Appeal by Martin McGowan against Springfield Properties Plc (Court of Session)

Factual and Procedural Background

The case involves a dispute between Plaintiff and Company A, who are house builders. In 2012 and 2013, companies owned by Plaintiff carried out work for Company A. Plaintiff later alleged unsafe practices at Company A’s sites involving hazardous materials and intended to inform authorities and home purchasers. Company A sought an interim interdict to prevent repetition of these claims, which was granted ex parte on 5 February 2016. In 2020, Company A pled guilty to a health and safety offence related to asbestos risks. Plaintiff gave an undertaking not to make false or misleading statements about Company A’s business in September 2020. In May 2021, the court issued a final interlocutor recalling the interim interdict and granting decree of absolvitor in favour of Plaintiff. Plaintiff subsequently raised an action in November 2021 seeking damages for wrongful interdict, claiming blacklisting in the construction industry as a consequence.

Legal Issues Presented

1. Does the five-year negative prescriptive period for damages claims based on a wrongfully obtained interim interdict run from the date the order was granted or from when it was recalled?
2. When is the recall of an interim interdict conclusive evidence that it was wrongfully obtained, and specifically, is a judicial determination actively addressing and resolving its merits a precondition of such conclusive evidence?

Arguments of the Parties

Appellant's Arguments (Company A)

• The five-year prescriptive period began on the date the interim interdict was granted, thus extinguishing Plaintiff’s claim as the action was raised more than five years later.
• The recall of the interim interdict did not constitute conclusive evidence of wrongfulness, as it was based on a change of circumstances (the undertaking and joint minute) rather than a judicial determination.
• The onus remains on Plaintiff to prove that the interim interdict was wrongfully granted.

Appellee's Arguments (Plaintiff)

• The prescriptive period should begin on the date the interim interdict was recalled, as the interdict is a continuing act until recalled.
• The recall of the interim interdict should be conclusive, or at least presumptive, proof of its wrongful nature, such that only damages quantification should be subject to proof.
• Having successfully resisted Company A’s action and obtained decree of absolvitor, there should be no onus on Plaintiff to prove wrongfulness.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Johnston v Scottish Ministers [2006] SCLR 5	Distinction regarding continuing acts and prescription periods for damages claims.	The court distinguished this case to support that the prescriptive period begins on recall of the interdict, not grant.
Mirza v Salim 2015 SC 31	Recall of an interim interdict is conclusive of wrongfulness only if it follows a judicial determination.	Referenced to confirm that absent judicial determination, the onus remains on claimant to prove wrongfulness.
Aird Geomatics Ltd v Stevenson 2015 SLT 329	Recall of interim interdict not necessarily conclusive without examination of facts; decree of absolvitor is conclusive proof of wrongfulness unless explained by change of circumstances.	The court agreed that decree of absolvitor obtained by Plaintiff was conclusive proof of wrongful interdict in this case.

Court's Reasoning and Analysis

The court analysed the nature of an interim interdict as a continuing act under section 11(2) of the Prescription and Limitation (Scotland) Act 1973. It held that the prescriptive period for damages claims runs from the recall of the interdict, not its initial grant, because the restrictions imposed by the interdict continue until recalled or finally determined. The court emphasised the principle that the party seeking an interdict acts at their peril and must keep the order under review, recalling it when it becomes apparent it is no longer warranted.

Regarding whether recall of the interdict conclusively establishes wrongfulness, the court distinguished between recalls following a judicial determination and those arising from changes of circumstances or joint minutes. It found that only a judicial determination conclusively proves wrongfulness. However, in this case, the Plaintiff had obtained decree of absolvitor—a final determination on the merits—rendering the recall conclusive of wrongful interdict. Consequently, the onus was removed from Plaintiff to prove wrongfulness.

The court rejected the argument that a damages claim could be extinguished before recall, finding such a result would be illogical and inconsistent with the continuing consequences of an interdict. It also noted that the undertaking given by Plaintiff did not constitute a change of circumstances negating the wrongfulness of the interdict.

Holding and Implications

The court REFUSED the reclaiming motion and UPHELD the cross-appeal. It remitted the case to the lower court for a proof limited to causation and quantum of damages.

The direct effect is that Plaintiff’s claim for damages based on wrongful interim interdict is not time-barred as the prescriptive period began on recall. Furthermore, having obtained a decree of absolvitor, Plaintiff is not required to prove wrongfulness again. No new precedent was established beyond the application of established principles to the facts of this case.