ESSO PETROLEUM COMPANY LIMITED AGAINST (FIRST) THE SCOTTISH MINISTERS, (SECOND) BRENNTAG INORGANIC CHECMICALS LIMITED, (THIRD) INTERLINK M74JV; (FOURTH) GALLIFORD TRY INFRASTRUCTURE LIMITED; (FIFTH) BALFOUR BEATTY CIVIL ENGINEERING LIMITED, (SIXTH) MORGAN SINDALL (INFRASTRUCTURE) PLC AND (SEVENTH) SIR ROBERT MCALPINE LIMITED
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 21
CA103/14
OPINION OF LORD DOHERTY
In the cause
(FIRST) ESSO PETROLEUM COMPANY LIMITED
(SECOND) ROC UK LIMITED
Pursuers;
against
(FIRST) THE SCOTTISH MINISTERS; (SECOND) BRENNTAG INORGANIC CHEMICALS LIMITED; (THIRD) INTERLINK M74 JV; (FOURTH) GALLIFORD TRY INFRASTRUCTURE LIMITED; (FIFTH) BALFOUR BEATTY CIVIL ENGINEERING LIMITED; (SIXTH) MORGAN SINDALL (INFRASTRUCTURE) PLC and (SEVENTH) SIR ROBERT MCALPINE LIMITED
Defenders:
Pursuers: Reid QC, Burnet; Maclay Murray & Spens
First Defenders: Sheldon QC; Anderson Strathern LLP
Second Defenders: Barne; DLA Piper
Third to Seventh Defenders: Jones, solicitor advocate; bto Solicitors
17 February 2015
Introduction
[1] The first pursuer is the heritable proprietor of Esso West Street Service Station, 156 West Street, Glasgow (“the Site”). Up until about 2013 the Site had been operated as a petrol filling station by the second pursuer. In about 2004 the first defenders acquired land to the south-east of Paterson Street, Glasgow (“the M74 land”) from the second defenders for the purposes of the M74 Completion project (which involved construction of approximately five miles of motorway between Fullarton Road and west of the Kingston Bridge). The Site and the M74 land are adjacent. The third defenders, which are a joint venture comprising the fourth to seventh defenders, carried out the construction of the project for the first defenders. The first pursuer claims that as a result of those operations hazardous chemicals present on the M74 land were released and continue to be released into the groundwater system, and that contamination of the Site has occurred and continues to occur.
[2] The first pursuer seeks interdict of the first defenders from permitting, facilitating or acquiescing in any further escape of contaminants from the M74 land on to the Site; decree of specific implement ordaining the first defenders to prevent any further escape of contaminants from the M74 land on to the Site; and decree ordaining the defenders or such one or other of them as to the court shall seem proper to carry out and complete works to remediate the Site and prevent recurrence of contamination, failing which damages. It also seeks payment of further sums by the defenders by way of damages. It avers that the contamination of the Site has been caused by nuisance et separatim fault on the part of the first, second, and third to seventh defenders.
[3] The issue before me for determination at this debate on the commercial roll is whether the first pursuer has pled a relevant case for inquiry against either, or both, of the first and second defenders. Those defenders maintain that the action so far as directed against each of them should be dismissed because the first pursuer’s pleadings disclose no relevant case of nuisance or fault, and because the averments of loss are irrelevant or hopelessly lacking in specification. At the debate the first defenders also raised for the first time an issue as to the competency of interdict or specific implement being granted against them in view of the prohibition contained in section 21(1)(a) of the Crown Proceedings Act 1947.
[4] Prior to the debate the pursuers had offered a proof before answer. At the outset of the debate Mr Jones accepted that the case against the third to seventh defenders should go to a proof before answer. He was granted leave to withdraw from the debate and took no further part. Mr Sheldon and Mr Barne insisted on their preliminary pleas to the relevancy of the pursuers’ averments. During the course of the debate Mr Reid conceded that the second pursuer’s averments were irrelevant and that the action in so far as at its instance would require to be abandoned. He also indicated that the fourth conclusion was not insisted upon; and he accepted that the averments in condescendence 17 were irrelevant.
