Court of Session (Outer House) — Anonymized Summary of Opinion
Factual and Procedural Background
The Plaintiff was a long-standing provider of groundworks labour, operating through multiple corporate vehicles.
The Defendant is a house-building company (referred to below as "Company A") that had engaged the Plaintiff over a period of years.
Relations between the parties deteriorated after the Plaintiff raised health and safety concerns about the presence of asbestos on certain Company A sites by email, letter and text.
Company A applied for and obtained an interim interdict ex parte on 5 February 2016 prohibiting the Plaintiff from speaking about certain matters.
Separate complaints led the Health and Safety regulator to investigate; around October 2020 Company A pleaded guilty to certain Health and Safety offences and was fined.
In May 2021 the interim interdict was recalled by agreement and decree of absolvitor was entered in favour of the Plaintiff.
The Plaintiff raised an action (2021) seeking damages for wrongful interdict. The issues to be tried were narrowed by an Appellate Court decision (dated 20 August 2024) so that the proof was limited to causation and quantum of damages only. A proof hearing took place over four days with witnesses for each side and subsequent submissions.
Legal Issues Presented
- Whether, and to what extent, the Plaintiff proved causation — i.e. that losses claimed were caused by the wrongful interim interdict.
- Whether the Plaintiff failed to mitigate loss by not seeking earlier recall of the interim interdict (and the legal status of any duty to mitigate while a wrongful interdict subsisted).
- Quantification of damages across the pleaded heads: (i) distress, anxiety and inconvenience; (ii) damage to reputation; (iii) loss of earnings (including loss of a chance of obtaining a major subcontract, the "York project"); and (iv) loss of employability.
- The proper approach to awarding interest (starting date and rate) on any award made.
- Admissibility and weight of competing documentary and oral evidence (including objections to late disclosure / ambush and to challenges to documentary authenticity).
Arguments of the Parties
Plaintiff's Counsel
- Submitted that the Appellate Court's interlocutor established that the interim interdict was wrongful and that the proof was therefore limited to causation and quantum.
- Outlined four heads of damage: distress/anxiety/inconvenience; reputational damage; loss of earnings (principally the chance of securing the York subcontract); and loss of employability.
- Contended that the Plaintiff had no obligation to mitigate the ongoing wrong by seeking recall while the interdict subsisted; mitigation is an aspect of causation and the duty to mitigate arises only after the legal wrong is complete (relying on Standard Chartered and other authorities).
- Relied on the forensic accounting report submitted by the Plaintiff's expert and urged adoption of the higher scenario (scenario C) or, as a fallback, a limited deduction for chance to produce a substantial award for lost profits.
- Sought interest from the date of the interdict at the judicial rate (8%), applying one half of that rate for past losses where appropriate.
Defendant's Counsel
- Main submission that the Plaintiff had not proved any loss caused by Company A; alternatively the Plaintiff contributed to any loss and failed to mitigate it by not seeking recall earlier.
- Challenged the loss of earnings case: relied on HMRC schedules showing increased earned income after the interdict; submitted that the York contract was not a real and substantial chance (Mr Ruddy had left or was only a consultant; signing authority did not exist; the offer was conditional; the contract was near completion).
- Attacked quantum across heads as excessive and sought a modest global award (example suggested £20,000) if any liability found.
- Argued that interest should run only from citation or from decree and, in any event, at a lower rate (citing Farstad as authority for departure from the judicial rate in some circumstances).
