A couple from Falkirk have been allowed an evidentiary hearing in respect of the nuisance allegedly caused by the evaporation of ethanol from a nearby whisky maturing facility.
The pursuers resided in a property adjacent to a whisky aging facility owned and operated by the defender. As whisky matures, a small percentage of ethanol (often referred to as “the angels’ share”) evaporates from the whisky casks and enters the surrounding atmosphere. The pursuers raised an action against the defender on the basis that the release of ethanol from the defender’s facility was a nuisance which had caused them loss and damage. They claimed that the ethanol vapour in the atmosphere had caused black fungus to be deposited on their home and outdoor furniture and had resulted in a diminution to the value of their property. The sum sued for was £40,000. The pursuers supported this figure by reference to costs/losses including cleaning costs, repainting costs and loss of enjoyment.
The defender’s position was that the blackening complained of i) was indistinguishable from that found in a range of other locations and ii) did not cause serious disturbance, substantial inconvenience or material damage. The defender claimed that the pursuers had failed to adequately state their case in respect of quantification of the alleged loss and damage and that it was impossible to tell from the written case how the sum sued for was arrived at. Accordingly, the defender’s position was that the pursuers had failed to provide fair notice of their case.
The pursuers claimed that the case stated in respect of quantification was sufficient to allow the matter to proceed to an evidentiary hearing.
In a written judgement of the Outer House of the Court of Session, Lord Tyre opined that further enquiry into the matter was required but found that the pursuers’ averments (written case) were sufficiently specific to justify an evidentiary hearing. He noted the established principle of fair notice which governs ordinary actions and confirmed that there is no requirement in such actions for a pursuer to produce a precise valuation of his or her claim.
His Lordship further noted that the defender had not averred that steps were being taken or were intended to be taken in respect of ending the alleged nuisance complained of and therefore the nuisance had to be considered to be a continuing one. Lord Tyre concluded that the proper measure of the pursuers’ loss, if any, ought to be determined after evidence had been heard, particularly with regard to the issue of whether the presence of the black fungus had caused a diminution in the value of the pursuers’ property.
Accordingly, Lord Tyre allowed the case to proceed to a full hearing.
On September 30, 2019