The pleadings
[5] The first pursuer avers that the M74 land was formerly used by the second defender for the filling and blending of bulk liquid chemicals and the distribution and storage of chemicals including chlorinated hydrocarbons and other manufactured chemicals, and in particular tetrachloroethene and trichloroethene; that 1, 2 dichloroethene and vinyl chloride are degradation products of both tetrachloroethane and trichloroethene; and that the storage of such chemicals is not a natural use of land. It avers (condescendence 4):
“Their deposit in the past on or within land created a material risk that if not effectively removed, or stored and confined the chemicals would, on being disturbed, escape into the groundwater and contaminate neighbouring property such as the Site as in fact occurred. The second defenders knew or ought to have known that the unregulated escape of said chemicals would cause a risk to human health and a risk to the use of any land on which said chemicals came to be.”
[6] The first pursuer also avers that the first defenders instructed the M74 Completion works to be undertaken on the M74 land; that as part of those works the buildings on the site were demolished and the floor slab of the buildings, the external hard standing and the drainage on the site were removed; that as a result of the excavation works dangerous chemicals were, and continue to be, released from the M74 land into groundwater which flowed, and continues to flow, on to the Site thereby contaminating it. It avers that the first defenders have statutory responsibility for the management and maintenance of the M74 Completion of which the M74 land forms part; and that having regard to the terms of the missives of sale between the second defender and the first pursuer, and to the terms of the contract to design and build the M74 Completion entered into between Glasgow City Council on behalf of the first defenders and the third defender in March 2008, the defenders were aware or ought to have been aware of the real risk of the escape of hazardous substances from the M74 land and the contamination of land adjacent to it in the course of or as a consequence of the proposed construction. It avers (condescendence 5) that the first and third defenders knew or ought to have known that the second defenders had in the course of their business used the M74 land for the purposes of processing and storage of chemicals which could cause potential risks to human health and to the use of the land on to which the chemicals might escape. In condescendence 6 it avers that investigations on the site in 2008 identified the presence of chlorinated hydrocarbons of potential concern to human health including tetrachloroethene, trichloroethene, 1, 2 dichloroethene and vinyl chloride; that those contaminants were not produced or present as a result of the use of the Site; that they are soluble in water and can pollute large amounts of groundwater; that they require remedial action to prevent pollution and risk to human health; that trichloroethene continues to enter the Site from the M74 land; that the level of contaminant (sic) of concern remain in excess of the Site Specific Assessment Criteria recommended levels; and that the treatment system installed on or around the south of the M74 land has not resolved the situation.
[7] Condescendence 7 to 11 state:
“Cond. 7.… The groundwater flow of contaminants is northwards from the M74 land on to the Site. The contaminants have flowed and are continuing to flow from the M74 land on to the Site…
Cond. 8 In or about November 2008 the third defenders considered remedial options for the section of the M74 in the vicinity of West Street. They were aware of the presence of contaminants on the M74 land. The third defenders proposed remedial operations including the installation of bentonite walls to prevent the spread of contaminants… No bentonite wall was constructed on the southern boundary of the Site. The existence of a bentonite wall on the southern boundary would have minimized the possibility of migration of contamination on to the Site. None of the defenders consulted the Pursuers before deciding not to install a bentonite wall on the southern boundary of the Site… The “funnel and gate” system installed does not control the migration and contamination from the M74 Land northwards towards the Site…
Cond. 9 As a result of the works for the construction of the M74 Completion, in particular the effect upon and contamination of the groundwater flow, the first pursuer’s property at the Site is now subject to contamination which has migrated or escaped from the M74 Land. The said contamination on the site requires to be remediated by the carrying out of works which the pursuer estimates will take a period of six months…Separatim in any event the presence of contamination issues on the Site reduce its value. A site with contamination issues is less attractive to the market. The price paid by any potential purchaser is significantly less as a result of the contamination issues…
