The case of Martin McGowan v Springfield Properties Limited was previously written about following debate where it was determined that an interim interdict is a continuous wrong and, accordingly, the prescriptive period commences not when the interdict was obtained but from when it is withdrawn. That decision was subsequently upheld on appeal to the Inner House. At the end of August, following a proof, the Court issued its decision in respect of the substance of the action.
In summary, the case involved a contractor who essentially "whistle-blew" on what he claimed were unsafe practices concerning asbestos at building sites operated by Springfield Properties. As a result, Springfield sought and obtained, ex parte, interim interdicts preventing Mr McGowan from repeating any of his allegations. Some five years later, Springfield was fined by HSE in respect of these incidents, and Mr McGowan obtained decree of absolvitor via joint minute in respect of the interdict proceedings, having lodged various productions prior to that in support of his case. Mr McGowan then raised his own court action to recover damages he alleged he had sustained as a result of the interdict being in place. The first point to note is that the Inner House determined that, having obtained absolvitor, Mr McGowan did not need to prove that the interdict was wrongful; he only needed to prove causation and the quantum of the damages he said stemmed from that wrongful interdict.
The second important point is that in the debate, the appeal, and the proof it was reiterated that once a pursuer has obtained an interdict, they owe a duty to the defender to have it removed if and when it becomes unnecessary; they cannot simply rely upon the defender taking steps to remove it. It is clear that a party obtaining an interdict bears the risk of that interdict being wrongful and leaving themselves open to a claim of damages should that transpire to be the case. As Lady Haldane held in her judgment:
“The interdict was wrongful, and persisted in for a period of five years despite the defender’s engagement with the prosecution authorities in relation to negotiating a plea of guilty to, inter alia, matters raised by the pursuer. The defender took no active steps to seek recall at any time despite the responsibility upon them to do so, as confirmed by the Inner House in this case. That was an egregious wrong that has had a significant effect upon the pursuer.”
Mr McGowan set out in considerable detail the various high-value contracts that he had lost as a result of the interdict and was able to produce witnesses to support his position, resulting in the Court awarding £558,033 in damages in respect of distress, anxiety, reputational damage, loss of earnings, and employability. Critically, one of the issues before the Court was whether Mr McGowan had failed to mitigate his loss. The Court favoured the pursuer’s argument, i.e., that a wrongdoer cannot expect the party that has suffered loss to mitigate their losses whilst the wrong causing those losses is still ongoing. In effect, an obligation to mitigate loss in such a case is not triggered until the wrongful interdict is recalled.
It should be noted that Springfield has advised it intends to appeal this decision, and it will be interesting to see whether any appeal upholds the first-instance decision. In the meantime, this case serves as a warning to those seeking interdicts not to do so lightly and to thoroughly investigate the appropriateness of an interdict before seeking one.
