Dunlop v McGowans
| Jurisdiction | England & Wales |
| Judge | Viscount Dilhorne,Lord Edmund-Davies,Lord Fraser of Tullybelton,Lord Russell of Killowen,Lord Keith of Kinkel |
| Judgment Date | 06 March 1980 |
| Judgment citation (vLex) | [1980] UKHL J0306-4 |
| Court | House of Lords |
| Docket Number | No. 4. |
| Date | 06 March 1980 |
[1980] UKHL J0306-4
House of Lords
Viscount Dilhorne
Lord Edmund-Davies
Lord Fraser of Tullybelton
Lord Russell of Killowen
Lord Keith of Kinkel
My Lords,
I cannot usefully add anything to the speech of my noble and learned friend, Lord Keith of Kinkel. I agree with him that for the reasons he gives this appeal should be dismissed.
My Lord,
Were it not for the fact that it found acceptance by the Lord Ordinary, I would have regarded as unarguable the construction of section 11(1) of the Prescription of Limitation (Scotland) Act, 1973, urged before your Lordships by the appellant's counsel. And, despite his strenuous efforts, I respectfully remain of that view.
My reasons for so thinking are the same as those advanced in the speech of my noble and learned friend, Lord Keith of Kinkel, which I have been privileged to read in draft. No advantage would be gained by repeating them in different (and, doubtless, less felicitous) language of my own, and I restrict myself to saying that I concur in dismissing this appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Keith of Kinkel, and I agree with it.
In addition to the reasons of principle stated in his speech for dismissing this appeal, I would add the following practical consideration. If the appellants were right in saying that each item of pecuniary loss ought to be treated as a separate loss for the purposes of section 11(1) of the Prescription and Limitation (Scotland) Act 1973, the result would be that each item would prescribe on its own appropriate date, five years after it occurred. But there would be great uncertainty about the date on which the prescriptive period in respect of each item began. Thus the items of loss specified in the appellant's condescendence include the following:
| "3. Increase in contract sum for developing upper storeys of 2/8 Queensberry Street as residential flats …. | £8,142·37 |
| 4. Loss of rents on residential flats at 2/8 Queensberry Street | £6,864 |
| less maintenance for the appropriate period | 100 |
| £6,764·00" |
On the appellant's argument, as I understand it, each element of the increase in the costs of development, and each element in the loss of rents would prescribe five years after it "occurred", by which is meant. I asked counsel for the appellant how to ascertain the date or dates in which the loss due to the increase mentioned in paragraph 3 above occurred. I asked also how to ascertain the date or dates on which the loss of rents in paragraph 4 occurred, having regard to the fact that ex hypothesi there was no lease in operation during the period covered by the claim. Was it to be assumed that the rent would have been payable annually or monthly, or weekly, or that it accrued from day to day, and that an item of loss occurred on the date when each instalment fell due? I received no answer that satisfied me on any of these questions and I am left in complete uncertainty about the terminus a quo for each of these items. Apart therefore from the inconvenience, not to say absurdity, of having a multiplicity of dates, on each of which different items of loss would prescribe, there would be a great difficulty in ascertaining exactly what the dates were. Yet if the dates on which prescription starts to run cannot be ascertained with reasonable certainty, the result can only be confusion. I decline to construe the Act in a way that would, I think, produce such confusion unless I am compelled to do so by clear words. In this case, happily, I feel no such compulsion.
I would dismiss the appeal.
My Lords,
The appellant attacks the decision appealed from on two grounds, the first being based upon an alleged construction of sections 6 and 11 of the Prescription and Limitation (Scotland) Act 1973, the second and alternative (first taken before the Inner House) being based upon an alleged construction of section 14(1)(a) of that Act.
Prior to the coming into force of Part I of the Act on the 25th July 1976 the period for negative prescription was 20 years.
The appellant had become the owner of a block of flats etc. which he was minded to redevelop, for which he required vacant possession. One tenancy could only be terminated on Whitsun 1971 by notice given not less than 40 days before that date. The appellant's solicitors (the respondents) in breach of their duty to the appellant failed to give such notice timeously, with the result that vacant possession could not be obtained earlier than Whitsunday 1972. The appellant took no proceedings and made no claim in respect of that breach of duty until November 1976, more than five years after the breach had resulted in inability on the part of the appellant then to obtain vacant possession and get on with his proposed redevelopment.
Section 6 provides that, if after the appropriate date an obligation to which the section applies has subsisted (without a claim being made in relation to that obligation and without acknowledgement of its subsistence) for a continuous period of five years, after the expiration of that period the obligation is extinguished. Schedule I covered the instant case as concerning an obligation to which section 6 applied, being under paragraph 1( d) an "obligation arising from liability (whether arising from any enactment or from any rule of law) to make reparation": and under paragraph 1 ( g) "an obligation arising from, or by reason of any breach of, a contract …". Section 6(3) provided in the instant case that "the appropriate date" was "the date when the obligation became enforceable."
It was accepted for the appellant that section 6 by itself was fatal to his appeal (apart from the point under section 14(1)( a)), since manifestly over five years had elapsed since Whitsun 1971. But he relied upon section 11(1) of which the terms are as follows:
"… any obligation (whether arising from any enactment, or from any rule of law or from, or by reason of any breach of, a contract …) to make reparation for loss, injury or damage caused by an act, neglect or default shall be regarded for the purposes of section 6 of this Act as having become enforceable on the date when the loss, injury or damage occurred."
I observe that this echoes Schedule I paragraph 1( d) and ( g), while applying the word "reparation", found only in ( d), to the whole.
For the appellant it was contended that the operation of section 11 was to produce in the case of this one breach of duty a series of "appropriate dates" for the purpose of section 6, each one relating only to what was referred to in argument as the "pecuniary loss" which could be demonstrated to have been suffered on or before that date. This was to be contrasted with what was described as only "potential loss", which would not serve to produce a terminus a quo as an appropriate date, albeit it could be made the subject of proceedings and a claim, if the pursuer thought fit, before it ripened into a "pecuniary loss". Therefore, claimed the appellant, although the relevant time could elapse as to some part of the loss or damage suffered, it did not follow that it would have elapsed as to other parts: and in this it is right to say that he was not contending that more than one action could be brought for the same breach of duty.
I cannot, my Lords, accept this argument. I do not find in the Act any justification for this distinction between...
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