(first) Angela Mcmanus And (second) Robert Mcmanus Against (first) City Link Development Company Limited; (second) Scott Wilson Scotland Limited And (third) Lanarkshire Housing Association Limited
| Jurisdiction | Scotland |
| Judge | Lord Menzies,Lady Clark Of Calton,Lady Paton |
| Neutral Citation | [2017] CSIH 12 |
| Date | 14 February 2017 |
| Published date | 14 February 2017 |
| Court | Court of Session |
| Docket Number | A116/13 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 12
A116/13
Lady Paton
Lord Menzies
Lady Clark of Calton
OPINION OF THE COURT
delivered by LADY CLARK OF CALTON
in the cause
(FIRST) ANGELA McMANUS and (SECOND) ROBERT McMANUS
Pursuers and Reclaimers
against
(FIRST) CITY LINK DEVELOPMENT COMPANY LIMITED, (SECOND) SCOTT WILSON SCOTLAND LIMITED and (THIRD) LANARKSHIRE HOUSING ASSOCIATION LIMITED
Defenders and Respondents
Act: Hajducki QC; R Sutherland; Allan McDougall (for Collins Solicitors, Watford)
Alt: Second Defenders: Duncan QC; P Reid: CMS Cameron McKenna (Scotland) LLP
Alt: Third Defenders: Martin QC, O’Rourke; Brodies LLP
14 February 2017
Summary
[1] The pursuers, who are the reclaimers, raised an action against the first, second and third defenders seeking reparation for loss, injury and damage which they aver was sustained as a result of inhalation of contaminated vapours within two different properties in which they lived in the Watling Street development. The first defenders are a company which undertook development, inter alia of the Watling Street development for the purposes of residential development. The second defenders are averred to be a company and there are averments about what they did in relation to the development project. The third defenders are averred to be a provider of social housing, registered with the Scottish Housing Regulator as a registered social landlord.
[2] The pursuers pled different common law cases of fault against each of the first and second defenders and statutory cases to the effect that the first defenders and, separately, the second defenders breached the provisions of section 33(1)(a) of the Environmental Protection Act 1990 (the 1990 Act). In relation to the third defenders, the pursuers pled a breach of an implied term of their tenancy agreements and a breach of certain provisions of the Housing (Scotland) Act 1987 (the 1987 Act) and the Housing (Scotland) Act 2001 (the 2001 Act). In defending the action, all three defenders pled inter alia that the pursuers’ averments were irrelevant and lacking in specification. The Closed Record extends to 92 pages.
[3] The case came before the Lord Ordinary at Procedure Roll on 24, 25 and 26 March 2015 for discussion of the defenders’ relevancy pleas in law. In a lengthy and detailed opinion, the Lord Ordinary dismissed the action in so far as pled against the first and third defenders. He sustained the second defenders’ plea in law challenging relevancy and specification in relation to the pursuers’ averments founded upon the 1990 Act. The effect of the Lord Ordinary’s interlocutor was to limit the scope of any proof to the averments of the pursuers based on their common law claim against the second defenders. There is an outstanding issue of time bar with which this court is not concerned in this Reclaiming Motion.
[4] The pursuers do not seek to challenge the Lord Ordinary’s decision in relation to the first defenders. The first defenders accordingly played no part in the hearing before this court. The pursuers challenged the decision‑making of the Lord Ordinary in relation to the relevancy and specification of the pursuers’ averments about breach of statutory duty by the second defenders under the 1990 Act and his refusal to admit to probation that part of the pursuers’ case against the second defenders. The pursuers also challenged the decision‑making of the Lord Ordinary in relation to the relevancy and specification of the pursuers’ claim against the third defenders which resulted in the dismissal of the case against the third defenders. The second and third defenders are the respondents.
[5] The pleadings which were considered by the Lord Ordinary were the same pleadings considered by this court with the following changes. This court permitted amendment of the Closed Record by the pursuers, by adding into Article 11, page 53 at the end of line 7:
“Forty cubic metres or thereby of ash and slag removed from around the high voltage power cable was deposited as fill to create a bund at the northwest corner of the site. 12,000 cubic metres or thereby of made ground from within the site was used to extend that bund in order to screen a large electricity substation from the new housing development.”
Averments to that effect originally appeared in Article 8 but were deleted by the amendment. Article 8 focussed on works carried out up to the first quarter of 1994. Article 11 contained averments about three phases of work, the third phase post-dated 1994.
