house were published on the respondents’ website. The petitioners wish to sue the authors of those reviews for defamation. However the authors used pseudonyms, namely “dreckit Manchester”, and “edna B London United Kingdom”. In this petition, the petitioners seek to recover information about the authors’ identity from the respondents, founding on section 1(1A) of the Administration of Justice (Scotland) Act 1972 (the 1972 Act).

Relevant legislation

The Administration of Justice (Scotland) Act 1972

[4] The 1972 Act, as originally enacted, empowered the Court of Session and the sheriff court to order the recovery of documents and other property which appeared relevant in existing civil proceedings or in civil proceedings likely to be brought. A new section, section 1(1A), was inserted by the Law Reform (Miscellaneous Proceedings) (Scotland) Act 1985 in the following terms:

“Without prejudice to the existing powers of the Court of Session and of the sheriff court, those courts shall have power, subject to subsection (4) of this section, to order any person to disclose such information as he has as to the identity of any persons who appear to the court to be persons who –

might be witnesses in any existing civil proceedings before that court or in civil proceedings which are likely to be brought;or
might be defenders in any civil proceedings which appear to the court to be likely to be brought.”

Section 5(4) of the 1972 Act provides:

“This Act shall extend to Scotland only.”

The Civil Jurisdiction and Judgments Act 1982
[5] Section 28 of the 1982 Act provides:

“(1) When any proceedings have been brought, or are likely to be brought, in another Brussels or Lugano Contracting State, in a Regulation State, or in England and Wales or Northern Ireland in respect of any matter which is within the scope of the Regulation as determined in Article 1, the Court of Session shall have the like power to make an order under section 1 of the Administration of Justice (Scotland) Act 1972 as amended by the Law Reform (Miscellaneous Provisions (Scotland) Act 1985 as if the proceedings in question had been brought, or were likely to be brought, in that court.

(2) When any proceedings have been brought or are likely to be brought in another Maintenance Regulation State or in England and Wales or Northern Ireland in respect of any matter which is within the scope of the Maintenance Regulation as determined by Article 1 of that Regulation, the Court of Session has the like power to make an order under section 1 of the Administration of Justice (Scotland) Act 1972 as if the proceedings in question had been brought, or were likely to be brought, in that court.”

The Civil Jurisdiction and Judgments Act 1982 (Provisional and Protective Measures) (Scotland) Order 1997, SI 1997/2780

“ … 2. The Court of Session shall have power to do anything mentioned in section 27(1) or 28(1) of the Civil Jurisdiction and Judgments Act 1982 in relation to proceedings of the following descriptions, namely: -

proceedings commenced otherwise than in a Brussels or Lugano Contracting State;
proceedings whose subject-matter is not within the scope of the 1968 Convention as determined by article 1 thereof …”

The respondents’ terms and conditions
[6] The respondents’ terms and conditions provide inter alia:

“Privacy policy

TripAdvisor is an online service that provides recommendations for hotels, resorts, inns, vacations, travel packages, travel guides, flights, vacation rentals, and lots more …

We understand that providing information online involves a great deal of trust on your part. We take this trust very seriously, and make it a high priority to ensure the security and confidentiality of the personal information you provide to us ...

With whom we share your information

TripAdvisor may share your information with the following entities:

Third-party vendors …

Business partners …

Affiliated Web sites …

Companies within our corporate family …

We also may share your information:

In response to subpoenas, court orders, or other legal process; to establish or exercise our legal rights; to defend against legal claims; or as otherwise required by law. In such cases we reserve the right to raise or waive any legal objection or right available to us …

REVIEWS, COMMENTS AND USE OF OTHER INTERACTIVE AREAS

… you are solely responsible for your use of such Interactive Areas and use them at your own risk. By using any Interactive Areas, you expressly agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Site any of the following:

Any message, data, information, text, music, sound, photos, graphics, code or any other material (“Content”) that is false, unlawful, misleading, libelous, defamatory … abusive … or otherwise objectionable; …

TripAdvisor takes no responsibility and assumes no liability for any Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, nor is TripAdvisor liable for any mistakes, defamation, slander, libel, omissions, falsehoods … you may encounter. As a provider of Interactive services, TripAdvisor is not liable for any statements, representations or Content provided by its users in any public forum, personal home page or other Interactive Area …

General

This Website is operated by a U.S. entity and this Agreement is governed by the laws of the State of Massachusetts, USA. You hereby consent to the exclusive Jurisdiction and venue of courts in Massachusetts, USA and stipulate to the fairness and convenience of proceedings in such courts for all disputes arising out of or relating to the use of this Website. You agree that all claims you may have against TripAdvisor arising from or relating to the Site must be heard and resolved in a court of competent subject matter jurisdiction located in the state of Massachusetts. Use of this Website is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including, without limitation, this paragraph. The foregoing shall not apply to the extent that applicable law in your country of residence requires application of another law and/or jurisdiction and this cannot be excluded by contract …”

