Oil company’s M74 land contamination claim against Scottish Ministers to proceed to proof

Esso Petroleum wants the Scottish Ministers to take action to prevent further escapes and is seeking damages for the cost of monitoring its land and loss of value.

Ministers sought to have the action dismissed, but a judge in the Court of Session ruled that the case should proceed to a proof before answer.

Lord Doherty (pictured) heard that first pursuer Esso owns a site on West Street in Glasgow, south of the River Clyde, where a filling station was in operation until about 2013.

In 2004, the Scottish Government acquired adjacent land from the second defender, Brenntag Inorganic Chemicals Limited, to help complete the M74 link.

The third defender Interlink M74 JV, a joint venture comprising the fourth to seventh defenders, carried out the construction of the project to deliver the five-mile stretch of motorway.

Esso 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.

It avers the existence of a “continuing nuisance” and that the first defenders, the Scottish Ministers, are “not merely the proprietors” but also have “statutory responsibility” for the management and maintenance of the M74 land.

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, and decree of specific implement ordaining the first defenders to prevent any further escape of contaminants from the M74 land on to the site.

It further seeks 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, alleging that the 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.

Esso contended that the value of the site had fallen by £350,000 because of contamination and 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. It claimed that if ministers failed to carry out removal and remedial measures it would have to do so at a cost of £1.6m.

However, the first and second defenders maintained that the action so far as directed against each of them should be dismissed because the first pursuer’s pleadings disclosed “no relevant case of nuisance or fault” and because the averments of loss were “irrelevant or hopelessly lacking in specification”.

The first defenders also raised 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.

However, the judge held the claim should proceed to inquiry as the action was not bound to fail.

Delivering his opinion, Lord Doherty said: “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.

“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.”

“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.

“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. I do not think it can properly be concluded, without proof, that the operations must necessarily fall outwith the ‘inherently hazardous’ category.

“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. 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 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.”