The Fife Council Against The Royal And Sun Alliance Insurance Plc
| Jurisdiction | Scotland |
| Judge | Lady Wolffe |
| Neutral Citation | [2017] CSOH 115 |
| Date | 01 September 2017 |
| Docket Number | CA23/16 |
| Court | Court of Session |
| Published date | 01 September 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 115
CA23/16
OPINION OF LADY WOLFFE
In the cause
THE FIFE COUNCIL
Pursuer
against
THE ROYAL AND SUN ALLIANCE INSURANCE PLC
Defender
Pursuer: Armstrong QC, Sutherland; Morton Fraser LLP
Defender: Duncan QC, Paterson; Clyde & Co
1 September 2017
Introduction
[1] The pursuer granted a planning permission for the development of an opencast coal
site at North Blair Farm, Oakley, Saline, Fife (“the Site”). In its capacity as the planning
authority the pursuer entered into a minute of agreement under section 75 of the Town and
Country Planning (Scotland) Act 1997 (“the Agreement”). The Agreement was entered into
amongst the pursuer (as the planning authority), the UK Coal Mining Limited (the party to
whom the planning consent had been granted), and the owners of the Site in respect of
which the planning permission was granted. UK Coal Mining transferred its interest to the
Scottish Coal Company Limited (“the Company”). The planning permission granted by the
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pursuer in respect of the Site (“the Planning Permission”) imposed conditions inter alia for
restoration of the Site to woodland, countryside and agricultural use, and that within
one year of the cessation of coaling works, and a further five year period of aftercare (the
two said obligations are collectively referred to as “the remedial works”). Non-compliance
with this condition was one of the defined “defaults” under the Agreement. Also as part of
these arrangements a bond was to be procured in favour of the pursuer to secure the
Company’s obligations under the Agreement for the remedial works on the Site after the
coal operations had concluded. The defenders are the granters of the bond (“the Bond”).
[2] The background is more fully set out in the opinion of the court dated 17 February
2017 following a debate heard earlier this year between the parties (“the first opinion”).
(The terms of the Bond and of the Notice are set out in paragraphs 14 to 18 and
paragraph 19, respectively of the first opinion. The defined terms used in the first opinion
are also used in this opinion.) It suffices for present purposes to note that the pursuer called
upon the defender to pay under the Bond following default of the Company’s obligations
under the Agreement, and in particular the Company’s failure to undertake a full restoration
of the Site. The particular issue that falls to be resolved at this Proof is whether, considered
in the relevant factual context, the Notice has satisfied the stipulations in the Bond. At
debate the defender sought dismissal and argued inter alia that the Notice did not comply
with the requirements of the Bond. The pursuer resisted this, but in any event argued that it
was necessary to construe the Notice in its factual context. I was not prepared to determine
as a matter of relevancy whether the sentence relied on was adequate. As the defender
disputed much of the background, a Proof was necessary.
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The Evidence
[3] On the morning of the Proof, parties lodged a Joint Minute (“the Joint Minute”),
which was in the following terms:
“1. At a meeting between representatives of the pursuer and the defender on
18 May 2015, Ms Mary McLean stated on behalf of the pursuer:
a. that the pursuer had a minute of a meeting which recorded that the
pursuer had authorised the calling up of the Bond and whatever work
was necessary to secure the restoration of the Blair House site;
b. that the pursuer would provide the defender with a copy of the minutes;
and
c. that the pursuer was in the process of restoring two other former coal
mining sites.
2. Following the meeting neither the defender (nor its solicitors) received any
correspondence from the pursuer (or its solicitors) prior to the pursuer’s
solicitors’ letter of 2 December 2015 [6/6 of process].
3. The minutes of the meeting of the Executive Committee of Fife Council dated
22 October 2013 [6/11 of process] were published on the pursuer’s website on
23 October 2013 [6/12 of process]. They have been available to the public
through the pursuer’s website.
4. On 11, 25 and 27 April 2017, the defender’s agent, Mrs Anne Kentish of Clyde
& Co LLP, carried out investigations on the pursuer’s website
(www.fifedirect.org.uk). In the search facility, she entered “Executive
Committee Minutes” and obtained 211 results. When she entered “Executive
Committee Meetings” she obtained 684 results. When she entered “Blair
House”, there were 582 results and when she entered “Executive Committee
Blair House” the website produced 643 results. Having carried out further
research on the website, with some help from her associate Lauren McFarlane,
Mrs Kentish discovered that as at the date of the meeting on 18 May 2015 there
were 35 different Executive Committee minutes on the website dating from
December 2012 to May 2015. The minutes do not have a title – rather they are
published by reference to date. Seven of the minutes predating the meeting
between the parties of 18 May 2015 refer to open cast mining sites. None of
those minutes refers specifically to the pursuer’s intentions regarding the
restoration of the Blair House site.”
The parties also agreed some, but not all, of the documents produced in the Joint Bundle for
the court. (The documents referred to in the evidence recorded in paras [4] to [17], below,
are agreed in the Joint Minute or are the subject of admissions in the pleadings.) In the light
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...at [6], per French CJ; South Lanarkshire Council v Coface SA [2016] CSIH 15 at [12]; Fife Council v Royal & Sun Alliance Insurnace plc [2017] CSOH 115 at [50], per Lady Wolfe; Santos Ltd v BNP Paribas [2019] QCA 11 at [22], where Holmes CJ referred to “an intelligent application of the stri......