Introduction

In the case of Thomas and Gail Chalmers against Diageo Scotland Ltd ([2024] ScotCS CSIH_2), the Scottish Court of Session addressed significant issues pertaining to environmental nuisance and the sufficiency of legal pleadings. The respondents, Thomas and Gail Chalmers, residents of Bonnybridge, alleged that ethanol vapour emissions from Diageo's whisky ageing facility were responsible for the growth of the fungus Baudoinia, commonly known as the "Angel's share" fungus. This fungus, they claimed, caused black, sooty deposits and staining on their property, constituting a legal nuisance.

The core issues revolved around whether the respondents' pleadings sufficiently established causation and loss, thereby validating their nuisance claim against Diageo Scotland Ltd. The procedural history was notably complex, with multiple debates and amendments, ultimately leading to the Court of Session's deliberation on the matter.

Summary of the Judgment

Delivered on January 19, 2024, the Court of Session, Second Division, Inner House, affirmed the Lord Ordinary's decision that the Chalmers' pleadings were sufficiently detailed and relevant. Despite the reclaimers' (Diageo Scotland Ltd.) attempts to have the action dismissed based on alleged inadequacies in the pleadings, the court determined that the amendments made by the respondents provided adequate specification concerning the causation and impact of ethanol vapour emissions.

The court rejected the reclaimers' motion to dismiss the case and exclude certain averments, emphasizing that the respondents had satisfactorily linked the ethanol emissions to the proliferation of Baudoinia and the resultant property damage. Consequently, the reclaiming motion was refused, allowing the nuisance claim to proceed.

Analysis

Precedents Cited

The Judgment referenced several key precedents that influenced the court's decision:

• Watt v Jamieson (1954 SC 56): This case established the necessity for plaintiffs to demonstrate that the nuisance is substantive, excessive, and unreasonable. The Court of Session referred to this precedent to emphasize the need for detailed averments regarding the extent and impact of the discolouration caused by the fungus.
• Shanley v Stewart (2019 SLT 1090): Cited in context with challenges to expense decisions, highlighting that disputes over expenses require specific grounds, such as a miscarriage of justice.
• Grubb v Finlay (2018 SLT 463): Reinforced the principle that appeals against expense decisions must demonstrate a miscarriage of justice, thereby supporting the Lord Ordinary's discretion in handling expense matters.

Legal Reasoning

The court's legal reasoning focused on several pivotal aspects:

• Sufficiency of Pleadings: The respondents amended their pleadings to provide a more detailed account of the causation and effects of the ethanol vapour emissions. The court found that these amendments met the necessary legal standards for specificity and relevance, particularly in linking ethanol emissions to the growth of Baudoinia and the resultant property damage.
• Causation and Liability: The Judgment underscored the importance of establishing a clear causal link between the defendant's actions (ethanol emissions) and the plaintiff's loss (property discolouration). The detailed averments in the respondents' pleadings satisfactorily addressed these elements.
• Specification of Loss: Emphasizing the need for plaintiffs to quantify and specify their losses, the court assessed whether the discolouration was substantial, beyond tolerable levels, and directly attributable to the reclaimers' ethanol emissions.
• Discretion in Expenses: The court maintained that the Lord Ordinary's decision regarding expenses was within her discretionary powers, given the nature of the amendment and the procedural history.

Impact

This Judgment has significant implications for future environmental nuisance cases, particularly in the context of industrial emissions affecting nearby properties. Key impacts include:

• Enhanced Pleading Standards: Plaintiffs must ensure that their pleadings not only allege nuisance but also provide detailed specifications regarding causation and loss. Vague or unspecific claims are less likely to succeed.
• Procedural Clarity: The decision reinforces the necessity for clear and coherent pleadings, especially when scientific or environmental factors are involved. This clarity aids in the adjudication process and reduces grounds for dismissals based on procedural shortcomings.
• Discretion in Expense Allocation: The affirmation of the Lord Ordinary's discretion in expense matters provides a level of predictability and flexibility in how courts handle financial aspects of complex procedural histories.

Complex Concepts Simplified

"Angels' Share"

In the context of whisky production, the term "Angels' Share" refers to the portion of whisky that evaporates from barrels during the ageing process. This evaporation primarily consists of ethanol vapore, which can impact the surrounding environment when emitted in large quantities.

Baudoinia compniacensis

Baudoinia compniacensis, commonly known as the "Angel's Share fungus," is a black fungus that thrives in environments rich in ethanol vapors. It often colonizes structures and surfaces downwind of facilities like bonded warehouses, leading to visible black deposits and staining.

Pioneer Organism Theory

The "pioneer organism" theory suggests that Baudoinia can serve as an initial colonizer of surfaces, facilitating the establishment of other organisms. In this case, the respondents argued that the presence of ethanol vapors stimulates the germination and growth of Baudoinia, leading to property discolouration.

Expenses in Cause

"Expenses in cause" refer to costs that are directly related to the litigation at hand. In this case, the Lord Ordinary's decision to allocate certain expenses as expenses in cause was a point of contention, with the reclaimers challenging the rationale behind this allocation.

Conclusion

The Judgment in Thomas and Gail Chalmers against Diageo Scotland Ltd establishes a critical precedent in environmental nuisance litigation within Scotland. By upholding the sufficiency of the respondents' pleadings, the Court of Session has clarified the importance of detailed and specific allegations concerning causation and loss. This decision underscores the necessity for plaintiffs to meticulously document and articulate the links between industrial emissions and the resultant damage to property. Furthermore, the affirmation of discretion in expense allocation provides courts with the flexibility to address the complexities inherent in such cases. Moving forward, legal practitioners must heed these standards to effectively advocate for or defend against similar nuisance claims, ensuring that procedural and substantive requirements are thoroughly met.