Poisoned cattle case in new court hearing

​The case in which Iain Scott of Stoneyfield Farm near Stornoway sued Scottish Water dates back to 2009. Twelve years later after what the Sheriff Principal described as “unconscionable delay”, Mr Scott was awarded £272,000 in damages by Sheriff David Sutherland at Stornoway Sheriff Court.

Scottish Water appealed and the Sheriff Appeal Court overturned Sheriff Sutherland’s decision on grounds that he had “failed to address or analyse questions of law and had failed to explain the findings in fact on which he based his conclusion in law”.

The Appeal Court’s ruling did not deal with the merits of the case so much as with shortcomings in Sheriff Sutherland’s ruling which was described as “uninformative” and “unsatisfactory”.

In an unusual turn of events, the Court of Session subsequently granted Mr Scott the right to appeal against the Sheriff Appeal Court’s decision. In her ruling, the judge, Lady Wade, said that “the threshold for permission is a high one” but could be cleared if there was a “compelling reason”.

Lady Wade continued: “There is on the face of it a real prospect of success for the applicant (Mr Scott). The SAC has not stated in terms what error or errors on law the sheriff is said to have made; rather it perceived gaps in the evidence and sought to decide the case on the basis of the extensive transcript.

“While there were clear deficiencies in the articulation by the sheriff of the reasons for his decision, it may be that the SAC erred in its approach by ignoring … established evidence when determining that there was no relevant breach of duty” (by Scottish Water).

Her ruling continued: “Having accepted that the cattle were, on balance, poisoned by the sewage, it may be that the SAC failed to consider the consequences of that finding”. She found that the combination of circumstances justified the granting of permission to appeal to the Court of Session against the decision by the Sheriff Appeal Court.

That appeal is now set to commence next Thursday in the Court of Session. Mrs Ancris Scott told the Gazette: “It’s not really a place where we want to be but we do believe that the original finding was the correct one based on the facts of the case”.

The case had its origins when Mr Scott found some of his herd dying and falling ill for unexplained reasons. When veterinary and scientific advice ruled out other options, Mr Scott raised an action against Scottish Water, maintaining the cause lay in discharges of sewage into a field drain.

After 16 days of evidence between December 2015 and January 2019, the Sheriff produced his judgment on 30 December 2021 awarding damages of £272,711.28. He found Mr Scott’s cattle drank water contaminated by pollution and Scottish Water had not warned him of the dangers posed by contamination.