Cond. 10 As proprietors and occupiers of the M74 Land the first defenders owed a duty to the pursuers as neighbouring proprietor not to carry out any operations on the M74 Land in a way that was likely to cause loss and damage to the pursuers’ property and interests in the Site. Any reasonable scheme of works would have been designed to and would have minimised disturbance of areas of contamination and minimised disturbance of underlying groundwater. Any reasonable scheme would have successfully controlled the risk of adverse impact to humans, water and the wider environment including adjacent land such as the site both during and after construction operations. The scheme of works authorised by the first defenders did not do so. The carrying out of the excavation and other works for the M74 Completion have caused contaminants to escape on to the Site in particular by affecting, interfering with, and allowing the said contaminants to enter the groundwater flow. The first defenders have invaded or interfered with or materially contributed to the invasion of or interference with the pursuers’ interests in the Site to an extent which has exceeded and continues to exceed what is reasonably tolerable. The first defenders have failed to take or offer to take reasonable steps to remove the continuing nuisance and eliminate the hazard of contamination, by carrying out remediation works. In particular the first defenders have, by their conduct, authorised the nuisance and permitted it to continue….Had the contamination… been removed or adequately dealt with whilst the M74 Land was operating as a chemical distribution depot then such contamination would not have remained in the position where it could migrate into the groundwater following removal of the hard standing…
Cond. 11 The contamination of the Site was caused by nuisance et separatim fault on the part of the first defenders…They carried out works upon the M74 Land which they knew or ought to have known carried a risk of interfering with the pursuers’ enjoyment of their premises by exposing them to the risk of contaminants, and in so doing have created a nuisance, and have thereby caused the pursuers the loss, injury and damage condescended upon hereinafter. The first defenders either by themselves or through their agents authorised works that were attended with the risk of escape of deleterious substances. Reasonable care has not been taken to prevent such an occurrence. The storage of chemicals is not a natural use of land. Their deposit in the past on or within land created a material risk that if not effectively removed, or stored and confined, the chemicals would, on being disturbed by operations such as those actually carried out, escape into the groundwater and contaminate neighbouring property such as the Site as in fact occurred. Such damage is abnormal. Moreover, it was inherent in the operations carried out by the third defenders on behalf of the first defenders that there was a danger that such chemicals stored within the M74 land would be disturbed, escape, infiltrate the groundwater below and contaminate parts of the Site which in fact occurred. Reasonable site investigations would have revealed that risk or hazard. The exercise of reasonable care would have prevented the escape of such deleterious substances. Alternatively, if the exercise of reasonable care would not have prevented their escape, the operations should not have been carried out or should not have proceeded further. Further, having regard to the nature of the operations which they authorised, the first defenders are vicariously liable for the conduct of the third defenders in creating the nuisance in the course of carrying out the inherently hazardous operations which interfered with the pursuers’ interests in and use of the Site. Reference is made to Article 12 of the Condescendence …”
Condescendence 12 sets out averments of nuisance and fault directed against the third defenders. Condescendence 13 to condescendence 15 state:
“Cond. 13 The contamination of the Site was caused by nuisance et separatim fault on the part of the second defenders. As proprietors and occupiers of the M74 Land the second defenders owed a duty to the pursuers as neighbouring proprietors not to carry on operations on the M74 Land in a way that was likely to cause loss and damage to the pursuers’ property. It was reasonably foreseeable that if the second defenders manufactured, stored or distributed synthetic materials such as chlorinated hydrocarbons on the M74 Land and failed to store them in a safe and secure manner or carry out remedial work to carry out the spread of contaminants, there was a risk that the escape of the said contaminants would migrate or escape which would lead to loss or damage to adjacent land, including the Site. The existence of the said chemical contaminants within the land of the Site in the quantities which have been found, in a situation where none of the said chemicals had ever been brought onto the Site by the first pursuer or the any predecessor of the first pursuer , demonstrates that the second defender failed in the said duties to handle and store the said chemicals within the M74 Land in way which was sufficient to prevent their escape and which would have prevented the contamination of the Site. The second defenders’ failure properly to contain the contaminants has caused or at least materially contributed to the migration or escape of the said contaminants on to the Site …
