South of Scotland Electricity Board v British Oxygen Company Ltd (No 1)

JurisdictionEngland & Wales
JudgeViscount Simonds,Lord Normand,Lord Tucker,Lord Cohen,Lord Keith of Avonholm
Judgment Date19 July 1956
Judgment citation (vLex)[1956] UKHL J0719-2
Docket NumberNo. 7.
CourtHouse of Lords
Date19 July 1956

[1956] UKHL J0719-2

House of Lords

Viscount Simonds

Lord Normand

Lord Tucker

Lord Cohen

Lord Keith of Avon-Holm

South of Scotland Electricity Board and Central Electricity Authority
and
British Oxygen Company Limited

Upon Report from the Appellate Committee, to whom was referred the Cause Central Electricity Authority against The British Oxygen Company Limited, that the Committee had heard Counsel, as well on Monday the 4th, as on Tuesday the 5th, Wednesday the 6th and Thursday the 7th, days of June last, upon the Petition and Appeal of the British Electricity Authority, British Electricity House, Winsley Street, London, W.l, now the Central Electricity Authority, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the Second Division of the 10th of June 1955, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Interlocutor, so far as aforesaid, might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of The British Oxygen Company Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause;

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Interlocutor of the 10th day of June 1955, in part complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the parties entitled to the same within one calendar month from the date of the certificate thereof, the Cause shall be, and the same is hereby, remitted back to the Court of Session in Scotland, or to the Judge acting as Vacation Judge, to issue such Summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.

Upon Report from the Appellate Committee, to whom was referred the Cause South of Scotland Electricity Board against The British Oxygen Company Limited, that the Committee had heard Counsel, as well on Monday the 4th, as on Tuesday the 5th, Wednesday the 6th and Thursday the 7th, days of June last, upon the Petition and Appeal of the South West Scotland Electricity Board, 206 St. Vincent Street, Glasgow, C.2, now the South of Scotland Electricity Board, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the Second Division of the 10th of June 1955, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Interlocutor, so far as aforesaid, might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of The British Oxygen Company Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause;

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Interlocutor of the 10th day of June 1955, in part complained of in the said Appeal, be, and the same is hereby Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the parties entitled to the same within one calendar month from the date of the certificate thereof, the Cause shall be, and the same is hereby, remitted back to the Court of Session in Scotland, or to the Judge acting as Vacation Judge, to issue such Summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.

Viscount Simonds

My Lords,

1

I had prepared an Opinion in this case in which I found it necessary to discuss and determine a number of questions raised for the first time in your Lordships' House. I did so with the reluctance which an appellate tribunal must always feel when deprived of the assistance of the learned Judges of the Court of Session. I have now had the advantage of reading the Opinion of my noble and learned friend. Lord Normand, and am satisfied that the course which I proposed to take was not only unnecessary but would not be in accordance with the practice and procedure in Scottish appeals. I propose, therefore, only to say that I concur at all points with the Opinion Lord Normand will deliver and that, in my opinion, this appeal should be dismissed with costs.

Lord Normand

My Lords,

2

The South West of Scotland Electricity Board, being an Area Board under the Electricity Act, 1947, and the Central Electricity Authority appeal against an Interlocutor of the Second Division of the Court of Session, so far as it recalled the Interlocutor of the Lord Ordinary and allowed the parties a proof before answer of certain of their averments with leave to appeal. The Respondents are in receipt of a supply of electricity for industrial purposes from the Board at a voltage metered above 6,000. The Lord Ordinary had sustained the Appellants" pleas in law to the relevance and had dismissed the action. The Second Division agreed with the Lord Ordinary that a severable part of the Respondents' case was irrelevant and excepted from the allowance of proof their averments in support of it. With that part of the case, as no appeal has been taken on it, we are not concerned. The question now to be decided is whether the Second Division was wrong in remitting any of the averments to probation.

3

In the conclusions which survive for consideration the Respondents seek declarators that in fixing three successive Industrial Demand Tariffs the Area Board exercised undue discrimination against industrial consumers of supplies of electricity metered at or above a voltage of 6,000, contrary to the provisions of the Electricity Act, 1947, section 37 (8); declarators that the tariffs are illegal and ultra vires; reduction of the tariffs; and repayment by the Area Board to them of the sum of £10,000 with interest thereon at the rate of five per centum per annum from the date of citation until payment.

