Anglers win right to sue Scottish Water over river acid spill

Devon Angling Association raised an action seeking damages after 12,000 litres of 96 per cent concentrated sulphuric acid leaked into the River Devon from a tank at Scottish Water’s Glendevon treatment works near Dollar, in Clackmannanshire.

Scottish Water claimed the association had “no title to sue” and a sheriff had dismissed the action, but the Sheriff Appeal Court allowed the anglers’ appeal.

Negligence and nuisance

Sheriff Principal Iain Abercrombie QC, sitting with Appeal Sheriff Nikola Stewart QC and Appeal Sheriff William Holligan, heard that the incident giving rise to the litigation occurred at some point between 3 and 4 July 2011, when sulphuric acid entered into the River Devon killing large quantities of fish, including brown trout.

The association claimed that the discharge of the sulphuric acid was caused by the fault of Scottish Water.

It raised an action at Alloa Sheriff Court seeking reparation, founding its claim in both “negligence and nuisance”, but the defender tabled a plea of no title to sue.

The sheriff upheld the plea and dismissed the action, but the anglers appealed.

Right of possession

The parties agreed that the test for title to sue was set out in Nacap Limited v Moffat Plant Limited AC 785, namely that, in order to have a claim in delict for loss of, or damage to, property a person must have had either legal ownership of or a possessory title to the property concerned at the time when the loss or damage occurred

It was argued on behalf of the anglers that where by delict a person injures the subjects of a lease, the tenant, generally, has title to sue him for reparation.

Section 66 of the Salmon and Freshwater Fisheries (Scotland) (Consolidation) Act 2003 provided that contracts such as the present shall be deemed to be leases, and therefore it followed that the association had title to sue for damage caused by Scottish Water.

But on behalf of the defenders it was argued that the leases were not leases or licenses to enter property, nor was there a right of possession to property, only a “right to fish”.

Accordingly, it was submitted that the right conferred upon the association was not a right similar to that of an owner and the sheriff was correct to to conclude that the anglers had no title to sue.

Title to sue

However, the appeal sheriffs disagreed with the sheriff and allowed the appeal, remitting the case to the sheriff court.

Delivering the opinion of the court Appeal Sheriff Holligan said: “The rights to be vindicated are those of the association. The rights conferred are those contained in the leases and by way of the 2003 Act. The leases confer substantial rights – they are exclusive to the association and include the right to interdict and prosecute third parties who infringe their exclusive rights.

“It is settled law that a tenant can sue to protect his rights. The association avers considerable investment and interest in the maintenance of the fishings and the protection of the rights of the significant number of members who enjoy the exercise of those rights. Section 66 adds to the plenitude of the rights enjoyed by the association.

“It is unnecessary for us to decide whether the rights of the association can be characterised as real rights because, in our opinion, adding all of the foregoing together we conclude that the rights enjoyed by the association amount to a right of possession similar to that of an owner.”