Cond. 14 The defenders have been called upon to take steps to prevent the continuation or recurrence of the contamination complained of but they have refused or at least delay to do so. The migration or escape of said contaminants on to the Site is continuing. The pursuers seek interdict … against the first defender as the heritable proprietor of the M74 Land from permitting, facilitating or acquiescing in any further escape of contaminants on to the Site. The pursuers seek specific implement … ordaining the first defender to prevent the further escape of contaminants on to the Site…
Cond. 15 The defenders have been called upon to take steps to remove and remediate the effect of the contaminants on the Site but they have refused or at least delayed to do so. The defenders have been on notice for several years that deleterious substances emanating from the M74 land have been and are continuing to contaminate the Site. Some of them have carried out some remediation measures but these have not been successful. The nuisance has not been abated. Further measures are required. The pursuers will facilitate the carrying out of further measures by giving, if necessary, appropriate access to their southern boundary where the need for remediation is greatest. The pursuers seek decree of specific implement …ordaining the defenders or such one or other of the defenders whose nuisance et separatim fault the Court finds to have caused the said contamination to carry out and complete works on the Site to be agreed with the pursuers to remove the said contaminants and to remediate the damage caused by the escape of said contaminants within a period of six months or such other period as may be specified by the Court…”
[8] The first pursuer goes on to aver that in the event of the defenders failing to carry out the removal and remedial measures it will have to do it at a cost of £1,660,000 (condescendence 16). It avers that as a result of the contamination of the Site the value of the Site has been reduced by £350,000. It avers that if the Site is not decontaminated its value may be affected further (condescendence 18). In addition the first pursuer avers that it has required and will continue to require to carry out site investigations and monitoring of the contamination at a total estimated cost of £445,000. In condescendence 2 and condescendence 17 it avers that it had proposed to sell the site with other subjects in 2012/13; that on discovery of the contamination it withdrew the site from the portfolio being sold; and that had it not been contaminated the proceeds of sale of the portfolio would have been £480,000 greater.
The first defenders’ submissions
[9] Mr Sheldon moved for dismissal of the action so far as directed against the first defenders; failing which he submitted that the first pursuer’s averments anent quantum of damages should not be admitted to probation.
[10] A claim in nuisance did not arise merely ex dominio (Gourock Ropework Co v Greenock Corporation 1966 SLT 125; Noble’s Trustees v Economic Forestry (Scotland) Limited 1988 SLT 662). Fault had to be established (RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council 1985 SC (HL) 17, per Lord Fraser of Tullybelton at pp. 40-45; Kennedy v Glenbelle Ltd 1996 SC.95, per Lord President Hope at pp. 98F-101D). The first pursuer had not made relevant averments of fault on the part of the first defenders. Nor had it made relevant averments that it was obvious or foreseeable to the first defenders that the works on the M74 land could cause contaminants there to migrate to the Site.
[11] The first defenders were not responsible for the acts or omissions of the third to seventh defenders during the period when they occupied the M74 land. The first defenders had engaged competent independent contractors to carry out the M74 Completion works - the first pursuer did not aver otherwise.
[12] The first pursuer had not made relevant averments that the works to the M74 land had been inherently hazardous. For them to have fallen into that category they would have to have been operations which would “necessarily” or “naturally or probably” cause the migration of chemicals and damage to the first pursuer’s property. Accordingly, the first pursuer did not bring itself within the (possible) exception to the rule that an employer was not liable in respect of work carried out by competent independent contractors (Stewart v Malik 2009 SC 265, per Lord President Hamilton at paragraphs 22-27; Biffa Waste Services Ltd and another v Maschinenfabrik Ernst Hese GmbH and others [2009] QB 725, at paragraphs 73-78, 81-85). The exception ought to be very narrowly confined.
[13] In any event, at best for the first pursuer, what it claimed to have suffered was pure economic loss. Even if the works had been “hazardous operations”, the first pursuer did not aver that there had been physical damage to the Site. In the absence of physical damage there was no actionable loss. The case did not fall within any of the exceptional cases where pure economic loss could be recovered. The case of The Globe (Aberdeen) Ltd v North of Scotland Water Authority 2000 SC 392 was distinguishable - in that case there had been clear averments of a direct interference with property rights by obstructing or hindering access to the property.
