British Oxygen Company v South West Scotland Electricity Board (No 2)

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeThe Lord Chancellor,Lord Merriman,Lord Reid,Lord Tucker,Lord Keith of Avonholm
Judgment Date16 Apr 1959
Judgment citation (vLex)[1959] UKHL J0416-2
Docket NumberNo. 2.

[1959] UKHL J0416-2

House of Lords

The Lord Chancellor

Lord Merriman

Lord Reid

Lord Tucker

Lord Keith of Avonholm

South of Scotland Electricity Board and Others
and
British Oxygen Company Limited
South of Scotland Electricity Board
and
British Oxygen Gases Limited

Upon Report from the Appellate Committee, to whom was referred the Cause South of Scotland Electricity Board and others against British Oxygen Company Limited, that the Committee had heard Counsel, as well on Wednesday the 28th and Thursday the 29th days of January last, as on Monday the 2d, Tuesday the 3d, Wednesday the 4th and Thursday the 5th days of February last, as on Monday the 2d, Tuesday the 3d, Wednesday the 4th and Thursday the 5th, days of March last, upon the Petition and Appeal of (First) The South of Scotland Electricity Board, 206 St. Vincent Street, Glasgow, C.2 (successors to The South West Scotland Electricity Board) and (Second) The Electricity Council, Trafalgar Buildings, Charing Cross, London, S.W.1 (successors to the Central Electricity Authority), praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the Second Division of the 7th of November 1957, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Interlocutor might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of The British Oxygen Company Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Interlocutor of the 7th day of November 1957, complained of in the said Appeal, be and the same is hereby, Affirmed, and that, the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the parties entitled to the same within one calendar month from the date of the certificate thereof, the Cause shall be, and the same is hereby, remitted back to the Court of Session in Scotland, or to the Judge acting as Vacation Judge, to issue such Summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.

Upon Report from the Appellate Committee, to whom was referred the Cause South of Scotland Electricity Board against British Oxygen Gases Limited, that the Committee had heard Counsel, as well on Wednesday the 28th and Thursday the 29th days of January last, as on Monday the 2d, Tuesday the 3d, Wednesday the 4th and Thursday the 5th days of February last, as on Monday the 2d, Tuesday the 3d, Wednesday the 4th and Thursday the 5th, days of March last, upon the Petition and Appeal of the South of Scotland Electricity Board, established by the Electricity Re-organisation (Scotland) Act, 1954, and having a place of business at 206 St. Vincent Street, Glasgow, C.2, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the Second Division of the 26th of March 1958, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Interlocutor, so far as aforesaid, might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of British Oxygen Gases Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Interlocutor of the 26th day of March 1958, in part complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the parties entitled to the same within one calendar month from the date of the certificate thereof, the Cause shall be, and the same is hereby, remitted back to the Court of Session in Scotland, or to the Judge acting as Vacation Judge, to issue such Summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.

The Lord Chancellor

My Lords,

1

The first of these appeals is a further appeal by the statutory successors of the defenders (Appellants) in the action which was previously before this House in June, 1956, and in which the Opinions of your Lordships were given in July, 1956. The first named Appellants are the South of Scotland Electricity Board, a public authority established under the Electricity Reorganisation (Scotland) Act, 1954. On 1st April, 1955, they took over the functions of the South West Scotland Electricity Board, an Area Board established under the Electricity Act, 1947. The second Appellants are the Electricity Council established under the Electricity Act, 1957. They are a public authority and are successors to the British Electricity Authority established under the Act of 1947 and renamed the Central Electricity Authority by the Act of 1954. The Respondents were at all material times industrial consumers of electricity within the area supplied by the first Appellants. The action was originally raised on 3rd August, 1953, against the South West Scotland Electricity Board and the British Electricity Authority. It was and is an attack on three consecutive tariffs embodying charges for electricity, the first of which came into operation on 1st January, 1952, and the third of which ceased to operate on 31st December, 1955. The attack made on each tariff is now limited in effect to a simple declarator that the defenders exercised undue discrimination against high voltage users like the pursuers, coupled with a conclusion for payment of £10,000. In the result the conclusions now insisted on are 1 ( a), 3 ( a), 5 ( a) and 8.

2

The earlier history of this case is that both defenders (Appellants) tabled pleas to the relevancy of the pursuers' (Respondents') averments: on 7th January, 1955, the Lord Ordinary (Lord Hill Watson) sustained those pleas and dismissed the action; on motion for review the Second Division, on 10th June, 1955, recalled the Interlocutor of the Lord Ordinary and allowed a proof before answer (excluding certain averments); on 19th July, 1956, this House dismissed an appeal by the Appellants against the last-named Interlocutor; after amendment, by Interlocutor dated 31st May. 1957, the Lord Ordinary (Lord Hill Watson) allowed a proof before answer of the averments in support of certain of the declaratory conclusions and quoad ultra dismissed the action; on motion for review the Second Division (Lord Mackintosh dissenting on the first point) on 7th November, 1957, recalled the Lord Ordinary's Interlocutor and allowed a proof before answer of the averments in support of the declaratory conclusions which I have mentioned and the conclusions for payment. When this action was previously considered by this House the question was whether on a true interpretation of section 37 (8) of the Electricity Act, 1947, the Respondents had relevantly averred a case of undue preference or undue discrimination. The House then decided that the word "undue" was not restricted to signifying that the preference or discrimination was illegitimate, and was capable of signifying an excessive preference or discrimination. This House refused to consider an argument that, since high voltage consumers (including the Respondents) were charged less than low voltage consumers, there were no relevant averments of any preference or discrimination, on the ground that this argument had not been advanced in the lower courts. The Appellants then amended their record to raise the question whether the Respondents had relevantly averred that any preference or discrimination existed and also the question of the relevancy of the averments relating to the alleged overcharge and in a certain event the competency of the present action.

3

Section 37 (8) of the Electricity Act, 1947 , is in the following terms:

"(8) An Area Board, in fixing tariffs and making agreements under this section, shall not show undue preference to any person or class of persons and shall not exercise any undue discrimination against any person or class of persons, and the Central Authority shall, in exercising their powers under the section in relation to the fixing of tariffs and making of agreements by Area Boards, secure compliance by Area Boards with this subsection."

4

It is also provided by subsection (3) of the same section that the prices to be charged by Area Boards for the supply of electricity by them shall, subject to any directions of the Central Authority, be in accordance with such tariffs as may be fixed from time to time by them, and those tariffs shall be so framed as to show the methods by which and the principles on which the charges are to be made, as well as the prices which are to be charged.

...

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12 cases
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    ...This is a satisfactory explanation of the decision of the House of Lords in South of Scotland Electricity Board v British Oxygen Co Ltd [1959] 1 WLR 587 ( South of Scotland Electricity Board). Under section 37(8) of the Electricity Act 1947, electricity boards were required, in setting tar......
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