Whisky distiller loses appeal against decision that couple pled relevant nuisance case for black stains on house

Thomas and Gail Chalmers originally raised the action against Diageo Scotland Ltd after black stains began to appear on the exterior walls of their property, which they attributed to vapours carried on the wind from the defenders’ facility. In their reclaiming motion, Diageo sought dismissal of the action on the basis that the Lord Ordinary’s decision on relevancy was wrong.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, together with Lord Matthews and Lord Armstrong. Moynihan KC and Nicholson, advocate, appeared for the pursuers and respondents and Cormack KC, solicitor advocate, and Turner, advocate, for the defenders and reclaimers.

Sea change in pleadings

The pursuers raised the action in 2014 after a fungus named Baudoinia began to grow on their property, leaving black sooty stains on the exterior walls. They averred that the fungus growth was attributable to the “Angel’s Share” ethanol vapours leaving the casks in the warehouses in the defenders’ facility. The defenders had sought dismissal of the action on the basis that the pursuers’ pleadings were irrelevant and lacking in specification.

Over the course of the action, scientific advances resulted in Baudoinia being recognised as comprising five species, as opposed to being a single species as was believed when the action was raised. In recognition of this, the pursuers raised an amendment procedure in June 2022. At the emd of this procedure, it was concluded by the Lord Ordinary that the pursuers’ pleadings were relevant and contained adequate specification.

It was submitted for the reclaimers that the amendment caused a sea change in the pleadings in relation to causation, liability and specification of nuisance, all of which impacted on the averments in respect of loss to the extent that the action should be dismissed or, at least, certain averments should be withheld from probation. In the absence of a stated composition of the sooty deposits, it could not be known what their cause was.

Counsel for the reclaimers further submitted that the effect of the averments was that the deposits may not even contain Baudoinia. Absent proper specification of composition, the reclaimers were unable to determine the academic expertise to which the case should be addressed. An appeal was also made against the Lord Ordinary’s decision on expenses, however it was not specified by the reclaimers how she had erred in her decision.

Pleadings as a whole

Delivering the opinion of the court, Lady Dorrian observed: “The Lord Ordinary concluded that the pursuers’ case is that their property has been and continues to be damaged by black deposits or staining caused by Baudoinia, and that Baudoinia growth is promoted by ethanol vapour from the defenders’ premises. The pursuers cannot succeed unless they prove that the black deposits or staining are caused by fungus of the genus Baudoinia.”

She continued: “The case which the reclaimers have to meet is clear, and there is no deficiency in relevancy or specification of the averments either in respect of causation or liability. The arguments for the reclaimers repeatedly seek to isolate parts of the pleadings from other parts, rather than to consider the pleadings as a whole.”

Explaining this decision further, Lady Dorrian said: “The Lord Ordinary concluded that the arguments that the averments of loss were insufficient was without merit, and again we agree. The whole point of a proof before answer is that after evidence the case may not be established as a matter of both fact and law; the simple question at the moment is whether the averments are sufficient for inquiry. It cannot be said that if the respondents succeeded on liability and causation they must necessarily lose on establishing or quantifying loss.”

She concluded: “The Lord Ordinary noted that the change in taxonomy had been known for a number of years; and that the reclaimers’ response to the pioneer organisms averments is simply that this is not established science. In these circumstances she made the expenses of the discharge expenses in the cause and we are unable to say that this was not a decision within a reasonable exercise of her discretion.”

The reclaiming motion was therefore refused.