[14] The first pursuer’s averments that the invasion of the Site was plus quam tolerabile were irrelevant standing the history of matters averred. It did not aver that the contamination posed a risk to human health; or that the Site has been rendered unusable and that it required to be decontaminated to make it useable (cf. The Orjula [1995] 2 Lloyd’s Rep. 395 at p. 1329; Merlin v British Nuclear Fuels plc [1990] 2 QB 557 at p. 571-573; Blue Circle Industries plc v Ministry of Defence [1999] Ch. 289 at p. 300); or that it had suffered anything other than pure economic loss.
[15] The first pursuer’s averments of loss were confused, contradictory and lacking in specification. Reduction in the value of the Site and the alleged cost of remediation were not pled as alternatives: and it seemed from the first pursuer’s averments that the Site could be sold in an unremediated state.
[16] Finally, Mr Sheldon flagged up an issue which he indicated had only very recently been drawn to his attention. Decree could not be pronounced against the first defenders in terms of the first to third conclusions because of the prohibition contained in section 21(1)(a) of the Crown Proceedings Act 1947. However, he recognised that that in lieu of granting relief by way of interdict or specific implement the court could grant a declarator as to the rights of the parties.
The second defender’s submissions
[17] Mr Barne adopted mutatis mutandis Mr Sheldon’s submissions, but submitted that the irrelevancy of the first pursuer’s cases of nuisance and negligence against the second defender was even clearer. The second defender had ceased to be the heritable proprietor of the M74 land before the M74 Completion works were carried out. The works were not carried out on its instruction or on its behalf. The second defender was not responsible for those works or their consequences.
[18] In so far as the first pursuer sought to make cases of nuisance or negligence against the second defender in respect of its own acts or omissions while it was the owner or occupier of the M74 land, its averments were irrelevant and wholly lacking in specification. According to the first pursuer’s averments it was the subsequent works upon the land which caused the migration of contaminants from it. There were no relevant averments of fact which supported the first pursuer’s bald assertion that it was reasonably foreseeable to the second defender during its ownership and occupation of the M74 land that there was a risk of contaminants migrating from the M74 land to the Site. The presence of chemicals on or under the M74 land did not of itself amount to a nuisance. There were no averments that the Site was affected by contamination during the period that the M74 land was owned or occupied by the second defender.
[19] Mr Barne further submitted that the third conclusion was incompetent in so far as it sought to ordain the defenders to undertake remedial work on the Site. He maintained that the court could not order a wrongdoer to go on to another person’s land to carry out remedial works. In that scenario the appropriate means of redress was damages not specific implement. In any case, an order ad factum praestandum had to be framed with precision so that the party compelled to act was left in no doubt as to what he required to do (Walker, Civil Remedies, pp. 269-270). The third conclusion lacked the requisite degree of precision.
The first pursuer’s submissions
[20] The first pursuer’s case was that the Site had been contaminated through the defenders’ fault and nuisance. The migration of the contaminants was continuing, and the first pursuer sought interdict in order to prevent the continuing nuisance. The first defenders’ submissions had focussed largely on the damages claims, but the interdict claim was a very important aspect of the action. In addition to interdict the first pursuer sought to have the contamination on the Site remediated by or at the expense of the defenders or one or more of them; and damages for the losses it had sustained.
[21] On the pleadings it could not be said with confidence that any of the first pursuer’s cases against the first or second defenders were bound to fail. The first pursuer had averred enough to justify inquiry by way of a proof before answer.
[22] The first pursuer’s averments were sufficient to merit inquiry as to whether the interference with the Site caused by the migration of contaminants was, and continued to be, plus quam tolerabile.
[23] The first defenders were responsible for the nuisance created by, and negligence of, the third defenders. Even if the third defenders were competent independent contractors (a matter which was not admitted), the first defenders were responsible for them because they were carrying out inherently dangerous operations on the first defenders’ behalf (Stewart v Malik, supra). In so far as the nuisance had continued after the first defenders had been made aware of it, the fault was intentional because the first defenders had allowed the nuisance to continue and had not abated it. In those circumstances the culpa was the causing of intentional harm by allowing the nuisance to continue.
