Boots the Chemist Ltd v GA Estates Ltd
| Jurisdiction | Scotland |
| Judgment Date | 12 June 1992 |
| Date | 12 June 1992 |
| Docket Number | No. 40. |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
Lord Cameron of Lochbroom.
Interest—Reparation—Negligence—Nuisance—Action settling by way of joint minute—No agreement as regards interest—Non-personal injury case—Principles to be applied in determining appropriate rate of interest—Lord Ordinary's discretion—Interest on Damages (Scotland) Act 1958 (6 & 7 Eliz. II, cap. 61), sec. 1 (1).1
Section 1 (1) of the Interest on Damages (Scotland) Act 1958 as amended by the Interest on Damages (Scotland) Act 1971 enacts that: "Where a court pronounces an interlocutor decerning for payment by any person of a sum of money as damages, the interlocutor may include decree for payment by that person of interest, at such rate or rates as may be specified in the interlocutor, on the whole or any part of that sum for the whole or any part of the period between the date when the right of action arose and the date of the interlocutor."
Company tenants of store premises at Cameron Toll, Edinburgh brought an action in 1987 against the defenders and the third parties arising out of damage caused by the ingress of water into the premises in 1984. The action was based on both negligence and nuisance. After sundry procedure, the action called before the Lord Ordinary (Lord Cameron of Lochbroom) for proof in 1991. His Lordship was then informed that the cause had settled and it was agreed that the principal sum be awarded to the pursuers. Agreement had not been reached, however, on the matter of interest. A joint minute was lodged itemising the heads of damage. The pursuers argued that the discretion given to the court by sec. 1 (1) of the 1958 Act, as amended, permitted the court to order interest to be paid from the date when the action arose, i.e. when damnum andinjuria
occurred and that the effect of the amended subsection was to effect a change of emphasis such that the court should now look for a reason not to award interest from the date when the right of action arose. They also argued that the expenditure of money in the present case by the pursuers had been analogous to the loss of an interest bearing chattel or of something which otherwise would have secured a profit. The defenders contended that the principle of doing justice between the parties inherent in making any such discretionary award required that both the period for which interest should be allowed and the rate awarded should be restricted. This was so because: (a) no judicial demand had been made of the defenders until the summons had called in 1988; and (b) despite requests, the defenders had not been provided with the full detailed claim until five years after the event. In these circumstances, the defenders argued that any award of interest should be at a rate less than the judicial rate. They also argued that, in respect of the date of commencement of interest, it could not be said that the defenders had wrongfully withheld any sums properly due until, at the earliest, the date of citation if not until the amount of loss had been finally established by the joint minute. The Lord Ordinary awarded interest on loss of stock from the date of citation to the date of decree and on the various other heads from the date when expenditure had been incurred, at the judicial rate prevailing at the time. The defenders reclaimed.Held (aff. judgment of Lord Cameron of Lochbroom) (1) (applyingCarmichael v. Caledonian Railway Co. (1870) 8 Macph. (H.L.) 119 and Kolbin & Sons v. Kinnear & Co. 1931 S.C. (H.L.) 128) that as the 1958 Act did not sweep away the previous law relating to damages, a pursuer might recover interest by way of damages where he was deprived of an interest bearing security or a profit producing chattel or where money had been wrongfully withheld; (2) that even if damages had not been quantified, interest might be reasonably held to run from a date when the damages might reasonably be regarded as quantifiable or capable of ascertainment and from that date the wrongdoer could reasonably be regarded as wrongfully withholding the damages; and (3) that inordinate delay on the part of the pursuer in prosecuting his action should not, in the absence of any special circumstances, justify any modification of interest so that even if there had been such a delay there was no reason why interest should not be awarded from the date when the loss had been capable of ascertainment and in respect of which expenditure had been incurred by the injured party; and reclaiming motion refused.
Boots the Chemist Limited brought an action against G. A. Estates Limited in connection with the ingress of water into their tenanted shop premises in Cameron Toll, Edinburgh in 1984. Thorburn Associates were called in the summons as third parties. The following narrative, in which the pleadings of parties are adequately set forth, is taken from the opinion of the Lord Ordinary (Lord Cameron of Lochbroom): The action concerns an incident of flooding from a blocked culvert which occurred at the Cameron Toll shopping centre, Edinburgh, on 3rd November 1984. Floodwater entered the premises within the centre, including those let to the pursuers, and caused loss and damage. The present action is one of some 28 claims arising from the flooding. The summons in the present action was apparently signeted in November 1987 though it did not call until February 1988. At that time it was directed against the present defenders as the developer of the centre and a second defender, as the owner of the land on which the blocked culvert was situated. The basis of the action was in negligence and in nuisance. The record was initially closed in May 1988 but subsequently restored to the adjustment roll on the pursuers' motion in June 1988. In July 1988 the defenders convened the present third party to the action on the basis of averments of negligence. In August 1988 the pursuers abandoned the action so far as laid against the second defenders on condition of no expenses being found due to or by either party. Thereafter the first defenders were blamed in both capacities, as developer and as owner of the land on which the culvert was situated. After sundry procedure in the course of which the pursuers adopted and amplified the defenders' case of fault against the third party, the record was closed in July 1989. It was then sent to the procedure roll on the defenders' motion. Thereafter both the pursuers and the defenders amended their pleadings. There was delay until June 1990 in the lodging of the prints of the closed record as amended. A diet of procedure roll debate was fixed for 20th September 1990 but the parties agreed upon a proof before answer. Subsequently the pleadings were further the subject of proposed amendment in February 1991. However, by letters dated 26th and 27th March 1991 the defenders'...
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Barrie Tonner And Another V. Reiach And Hall
...the Court could not do other than award interest on the damages going back very many years: see Boots the Chemist Ltd. v GA Estates Ltd. 1992 SC 485. [22] In reply, Mr. Drummond, solicitor-advocate for the pursuers, moved the Court to refuse the reclaiming motion and adhere to the Lord Ordi......
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Sheridan v News Group Newspapers Ltd
...15 Barclay v Chief Constable, Northern Constabulary 1986 SLT 562 Bhatia v Tribax Ltd 1994 SLT 1201 Boots the Chemist Ltd v GA Estates Ltd 1992 SC 485; 1993 SLT 136; 1992 SCLR 859 British Railways Board v Ross and Cromarty County Council 1974 SC 27; 1974 SLT 274 Britton v Central Regional Co......
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Reclaiming Motion By Thomas Sheridan Against News Group Newspapers Limited
...basis” (Macrae v Reed and Mallik (supra); Smith v Middleton 1972 SC 30; Wilson v Dunbar Bank 2008 SC 457; Boots the Chemist v GA Estates 1992 SC 485). The court should be reluctant to interfere with a Lord Ordinary’s decision on interest (JM v Fife Council 2009 SC 163). The Lord Ordinary ha......
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Ronald Evan Wilson V. Dunbar Bank Plc
...corresponding English provision, noted earlier, in Riches v Westminster Bank Ltd. Secondly, in Boots the Chemist Ltd v G.A. Estates Ltd 1992 SC 485 the principles on which the court might award interest under section 1(1) of the 1958 Act (as amended by the 1971 Act) were considered by the I......