Scottish Court of Session Decisions

By section 106 of the General Police and Improvement (Scotland) Act 1862 (25 and 26 Vict. cap. 101) it is enacted that rates and assessments under the Act “may be imposed and levied yearly, half-yearly, or

Page: 748↓

at such other periods as the commissioners may think fit, and shall be payable at such times as they appoint; and at the meeting imposing the same the commissioners shall appoint a day on which such rates or assessments shall be payable, and another day on which appeals by any parties complaining that they have been improperly rated or assessed, may be lodged with the clerk or collector, and another day or days on which appeals in reference to such rates or assessments shall be heard by the commissioners; and notice to each party intended to be so rated or assessed, stating the particulars of the intended rate or assessment as regards such party, and specifying the several days fixed by the commissioners as aforesaid, shall be sent by the clerk or collector through the post office at least two weeks preceding the day which may be fixed for hearing the appeal of such party.”

On 13th October 1891 a meeting of the Police Commissioners of Govanhill was held, at which a private improvement assessment under the General Police and Improvement (Scotland) Act 1862 was imposed upon certain owners of property within the burgh, and among others, on Daniel Sommerville, for his proportion of the cost of improvements on Calder Street. The minute of meeting bore, “Said assessments to be paid to Thomas Donald, 83 Renfield Street, Glasgow, the burgh collector, on or before 31st October current, and the collector was instructed to serve notices on the above parties to this effect. The minute further bore that any appeals against the assessment should be lodged before 29th October, in order that they might be considered at a meeting to be held on the 30th.

On 19th October 1891 notice was served by Thomas Donald on David Sommerville. The latter failed to pay the private improvement assessment which had been imposed on him, and which amounted to £28, 0s. 5d.

Under the City of Glasgow Act 1891, which came into operation on 1st November 1891, the police burgh of Govan was assessed to and became part of the city of Glasgow, and the Glasgow Police Commissioners became vested in the property and pecuniary rights of the burgh commissioners.

In June 1892 the Glasgow Police Commissioners brought an action against David Sommerville for £28, 0s. 5d., the amount of the private improvement assessment imposed on him, but in respect of due notice of the imposition not having been given to him by the collector, the action was dismissed by the Sheriff-Substitute ( Guthrie).

Thereafter the Glasgow Police Commissioners raised an action in the Sheriff Court at Glasgow against Thomas Donald for payment to them of £28, 0s. 5d., with interest from 30th October 1891.

The pursuers averred—“(Cond. 13) The defender in breach of his duty culpably neglected and failed to give the requisite statutory notice of the imposition of the said private improvement assessment to the said David Sommerville as required by the said General Police and Improvement (Scotland) Act 1862. (Cond. 14) In consequence of the defender's said culpable neglect of and failure in his duty as collector, the pursuers have been held not entitled to recover the said £28, 0s. 5d. from the said David Sommerville. (Cond. 15) The pursuers have called on the defender to pay said sum which they have failed to recover through his culpable neglect and failure from the said David Sommerville, but he refuses or at least delays to do so, and this action has been rendered necessary.”

The pursuers pleaded, inter alia—“(3) The pursuers having suffered loss to the extent sued for in consequence of the defender's culpable failure or neglect of his statutory duty, are entitled to decree as craved.”

The defender lodged defences, and pleaded, inter alia—“(7) Any loss sustained by pursuers not having been occasioned by or through the negligence of the defender, he ought to be assoilzied.”

The Sheriff-Substitute allowed a proof. The proof showed that the defender was not present at the meeting on 13th October 1891. There was a conflict of evidence as to whether the clerk to the Commissioners who was present at the meeting had duly instructed the defender to serve the notices.

On 8th January 1894 the Sheriff-Substitute pronounced the following interlocutor:—“Finds, for the reasons stated in the note, that the pursuers have not proved that they have suffered loss through the fault of the defender as condescended on: Therefore assoilzies the defender, &c.

