Burmah Oil Company (Burma Trading) Ltd v Lord Advocate
| Jurisdiction | Scotland |
| Judgment Date | 14 March 1963 |
| Docket Number | No. 47. |
| Date | 14 March 1963 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Kilbrandon.
Crown—Constitutional law—Exercise of royal prerogative—Eminent domain—War—Defence of the realm—Private property destroyed by order of commanding officer in face of advancing enemy and in pursuance of government policy to deny resources to enemy—Whether compensation payable.
Limitation of actions—Crown—Exercise of royal prerogative—Lawful acts—Public Authorities Protection Act, 1893 (56 and 57 Vict. cap. 61), sec. 1.
At midnight on 6th March 1942 the General Officer Commanding the British Army in Burma, in pursuance of the policy of the United Kingdom government to deny resources to the enemy and in the face of the advancing Japanese army, ordered the destruction of the Burmah Oil Company's installations and plant near Rangoon. The order was carried out, and on 8th March 1942 the Japanese occupied Rangoon.
In 1961 the company brought an action against the Lord Advocate, as representing the Crown, in which they sought declarator that they were entitled at common law to reparation from the Crown for the damage sustained as a result of the destruction of their property in Burma which had been ordered in virtue of the royal prerogative. The defender pleaded, inter alia, (1) that the action was incompetent in virtue of the Public
Authorities Protection Act, 1893, and (2) that the pursuers' averments were irrelevant,The Lord Ordinary held (1) that the action was competent, and (2) that the averments were relevant, on the basis that the acts of destruction were done in virtue of the sovereign right of the Crown to destroy private property to prevent it from falling into the hands of the enemy; that that right was a prerogative right arising out of a grave national emergency and was the same as the right called by the civilians the right of eminent domain; and that the right could only be exercised subject to payment of such compensation as would ensure that the actual loss suffered by the owner of the property was borne by the community, for whose benefit the right was exercised. Accordingly, he allowed a proof before answer.
Held (1) that the Public Authorities Protection Act, 1893, applied only to claims based on unlawful acts, and that, since in the present case the pursuer's claim was based on admittedly lawful acts, the Act did not apply and the action was accordingly competent; but (2) (rev. judgment of Lord Kilbrandon) that the loss suffered by the pursuers was a necessary incident of military operations in the face of the enemy, and should be regarded as battle damage, for which no compensation was payable; and action dismissed.
(Per the Lord President and Lord Guthrie). Where the Crown takes the property of a subject, either for use or destruction, at common law, the taking is under the royal prerogative, and the subject is entitled to compensation, except where the taking is in the course of actual combat operations, in which event no compensation is payable.
(Per Lord Carmont). When a military officer in the field orders the destruction of heritage in a country actually held, but in danger of being lost to the enemy, he acts from military necessity, not in the exercise of the royal prerogative. But there is a distinction between the destruction of property in some measure remote from the conflict and destruction in the heat of battle. Compensation is payable for the former, but not for the latter.
(Per Lord Sorn). The category of damage for which compensation is not payable consists of damage resulting from acts done under inevitable necessity, which category includes damage done in the course of combat operations.
The Burmah Oil Company (Burma Trading), Limited, a company incorporated under the Companies Acts and having its registered office at 175 West George Street, Glasgow, brought an action against the Right Honourable William Grant, Q.C., M.P., Her Majesty's Advocate, acting on behalf of Her Majesty in terms of the Crown Suits (Scotland) Act, 1857.1
The conclusions of the summons were, inter alia, as follows:—"(1) For declarator that the pursuers are entitled to payment out of the revenues of the Crown in the United Kingdom of such sum as will make good to the pursuers the damage sustained by them as a result of the total or partial destruction in Burma, in or about March 1942, of the property and assets of the pursuers set forth in the schedule referred to in the condescendence and produced
herewith. (2) For declarator that the sum which will make good to the pursuers the said damage is the sum of Two million two hundred and twenty-eight thousand two hundred and sixty-one pounds (£2,228,261) sterling with interest thereon at the rate of fiveper centum per annum from 7th March 1942 until payment."The averments of the parties were, inter alia, as follows:— (Cond. 1) "The pursuers are a company incorporated under the Companies Acts and having its registered office at 175 West George Street, Glasgow. The pursuers in the years 1941 and 1942 and prior thereto carried on in Burma the business of purchasing and marketing petroleum products. Crude petroleum was purchased by the pursuers from the Burmah Oil Company (Burma Concessions), Limited, having been produced by the latter at their oilfields at Yenangyaung and elsewhere in Burma. The said crude petroleum was conveyed by the Burmah Oil Company (Pipe Lines), Limited, to refineries at Syriam, near Rangoon, owned and operated by the Burmah Oil Company (Refineries), Limited, and was there refined. The resulting products were marketed by the pursuers. For the purposes of their said business the pursuers owned