Haddon's Executrix v Scottish Milk Marketing Board
| Jurisdiction | Scotland |
| Judgment Date | 17 December 1937 |
| Docket Number | No. 12. |
| Date | 17 December 1937 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION. Sheriff of Lanarkshire.
InterestLevy imposed upon contributor by statutory bodyLegality of levy challenged by contributorLevy paid by contributor under reservation of his pleas regarding its legality pending decision by House of Lords in an action raising same questionLevy subsequently held in House of Lords to be illegalWhether contributor entitled to interest on levy paid by him and subsequently refunded.
The Scottish Milk Marketing Board, in the purported exercise of their statutory powers, imposed a levy upon H., a milk producer. He challenged the legality of the levy, and the Board sued him for payment. There was then under appeal to the House of Lords an action by the Board against another producer raising the question of the legality of the same levy. The Board having threatened to take decree against H., he paid the levy, under reservation of his rights and pleas regarding its legality, pending the final decision of the other action. The House of Lords subsequently held the levy to be illegal, and the Board refunded the amount paid by H.
Held that H. was entitled to receive interest on the levy paid by him for the period during which it remained in the Board's hands, in respect that it was an implied term of the agreement under which the money was paid that, if it became repayable, it should be repaid with interest.
Glasgow Gas-Light Co. v. Barony Parish of GlasgowUNK,(1868) 6 Macph. 406, followed.
The late Colonel Andrew Haddon, Hawick, brought an action against the Scottish Milk Marketing Board, in the Sheriff Court at Glasgow, concluding for payment of the sum of 7, 0s. 1d. Colonel Haddon having died during the dependence of the action, his executrix, Mrs May Laing Brown or Haddon, was sisted as pursuer.
The sum sued for represented the interest at 5 per cent, less income tax, upon a sum of 143, 12s. from 10th July 1935 to 19th October 1936. This sum was the amount of a levy imposed upon Colonel Haddon, as a registered milk producer, by the Board. The levy was paid by him on 10th July 1935, and was refunded to him by the Board on 19th October 1936.
The circumstances in which the levy was paid, and subsequently refunded, were thus set forth in the opinion of the Lord President:"The defenders in October 1934 made two assessments under the Milk Marketing Scheme1 upon Colonel Haddon, one in the sum of 143, 12s. in respect of the months December 1933 to April 1934, and the other in the sum of 147, 3s. 11d. in respect of the months May to July 1934. These assessments he declined to pay, as not having been made in accordance with the terms of the Scheme and as ultra vires. The defenders accordingly raised
an action against him in the Sheriff Court at Hawick to recover the amounts in which he had been assessed. While that action was pending there was also pending in the Court of Session the case of theScottish Milk Marketing Board v. Ferrier.SCSCELR1The point at issue in the two actions was the same, and there were a number of other actions then pending which raised the same point.Ferrier'sSCSCELR case1 was decided in favour of the Milk Marketing Board by this Division, following the decision of a Court of seven judges in the Scottish Milk Marketing Board v. Barron,2 which had also raised the same question. There can be no doubt that Ferrier'sSCSCELR case1was raised for the purpose of having that question finally decided in the House of Lords. After the Court of Session's decision inFerrier'sSCSCELR case1 negotiations took place between the respondents and Colonel Haddon. The correspondence is properly before us and is admitted. The parties here also renounced probation of all averments not formally admitted on record or by joint minute. The respondents at first proposed that Colonel Haddon should make an interim payment of the principal sums sued for by them in the Sheriff Court action, under reservation of his whole rights of repetition and pleas, and that the action should be sisted until it was definitely ascertained if FerrierSCSCELR1 was to be appealed to the House of Lords. Later the respondents stated through their solicitor that they were prepared to accept payment of the assessment in the sum of 143, 12s., and to allow the case to be sisted pending a formal decision in the FerrierSCSCELRcase.1 This sum Colonel Haddon's solicitor intimated that he would consign in the hands of the Sheriff-clerk. The respondents, however, insisted on a cash payment to themselves. On 9th July 1935, accordingly, Colonel Haddon's solicitor sent a cheque to the respondents' solicitor enclosed in a letter which stated: This sum is paid under reservation of all the individual defender's rights and pleas, and pending a final decision in the case ofFerrier.SCSCELR1 It is now admitted that the amount so paid was credited to the fund administered by the respondents, and was expended by them in terms of section 24 of the Scheme. After the House of Lords decision in Ferrier'sSCSCELR case1 on 16th July 1936 [reversing the decision of the First Division] the principal sum was on 19th October 1936 repaid to Colonel Haddon, and the sole questions now are whether the appellant is also entitled to interest on the principal sum, and, if so, at what rate."The pursuer's pleas, as amended in the Court of Session, included:"(2) The defenders, having received the said sum of money subject to an agreement to repay it with interest in an event which subsequently occurred, are bound to repay both principal and interest to the pursuer, and decree should be pronounced as craved, with expenses."
The defenders pleaded, inter alia:"(1) The pursuer's averments being irrelevant and insufficient in law to support the crave of the writ, the action should be dismissed."
On 19th May 1937 the Sheriff-substitute (Macdiarmid) sustained the first plea in law for the defenders, and dismissed the action.
The pursuer appealed to the Sheriff (Black), who, on 12th October 1937, refused the appeal and adhered to the interlocutor of the Sheriff-substitute.
The pursuer appealed to the Court of Session, the case, of consent of parties, being treated as an ordinary action in respect that it was a test case.
The case was heard before the First Division (without Lord Fleming) on 25th November 1937.
At advising on 17th December 1937,
LORD PRESIDENT (Normand).This is an appeal against an interlocutor of the Sheriff of...
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Friends Provident Life And Pensions Limited V. John Mcguinness
...with the terms of paragraph 6 of the Statement of Position, Mr Thomson referred to Haddon's Executrix v Scottish Milk Marketing Board 1938 S.C. 168 and in particular to the Opinion of Lord Carmont at p.175. In relation to paragraph 7, Mr Thomson referred to Unjustified Enrichment: Jones, at......