“ Note—There is a question which is not, I think, very clear upon the evidence, whether he was properly qualified and duly instructed by his employers or their clerk, and whether the issuing of the notices was not properly a duty of the clerk. It does appear that it was naturally within the clerk's province, if not to send out the notices, at least to make sure that they were despatched by the collector who was not a lawyer, so as to meet the requirements of the Act, but I should have at least some difficulty in holding that Mr Donald was not duly instructed in this matter by the clerk.

The case rather presents itself to me in this way. An action of damages cannot succeed unless the pursuer clearly shows that he has suffered a loss by the fault of the defender. In this case it is not established beyond doubt that the pursuers are unable still to recover their private improvement expenditure from Mr Sommerville, the proper debtor. They have been defeated in an action against him, on the ground that the money which they sued for as private improvement assessment had not been duly imposed upon him as such an assessment, but it is not yet established that it is totally irrecoverable as against him. So far as appears—and I have heard a second and full argument on the point—it is still in the power of the pursuers, who

Page: 749↓

are vested with every right and power possessed by the Commissioners of Govanhill (see the sections cited from the Act of 1891) to allocate and impose the assessment anew, and to allow Sommerville an opportunity of appealing against it under new notices duly issued. I do not know that there is any decision directly to the effect that this may be done, but it is suggested by the Lord Chancellor at the end of his opinion in Campbell v. Leith Police Commissioners, and no reason has been stated at the bar why inept proceedings upon which this charge against the defender is founded should be a bar in the way of another and regular allocation and notice. Unless this is made clear by the pursuers I am unable to find that they have sustained the loss which they seek to make good.”

The pursuers appealed to the Sheriff, who on 22nd February 1894 pronounced the following interlocutor:—“Finds that in October 1891 the defender was collector of the burgh of Govanhill, which has since been annexed to the city of Glasgow, and that in the said month of October he failed in his duty as such collector by omitting, notwithstanding instructions received from the Burgh Commissioners, to issue to one David Sommerville a notice of a private improvement assessment in sufficient time in accordance with the provisions of the General Police and Improvement Act 1862 (25 and 26 Vic. cap. 101): Finds that the pursuers, as succeeding to the rights of the said Commissioners in terms of the City of Glasgow Act 1891, have sustained loss through, and in consequence of, the defender's said failure in duty, and that the loss they have so sustained is the sum of £28, 0s. 5d., the amount of said assessment, which through the defender's failure to give the statutory notice is not now recoverable from the said David Sommerville: Therefore, and under reference to note, recals the interlocutor appealed against: Finds the defender liable in damages to the pursuers, to the said amount of £28, 0s. 5d., for which decerns against the defender, with interest at the rate craved from this date.”

The defender appealed to the Court of Session, and argued—The defender was not present at the meeting of the Burgh Police Commissioners at which the assessment was fixed, and had not been instructed by the clerk as to the date on which the notice required to be sent, so as to make it effectual. Even if the defender had failed in his duty, there was no evidence that his doing so had caused any loss to the pursuers. The fact that the notice was informal did not absolve Mr Sommerville from liability to pay the assessment. All that the commissioners had to do was to impose the assessment anew, and give notice of having done so to Mr Sommerville within the time specified in the Act. He would then be liable for the amount.— M'Intosh v. Leith Commissioners of Police, May 18, 1875, 12 S.L.R. 455. Expenses incurred by the Commissioners became a debt due by the owner as soon as the work was completed, and assessment was merely the machinery by which the debt was recovered.— Currie v. W. & D. M'Gregor, Nov. 16, 1871, 44 S.J. 68; Hornsey Local Board v. Monarch Investment Building Society, May 15, 1889, L.R., 23 Q.B.D. 149. No damage having been sustained by the pursuers this action should be dismissed.

Argued for pursuers—The Sheriff's judgment was sound. It was by no means clear that the pursuers could effectually reimpose the assessment so as to recover it from Mr Sommerville, and they were not bound to try the point. Through the defenders' failure to perform his duty this loss had been incurred and the defender was liable therefor.

At advising—