The petition and answers

[7] The petition sets out the petitioners’ intention to raise defamation proceedings against the authors of the reviews. The prayer is in the following terms:

“MAY IT THEREFORE please your Lordships to appoint this petition to be intimated on the walls and served upon the persons named and designed in the schedule hereto in the manner therein set forth and to appoint any person claiming an interest herein to lodge answers hereto if so advised within twenty one days of intimation and service, and upon resuming consideration, with or without answers, after such further enquiry, if any, as to your Lordships shall seem proper, to make an order ordaining the respondents to disclose the names addresses and such other information as they have as to the identity of the person “edna b” London who posted a review on or around 1^st March 2012 and “dreckit Manchester” who posted a review on or around 9^th February 2012, and to decern, or to do further or otherwise in the premises as to your Lordships shall seem proper.”

Service was sought upon “TripAdvisor LLC 7 Soho Square, London W1D 3 QB”.

[8] In their response to the petition, the respondents aver in Answer 1 inter alia:

“Explained and averred that the respondents are TripAdvisor LLC, a company incorporated under the law of the state of Massachusetts and having its principal place of business at 141 Needham Street, Newton, MA02464, United States of America. The respondents have no place of business within the United Kingdom. The address given in the schedule to the petition, namely 7 Soho Square, London, W1D 3QB is the registered office of TripAdvisor Limited, which is a subsidiary of the respondents. Neither the respondents nor TripAdvisor Limited has any place of business in Scotland. The information which the petitioners seek is not held in Scotland. Separatim and in any event, the petitioners have registered with the respondents’ website as “Registered Owners” and, in doing so, expressly acknowledged and accepted the respondents’ Terms of Use. The user name used by the petitioners in connection with their business, “Martin 551918”, was registered with the respondents’ website on 2 June 2011. The registration process requires users to expressly accept TripAdvisor’s Terms of Use. Those Terms of Use prorogate the exclusive jurisdiction of the courts of the state of Massachusetts in relation to “all disputes arising out of or relating to the use of this Website”. Accordingly, for that reason also, this court does not have jurisdiction. For the avoidance of doubt, the respondents expressly reserve the right to plead a substantive defence to the petition in the event of their plea to the jurisdiction being repelled.”

The respondents’ first plea-in-law is one of “No jurisdiction”.

The decision of the Lord Ordinary
[9] The petition came before Temporary Judge Paul Arthurson QC. Having heard submissions, he issued an opinion dated 6 February 2014. For the reasons given in his opinion, he sustained the plea of no jurisdiction and refused the prayer of the petition, reserving all questions of expenses. The petitioners reclaimed.

Submissions for the petitioners
[10] The 1972 Act: Counsel submitted that the wording of section 1(1A) of the 1972 Act was wide and had an extraterritorial dimension. The court where the action was “likely to be brought” (i.e. the Court of Session) was empowered to make the necessary order, and could do so no matter where the haver was situated. Section 5(4) of the 1972 Act (extent) was of no consequence, as the power had been given only to the Court of Session and the sheriff courts in Scotland: arguably section 5(4) was otiose. The damage had occurred in Scotland and the action of defamation would be raised in Scotland in the Court of Session. The physical location of the server for the website was irrelevant (cf Gutnick v Dow-Jones [2002] HCA 56, 210 CLR 575; Bonnier Media Limited v Smith 2003 SC 36).

[11] The extraterritorial reach of section 1(1A) was reflected in section 28 of the Civil Jurisdiction and Judgments Act 1982 and SI 1997/2780 paragraph 2. Those provisions related to proceedings likely to be brought in countries other than Scotland, enabling someone from, say, Massachusetts raising an action in the USA to apply to the Court of Session or the sheriff courts in Scotland for an order under section 1(1) or (1A) (cf Union Carbide Corporation v BP Chemicals Ltd 1995 SC 398 at pages 401F to 403F).

