Transco Plc V. Glasgow City Council
| Jurisdiction | Scotland |
| Judge | Lord Hodge |
| Neutral Citation | [2005] CSOH 79 |
| Date | 21 June 2005 |
| Court | Court of Session |
| Docket Number | A1214/03 |
| Published date | 21 June 2005 |
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 79 | |
| A1214/03
| OPINION OF LORD HODGE in the cause TRANSCO PLC Pursuers; against GLASGOW CITY COUNCIL Defenders: ________________ |
Pursuers: D. R. Ross; Tods Murray LLP
Defenders: W. J. Wolffe; G. Lindsay
21 June 2005
[1]This is an action to reverse unjustified enrichment. The remedy sought is payment in recompense for the performance by the pursuers of the defenders' statutory obligation. The defenders challenge the relevancy of the pursuers' claim in a procedure roll debate.
The facts as averred
[2]The defenders are a roads authority and have a statutory duty to maintain public roads. The pursuers aver that the Skaethorn Bridge over the River Kelvin at Maryhill, Glasgow, falls within the definition of a public road. The pursuers also have statutory duties under the Gas Act 1986 in relation to the provision and maintenance of gas pipelines. I discuss the relevant statutory provisions in paragraphs [4] and [5] below. The Skaethorn Bridge carries two major gas pipelines which serve the northern part of Glasgow. In 1987 a new road bridge was built to the north of the Skaethorn Bridge and the latter bridge ceased to be used by motor vehicles. Part of Skaethorn Road leading to the old bridge was stopped up in 1999 in terms of the Stopping Up of Road (Glasgow City Council) (Skaethorn Road) Order 1999. Thereafter the bridge itself was stopped up in terms of the Stopping Up of Road (Glasgow City Council) (Skaethorn Bridge) Order 2000. I was also informed that the defenders had removed the bridge from their list of public roads but this was not averred nor was it admitted by the pursuers. It is therefore a fact which I cannot take into account in considering the relevancy of the pursuers' pleadings. Thus the alleged enrichment of the defenders arises from the fact that the pursuers plead that the Skaethorn Bridge remains a public road.
[3]The pursuers aver that they and their predecessors had been concerned about the state of the Skaethorn Bridge since the 1970s. They instructed structural engineering reports in 1979 and again in 1991. There were serious concerns after a flood in December 1994 which caused the collapse of the retaining wall and the slippage of the embankment. The pursuers appointed a consultant in 1996 to produce a proposal for the repair of the bridge. Thereafter works were carried out on two occasions to mitigate a risk to public safety. The first works were carried out in the summer and autumn of 1998 and, including professional fees, cost £225,938.47. Further remedial works were carried out between October 2003 and May 2004 at a cost, including professional fees, of £757,340.
Statutory Provisions
[4]In this case both of the parties had statutory duties. The defenders had certain powers and duties under the Roads (Scotland) Act 1984. In particular under section 1 of that Act the defenders as roads authority were under a duty to manage and maintain all roads which were for the time being entered on their list of public roads. A bridge may be a road (section 151) and at the material time the Skaethorn Bridge was entered on the defenders' list of public roads. A local roads authority nevertheless has power under section 1(4) to delete a road from its list in certain circumstances which include a deletion in consequence of the stopping up of the road. Under section 68 the roads authority has power to make an order stopping up a road which it considers is unnecessary. The procedure to achieve that end is set out in the Stopping Up of Roads and Private Accesses and the Re-determination of Public Rights of Passage (Procedure) (Scotland) Regulations 1986 (S.I. 1986 No. 252).
[5]The pursuers also were subject to statutory duties. In particular, in terms of section 9 of the Gas Act 1986 it was the duty of the pursuers to develop and maintain an efficient and economical pipe-line system for the conveyance of gas.
Defenders' submissions
[6]The defenders' challenge was three-fold. First it was argued that the defenders were not enriched by the pursuers' actions as the defenders could not have been compelled to carry out the works which the pursuers chose to carry out. In response to a demand by the pursuers to maintain the bridge, the defenders could have chosen to stop up the bridge and remove it from their list of public roads: sections 1(4) and 68 of the Roads (Scotland) Act 1984. It was submitted that the pursuers should not be permitted, by carrying out the works at their own hand, to impose upon a public authority a liability to pay for work which that authority could legitimately have decided not to incur.
[7]Secondly, it was submitted that a claim on the ground of unjustified enrichment seeking recompense as a remedy was not available as the pursuers had a statutory remedy under section 45(b) of the Court of Session Act 1988, which empowers the Court of Session to order specific performance of any statutory duty. Public authorities such as the defenders had limited resources and required to prioritise their expenditure. If persons were allowed by self-help to incur expenditure and then seek to reverse unjustified enrichment by seeking recompense from the public authority, this could unfairly skew the allocation and use of public money. Mr Wolffe recognised that the existence of a common law or statutory remedy was not an absolute bar against the pursuers seeking a remedy for unjust enrichment but he submitted that the pursuers required to plead special and strong circumstances to explain their failure to use the available remedy. The pursuers had not done so and the action was accordingly irrelevant.
[8]In support of his second submission Mr Wolffe referred me to Shilliday v Smith 1998 S.C. 725 and Dollar Land (Cumbernauld) Ltd v CIN Properties Limited 1998 S.C. (H.L.) 90 for modern statements of the structure of the law of unjustified enrichment. On the general rule requiring the exercise of a remedy under statute or at common law before seeking the remedy of recompense to reverse unjustified enrichment I was referred to Varney (Scotland) Limited v Lanark Town Council 1974 S.C. 245, City of Glasgow District Council v Morrison McChlery & Company 1985 S.C. 52, Property Selection & Investment Trust Limited v United Friendly Insurance plc 1999 S.L.T. 975 and Commissioners of Northern Lighthouses v Edmonston 1908 16 S.L.T. 439. I was also referred to Lawrence Building Company Limited v Lanark County Council 1978 S.C. 30.
[9]The defenders' third submission was that in any event the pursuers in repairing the bridge had carried out an operation for their own benefit and that accordingly a remedy to reverse unjustified enrichment was excluded. I was referred to Edinburgh and District Tramways Company Limited v Courtenay 1909 S.C. 99 and also Varney (Scotland) Limited v Lanark Town Council 1974 S.C. 245. In the course of discussion Mr Wolffe accepted that it was appropriate to reserve this argument for a proof before answer if he were unsuccessful on his first two submissions. Accordingly I say nothing further on this third submission.
The pursuers' response
[10]Mr Ross for the pursuers submitted that the pursuers had averred that the Skaethorn Bridge was a road in terms of section 1(1) of the Roads...
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