Amour v Scottish Milk Marketing Board
| Jurisdiction | Scotland |
| Judgment Date | 18 March 1938 |
| Date | 18 March 1938 |
| Docket Number | No. 39. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Ld. Robertson.
Limitation of Actions"Public authority"Action by milk producers against marketing board for recovery of illegal exactionsAction brought more than six months after exactions paidWhether board a public authorityPersonal BarWhether board barred by their actings from pleading time limitRegulation of TradePublic Authorities Protection Act, 1893 (56 and 57 Vict. cap. 61), sec. 1Agricultural Marketing Act, 1931 (21 and 22 Geo. V, cap. 42)Scottish Milk Marketing Scheme (Approval) Order, 1933 (S. R. & O. 1933, No. 479/S. 26).
Certain milk producers brought an action against the Scottish Milk Marketing Board for recovery of payments made to the Board in conformity with assessments which, as had subsequently been established in a litigation between the Board and another producer, had been calculated upon an illegal basis. The Board pleaded that the action was barred by the Public Authorities Protection Act, 1893, which requires that actions to which it applies shall be commenced within six months.
The assessments complained of had been imposed and paid more than six months before the bringing of the action, but the pursuers maintained that the Board were not a public authority, and were in any event precluded by contract or waiver from pleading the protection of the statute. The latter contention was founded upon the circumstances connected with other litigations in which the Board had engaged, and in particular upon the fact that the Board had represented to three producers that a refund would be made to all producers if the assessments were ultimately found to be illegal.
Held (diss. Lord Moncrieff) that the Board was a public authority and that the Public Authorities Protection Act, 1893, applied to the action; and, further, that the defenders were not precluded by their actings from pleading the statutory time limit.
R. & W. Paul v. The Wheat CommissionELR, [1937] A. C. 139, considered.
On 14th June 1937 Mrs Ellen Gilmour Amour, Cramond Bridge Farm, Barnton, Midlothian, and three other registered producers of milk, brought an action against the Scottish Milk Marketing Board, concluding (1) for "production and reduction of the minutes of the defenders, notices of assessment served upon the pursuers, and all other documents containing the resolutions or decisions or assessments whereby the defenders fixed or assessed, under and in terms of section 24 (2) of the Scottish Milk Marketing Scheme, the contributions due by the pursuers as registered producers, the proceeds of the sale of whose milk were not required to be paid into the fund established under and in terms of the said Scheme, including the pursuers, for the months of December 1933 to December 1934, both inclusive"; and (2) for payment to the pursuers respectively of sums representing the contributions which had been exacted from them.
The parties averred, inter alia:(Cond. 1) "The pursuers are farmers, carrying on business in Scotland. The defenders are the Scottish Milk Marketing Board, who administer the Scheme contained in the Scottish Milk Marketing Scheme (Approval) Order, 1933, which came into full operation on 1st December 1933. During the period 1st December 1933 to 31st December 1934 the first and second-named pursuers, during the period 1st December 1933 to 30th November 1934 the third-named pursuer and during the period 1st December 1933 to 23rd April 1934 the fourth-named pursuer, were registered producers the proceeds of whose milk was not required to be paid into the fund established under the Scheme, who are hereinafter referred to as category producers. Producers, the sale of whose milk fell to be paid into the fund, are hereinafter referred to as ordinary producers. The pursuers, in addition to being category producers, were also ordinary producers during the said respective periods. During the said respective periods the pursuers, other than the fourth-named pursuer, were members of the Edinburgh and Leith Dairymen's Association." (Ans. 1) "Admitted. Explained that the said Scheme is authorised by and operates under the Agricultural Marketing Acts, 1931 to 1933." (Cond. 2) "In terms of section 24 (2) of the said Scheme it is provided as follows:Contributions by Registered Producers to the Fund.The Board shall retain from the proceeds of the sale of the regulated product which are required to be paid into the fund, and shall recover from registered producers the proceeds of the sale of whose supplies of the regulated product are not required to be paid into the fund, such contributions as the Board may from time to time consider necessary to cover the costs of operating the Scheme and any sums which may be expended by the Board under the powers conferred on them by paragraph (b) of subsection (3) of this section. The contribution shall be assessed as an amount per gallon on all the regulated product sold by registered