Scottish Court of Session Decisions

The Public Authorities Protection Act 1893 (56 and 57 Vict. c. 61), sec. 1, enacts—“Where after the commencement of this Act any action, prosecution, or other proceeding is commenced in the United Kingdom against any person for any act done in pursuance or execution or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such act, duty, or authority, the following provisions shall have effect:—( a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within six months next after the act, neglect, or default complained of.”

On 8th April 1804 an action was raised by William Cross M'Phie, public entertainment manager, 375 Eglinton Street, Glasgow, against the Provost, Magistrates, and own Council of Greenock, in which the pursuer sought to recover damages for alleged breach of contract on the part of the defenders.

The circumstances were as follows:—By a contract, entered into by letters dated 24th and 29th July 1903, the defenders agreed to let the Town Hall of Greenock to the pursuer for the 7th, 8th, and 9th of September, for the purpose of giving public entertainments therein. On the 7th of September, however, the day fixed for the first entertainment, the defenders refused to allow the pursuer the use of the hall unless he agreed to omit a wrestling competition from the performance. The pursuer refused to do so, and accordingly the defenders would not allow him to use the hall, with the result that he was unable to give the proposed entertainments.

Page: 191↓

The defenders averred, inter alia, that the Town Hall belonged to them in their corporate capacity, and that they let it in the discharge of their public duty, the rents derived from letting it forming part of the burgh revenues. They averred that the action was excluded by section 1 of the Public Authorities Protection Act 1893, in respect that the acts complained of were done by the defenders in pursuance or execution, or intended execution, of their public duty and authority.

The pursuer pleaded—“(3) The action is not barred by the Public Authorities Protection Act. In their breach of contract with the pursuer the defenders are not protected by that Act.”

The defenders pleaded—“(1) The action is barred by section 1 of the Public Authorities Protection Act 1893, and the defenders are entitled to absolvitor with expenses as between agent and client.”

On 29th October 1904 the Lord Ordinary ( Low) repelled the first plea-in-law for the defenders and allowed a proof.”

Opinion.—[ After narrating the circumstances]—“The pursuer now sues the defenders for breach of contract.

“The action was not brought until more than six months after the date when the use of the hall was refused to the pursuer, and the defenders plead that the action is thereby barred in terms of the provisions of the Public Authorities Protection Act 1893.

“The question therefore is, whether this is a case to which that Act applies,

“The defenders are undoubtedly a public authority, but that alone is not sufficient to render the statute applicable. It must also be shewn that this action is brought for an act done in pursuance or execution, or intended execution, of an Act of Parliament, or of a public duty or authority, or in respect of an alleged neglect or default in the execution of any such act, duty or authority.”

“It is not said that the defenders were acting in pursuance of any Act of Parliament, but it is contended that they were acting in the execution of a public duty. It appears that the defenders are in the habit of letting the Town Hall for meetings and entertainments, and the rent obtained forms part of the revenue of the burgh. The argument is that as the defenders are a public authority, and as they were letting the hall not with a view to private gain, but for the purpose of increasing the revenue of the burgh, they were acting in the execution of a public duty. I am unable to take that view. It seems to me that in letting the hall the defenders were not acting qua public authority, but as managers or trustees for the burgh, whose duty it was to administer the burgh property to the best advantage. I do not think that the management of the property of a burgh is a public duty within the meaning of the Act.

“The case might have been different if the position taken up by the defenders had been that they stopped the performance, not as the managers of the burgh property, but as Magistrates, and because in their judgment it was in the public interest that the proposed exhibition of wrestling should not be allowed to proceed. That view, however, was not suggested, the only argument being that to which I have already referred.

“I am therefore of opinion that the action is not barred by the statute, and I shall accordingly repel the first plea-in-law for the defenders and allow a proof.”

The defenders reclaimed, and argued—In letting the Town Hall, and in prohibiting its use for wrestling competitions, the defenders acted in “intended execution” of a public duty, and under section 1 of the Public Authorities Protection Act 1893 no action lay against them in respect of their actings after the expiry of six months from the date of the alleged default on their part— Spittal v. Corporation of Glasgow, June 17, 1904, 41 S.L.R. 629; The Ydun v. Mayor, &c. of Preston, L.R. [1899], Probate, 326; Ambler & Sons v. Bradford Corporation, L.R. [1902], 2 Oh. 585; Edwards v. Vestry of St Mary, Islington, L.R. [1889], 22 Q.B.D. 338; Cree v. Vestry of St Pancras, L.R. [1899], 1 Q.B. 693.

Counsel for the pursuer and respondent were not called on.