4

The following provisions of section 37 are material to the decision of the appeal:

"(3) Subject to any directions of the Central Authority …, the prices to be charged by Area Boards for the supply of electricity by them shall be in accordance with such tariffs as may be fixed from time to time by them, and those tariffs shall be so framed as to show the methods by which and the principles on which the charges are to be made as well as the prices which are to be charged, and shall be published in such manner as in the opinion of the Area Board will secure adequate publicity for them;

. . . . . . .

Viscount Simonds

My Lords,

5

I beg to move that the Report of the Appellate Committee be now considered.

6

QUESTION PUT:

7

That the Report of the Appellate Committee be now considered.

8

The Contents have it.

Viscount Simonds

My Lords,

9

I had prepared an Opinion in this case in which I found it necessary to discuss and determine a number of questions raised for the first time in your Lordships' House. I did so with the reluctance which an appellate tribunal must always feel when deprived of the assistance of the learned Judges of the Court of Session. I have now had the advantage of reading the Opinion of my noble and learned friend. Lord Normand, and am satisfied that the course which I proposed to take was not only unnecessary but would not be in accordance with the practice and procedure in Scottish appeals. I propose, therefore, only to say that I concur at all points with the Opinion Lord Normand will deliver and that, in my opinion, this appeal should be dismissed with costs.

Lord Normand

My Lords,

10

The South West of Scotland Electricity Board, being an Area Board under the Electricity Act, 1947, and the Central Electricity Authority appeal against an Interloctor of the Second Division of the Court of Session, so far as it recalled the Interlocutor of the Lord Ordinary and allowed the parties a proof before answer of certain of their averments with leave to appeal. The Respondents are in receipt of a supply of electricity for industrial purposes from the Board at a voltage metered above 6,000. The Lord Ordinary had sustained the Appellants' pleas in law to the relevance and had dismissed the action. The Second Division agreed with the Lord Ordinary that a severable part of the Respondents' case was irrelevant and excepted from the allowance of proof their averments in support of it. With that part of the case, as no appeal has been taken on it, we are not concerned. The question now to be decided is whether the Second Division was wrong in remitting any of the averments to probation.

11

In the conclusions which survive for consideration the Respondents seek declarators that in fixing three successive Industrial Demand Tariffs the Area Board exercised undue discrimination...

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13 cases
  • R v Avon County Council, ex parte Terry Adams Ltd
    • United Kingdom
    • Queen's Bench Division
    • 23 Junio 1993
    ...not be undue unless its degree justified the critical label "undue": see South of Scotland Electricity Board v British Oxygen Co LtdWLR((1956) 1 WLR 1069, 1076). Discrimination which resulted from bona fide and reasonable attempts by an authority to perform sensibly its duties under the Act......
  • South of Scotland Electricity Board v British Oxygen Company Ltd (No 1)
    • United Kingdom
    • Court of Session (Inner House - Second Division)
    • 7 Noviembre 1957
    ...of the conclusion for repayment as incompetent did not render the whole action incompetent. (Reportedante, 1955 S. C. 440 and 1956 S. C. (H. L.) 112.) In this action the British Oxygen Company, Limited, concluded (1) for declarator (a) that the South West Scotland Electricity Board (later r......
  • British Oxygen Company v South West Scotland Electricity Board (No 2)
    • United Kingdom
    • House of Lords
    • 16 Abril 1959
    ...My Lords, 77 This is the second occasion on which the first of these two cases has been before your Lordships. On the first occasion ( 1956 S.C. H.L. 112) the present Appellants failed on the contentions which they had maintained in the Court of Session, but they also put forward contention......
  • Woolwich Equitable Building Society v Commissioners of Inland Revenue
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    • House of Lords
    • 20 Julio 1992
    ...did not apply to the case of an error in law in interpreting an Act of Parliament. 31The second Scottish case is South of Scotland Electricity Board v. British Oxygen Co. Ltd. [1959] 1 W.L.R. 587, a decision of your Lordships' House. Certain industrial consumers of high voltage electricity......
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