producers, and, subject to the provisions of the paragraph (a) of subsection (2) of section 25 and the corresponding provisions of sections 26 and 27 hereof, every registered producer shall be required to contribute the same amount per gallon." (Ans. 2) "The said section is referred to for its terms." (Cond. 3) "Purporting to act under and by virtue of the power conferred under and in terms of section 24 (2) of the said Scheme, the defenders, by resolutions or decisions at meetings held by them recorded in their minutes or other documents, fixed and assessed the contributions to be paid by category producers, including the pursuers, as follows:for the month of December 1933, January and February 1934, 2d. per gallon; for the month of March 1934, 3d. per gallon; for the month of April 1934, 4d. per gallon; for the months of May and June 1934, 5d. per gallon; for the month of July 1934, 4d. per gallon; for the month of August 1934, 3d. per gallon; for the month of September 1934, 3d. per gallon; for the month of October 1934, 2d. per gallon; for the month of November 1934, 2d. per gallon; for the month of December 1934, 2d. per gallon. The minutes, or other documents, containing or recording the said resolutions professing to fix and assess the said contributions, and the notices of assessment following thereon which were served upon the pursuers, are the documents sought to be reduced in the present action. The averments in answer, so far as not coinciding herewith, are denied, under reference to the said Scheme. The pursuers, as ordinary producers, are prepared to make, in common with all other ordinary producers, any repayment which they may be legally bound to make. With reference to the defenders' averments added at adjustment, it is not known and not admitted that any such repayments would exceed the sums respectively sued for." (Ans. 3) "Admitted that the Board fixed the contributions payable by category producers monthly. Quoad ultra the minutes are referred to, beyond which no admission is made. Explained that the assessment notices were issued to the pursuers and are not retained by the defenders. Explained further that, in terms of said Scheme, the average price fixed and paid each month to ordinary producers is dependent upon the amount of said contributions, and the reduction of said resolutions regarding the contributions necessarily involves the alteration of the average price payable each month; moreover, the defenders have, in compliance with said Scheme, bona fide paid away in each month respectively, inter alia, the amounts recovered from the pursuers, and have now no funds to meet said claims. They have no power to assess existing producers in respect thereof. The pursuers are called upon to state whether they are prepared to repay the sums received from the defenders in respect of ordinary sales to meet the overpayments alleged to have been made by them as category producers. The said repayments would in fact exceed the sums now claimed from the defenders. Moreover, owing to the length of time which the pursuers have allowed to elapse before making their claim, it is now impracticable to recover any alleged overpayments made by the defenders to the vast majority of ordinary producers. Explained further, that the present proceedings were only instituted in June 1937, which was considerably more than six months after the acts, neglect or default now complained of." (Cond. 4) "The actings of the defenders in fixing and assessing the contributions set forth in Article 3 hereof, in collecting payment thereof from the category producers, including the pursuers, and in making payment as they did out of the fund to ordinary producers, were illegal and ultra vires, and were not authorised by the Scheme for the following reasons, inter alia:During the period 1st December 1933 to 31st December 1934 the defenders, in fixing the said contributions, included in each month as a cost of operating the Scheme large sums representing the difference between the actual price received by them for milk disposed of by them in the manufacturing market and the price which they pretended would have been received by them if the said milk had been disposed of in the liquid market. In each of the said months the selling price in the liquid market, which was fixed by the defenders, exceeded the price in the manufacturing market. The sums representing the said difference are not costs of operating the Scheme with the meaning of section 24 (2), and the defenders, in including the aid sums in assessing the contributions, acted illegally and ultra vires. Further, the defenders collected said contributions, subject to the adjustment as to nine-tenths, at the same amount per gallon from all producers, both category and ordinary, and thereafter returned to the ordinary producers the proportion of their contributions representing said difference. In addition, the defenders paid out of the fund to the ordinary producers the proportion of the contributions...
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