[24] The migration of contaminants was continuing and the first defenders were aware of that. They were the proprietors and had statutory responsibility for the management and maintenance of the M74. There was a relevant case for interdict of the first defenders.
[25] The second defender had negligently stored the contaminants on the M74 land. That had not led to their migration until the third defenders’ works on the land, but it had materially contributed to the occurrence of the contamination of the Site, and thus to the nuisance. Mr Reid accepted that his remedy against the second defender ought to be restricted to damages because the second defender no longer owned or controlled the M74 land.
[26] The claim for damages was not a claim for pure economic loss. The first pursuer’s averments were indicative of physical damage having been caused to the Site (cf. Blue Circle Industries plc v Ministry of Defence, supra). Even if it was a type of pure economic loss, it was recoverable (The Globe (Aberdeen) Ltd v North of Scotland Water Authority, supra). The damages claims were sufficiently clear and specific. The first pursuer was claiming for (i) the costs of remediation in the event of those works not being carried out by the defenders (£1,660,000); (ii) for the residual or “stigma” diminution in value of the site (£350,000) which would remain even if it were remediated; (iii) for the investigation and monitoring costs which the first pursuer had incurred and will require to incur in the future (£445,000).
[27] The question of section 21(1)(a) of the Crown Proceedings Act 1947 could be addressed if and when it became necessary to do so after a proof. At that stage consideration could be given to an appropriate declarator in respect of the first defender in lieu of the orders sought against them in the first and second conclusions and in the first part of the third conclusion. If necessary, orders in terms of the first part of the third conclusion could be pronounced in respect of the other defenders. After proof had been heard there could be fine tuning of the terms of any orders to be pronounced.
Response for the first defenders
[28] Mr Sheldon submitted that the question who was in control of the M74 land after the M74 Completion works had been completed had not been focussed in the pleadings. He submitted that in fact, in terms of a management contract with the first defenders, the third defenders had continued to occupy and control the M74 land; and that after the first defenders had been made aware of the complaint of contaminants they had relied on the third defenders’ advice in relation to the complaint. He demurred from the suggestion that there was culpa on the first defenders’ part because they had knowledge of the complaint but did not abate the nuisance. He maintained that the first defenders were entitled to rely upon the advice of the third defenders in that regard.
Authorities
[29] In addition to the authorities mentioned above reference was also made to:
Adam v Alloa Police Commmssioners (1874) 2 R 143
Argyll and Clyde Health Board v Strathclyde Regional Council 1988 SLT 381
Borders Regional Council v Roxburgh District Council 1989 SLT 837
Cambridge Water Company v Eastern Counties Leather Plc [1994] 2 AC 264
Cameron v Fraser (1891) 9 R 26
Chalmers v Dixon (1876) 3 R 461
Colour Quest Ltd and others v Total Downstream UK plc and others [2009] 1 CLC 186
Crolla v Hussain 2008 SLT (Sh Ct) 145
Edinburgh Railway Access and Property Co v John Ritchie & Co (1903) 5F 299
Fleming v Gemmill 1908 SC 340
Hampden Park Ltd v Dow 2002 SLT 95
Harvie v Robertson (1903) 5 F 338
Hugh Blackwood (Farms) Ltd v Motherwell District Council, 28 July 1988, unreported, Lord Prosser
Hunter v Canary Wharf Ltd 1997 AC 655
Kerr v Earl of Orkney (1857) 20 D 298
Laurent v Lord Advocate (1869) 7 M 607
Maloco v Littlewoods Organisation Ltd 1987 SC (HL) 37
McGuffie v Forth Valley Health Board 1991 SLT 231
Miller v Robert Addie & Sons Collieries Ltd 1934 SC 150
Morris Amusements Limited v Glasgow City Council 2009 SLT 697
Noble’s Trustees v Economic Forestry (Scotland) Ltd 1988 SLT 662
Plean Precast Limited v National Coal Board 1985 SC 77
Savage v Fairclough [2000] Env. LR 183
Sedleigh-Denfield v O’Callaghan [1940] AC 880
Sinclair v The Caithness Flagstone Company Ltd (1898) 25 R 703
Stephen v The Commissioners of Police of Thurso (1876) 3 R 535
Strathford East Kilbride Ltd v HLM Design Ltd 1999 SLT 121
Watt v Jamieson 1954 SC 56
Webster v Lord Advocate 1985 SC 173
Weir v East of Scotland Water Authority 2001 SLT 1205
Stair Memorial Encyclopedia vol. 2, paras 2104-6; vol. 14, para. 2094