- Raised objections to late disclosure and to attempts to challenge the authenticity of documents without formal plea or fair notice.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Standard Chartered Bank v Pakistan National Shipping [1999] 1 All ER (Comm) 417 |
Mitigation as an aspect of causation; plaintiff does not owe a stand‑alone duty to the wrongdoer to mitigate while the wrong continues. |
The court adopted Toulson J's analysis and applied it to reject the defence's contention that the Plaintiff had to seek recall while the interim interdict remained in force. |
| Sharp Corpn v Viterra BV [2024] Bus LR 871 |
Statement of the compensatory principle and the principle of mitigation in damages law. |
Used as part of the framing of mitigation and compensatory objectives when considering what losses were recoverable. |
| Perry v Raleys Solicitors [2019] UKSC 5 |
Loss of a chance requires a real and substantial chance; hypothetical third‑party actions must be assessed on that basis. |
Relied on to structure assessment of the York contract claim as a "loss of chance" question rather than a simple balance of probabilities entitlement. |
| Wellesley Partners v Withers LLP [2015] EWCA Civ 1146 |
Third‑party hypothetical actions require proof of a substantial chance (not a balance of probabilities) when assessing loss of chance. |
Cited in support of the court's approach to estimating the probability that the Plaintiff would have secured the York subcontract. |
| Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 |
General causation principles (but‑for causation); context for causation disputes. |
Referred to by the defence as the familiar starting point on causation; used by the court in explaining burden/standard of proof issues. |
| McGlinchey v General Motors UK Ltd [2012] CSIH 91 |
Onus of proof lies on the pursuer. |
Referred to when considering who must prove causation and the standard applied. |
| McWilliams v Sir William Arrol & Co 1962 SC (HL) 70 |
Standard of proof in civil cases: balance of probabilities. |
Referenced in the court's explanation of how factual disputes were to be resolved. |
| Centenary 6 Ltd v TLT LLP [2023] CSOH 28; [2024] CSIH 13; [2024] SLT 681 |
Approach to loss‑of‑chance claims and evaluation of contingent commercial opportunities. |
Applied as guiding authority for assessing the York contract as a loss of chance and for the court's assessment methodology (percentage estimation of chance). |
| Aird Geomatics Ltd v Stevenson [2015] CSOH 167 |
Recognition that distress and anxiety can be recoverable heads of damage; duration influences quantum. |
Used as a comparator when fixing the award for distress and inconvenience (duration of interdict vs shorter precedent case). |
| Munro v Brown [2011] CSOH 117 |
Example of an award for reputational harm; used as a quantum comparator. |
Referenced when calibrating the reputational award, with allowance made for differences in fact and passage of time. |
| Bell v Inkersall 2006 SC 507 |
Professional obligation on those acting for interdict applicants to disclose all relevant circumstances to the court. |
Cited in support of the Plaintiff's submission that material adverse matters had been withheld when the ex parte interdict was sought. |
| Scottish & Universal Newspapers Ltd v Gherson's Trustees 1987 SC 27 |
Best evidence principle: parole evidence of the content of documents is inadmissible to contradict documents. |
Invoked when addressing the defence attempt to impugn documents without prior pleadings; supported exclusion of that line of attack. |
| Grier v Lord Advocate [2023] SC 116; Grier v Lord Advocate [2022] CSIH 57 |
Principles of fairness, prejudice and the need to put evidence to relevant witnesses; caution about late ambush. |
Applied in the court's assessment of the late evidential lines and the decision to set aside or discount inconsistent late evidence that had not been tested. |
| Oil States Industries (UK) Ltd v "S" Ltd 2023 SC 209 |
Weight to be given to contemporaneous documentation over later oral testimony. |
Used to emphasise the probative value of contemporaneous documents against oral recollection when the two conflict. |
| Jewelowski v Propp [1944] KB 510 |
General principle that a plaintiff is not obliged to expend money to protect the wrongdoer from the consequences of the wrong. |
Adopted to counter the defence argument that the Plaintiff should have incurred cost to mitigate the Defendant's wrongful acts. |
| Boots the Chemist Ltd v GA Estates 1992 SC 485 |
Judicial rate of interest (8%) as a conventional starting point. |
Referenced in the court's discussion of the appropriate rate of interest and the presumption in favour of the judicial rate subject to adjustments for past losses. |
| Sheridan v News Group Newspapers Ltd [2018] CSIH 76; [2019] SC 203 |
