SHERIFF APPEAL COURT [2018] SAC (Civ) 7 ALO-A4-16 Sheriff Principal Abercrombie QC Appeal Sheriff Stewart QC Appeal Sheriff Holligan OPINION OF THE COURT delivered by APPEAL SHERIFF HOLLIGAN in the cause DEVON ANGLING ASSOCIATION, JOHN B ANDERSON, A L ARMSTRONG, D K MUDIE, respectively The President, Treasurer and Secretary thereof, as representing the association as individuals Pursuers and Appellants against SCOTTISH WATER Defender and Respondent Pursuer/Appellant: Upton, advocate; Fish Legal Defender/Respondent: Balfour, advocate; Berrymans Lace Mawer LLP 27 March 2018 [1] This appeal concerns a claim for reparation. The pursuers and appellants are an angling association. They are an unincorporated body whose objects are to sustain and protect fishing in the River Devon and its tributaries along a particular stretch of the water. The defenders and respondents are Scottish Water, a body incorporated in terms of the 2 Water Industry (Scotland) Act 2002. We will refer to the parties as “the Association” and “Scottish Water” respectively. [2] The circumstances giving rise to the present claim are set out in the closed record. For the purposes of this opinion the material facts are not greatly in dispute. It is a matter of agreement that the Association bears to be the tenant of three leases executed in 1982, 1988 and 2013 respectively (although we recognise there is a dispute as to whether the Association are lessees and the documents leases, for convenience we shall refer to them as “the leases”). There is little material difference in the terms and conditions of each of the leases. They are short documents. We set out the terms of one of the leases in detail later in this Opinion. The Association avers that the River Devon is a popular destination for anglers for salmon, sea trout and native brown trout. The Association has been in existence for some time and takes an active interest in ensuring adequate stocking of the river. [3] At some point between 3 and 4 July 2011, approximately 12000 litres of 96% concentrated sulphuric acid were discharged from a tank situated on the property of Scottish Water at the Glendevon Water Treatment Works. Put very shortly, the Association avers that the sulphuric acid entered into the River Devon killing large quantities of fish, including brown trout. The Association avers that the discharge of the sulphuric acid was caused by the fault of Scottish Water. It seeks reparation therefor. The Association founds its claim in both negligence and nuisance. The loss condescended upon is patrimonial (the cost of certain reports) and loss of amenity (the alleged effect of the pollution on the value of the members’ subscriptions). [4] The Association raised an action against Scottish Water at Alloa Sheriff Court. Scottish Water tabled a plea of no title to sue. The matter came before the sheriff in Alloa. Having heard the parties in debate the sheriff sustained the plea of Scottish Water of no title 3 to sue and dismissed the action. As the argument before us is very similar to that presented to the sheriff, we need not refer in detail to the sheriff’s judgment. Counsel lodged detailed notes of arguments which we summarise as follows. Submissions for the Association [5] For the Association, Mr Upton submitted that the Association does have title to sue. The parties agree the following proposition: that where by delict a person injures the subjects of a lease, the tenant, generally, has title to sue him for reparation. As section 66 of the Salmon and Freshwater Fisheries (Scotland) (Consolidation) Act 2003 (“the 2003 Act”) provides that contracts such as the present shall be deemed to be leases it follows that the Association has title to sue for damage caused by Scottish Water. It is not disputed that the terms of each contract meet the criteria in section 66. It is also a matter of agreement that section 66 applies the Leases Act 1449 (“the 1449 Act”) to the contract. The effect of section 66 is not only to deem the 1449 Act to apply to such a contract; it is also to deem the contract to be a lease. Reference was made to section 69(2) of the 2003 Act. The 1449 Act can only apply to a lease. If the contract were not a lease then the 1449 Act could not apply to it. That is why Parliament provided that such a contract “shall be deemed to be a lease”. Parliament did not leave the matter to implication. Accordingly, in saying that the leases were not “true leases” the sheriff was in error. [6] The tenant of a lease has title to sue for