Inner House orders damages proof in action for damages caused by wrongful interdict at instance of building firm

About this case:

• Citation:
  [2024] CSIH 31
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Malcolm

Pursuer Martin McGowan sought damages from Springfield Properties plc for wrongful interdict preventing him from repeating claims about negligent health and safety practices at the defender’s sites. Following the defender’s appeal, the pursuer cross-appealed against the lord ordinary’s rejection of his submission that no defence had been pled to the merits of the claim.

The appeal was heard by the Lord President, Lord Carloway, along with Lord Malcolm and Lord Armstrong. The defender and reclaimer was represented by Webster KC and the pursuer and respondent appeared as a party litigant.

Presumptive of wrongfulness

In 2012 and 2013, companies owned by the respondent carried out work for the appellant. Subsequently he made allegations concerning unsafe practices at Springfield sites concerning asbestos, crude oil and other hazardous materials. He intended to inform the authorities and people who had purchased homes from Springfield. Springfield raised an action seeking interdict preventing a repetition of these claims, for which interim interdict was granted in the respondent’s absence on 5 February 2016.

The respondent pled guilty in October 2020 to an offence under the Health and Safety at Work etc Act 1974 in relation to asbestos risks at one of their sites. One month prior, the respondent had undertaken that he would not make any false or misleading statement about the business. On 26 May 2021 the court issued an interlocutor in terms of a joint minute of the parties which asked the court to recall the interim interdict and grant decree of absolvitor in favour of the respondent. At that time, the interim interdict had been extant for almost five years and three months.

The respondent raised the present action in November 2021, averring that the interim interdict had the effect of blacklisting him and his companies from working in the construction industry. The lord ordinary repelled the appellant’s argument that the claim had been extinguished, stating that the interim interdict was a continuing act within the meaning of section 11(2) of the Prescription and Limitation (Scotland) Act 1973 and thus the prescriptive period only began when it was recalled in May 2021.

In the cross-appeal, the respondent contended that the recall of the interdict was conclusive, or at least presumptive, of its wrongful nature, therefore the court ought to order a proof limited to quantification of damages. The appellant submitted that the onus remained on the respondent to prove that the interim interdict should not have been granted, as it was recalled because of a change in circumstances.

Wash hands of responsibility

Delivering the opinion of the court, Lord Malcolm began: “In agreement with the Lord Ordinary we are satisfied that to obtain and then continue to insist in an interim interdict is a continuing act within the meaning of the 1973 Act. The imposed restrictions subsist until the order is recalled or the action finally determined. It is obtained at the peril of the party seeking it and must be kept under review.”

He continued: “If at any time it becomes apparent that interdict is not warranted, the court should be asked to recall it; an application which the court will readily grant. As the Lord Ordinary observed, the holder of such an order cannot wash his hands of responsibility for its continuing consequences.”

Regarding the effect of the decree of absolvitor in the interdict action, Lord Malcolm said: “Mr McGowan was successful in his resistance to Springfield’s action. He was granted decree of absolvitor. It makes no difference that this was because Springfield agreed to it. It is a final determination of the merits of the action and is res judicata as between the parties; in other words the matter cannot be re-litigated. With the exception of orders granted in old style possessory actions, such a decree is conclusive proof of the wrongful obtaining of the interim order unless a change of circumstances explained otherwise.”

He concluded: “The undertaking did not involve any concession on Mr McGowan’s part. He has always maintained the truth of his allegations. Springfield’s conviction, if anything, suggests that he was right all along. Having successfully resisted Springfield’s claim that it was entitled to interdict, there is no onus on Mr McGowan to prove that the interim order should not have been granted.”

The court therefore refused the reclaiming motion, upheld the cross-appeal, and remitted the cause to the Outer House for a proof limited to causation and quantum of damages.