Stair Memorial Encyclopedia Reissue, “Nuisance”, paras. 107, 153, 157
Thomson, Delict, paras. 14-56, 14-59
Walker, Civil Remedies,p. 1047
Decision and reasons
The merits
The case against the first defenders
[30] While the debate was wide-ranging and raised several interesting legal issues, in my opinion it is not necessary or appropriate to reach a concluded view on many of them at this stage of the litigation. A number of the matters in dispute involve questions of fact and degree which cannot be determined on the pleadings. The first pursuer’s pleadings are not a model of good drafting, but I am not persuaded that the case on the merits against the first defenders is bound to fail even if the first pursuer proves all its averments (Jamieson v Jamieson 1952 SC (HL) 44). In those circumstances it is sufficient that I explain why I have reached that view.
Interdict
[31] The first pursuer’s averments appear to me to be adequate to entitle it to inquiry in relation to the interdict sought against the first defenders. It does not require to prove culpa on the part of the first defenders in order to vindicate its right to prevent the nuisance continuing (Stair Memorial Encyclopaedia Reissue, Nuisance, paras 94, 144; Logan v Wang (UK) Ltd 1991 SLT 580 at 582K, L; Thomson, Delict, para. 14-56). It avers the existence of a continuing nuisance, and that the first defenders are not merely the proprietors but also have statutory responsibility for the management and maintenance of the M74 land. The nature and materiality of the nuisance, whether it has resulted in physical damage to the site, whether it is plus quam tolerabile, and the first pursuer’s ability to instruct and control what happens on the land, involve questions of fact and degree which I am not in a position to rule upon without inquiry into the facts.
[32] While Mr Sheldon flagged up the difficulty created by the prohibition in section 21(1)(a) of the Crown Proceedings Act 1947, he recognised that this was a matter the court could deal with by pronouncing a declarator in lieu of interdict if the first pursuer otherwise made out the case for interdict at proof. (The same applies in relation to the orders sought against the first defenders in the second conclusion and in the first part of the third conclusion). In my opinion this potential difficulty ought not to prevent the case proceeding to inquiry.
Damages for nuisance
[33] Damages claims for nuisance require proof of culpa. In the case of the first defenders the culpa founded upon is their instruction of inherently dangerous operations on the M74 land, standing their knowledge of its previous use and of the presence of contaminants there which the first pursuer avers were liable to be disturbed; and vicarious liability for the third defenders’ nuisance because the operations they instructed them to carry out were inherently hazardous. In relation to the period after the first pursuer alerted the first defenders to the existence of the nuisance, the first pursuer is also in a position to found upon the continuation and non-abatement of the nuisance as being further and, in this instance, intentional, culpa. While the first pursuer’s averments could have been clearer, they appear to me to be adequate to entitle it to inquiry. It cannot be said at this stage that the first pursuer is bound to fail to establish culpa on the part of the first defenders. If it proves its averments it will have an arguable basis for demonstrating “some degree of personal responsibility” on the part of the first defenders (Sedleigh-Denfield v O’Callaghan, supra, per Lord Atkin at p. 896; RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council, supra, per Lord Fraser at p. 44). Once again, several of the issues which arise involve questions of fact and degree in relation to which proof will be necessary.
[34] In relation to the issue of vicarious liability for the third defenders’ nuisance, the starting point is that the first pursuer denies the first defenders’ averment that the third defenders were competent independent contractors. Unless the first defenders prove that the third defenders were competent contractors, whether the operations which the first defenders instructed on the M74 land were “inherently hazardous” may be academic. In any case, I do not think it can properly be concluded, without proof, that the operations must necessarily fall outwith the “inherently hazardous” category. Whether they do or not is arguably a question of fact and degree (see e.g. Morris Amusements Limited v Glasgow City Council, supra, per Lord Emslie at paragraphs 43-45).
