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SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2024] CSIH 31
A270/21
Lord President
Lord Malcolm
Lord Armstrong
OPINION OF THE COURT
delivered by LORD MALCOLM
in the Appeal
MARTIN McGOWAN
Pursuer and Respondent
against
SPRINGFIELD PROPERTIES PLC
Defender and Reclaimer
Pursuer and Respondent: Party
Defender and Reclaimer: Webster, K.C.; Davidson Chalmers Stewart LLP
____________________
20 August 2024
Introduction
[1]
This reclaiming motion (appeal) raises two questions. First, does the five year
negative prescriptive period for any damages claim based on an interim interdict having
been wrongfully obtained run from the date when the order was granted or from when it
was recalled? Secondly, when is recall of an interim interdict conclusive evidence that it was
wrongful, and in particular is a judicial determination which has actively addressed and
resolved its merits a precondition of such? The Lord Ordinary held that the respective
2
answers are (1) the prescriptive period begins on recall and (2) absent such a judicial
determination the onus remains on a claimant to prove wrongfulness. Immediately after the
submissions at the appeal hearing the court refused the challenge to the first decision but
upheld a cross-appeal against the second. We now give our reasons for that outcome.
The background circumstances
[2]
The context for her decisions are set out in the Lord Ordinary's opinion, see
[2023] CSOH 12. They can be summarised as follows. Springfield Properties plc are house
builders. In 2012 and 2013 companies owned by Mr McGowan carried out certain work for
Springfield. 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. Interim interdict was
granted ex parte (in Mr McGowan's absence) on 5 February 2016.
[3]
In October 2020 Springfield pled guilty to an offence under the Health and Safety at
Work etc. Act 1974 in relation to risks to workers caused by asbestos at one of their sites. On
2 September 2020 Mr McGowan undertook that he would not make any false or misleading
statements about Springfield's business. (The undertaking made no reference to the
allegations which prompted the interdict action.) 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, grant decree of absolvitor in favour of Mr McGowan, and find no expenses
due to or by either party. That interlocutor was final; if Springfield wished to leave the
matter open the appropriate decree would have been dismissal, not one which absolved
Mr McGowan. The interim interdict had been extant for almost five years and three months.
3
In the present action, which was raised on 2 November 2021, Mr McGowan seeks damages-
for wrongful interdict. He claims that it had the effect that he and his companies were
blacklisted by employers in the construction industry.
The Lord Ordinary's decisions
[4]
The Lord Ordinary repelled Springfield's plea that because the action was raised
more than five years after the grant of interdict any claim had been extinguished by
operation of the five year negative prescription. The interim interdict was a continuing act
within the meaning of section 11(2) of the Prescription and Limitation (Scotland) Act 1973,
thus the prescriptive period began on its recall which occurred just a few months before the
action commenced. It was noted that damages are given for the consequences of an interdict
and that they continue until it is recalled. It was always open to Springfield to seek its recall.
"A petitioner is not permitted to wash his hands of responsibility for the continuing interdict
simply because the court has intervened to grant it" (paragraph 19). The decision in the case
of Johnston v Scottish Ministers 2006 SCLR 5 could be distinguished.
[5]
Mr McGowan has cross-appealed against the Lord Ordinary's rejection of his
submission that Springfield had pled no defence to the merits of the claim of wrongful
interdict. He had contended that the recall was conclusive, or at least presumptive, of its
wrongful nature. The court should order a proof limited to quantification of damages for
any loss caused. Springfield argued that the onus remained on Mr McGowan to prove that
the interim interdict should not have been granted. It was recalled because of a change of
circumstances, namely the undertaking and the joint minute.
[6]
The Lord Ordinary referred to the opinions of Lady Dorrian and Lord McGhie in
Mirza v Salim 2015 SC 31 at paragraphs 67 and 75 respectively. They indicated that, other
4
than on a change of circumstances, recall of an interim interdict will be conclusive of it
having been wrongly obtained but only where it follows a judicial determination. The Lord
Ordinary noted Lord Pentland's decision in Aird Geomatics Ltd v Stevenson 2015 SLT 329
where he rejected an argument that recall was conclusive on the matter only if there had
been an examination of the facts. However, the view was taken that since the recall in the
present case implemented a joint minute there had been no judicial determination either
after a proof or a contested motion. It followed that the onus remained on Mr McGowan to
prove that he had been wrongfully interdicted (paragraph 28).
The decision of this court regarding prescription
[7]
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 section
11(2) 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 (periculo petentis)
and must be kept under review. Thus 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. And we agree that the circumstances in
Johnston v Scottish Ministers can be distinguished for the reasons given by the Lord Ordinary
at paragraphs 13-15 of her opinion.
[8]
It is worth noticing the surprising outcome if Springfield's contention is correct. As
noted in Scott Robinson, Interdict, page 152 and Walker, Civil Remedies, page 246, a claim for
loss caused by a wrongful interdict requires to await its recall or reduction. However, if one
proceeds on the hypothesis that the wrongful act is completed when the order is obtained,
5
the effect of section 11(1) of the Act when taken with section 6 is that the five year period
began when loss and damage first occurred. In a case such as the present that would be
when the interdict was granted. Thus, unless section 11(2) applies, since the order stood for
more than five years, any obligation Springfield owed to Mr McGowan was extinguished
before he could make a claim based on it. Clearly that would be a nonsense. Counsel for
Springfield suggested that an action for damages need not await recall of the interdict, but
that strikes us as wholly unrealistic. He also pointed out that a defender can seek recall,
which is true, but any such attempt may prove unsuccessful.
Decision regarding the effect of the decree of absolvitor in the interdict action
[9]
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, for example that the wrong was no longer threatened. In Aird Geomatics at
paragraph 18 Lord Pentland observed, in our view correctly, that long before Mirza was
decided, the authorities were to this effect. Here there was no such change of circumstances.
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.
[10]
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.
6
Springfield obtained it at its peril in the sense that if its action was unsuccessful it would be
liable for any loss caused thereby, Mirza paragraphs 67-68 per Lady Dorrian. It also follows
that Aird Geomatics was correctly decided. The pursuer abandoned the action and consented
to decree of absolvitor. Lord Pentland granted summary decree on the merits of a damages
counterclaim commenting that there is no support in the authorities for the proposition that
a recall is conclusive of wrongfulness only if there has been an examination of the facts of
the case (paragraph 19).
Disposal
[11]
For these reasons the court refused the reclaiming motion, upheld the cross-appeal,
and remitted the case to the Outer House for a proof limited to causation and quantum of
damages.
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