British Railways Board v Ross and Cromarty County Council
| Jurisdiction | Scotland |
| Judgment Date | 12 October 1973 |
| Docket Number | No. 5. |
| Date | 12 October 1973 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION.
Lord Robertson.
Expenses—Scale of taxation—Agent and client—Unreasonable conduct of proof by defenders—Whether justified by necessity of procuring contested decree as basis for action of relief.
Relief—Statutory compensation—Right of relief against third party—Whether contested decree necessary to constitute debt.
Interest—Statutory compensation—Entitlement to interest from date prior to assessment of compensation—Ross and Cromarty (Strathcarron-South Strome Road) Order Confirmation Act, 1966 (cap. xxxix), sec. 34.
The county council of Ross and Cromarty having undertaken the construction of a new road, the work on which would necessarily interfere with an existing railway, provision was made for compensation by the Ross and Cromarty (Strathcarron-South Strome Road) Order Confirmation Act, 1966, which by sec. 34 (9) enacted that the council "shall on demand pay" to the board operating the railway "all expenses to which they may be put and compensation for any loss which they may sustain by reason of such damage" but which made no provision for the payment of interest.
The board, having suffered damage during the progress of the work, from time to time submitted to the council accounts of expenses to which they claimed to have been put, including amounts due as compensation under sec. 34, and, as these accounts remained unpaid, ultimately raised an action against the council for payment of the amount which they claimed to be due. The council put the board to proof of their whole averments, which were extensive and many of which dealt with matters necessarily within the council's own knowledge. The Lord Ordinary having found for the board, and having awarded them expenses taxed as between agent and client, with interest from a date prior to decree, the council in a reclaiming motion sought to justify their conduct in the proof on the ground that they required a contested decree against themselves in order to ensure that they would have a right of relief against their consulting engineers. They also contended that interest should run only from the date of decree.
Held that any right of action the council might have against their engineers was not properly described as one of relief, that their manner of conducting their defence was unjustified, and that the Lord Ordinary, in taking that conduct into account, had not misdirected himself when deciding to award expenses taxed as between agent and client.
National Coal Board v. Thomson, 1959 S.C. 353,considered and distinguished, the Courtobserving that the observations in that case might require reconsideration.
Further held (rev. judgment of Lord Robertson) that the terms of sec. 34 (9) of the Act did not create an implied contract between the council and the board; that the accounts rendered were no more than claims for statutory compensation and payments; and that, in the absence of agreement or statutory provision, there was no justification for allowing interest prior to the date on which the sums due were agreed or assessed by an arbiter or judge of first instance.
Carmichael v. Caledonian Railway Co., (1870) 8 Macph. (H.L.) 119, followed.
The British Railways Board, which owns and operates the railway from Dingwall to Kyle of Lochalsh, brought an action of payment against the county council of Ross and Cromarty. In the years 1968, 1969 and 1970 the pursuers had carried out sundry works for, and had rendered sundry services to, the defenders in connection with the formation by the defenders of a new road in Strathcarron which made it necessary to realign parts of the pursuers' railway line there and necessarily interfered with the regular running of trains over it. In addition, as a result of a number of landslides which occurred while the defenders were carrying out their authorised works,1 the pursuers suffered certain damage to their property, the repairs and restoration of which involved them in certain costs, charges and expenses. The action was brought by the pursuers to recover two principal sums, which represented the balance due to them of these outlays. They also concluded for interest on each of the principal sums.
The following narrative of the history of the action is taken from the opinion of the Lord Ordinary:—"The summons was signeted on 18th December 1970. Skeleton defences were lodged on 27th January 1971, in which the factual averments relating to the interruptions to the pursuers' train service and the costs, charges and expenses incurred by the pursuers were stated to be “not known and not admitted.” A general plea to the relevancy and specification of the pursuers' averments was taken, along with the usual pleas relating to the facts averred.
"An open record was made up on the summons and defences and on 17th February 1971 the record was continued for adjustment until 16th June 1971. On 16th June 1971 adjustment was again continued until 6th October 1971 and on that date again continued until 3rd November 1971. On 3rd November 1971 the defenders again attempted to have the time for adjustment extended, but this motion was refused and the record was closed. The cause was ordered to be put out in the By Order (Adjustment) Roll on 3rd December 1971.
"The closed record lodged on 17th November 1971 shows that by this time
the defenders had added to their skeleton defences a call in answer 3, calling upon the pursuers to specify their averments relating to the circumstances of the alleged interruptions of their railway service between Dingwall and Kyle of Lochalsh and to specify how certain costs, charges and expenses were incurred. In reply to this call the pursuers condescended in detail upon various incidents during the construction of the road (condescendences 4–12): they also added condescendence 13, which pointed to the accounts numbers 1–26, 28, 29 and 31 already rendered. The pursuers averred: “These accounts were rendered to the defenders between May 1968 and November 1970 and they raised no point of dispute nor any question about them. They are called upon to specify precisely what items, if any, they now pretend to challenge.” To this the defenders replied that they admitted that certain accounts had been rendered to the defenders and referred to them for their terms. They added: “Quoad ultra not known and not admitted.” No reply was made to the call."The pursuers added a condescendence 14, setting out in detail the terms of the provisional order, confirmed by the Act, upon which they founded. The defenders made no answer at all to this condescendence or to condescendences 4–12. It is fair to note that, when the cause appeared in the By Order (Adjustment) Roll on 3rd November 1971, it was noted in the minute of proceedings that “continuation of adjustment refused and record closed: cost of any resulting amendment to be charged against the pursuers.” This suggests that the pursuers' above-mentioned adjustments must have been tendered late and that the court considered it reasonable for any necessary amendments by the defenders in reply to be made after that date. No amendments had, however, been tendered by the defenders by...
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