Authorities on awarding interest and approach to interest in defamation/damage contexts. |
Used in submissions and the court's consideration of interest from selected dates and rates. |
| Wisely v John Fulton (Plumbers) Ltd 2000 SC (HL) 95 |
Court's inherent power to award interest. |
Invoked to ground the court's statutory and common law power to grant interest on damages. |
| Farstad Supply v Enviroco Ltd 2012 SLT 348; 2013 SC 302; 2013 SLT 421 |
Constraints on departing from the judicial rate absent appropriate pleading or exceptional circumstances; discussion of market‑rate considerations. |
Relied upon when considering whether to depart from the judicial rate and emphasising that a novel rate requires pleading and justification. |
| Smith v Middleton (No 2) 1972 SC 30 |
One established approach is to apply one half of the judicial rate for past losses incurred over time. |
Cited and applied: court awarded past interest at one half the judicial rate (4%) for the relevant past periods. |
| JM v Fife Council 2009 SC 163 |
Describes Smith v Middleton as authoritative for interest on past losses. |
Referenced in support of the approach to past interest adopted by the court. |
| A and B v C 2018 SLT 1194 |
Approach to interest on capitalised or pecuniary awards such as loss of employability. |
Applied analogously when fixing interest on the award made for reduced employability. |
| Eastern Motor Co Ltd v Grassick & others 2021 CSIH 67; Neil v McNair 1901 3 F 85; Donald v Donald 1913 SC 274 |
Authorities on the procedural requirement to plead and raise formal challenges to documents (plea ope exceptionis). |
Invoked to support the court's ruling that the defence had no proper pleading basis to launch a late challenge to primary documents. |
| Ostrowski v Azzara 545 A.2d 148 (N.J. 1988); Del Tufo v Twp. of Old Bridge 685 A.2d 1267 (N.J. 1996) |
Comparative jurisprudence on mitigation and the temporal point at which a duty to mitigate arises. |
Cited by Plaintiff's counsel as supporting comparative analysis that mitigation arises only after a legal wrong is complete; used as comparative support only. |
| Smith v Manchester (as cited in the opinion) |
Described in the opinion as the conventional basis for awards for loss of employability. |
The court accepted the general Smith v Manchester approach in principle when assessing the loss of employability head and awarded a capital sum accordingly. |
Court's Reasoning and Analysis
The court carried out an integrated evaluation of credibility, causation, mitigation and quantum, applying the binding and persuasive authorities cited in the proofs and submissions.
Credibility and weight of evidence
The court made granular credibility findings:
the Plaintiff was found generally credible on the core matters (health and safety concerns, the emotional and financial effect of the interdict, and the lost commercial opportunity), although sometimes loquacious and with imperfect recall.
The Plaintiff's immediate family witnesses (the Plaintiff's wife and son) were accepted as credible and supportive of the account of personal and familial impact.
The court accepted the evidence of the forensic accountant (the Plaintiff's expert) as coherent and reliable on his chosen accounting methodology, and accepted the evidence of the operations witness from the major contractor (the principal contact for the York project) as generally credible.
By contrast the court found that the last defence witness (a senior commercial witness called late in the proof) gave material evidence that conflicted with contemporaneous documents and with earlier witnesses and that important elements of that evidence had not been put to those earlier witnesses, producing unfairness and prejudice. For those reasons that witness's contradictory evidence was given little or no weight.
Mitigation and the legal timing question
The central legal dispute on mitigation was resolved by reference to the orthodox analysis in Standard Chartered: the rule as to avoidable loss is part of causation. The court emphasised that the Appellate Court had already treated the obtaining and continuing insistence in an interim interdict as a continuing wrong that subsists until recall, and held that it would be inconsistent with that view to require the Plaintiff to mitigate by seeking recall while the wrong continued.
Applying that analysis, the court concluded that the Defendant could not prevail on a plea that the Plaintiff should have sought recall during the period when the interdict continued; the defence's mitigation argument thereby failed.
Causation and assessment of loss
On causation the court accepted that the wrongful interdict caused non‑pecuniary harm (distress, anxiety and inconvenience) and damage to reputation: there was a clear temporal relationship and corroborating family evidence. The court therefore awarded sums for these heads.