an installation at Dunneedaw, near Rangoon, and also rolling stock, floating craft, stocks of plant and stores, and stocks of crude petroleum and petroleum products and other assets. The defender is the Lord Advocate as representing the Crown." (Ans. 1) "Admitted." (Cond. 2) "On or about 8th December 1941 war commenced between the United Kingdom and Japan. On 27th December 1941 Lieutenant-General T. J. Hutton was appointed by His Majesty's Government in the United Kingdom to be General Officer Commanding the Army in Burma, under the command of General Sir Archibald Wavell, G.C.B., C.M.G., M.C., A.D.C., Commander-in-Chief, India. On or about 19th January 1942 Japanese armies commenced the invasion of Burma. On or about 3rd February 1942 the said General Officer Commanding the Army in Burma issued instructions that, in order to prevent installations that would be of value to the enemy's war effort, including the pursuers' said installation at Dunneedaw, their stocks of products and other property, falling into the enemy's hands in working order, such installations should, when necessary, be destroyed and put out of action completely. The said instructions were issued in pursuance of the war policy of His Majesty's Government in the United Kingdom, and in accordance with directives issued by the same, to the said General Officer Commanding, in order to deny to the enemy industrial resources and facilities likely to be of use to him. His Majesty's said Government considered that, if it were not possible to hold the said installations and others against the enemy forces, their demolition would be of the greatest service to the general prosecution of the War by the United Kingdom and her allies. With reference to the averments in answer, admitted that on and after 8th December 1941 Burma was at war with Japan. Admitted that at 3rd February 1942 the policy of His Majesty's Government in the United Kingdom included the defence of Burma, subject to the explanation that it was part of the said policy that the defence of Burma and the general conduct of warlike operations there should be carried on by a General Officer Commanding, responsible, not to the Governor of Burma, but to His Majesty's Government in the United Kingdom, either directly or through the Commander-in-Chief, India. Admitted, subject to the like explanation, that after the loss of Burmese territory it became part of the policy of His Majesty's Government in the United Kingdom to recapture the same. Not known and not admitted what advice, if any, the Governor received from the Secretary of State for Burma. Denied that the said instructions issued by the General Officer Commanding the Army in Burma were issued under the authority of the Governor. Explained and averred that the said instructions by the General Officer Commanding the Army in Burma were issued by him in a memorandum described as No. 15/65/G.O. (b). It is believed and averred that any advice issued to the Governor of Burma by the Secretary of State for Burma in relation to the matter was issued by the latter in pursuance of a directive given to him by His Majesty's War Cabinet in London. The defender is called upon to specify his averments in relation to the said alleged advice from the Secretary of State for Burma and to disclose the alleged authority therefor and the manner of transmission of the advice and its content." (Ans. 2) "Admitted that on or about 8th December 1941 war commenced between the United Kingdom and Japan under explanation that on and after that date Burma was at war with Japan. Admitted that on 27th December 1941 Lieutenant-General T. J. Hutton was appointed by His Majesty's Government in the United Kingdom to be General Officer Commanding the Army in Burma, under the command of General Sir Archibald Wavell, G.C.B., C.M.G., M.C., A.D.C., Commander-in-Chief, India. Admitted that on or about 19th January 1942 Japanese armies commenced the invasion of Burma. Admitted that on or about 3rd February 1942 the said General Officer Commanding the Army in Burma issued a document. Explained and averred that the said document was a memorandum to the effect that, in order to prevent installations that would be of value to the enemy's war effort, including the pursuers' said installation at Dunneedaw, their...
To continue reading
Request your trial
-
Tehrani v Secretary of State for the Home Department
...locus fori and on nothing else." 92 Perhaps no more striking example could be found than Burmah Oil Co (Burma Trading) Ltd v Lord Advocate 1963 SC 410; 1964 SC (HL) 117. A company registered in Scotland sued the Lord Advocate as representing the Crown for declarators that it was entitled t......
-
Durity v Attorney General of Trinidad and Tobago
...reasonable protection for a public authority would become an engine of oppression": see Burmah Oil Co (Burma Trading) Ltd v Lord Advocate 1963 SC 410, 448, per Lord President Clyde. Section 33 of the State Liability and Proceedings Act and constitutional proceedings 21 The submission advan......
-
Alves v Attorney General of the Virgin Islands (British Virgin Islands)
...2004 – Attorney General of the Commonwealth of Dominica v. Robin (Case No HCVAP 2011/034) (unreported) 27 June 2012 – Burmah Oil Co (Burma Trading) Ltd v. Lord Advocate – Durity v. Attorney General of Trinidad and Tobago [2003] 1 AC 405. Legislation: Section 2 of the Public Authorities Pro......
-
Gilharry (d/b/a/ Gilharry's Bus Line) v Transport Board et Al
...authority would become an engine of oppression’” (quoting Lord President Clyde in Burmah Oil Co. (Burma Trading) Ltd. v. Lord Advocate 1963 SC 410, 448). Thus, Lord Nicholls observed (at para. 30), the “clearest language” would be needed for a court to conclude that the initiation of consti......