Groundwork contractor who reported asbestos at client’s sites awarded £558k in damages for wrongful interdict

About this case:

• Citation:
  [2025] CSOH 81
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lady Haldane

Pursuer Martin McGowan sought damages from reputational damage, loss of earnings, loss of employability and distress and inconvenience from defender Springfield Properties Plc. The defender argued that any loss the pursuer had suffered was caused by his own actions and that he failed to mitigate his losses by seeking early recall of the interim interdict.

The case was heard by Lady Haldane in the Outer House of the Court of Session, with the Dean of Faculty, Dunlop KC, and Welsh, advocate, appearing for the pursuer and Webster KC and Crabb, advocate, for the defender.

Misguided defence

For most of his working life, the pursuer had been involved in providing teams of workers to carry out groundworks for various companies, including the defender on a number of occasions, at various sites in Scotland. Relations between the parties degraded when the pursuer began to raise concerns with them about asbestos on their sites. He asserted that the defender had known about the presence of asbestos but had done nothing about it and allowed men to work on the site without appropriate PPE.

Matters came to a head in early 2016 when an investigation was commenced by the Health and Safety Executive. The defender raised proceedings for interdict founding on the allegations made by the pursuer, which they asserted were untrue and defamatory. Interim interdict was pronounced on an ex parte basis on 5 February 2016 but recalled in May 2021 of consent following the defender’s prosecution in October 2020 for offences relating to asbestos on their sites.

On behalf of the pursuer, it was submitted that the core of the defender’s defence was misguided. Whilst a wrong was ongoing, the wrongdoer could not assert that the victim should have stopped the wrong. While it was accepted that loss of earnings would required to be assessed on a loss of a chance basis, the likely profit margins of the pursuer’s business led to a sensible starting point of £500,000, and had the pursuer not been interdicted he would likely have secured a lucrative contract in York based on his working partnership with a contact, Mr Ruddy.

For the defender it was submitted that the pursuer had not proved he had suffered a loss, but if he had then it was not caused by the defender. Despite the alleged impact upon him of the interim interdict, the pursuer was unable to answer questions or answered them only vaguely, when the questions related to matters that should have been within his knowledge. In any event the pursuer could have ameliorated any alleged impact by seeking to recall the interdict and his failure to do so meant that he had failed to mitigate his loss.

Unequivocal ‘nonsense’

In her decision, Lady Haldane said of the pursuer’s credibility as a witness: “Overall I had no concerns about his credibility, although I had doubts at times about the reliability of his recall on certain matters. These were not matters on which, ultimately, much turned. However, there was support for his position from other witnesses who assisted in filling many of the gaps that there were in the pursuer’s overall recall, and who gave evidence consistent with the general tenor of the evidence provided by the pursuer.”

She then turned to whether he had any obligation to mitigate his loss, saying: “It would be wholly inconsistent with the law to conclude that any obligation to mitigate loss arose from the moment the interim interdict was granted. The Inner House has confirmed that the wrongful obtaining of the interdict was a continuing wrong that subsisted until the interdict was recalled. In unequivocal language it states that to conclude otherwise would be ‘a nonsense’.

Turning to the questions of causation and loss, Lady Haldane said: “On the evidence of the pursuer, his wife and his son, which I accept, the obtaining of the interim interdict caused the pursuer distress, anxiety and inconvenience. Despite the observations made above in relation to how the pursuer presented, the effect of the interim interdict upon him was clear, indeed one might say palpable, and in any event was supported by the evidence of his wife and son, who I accept, and who spoke clearly of the change in the pursuer after the interim interdict was served, compared with the man he was before.”

She continued: “The pursuer’s submission that the chances of him being awarded the [York] contract were essentially 100% is, with respect, overly optimistic. Factoring in the hurdles that had to be completed, objectively the chances were lower than that. However I do not accept the defender’s submission that the fact that the pursuer was honest and told Mr Ruddy about the existence of the interdict should be held against him in the assessment of the loss of the chance of securing this contract, or in other words, that the loss of the contract was his own fault.”

Lady Haldane concluded on this head: “The evidence showed that three companies in fact proposed prices for the contract. Mr Ruddy would no doubt have supported the pursuer to the extent that he was able. Against that one of the other companies who ultimately offered prices might have offered better prices than the pursuer. A fair recognition of these variables leads me to the conclusion that a deduction of one third is appropriate, or more accurately, that the pursuer’s chances of securing the contract should be assessed at 66 per cent.”

The court therefore awarded the sum of £558,033 to the pursuer, with interest from the date of decree.