Sheriff allows claim for lost profits from wedding venue due to neighbour’s excavation work to proceed on economic loss basis

About this case:

• Citation:
  [2025] SC KIL 92
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff George Jamieson

George and Donna Ellliot, who owned land used by the third pursuer Harelaw Farm Weddings Ltd as a wedding venue, sought reinstatement of the land to its state prior to defender Andrew McCandlish commencing works. The third pursuer also sought £212,024.25, representing loss of profit occasioned by the downturn in viewings and wedding bookings since the works undertaken by the defender plus a further £2,332.80 for damage to pipework.

The case was heard by Sheriff George Jamieson at Kilmarnock Sheriff Court, with Kennedy, advocate, appearing for the pursuers and Milloy, advocate, for the defender.

Pattern of behaviour

On or around 12 November 2022, a JCB digger appeared on the defender’s property and commenced extensive excavation work on ground adjacent to the first and second pursuers’ property and directly in line of sight of the wedding venue. This was done with the purpose of erecting a horticultural equipment shed, however the Elliots successfully obtained interim interdict against the construction of such a shed which had remained in force since 29 November 2022.

A protracted procedural history followed, during which the third pursuer was added to the action along with claims for damages. In addition to the economic loss incurred by the third pursuers, the pursuers averred that the works had caused damage to their land’s drainage system resulting in flooding and land slippage at the boundary of the properties. The defender admitted the purpose of the works but averred that the interim interdict prevented him from restoring the land to its previous condition and that conditions would be put in place to shield the pursuers from having sight of the shed.

For the defender, seeking dismissal of the claim without a proof, it was submitted that craves 1 and 2 were not competent as they amounted to an attempt to enforce planning control. In relation to the third pursuer, their claim was fundamentally irrelevant as they lacked the title and interest to pursue a claim in nuisance for pure economic loss.

Relying on the case of Junior Books v Veitchi Co (1983), the pursuers submitted that this case fell within the exceptions to the general principle preventing the recovery of damages for pure economic loss. A proof ought to be ordered on the basis that the pursuers’ averments revealed a pattern of behaviour amounting to nuisance by the defender. His breaches of planning control were relevant to an assessment of whether the acts complained of were plus quam tolerabile.

Strong academic support

In his decision, Sheriff Jamieson began by noting: “Mr Kennedy conceded the pursuers were not entitled to enforce planning control. That is not however what the pursuers are doing in this case. They have raised an action squarely founded on nuisance as their first and second pleas-in-law amply demonstrate. The defender’s alleged breach of planning control in attempting to erect a horticultural equipment shed without valid planning permission and in the face of the local authority’s attempts to enforce planning control is relevant to the pursuers’ claims in nuisance.”

He added on the third pursuer’s title to sue: “While it would have been better had the third pursuer included more information about the legal basis of their occupation and the degree to which it may be regarded as exclusive, I believe the existing averments are sufficient for the purpose of establishing title and interest to sue. Moreover, the state of the legal authorities in Scotland is such as to tend to support the third pursuers having sufficient title and interest to seek interdict to prevent a nuisance which fundamentally harms its business interests.”

Considering whether to proceed with the pure economic loss claim, Sheriff Jamieson said: “Recovery of pure economic loss in nuisance in Scots law seems to be permissible where the culpa involved in the commission of the nuisance was the intentional or reckless infliction of harm by virtue of a nuisance. Mr Kennedy informed me the pursuers’ case was based on intentional harm, not negligence. There may therefore be force in his submission that the rule against recovery of pure economic loss does not apply to nuisance actions (except perhaps where the culpa averred is negligence).”

However, he said of the averments of negligence: “The pursers have been able to observe the defender’s actions. Things have been done openly. This therefore seems to me, if anything, a case of intentional nuisance from a pleading perspective. Although Mr Kennedy did not concede the negligence point, he did state this was not a negligence case. The averments of negligence do not set out a specific duty of care which the defender breached (other not to cause a nuisance which is circular and lacking in specification), or that this caused reasonably foreseeable harm to the third pursuer.”

Sheriff Jamieson concluded: “The third pursuer is still entitled to proceed with a claim for damages for pure economic loss at this stage based on an intentional or reckless delict of nuisance by the defender. There is strong support in the academic opinion referred to above that damages may be recovered for pure economic loss in the case of an intentional or reckless delict. I have therefore allowed parties a proof before answer prior to determining that question. A proof before answer will also determine whether the third pursuer has a sufficient degree of control and occupation of the first and second pursuers’ land as to have title and interest to sue for those damages.”

The sheriff therefore excluded the pursuers’ averments based on negligence, and those relating to the pursuers’ loss of ability to object to planning permission but allowed the remainder of the case to proceed to a proof.