Brady v National Coal Board [1999] ScotCS 135 (4 June 1999)

Brady v National Coal Board [1999] ScotCS 135 (4 June 1999)

The pursuer's pleadings, though lacking precise averment of the date when damage first appeared, were sufficient to allow proof before answer as they could be read as indicating the damage became apparent in August 1984. The omission of the date in the damage notice was a directory, not mandatory, defect. The claim for compensation under section 1(4)(a) was competent given the demolition of the property and the statutory scheme.

Citation
[1999] ScotCS 135
Parties
Pursuer and Appellant: John Brady; Defenders and Respondents: National Coal Board
Jurisdiction
Scotland
Judgment Date
04 June 1999
Procedural Posture
Appeal (sheriff Court Action) / Appeal Against Dismissal on Relevancy and Specification; Interlocutory (proof Before Answer Ordered)
Outcome
Appeal allowed; proof before answer ordered, with certain averments excluded from probation.
Legal Topics
Coal Mining (subsidence) Act 1957, Subsidence Damage, Statutory Notice Requirements, Compensation for Property Damage, Limitation Periods, Statutory Interpretation
Property Law Statutory Compensation Mining Law Coal Mining (subsidence) Act 1957 Subsidence Damage Statutory Notice Requirements Compensation for Property Damage Limitation Periods +1 more

Case Brief

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Parties

John Brady

Pursuer and Appellant

National Coal Board

Defenders and Respondents

Procedural Posture

Appeal (sheriff Court Action) / Appeal Against Dismissal on Relevancy and Specification; Interlocutory (proof Before Answer Ordered)

Legal Issues

  1. 1 Whether the pursuer's damage notice was given within the statutory time limit under the Coal-Mining (Subsidence) Act 1957
  2. 2 Whether omission of the date of damage in the notice invalidated the claim
  3. 3 Whether the pursuer is entitled to claim compensation under section 1(4)(a) of the 1957 Act

Ratio Decidendi

The pursuer's pleadings, though lacking precise averment of the date when damage first appeared, were sufficient to allow proof before answer as they could be read as indicating the damage became apparent in August 1984. The omission of the date in the damage notice was a directory, not mandatory, defect. The claim for compensation under section 1(4)(a) was competent given the demolition of the property and the statutory scheme.

Court Disposition

Appeal allowed; proof before answer ordered, with certain averments excluded from probation.

Orders

  • Enquiry by way of proof before answer to proceed, excluding averments in Article 3 from 'By letter dated 15th January 1986' to 'said Notice'.
  • Case to be put out by order to discuss restriction of proof to merits before quantification.