[35] Similarly, it cannot be concluded on the pleadings that the first pursuer’s claim falls to be characterised as being a claim for pure economic loss. I am unable to exclude the possibility that the first pursuer may demonstrate that there has been physical damage to the site. Even if I had been of the view that the first pursuer’s averments were insufficient to allow proof on that issue, I would have followed the approach taken by the Inner House in The Globe (Aberdeen) Ltd v North of Scotland Water Authority, supra. I would have held that I am unable to affirm at this stage, and without careful examination of all the authorities on pure economic loss, that the first pursuer’s claim here is necessarily too remote (see also Hand v North of Scotland Water Authority 2002 SLT 798; Stair Memorial Encyclopedia Reissue, “Nuisance”, para. 153; Thomson, Delict, para. 14-25).
The case against the second defender
[36] I am persuaded that the case against the second defender is irrelevant and wholly lacking in specification. I agree substantially with Mr Barne’s submissions. The averments in condescendence 13 are insufficient to entitle the first pursuer to inquiry in respect of either the case of nuisance or the case of “fault”. There is no suggestion of intentional nuisance. Negligence is the culpa relied upon as giving rise to liability in damages for nuisance. The second defender is said to have had a duty to prevent the escape of contaminants from the M74 land to the site. There is no specification of the particular steps the first pursuer says ought to have been taken, nor is there any proper explanation of how it is said that the breach of any such particular duties incumbent upon the second defender caused or materially contributed to the contamination of the Site. There is no suggestion that there was any migration of contaminants while the second defender was in occupation of the M74 land. On the contrary, the first pursuer’s case is that it was the carrying out of the M74 completion works on the M74 land which caused the migration of the contaminants. While it was the occupier the second defender undoubtedly owed a duty to neighbours to take reasonable care to prevent the escape of contaminants from the M74 land: but in my opinion the exercise of reasonable care did not require it to take steps to prevent the escape of contaminants as a result of major disruptive works carried by future owners and occupiers. The first pursuer avers that the first and third defenders were aware of the contaminated condition of the M74 land before the M74 works were carried out on it. On the first pursuer’s averments the depositing of contaminants on the M74 land can be seen to have been a sine qua non of the damage the first pursuer suffered; but the averments do not support the conclusion that it was an effective cause of that damage.
[37] That is sufficient to dispose of the case directed against the second defender. In light of that, and since Mr Reid accepted that his remedy against the second defender ought properly to be restricted to damages, it is unnecessary to comment on Mr Barne’s submissions anent the competency of the third conclusion in so far as it is directed against the second defender.
Damages
[38] I agree with Mr Sheldon’s criticisms of the first pursuer’s averments of loss. In their current form they are confused, and I do not regard them as being sufficiently relevant and specific to go to inquiry. Mr Reid’s explanation as to how the claims are made up, and how they relate to each other, is a gloss on the averments. It is not clear from the averments that the claim for diminution in value is indeed a “stigma” claim. Nor is it clear why the cost of monitoring of the site for the next ten years is claimed both as part of the remediation works (condescendence 16, page 60A-B) and also as part of future investigation costs that the first pursuer avers it will require to incur (condescendence 19, page 67B-C). While Mr Reid indicated that he did not wish to rely upon the averments in condescendence 17, those averments remain on record (as do averments to similar effect in condescendence 2, at page 10A-B).
[39] Given Mr Reid’s explanation of how the various claims interrelate, and given that there is a case suitable for inquiry on the merits, I think it is appropriate that the first pursuer be given the opportunity to seek leave to amend for the purpose clarifying its averments of loss.
Disposal
[40] I shall put out the case by order to discuss the appropriate interlocutor and further procedure in light of my decision. The minute of abandonment for the second pursuer may be dealt with at the same time. I reserve meantime all questions of expenses.