Aird Geomatics Limited And Others V Richard Stevenson And Another
| Jurisdiction | Scotland |
| Judge | Lord Pentland |
| Neutral Citation | [2015] CSOH 57 |
| Court | Court of Session |
| Published date | 14 May 2015 |
| Year | 2015 |
| Date | 14 May 2015 |
| Docket Number | A491/13 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 57
A491/13
OPINION OF LORD PENTLAND
In the cause
AIRD GEOMATICS LIMITED AND OTHERS
Pursuers;
against
RICHARD STEVENSON AND ANOTHER
Defenders:
Pursuer: Burr; Reid Cooper
First Defender: McConnell; Drummond Miller LLP
14 May 2015
[1] In this action three limited companies and an individual, known collectively and referred to in the pleadings as the Aird Group, sought various interdicts and awards of damages against a former employee, Mr Richard Stevenson (the first defender), and a company known as Carney Contracts Limited (the second defenders), with whom Mr Stevenson took up employment after leaving the service of the pursuers in the summer of 2013. The business of the Aird Group concerns chartered surveying and consulting engineering. The first defender was employed as a land surveyor; the pursuers aver on record that he was employed by the Aird group, whereas the first defender maintains that his contract of employment was with the first pursuers only. The details of the dispute underlying the present proceedings (and the subsidiary question as to who exactly employed the first defender) are not relevant for the purposes of this opinion. Essentially, the action revolved around allegations that the first defender was in breach of certain terms of his employment contract, specifically a confidentiality clause and a non-solicitation provision. The pursuers alleged, among other things, that having left his employment with the Aird Group, the first defender approached the second defenders with a view to undertaking similar work for them. The pursuers also claimed that the first defender was carrying out land surveying work at a number of construction sites in various parts of the country and that this work involved him in making use of confidential information and material owned by the pursuers in breach of the obligations in his employment contract. The first defender denied all the allegations made against him and resisted the proceedings on a number of grounds; again the details of the defence are not material for present purposes.
[2] On 3 September 2013 the pursuers were granted interim interdict against the first and second defenders in terms of the conclusions of the summons. There was a mistake in the terms of the interlocutor, but this does not matter for present purposes. The pursuers’ motion for interim interdict was granted on an ex parte basis, no caveats having been lodged. Shortly after this, the case was sisted to allow the first defender to apply for legal aid. On 2 May 2014, by which time legal aid had, I presume, been granted, the first defender succeeded in having the interim interdict recalled; the pursuers having unsuccessfully opposed the motion for recall. I was informed that the Lord Ordinary (Lord Jones), who granted the motion for recall, did not issue a written opinion. Counsel advised me that his Lordship was satisfied that the pursuers had pleaded a prima facie case, but considered that the balance of convenience favoured the first defender. This was because the interim interdicts were having a disproportionate impact on the first defender's ability to obtain employment and also because any damages to which the pursuers might ultimately be found entitled due to the first defender's breach of contract would be quantifiable without difficulty.
[3] The first defender lodged a counter claim in which he sought damages of £60,000 on the ground that the interim interdict had been wrongfully obtained. He alleged that, in consequence of the wrongful grant of interim interdict, he had suffered (and continued to suffer) loss of income, which he would otherwise have received from the second defenders. His employment with them had been terminated following the grant of interim interdict and he had been unable to obtain other permanent employment. He averred that his reputation had been damaged by the interim interdict and that he had suffered anxiety, stress and inconvenience. In response to the counter claim, the pursuers relied on their averments in the principal action and denied that the interim interdict had been wrongfully obtained.
[4] On 11 July 2014 the court allowed parties a proof before answer in respect of the principal action and counter claim. The proof was thereafter set down to commence on 28 April 2015. The action as between the pursuers and the second defenders was settled by way of a joint minute; by interlocutor of 8 April 2015 the second defenders were assoilzied from the conclusions of the summons insofar as these were directed against them. On 22 April 2015 the pursuers intimated a minute of abandonment, in which they consented to decree of absolvitor being granted in favour of the first defender in respect of the principal action. The case came before me on the day appointed for the proof. Counsel for the pursuers moved at the bar that effect should be given to the minute of abandonment. Counsel for the first defender did not oppose that. Accordingly, I granted decree assoilzieing the first defender from the conclusions of the principal action insofar as directed against him.
[5] That left for consideration the first defender’s counter claim. Counsel for the first defender moved at the bar for summary decree to be granted under rule of court 21.3. This was on the basis that there was no defence to the merits of the counter claim and that proof on it should be restricted to quantum of damages. The pursuers opposed the motion for summary decree.
[6] In support of his motion for summary decree, counsel for the first defender relied on the recent decision of an Extra Division of the Inner House in Mirza v Salim 2014 SLT 875. He referred also to an obiter dictum of Lord Justice-Clerk Gill in Loudon v Hamilton 2011 SC 255. Counsel’s submission was that there was no defence to the merits of the counter claim because the recall of the interim interdict amounted to conclusive proof that the order had been wrongfully obtained. In the circumstances, the pursuers’ pleadings disclosed no relevant answer to the counter claim except in relation to quantum of damages.
[7] In Mirza a majority of the court (Lady Dorrian and Lord McGhie) held that, in general, recall of an interim interdict was conclusive proof of its having been wrongfully obtained, with the result that where loss had been caused, damages would automatically follow. It was not necessary to prove malice or a lack of good faith; a person who seeks interdict acts at his own risk. The general rule was subject only to limited exceptions, the main (and possibly the only) one being where the interim interdict amounted in substance to a possessory remedy, although I note that Lady Dorrian acknowledged that the general rule might not apply where the reason for...
To continue reading
Request your trial
-
Martin Mcgowan Against Springfield Properties Plc
...reached a conclusion that recall will be conclusive proof that the interdict was wrongly obtained. [27] In Aird Geomatics Ltd v Stevenson 2015 SLT 329 Lord Pentland considered Mirza, Aird v Tarbert School Board 1907 SC 305; Miller v Hunter (1865) 3 M 740; and Wolthekker v Northern Agricultu......
-
Aird Geomatics Limited And Others Against Richard Stevenson And Another
...following hearing legal argument held in an opinion reported as Aird Geomatics Limited and Others v Richard Stevenson and Another [2015] CSOH 57 that the recall of the interim interdict raised a conclusive presumption that the interim interdict had been wrongfully obtained. He went on to ho......