[6] The main issues in the Reclaiming Motion fell into two separate and distinct chapters based on different statutory provisions. We agreed to hear submissions from senior counsel representing the pursuers and the second defenders in relation to the 1990 Act and thereafter to hear submissions by junior counsel for the pursuers and senior counsel for the third defenders.
[7] At the commencement of the hearing, we noted with some concern that in the written Note of Argument for the pursuers, there was no comprehensive attempt to identify those parts of the pleadings which underpinned the different statutory cases on which the pursuers relied. Unfortunately in view of the form and length of the pleadings, the basis of the pursuers’ case was not easily determined. This court therefore asked both counsel for the pursuers to provide, in the course of proceedings, a note to assist the court to identify the pleadings submitted to be relevant to the separate chapters.
[8] We are grateful to counsel for all parties for their detailed written Notes of Argument which were adopted in the course of oral submissions. We consider it unnecessary to set out the submissions in detail. We do consider it necessary to refer in some detail to the pursuers’ pleadings as the alleged inadequacy of the pleadings is at the heart of this Reclaiming Motion.
The statutory case against the second defenders
The Statutory Provisions: The Environmental Protection Act 1990
[9] It was a matter of agreement that the provisions relied on by the pursuers in their statutory case against the second defenders namely section 33(1) and section 76 came into force on 1 May 1994.
[10] Section 33 of the 1990 Act, in the form which applies to Scotland, states:
“Prohibition on unauthorised or harmful deposit, treatment or disposal etc. of waste.
(1) Subject to subsection (2) [(2B)] and (3) below and, in relation to Scotland, to section 54 below, a person shall not—
(a) deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in or on any land
unless a waste management licence authorising the deposit is in force and the deposit is in accordance with the licence;
…
(7) It shall be a defence for a person charged with an offence under this section to prove—
(a) that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence; or
(b) that he acted under instructions from his employer and neither knew nor had reason to suppose that the acts done by him constituted a contravention of subsection (1) above; or …”
[11] Section 73(6) to (8) states:
“(6) Where any damage is caused by waste which has been deposited in or on land, any person who deposited it, or knowingly caused or knowingly permitted it to be deposited, in either case so as to commit an offence under section 33(1) …, is liable for the damage except where the damage—
(a) was due wholly to the fault of the person who suffered it; or
(b) was suffered by a person who voluntarily accepted the risk of the damage being caused;
but without prejudice to any liability arising otherwise than under this subsection.
(7) The matters which may be proved by way of defence under section 33(7) above may be proved also by way of defence to an action brought under subsection (6) above.
(8) In subsection (6) above—
‘damage’ includes the death of, or injury to, any person (including any disease and any impairment of physical or mental condition); and
‘fault’ has the same meaning as in the Law Reform (Contributory Negligence) Act 1945. …”
Contravention of section 33 is an offence punishable by fine, imprisonment or both.
The Opinion of the Lord Ordinary in relation to the Second Defender
[12] The Lord Ordinary considered the 1990 Act and the challenge to the relevancy of the pursuers’ pleadings in paragraphs 192 to 221 of his Opinion. In doing so he considered both Article 16, which is relevant to the first defenders, together with Article 18, which is relevant to the second defenders. Some issues were raised by the second defenders unsuccessfully before the Lord Ordinary such as the alleged lack of averment that “waste” was “deposited” but the second defenders did not seek to revisit these issues. The issues which are relevant to the present proceedings are focused in paragraphs 213 to 221 of the Opinion of the Lord Ordinary. In paragraph 213, the Lord Ordinary referred to the pursuers’ averments in Article 8 that the remediation works were undertaken in or about 1993 and the first quarter of 1994. He noted that Article 18 begins by referring to those remediation works and that the complaint of “redistribution” of contaminated ground around the site is averred to have occurred during the course of remediation works in 1993 and 1994. He noted that the only other reference to remediation works in the pursuers’ pleadings are to works done in the first quarter of 1995, and work done by CBC after it had commissioned further tests in 2000 albeit no specification is given by the pursuers about what that work involved and in particular whether it involved any movement of contaminated waste from one place to another within the site. He noted that there is no averment by the pursuers in Article 18 that, post April 1994, there was no waste management licence in place and no averment that work done in 1995 or 2000 involved any unlawful...
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