pollution of a river within the let subjects. There is limited agreement between the parties that a tenant of a lease, generally, has a title to sue for reparation in such circumstances (Fleming v Gemmill 1908 SC 340; Hand v North of Scotland Water Authority 2002 SLT 798; East Lothian Angling Association v Haddington Town 4 Council 1980 SLT 213 and Mull Shellfish Limited v Golden Sea Produce Limited 1992 SLT 703). Accordingly, the defender’s plea of no title to sue should have been repelled. [7] Before the sheriff, the issue arose as to whether the interest held by the Association is a real right. When an action is brought for delictual damage to a given subject, title to sue does not depend on having a real right in the damaged item (Leigh & Sillivan Limited v Aliakmon Shipping Company Limited [1986] AC 785, followed in Scotland in Nacap Limited v Moffat Plant Limited 1987 SLT 221). The test stated in Nacap is that in order to have a claim in delict for loss of, or damage to, property a person must have had either legal ownership of or a possessory title to the property concerned at the time when the loss or damage occurred. In the present case there is a lease in favour of the Association. A lease is a possessory title. It is therefore unnecessary to go further and say that the Association has a real right. However, section 66 provides that the Association does have a real right. A lease to which the 1449 Act applies is a real right (Stair Institutes IX, 9, ii; Brock v Cabbell (1830) 8 S 647; Campbell v McLean (1870) 8 M (HL) 40 at page 46 and Mountain’s Trustees v Mountain 2013 SC 202 at paragraph [9]). A real right such as the present lease entitles the persons vested with it to possess the subjects as their own and, if it be injured by another, to demand reparation from that person in consequence to the right which they have in the subject itself (Erskine Institutes II, 1, ii). In the course of her judgment the sheriff held that the 2003 Act does not deem the appellants to have “a real right of title to sue”. If title to sue depends upon having a real right the sheriff applied the wrong test but in any event section 66 obliges the court to treat the right as a real right. On the question of the nature of the right necessary to found title to sue counsel referred to Delict (various contributors), paragraphs 3.10-3.29. 5 [8] Section 66 provides that a relevant contract shall be deemed to be a lease to which the 1449 Act applies and the right of fishing shall, for the purposes of succession to that right, be deemed to be heritable property. The sheriff concluded that the leases were not leases in terms of the 1449 Act. However, they do satisfy the criteria set out in section 66. The sheriff appeared to take the view that the provisions limited the rights conferred by section 66 to the tenant’s rights as to succession and in the event of the landlord selling the land. That is not what section 66 provides and ignores the words “shall be deemed to be a lease”. Section 66 has been said to render the tenant rights a real right simpliciter without qualification (Gloag Henderson, Law of Scotland (14th Edition) paragraph 35.03). It is not for the courts to rewrite legislation but to give effect to clear legislative language even if the consequences are unintended (Craies, Legislation 11th Edition, paragraphs 17.11 and 17.14; Slamon v Planchon [2004] EWCA Civ 799). In Mr Upton’s submission it would be odd if a tenant had a real right in any question with the greater claim of the proprietor of the land but not in a question with the lesser claim of a polluting neighbour. The effect of the 1449 Act is to render real not only such rights of a tenant as are essential to a lease but also a wide variety of subsidiary rights, even extending to those which could not on their own have been the subject of a lease (Paton and Cameron, Landlord and Tenant at page 104). In essence section 66 has deemed a contract to be a lease and it is to be given effect as a lease for all purposes. Section 66 applies “notwithstanding any rule of law to the contrary” which includes any rule of the law of delict that holds such a contract not to qualify as a lease. [9] Salmon fishing has been treated differently from trout fishing. In relation to policy considerations the purpose of section 68 was not to remove any discrimination against trout fishermen by putting them in the same position as salmon fishermen. The object was to give tenants an incentive to cultivate their interest in the fishings.