The largest contested head was loss of earnings, advanced as loss of a chance of securing the substantial "York project" subcontract. The court found that the 28 February 2016 correspondence from the contractor contact constituted a proposal to invite prices rather than a concluded contract and that, on balance, the Plaintiff lost the chance to be part of that contracting process because the contractor withdrew the proposal in light of the interdict.
The court accepted that further competitive bids would have been considered and that further commercial and due‑diligence hurdles would have existed. For those reasons the court declined to treat the chance as certain; instead it took a broad evaluative approach and assessed the Plaintiff's chance of securing the subcontract at 66% (a one‑third reduction from the Plaintiff's optimistic 100% proposition), applying the "loss of chance" methodology recognised in Centenary and related authorities.
In quantifying the lost turnover and profits the court accepted the forensic accountant's scenarios as sound accounting approaches. The court selected the mid scenario (scenario B — the average net margin derived by the expert) as the fairest starting point and applied the 66% chance to the expert's calculation, producing a loss of earnings figure of £247,080 (before interest adjustments).
Loss of employability
The court accepted in principle that the Plaintiff had lost some future employability owing to the wrongful interdict, but found the evidence uncertain as to precise opportunities and their values. Applying a "broad brush" approach (described in the judgment) the court awarded £50,000 for loss of employability on a Smith v Manchester style basis.
Interest
The court treated the judicial rate (8%) as the starting point and followed established Scottish authority in applying one half of that rate (4%) to past losses incurred over time (Smith v Middleton and related authorities). The court identified the relevant temporal markers used in calculation:
- Date of interim interdict: 05 February 2016;
- Date of recall of interdict: 26 May 2021;
- Period of loss while interdict in force: approximately 5.30 years; period since recall to judgment: approximately 4.23 years.
Applying those principles, the court calculated interest for the past periods at the reduced rate where appropriate and at the judicial rate thereafter for specific heads, and produced the aggregate sum described below. The court also confirmed its power to award continuing interest from date of decree.
Quantum — principal figures (as assessed by the court)
The court set out the principal figures in its valuation and interest calculations (the amounts incorporate the court's chosen percentages and interest approach):
| Head | Principal award | Interest while interdict / during past period | Interest subsequent to recall |
|---|
| Distress, anxiety and inconvenience |
£25,000 |
£5,300 |
£8,460 |
| Damage to reputation |
£20,000 |
£4,240 |
£6,768 |
| Loss of earnings (loss of chance — York project) |
£247,080 |
£24,708 |
£138,957 |
| Loss of employability |
£50,000 |
£10,600 |
£16,920 |
| Total (principal awards and calculated interest as set out) |
£558,033 |
The court's interlocutor records the aggregate total of £558,033 and provides that interest will run from date of decree in addition to the calculations already made for past periods.
Holding and Implications
Core ruling:
The court sustained the Plaintiff's third plea‑in‑law, repelled the Defendant's sixth plea‑in‑law, and awarded damages in the sum of £558,033, together with interest from the date of decree. The court reserved the question of expenses for later determination.
Consequences and immediate effects:
- Company A is held liable to make reparation to the Plaintiff in the quantified sum noted above (plus ongoing interest from the interlocutor/decree date).
- The court rejected the defence that the Plaintiff had an obligation to mitigate by seeking recall while the interdict subsisted, applying the established principle that mitigation is an aspect of causation and noting the Appellate Court's treatment of the interdict as a continuing wrong until recall.
- The awards for non‑pecuniary loss (distress and reputation) and the loss‑of‑chance calculation were made on the basis of findings of credibility and the court's evaluative assessment of the evidence; the court applied established authorities to the interest calculation.
Broader precedent: the decision applies settled principles (mitigation as part of causation; loss‑of‑chance methodology; approach to interest). The opinion does not purport to create novel law; it applies and reconciles existing authorities to the facts found in this case.
Note on anonymization: All personal names and corporate party names in the original opinion have been replaced by neutral descriptors (for example, "Plaintiff" and "Company A") to preserve confidentiality while faithfully summarizing the court's reasoning and conclusions as expressed in the opinion.