[12] In practice, the Court of Session regularly pronounced orders for commissions to take evidence furth of Scotland, or to recover documents furth of Scotland. The fact that the Scottish court orders were not, in themselves, enforceable in the foreign country did not preclude the court from making such orders. There was no harm in the petitioners asking the court for an order under section 1(1A) where the court had the power to issue the order sought (cf the approach adopted by Lord Mance in Masri v Consolidated Contractors International (UK) Ltd (No 4) [2010] 1 AC 90 at pages 123H, 133 and 135). In Baxter v Lothian Health Board 1976 SLT (Notes) 37, Lord Dunpark was willing to grant an interlocutor for recovery of documents from two hospitals situated in England, observing:

“ … in calls 2 and 3 the havers are in England where my writ does not run; nevertheless they may produce the documents voluntarily if I grant the motion in toto …”

[13] In the present case, if a Scottish interlocutor were to be granted and the respondents refused to assist, the next stage would be to consider what could be done elsewhere. But it was possible that on receipt of the court’s interlocutor, the respondents might consider that an order from a respectable court was sufficient to meet their requirements, and might comply by giving the information sought, a fortiori as most litigation of an international nature was based on comity. A fair reading of the parties’ agreement was that the respondents undertook to disclose information when asked to by a court, wherever situated, as a matter of comity. (Thus the respondents would be absolved from any claim arising from confidentiality or data protection issues.) While the Scottish court’s order “ordained” the respondents to give the necessary information, the phrase “if so advised” was implied. In any event, the request for information was not an onerous one. It was less onerous than a call to produce documents, or to give evidence on commission. It had to be borne in mind that if the Lord Ordinary was correct in his view, a sheriff would be unable to order information or recovery of documents from someone in another sheriffdom.

[14] The respondents’ terms and conditions: On a proper construction of the terms and conditions, the clause prorogating the jurisdiction of the Massachusetts courts related solely to claims against the respondents, for example, for breach of contract. But the present application was not such a claim: rather it was a request for information, an ancillary type of order, with a view to a claim against third parties. Accordingly the jurisdiction clause did not apply (cf Fiona Trust and Holding Corporation v Privalov [2007] Bus LR 1719 paragraphs 13, 25). Esto the Lord Ordinary did not agree with that submission, he should have treated the agreement as ambiguous and applied the contra proferentem rule of construction in favour of the petitioners (Gloag, Contract (2^nd ed) page 401).

Submissions for the respondents
[15] The 1972 Act: In terms of section 5(4), the 1972 Act applied to Scotland. The Court of Session and the sheriff courts had been given a power extending to the whole of Scotland: thus there would be no difficulty if a sheriff made an order under the Act relating to another sheriffdom. The decision in Masri illustrated that in a litigation involving the public interest, a court might be persuaded to attempt to summon witnesses who were outside the jurisdiction: but not in a private civil litigation. As for recovery of documents, while witnesses in England could, since The Evidence by Commission Act 1859, be compelled by a Scottish court to give evidence on commission in Scotland, that did not extend to recovery of documents (Burchard v Macfarlane [1891] 2 QB 241). The 1972 Act did not alter the clear and settled law concerning the recovery of documents or information. The letters of request procedure would be pointless if the law was as stated by the petitioners.

[16] The respondents’ terms and conditions: The present application under section 1(1A) was a dispute, as the respondents were not prepared to divulge the information requested. The application was a claim “against TripAdvisor arising from or relating to the Site”. The term relating to disclosing information in compliance with a court order simply warned the client that the respondents might, under the compulsion of a valid and enforceable court order, have to share the information given to them by the client: that was not an undertaking either to submit to the jurisdiction of a foreign court, or to share information without such compulsion. Finally, there was no valid argument based on the principle of construction contra proferentem.

[17] The reclaiming motion should be refused.

Discussion

Section 1(1A) of the 1972 Act
[18] We agree with counsel for the petitioners that comity underlies much of the co‑operation which takes place in international litigations involving different jurisdictions, such as cases of international child abduction, extradition, and the execution of European arrest warrants. In those cases, one jurisdiction accommodates or enforces requests and orders from another jurisdiction. But it is a comity between states, not individual litigants, effected by international agreements, treaties, and conventions, and often followed by domestic legislation.

[19] In the present case, we consider that the appropriate convention is the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 18 March 1970 (Cmnd 6727 1977). Thus any application seeking an order ordaining a witness in Massachusetts to give information about the identity of certain persons with a view to litigation could, in our opinion, be made by letters of request to the relevant authority in Massachusetts: rule of court 35.15 and the commentary in the Parliament House Book at pages C258 et seq. Another procedural route open to the petitioners would be to instruct American attorneys in Massachusetts to act on their behalf to recover the relevant information by local American proceedings.

