Falkirk couple allowed proof before answer in case against whisky aging facility

Thomas and Gail Chalmers brought an action against Diageo Scotland Ltd for damages of £40,000 caused by a whisky aging facility that they allege has diminished the value of their property.

The case was heard in the Outer House of the Court of Session by Lord Tyre.

‘Angels’ share’

The pursuers lived in a house in Bonnybridge, Falkirk, which was situated usually downwind of a whisky aging facility owned by the defenders. They contended that the ethanol vapour released from the casks over time, known as the ‘angels’ share’ had damaged their property and their outdoor furniture by causing black fungus to cover the outside walls and tiling. This had reduced the value of the house, which was estimated at £190,000 to £195,000 in 2017, by 5-10%, due to both the damage to the house and to neighbouring houses.

The first pursuer had attempted in the past to clean the house of the fungus himself but had since become unable to do the work, forcing them to pay for outside help, which would have to continue until the defenders ceased the activity causing the blackening. Furthermore, they contended that they had lost the use and enjoyment of their garden, as they were limited in the types of furniture they could put in it as well as having to choose colours that would reduce the visual effect of the fungus. As such, their claim was based on diminution of value, cleaning costs, and loss of amenity.

Counsel for the defenders argued that the blackening was indistinguishable from other forms of blackening in other locations, and it was not significant enough to have an impact on property values. They also argued that the pursuers were double counting by claiming for loss of property value, loss of amenity, and cleaning costs. In the event that they were successful, only one of those things could be recovered from the defenders. Finally, they submitted that it was not clear how the sum claimed for had been calculated, and that there was no way to accurately calculate future loss as the pursuers did not state how long they intended to continue living in the property.

The pursuers argued that the double counting argument was erroneous as it proceeded on the basis that they would claim cleaning costs forever into the future and that they were an exhaustive measure of the damages sustained. They accepted that they could not claim for both diminution in value and loss of amenity, but one of those could be claimed alongside cleaning costs and replacement furniture. However, without further enquiry, it was not yet possible to say which would be the more appropriate measure to claim for, and that in the event that the diminution of value was inconclusive the pursuers would then have to rely on a more general claim for loss of amenity.

‘Contentious issue’

In his decision, Lord Tyre first put aside the issue of double counting, saying: ”In my opinion the issue of double counting will be better resolved after enquiry.  I am further satisfied that the pursuers’ averments in relation to costs and expenses are sufficiently specific to justify the allowance of proof before answer.”

Regarding what the pursuers could claim for, he said: “In the present case it is not averred on behalf of the defenders that steps are being or may be taken to put an end to the alleged nuisance complained of.  For the purposes of the present discussion, therefore, the nuisance complained of must be regarded as a continuing one[.]”

After setting out the pursuers’ claim, he continued: “Senior counsel for the pursuers accepted that there was a degree of double counting here, and that the pursuers would not be entitled to both.  I consider, however, that the proper measure of the pursuers’ loss, if any, ought to be determined after the hearing of evidence, especially on the contentious issue of whether the presence of black discolouration has in fact caused a diminution in the value of their property.”

Concerning the defenders’ argument that the there was double counting in including cleaning costs and loss of amenity, he said: “In my opinion there is no double counting as between these two heads of claim.  If the pursuers were to succeed in proving that the value of their house has been diminished, this would represent the loss of future amenity resulting from the occurrence of discolouration and the need to take regular measures to remove it. That is not, in my view, the same thing as either the past costs of cleaning, or future costs of cleaning likely to be incurred by the pursuers themselves.”

He continued: “Addressing the question of relevancy that arises at this stage, the pursuers have in my view pled a relevant case that they will continue to incur cleaning costs for as long as they continue to occupy the property and the emission of ethanol vapour into the atmosphere continues.” 

Lord Tyre then addressed the issue of whether the pursuer had provided a coherent enough explanation of the sum claimed for, saying: “In my opinion the pursuers have given sufficient notice of costs and other losses which, if all were to be established in evidence, might amount to the sum sued for or thereabouts. My view as just stated should not, of course, be interpreted as the expression of any opinion as to the likelihood of the pursuers succeeding on liability or, if they do so succeed, on their prospects of recovering the whole of the damages that they seek.”

For these reasons, he pronounced an interlocutor allowing proof before answer.