Scottish Court of Session Decisions

The Public Authorities Protection Act 1893 (56 and 57 Vict. cap. 61), enacts, sec. 1, “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, or, in case of a continuance of injury or damage, within six months next after the ceasing thereof.”

On 22nd April 1902 Neil M'Fadzean, 5 Sawmill Place, Garscube Road, Glasgow, raised an action in the Sheriff Court of Lanarkshire against the Corporation of the City of Glasgow, whereby he sought to recover damages for fault on the part of the defenders.

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The pursuer averred that on 13th March 1901, notwithstanding that the rates due in respect of his occupancy of a house had been paid two days previously, two persons employed by the defenders as collectors, who were also sheriff-officers, forcibly entered his house for the purpose of poinding his furniture under a summary warrant granted for recovery of said rates. The pursuer further averred that though warned by a police constable before they went to the pursuer's house, and also informed by the pursuer's wife, that the assessments had been paid, the officers forcibly entered his house, disturbed and removed his furniture, and used violence and abusive language to his wife, who had to call in the police to get them to leave the house.

The pursuer pleaded—“(1) The pursuer having suffered loss, injury, and damage through the fault and neglect of defenders, or of those for whom they are responsible, is entitled to reparation therefor.”

The defender pleaded—“(3) The action is excluded by the provisions of the Act 56 and 57 Vict. cap. 61.”

On 18th June 1902 the Sheriff-Substitute ( Strachan) allowed a proof before answer.

The defenders appealed to the Sheriff ( Berry), who on 6th November 1902 sustained the defenders' third plea-in-law, and assoilzied them.

“ Note.—I think this case falls within the rule of the Public Authorities Protection Act 1893, requiring that any action in respect of ‘an 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,’ shall be brought within six months next after the act, neglect, or default complained of. If not brought within that time it is provided that the action or proceeding shall not lie or be instituted.

The acts in respect of which the present action is brought are alleged to have been committed by the defenders' officers on 13th March 1901, while the action was not brought till 22nd April 1902. The pursuer avers that on the former date, two days after he had paid the rates in respect of his house, two of the defenders' servants employed to collect rates, and who are enrolled as sheriff-officers, proceeded on the defenders' instructions to his house for the object of poinding the furniture for payment, and that although the men had been warned by the police constable that the rates had been paid. It is said that notwithstanding that warning they forcibly entered the house, conducted themselves in an abusive and reckless manner, and disturbed and removed the pursuer's furniture, and that it was only on the pursuer's wife calling in the police and the neighbours interfering that the men were induced to leave the house. The men themselves are not sued, and in that respect the case does not raise the question as to the position of the men which was raised and discussed in M'Ternan v. Bennett, 1 F. 333. In that case the magistrates' committee as well as the police officers were originally called as defenders, but the case against the committee is stated to have been abandoned, and although the ground of the abandonment is not stated it was in all probability the consideration that they were protected by the Act of 1893, and that the action as directed against them could not be proceeded with. It was there pointed out by Lord Low in his note as Lord Ordinary, that in using the words ‘intended execution of a public duty’ the Act introduces an element of motive or intention, and that neither here nor in that case could it be suggested that the corporation or the magistrates were acting maliciously in what was done as under their authority. It was not averred here that the Magistrates knew that the pursuer had paid his rates, or did not believe that the rates remained unpaid, and if such was their belief they were acting in bona fide discharge of their public duty in directing execution of the warrant for their recovery. It is said that the previous payment of the rates took all force out of the warrant so as to render it ineffectual, and that consequently the Magistrates had no protection from the statute. I think, however, that the protection extends to acts done by persons in bona fide intended execution of their duty, and such, it seems to me, was the position of the Corporation in the present case. I am therefore of opinion that the defenders must be assoilzied.”

The pursuer appealed to the Court of Session, and argued—The Act of 1893 did not apply to the case of a grossly illegal proceeding such as was here complained of— Sutherland v. Magistrates of Aberdeen, November 27, 1894, 22 R. 95, 32 S.L.R. 81. The Act applied only to cases of informality in proceedings otherwise legal.

The respondents were not called upon.