[20] Counsel for the petitioners submitted that the Court of Session nevertheless had the power to grant the order sought, and that the Lord Ordinary had erred in refusing the prayer of the petition, for all the reasons noted in paragraphs [10] to [14] above. We are unable to accept that submission. First, section 1(1A) does not extend beyond Scotland: the Scottish courts do not have jurisdiction over the respondents, who are a company incorporated under the law of the state of Massachusetts, and have their principal place of business at 141 Needham Street, Newton, MA 02464, United States of America (cf Bennion, Statutory Interpretation (4^th ed 2002) page 282 section 106). The analysis of English legislation and the Civil Procedure Rules in Masri v Consolidated Contractors Int (UK) Ltd (No 4) [2016] 1AC 90 (a case concerning the officer of a company against which a judgment had been given within the jurisdiction, and the issue of private rights following upon that judgment) does not, in our opinion, assist the petitioners in the circumstances of the present case. Nor do we consider that section 28 of the Civil Jurisdiction and Judgments Act 1982, SI 1997/2780 paragraph 2, or Union Carbide Corporation v BP Chemicals Ltd 1995 SC 398, advance matters for the petitioners, concerning as they do litigants in proceedings in countries other than Scotland seeking the assistance of the Court of Session under the 1972 Act as extended by section 28.

[21] Secondly, the interlocutor of the Court of Session “ordaining” a person or company to give information must be obeyed, on pain of certain repercussions including contempt of court, fines, and imprisonment. Words such as “if so advised” cannot, in our view, be read into the interlocutor. Connected with that issue is the third reason, namely, that the Court of Session does not in general issue interlocutors couched in mandatory terms in the expectation that they might not be obeyed. We note the approach adopted by Lord Dunpark in Baxter v Lothian Health Board 1976 SLT (Notes) 37. However in that case the Lord Ordinary had no reason to believe that the two hospitals would be unwilling to comply with what was, in effect, a request from a court. That is not the case here (and see also paragraph [24] below). We also accept that there is a practice in the Court of Session of pronouncing, in certain circumstances, interlocutors for commissions to take evidence furth of Scotland, and for recovery of documents furth of Scotland. But as the commentator on the Rules of the Court of Session points out in relation to rule 35.11 (commissions for examination of witnesses) at page C253 of the Parliament House Book:

“(1) Witness resident beyond the jurisdiction of the court

A commission may be granted and executed where the foreign country does not object and the witness is willing. Where either is not the case, an application will have to be made by minute for a letter of request: see r. 35.15 … [emphasis added]”

In the present case, concerning as it does an order relating to information in terms of section 1(1A) of the 1972 Act, we must assume from the respondents’ opposition to the petition that they are not “willing” to divulge the information. In such circumstances it is not, in our opinion, appropriate for the Court of Session to issue an interlocutor which is mandatory in its terms with sanctions attached, but which is not enforceable – a fortiori where there are alternative valid and effective procedural routes open to the petitioners.

[22] We would add that we do not accept that a court order ordaining a party to disclose information is not onerous. It may be that the information sought is highly confidential, or not widely known, and that its disclosure may have major repercussions, some possibly adverse to the holder of the information.

The respondents’ terms and conditions

[23] We are not persuaded that the respondents’ terms and conditions contain ambiguities such that the petitioners are able to seek a construction contra proferentem (Gloag, Contract 2^nd ed at pages 400-401). The contractual terms quoted in paragraph [6] above are clear.

[24] In particular, nothing in the respondents’ terms and conditions suggests that the respondents have undertaken to be bound by the orders issued by a Scottish court. The condition commencing:

“With whom we share your information

… We also may share your information … in response to subpoenas, court orders, or other legal process …”

is simply a warning to users of the website that the respondents may be obliged to disclose information about the users in response to a valid and enforceable court order. That term does not subject the respondents to the jurisdiction of the Scottish courts or bind them to obey Scottish interlocutors.

[25] Furthermore, the contractual term:

“You hereby consent to the exclusive Jurisdiction and venue of courts in Massachusetts, USA and stipulate to the fairness and convenience of proceedings in such courts for all disputes arising out of or relating to the use of this Website”

extends, in our view, to the current application for information. In the petition, the petitioners ask the court to use its power to order disclosure of the identity of two users of the website who, it is averred, posted defamatory matter about the petitioners and their guest house. The respondents oppose the petition and have not divulged the information sought. That constitutes in our opinion a “[dispute] arising out of or relating to the use of [the] Website”, and accordingly the clause prorogating the jurisdiction of the Massachusetts courts applies.

Decision

[26] For the reasons given above, we agree with the Lord Ordinary’s disposal of the petition. We refuse the reclaiming motion. In relation to expenses, counsel were agreed that in the event that the petitioners were unsuccessful in their reclaiming motion, they should be liable for expenses from the date when the respondents’ answers were lodged, up to and including the hearing of the reclaiming motion on 7 November 2014. Counsel also agreed that expenses should be awarded without the necessity of a hearing. We shall therefore find the petitioners liable to the respondents in the expenses of process from the date when the respondents’ answers were lodged, up to and including the hearing of the reclaiming motion on 7 November 2014.