The Herald

Judge rules couple can sue over ‘angel’s share damage’

Owners claim ethanol escaping from whisky casks devalues home

- DAVE FINLAY

A COUPLE who claim the “angel’s share” from a whisky bond has blighted their property have won the right to sue a distilling giant.

Thomas and Gail Chalmers allege the evaporated alcohol from maturing casks stimulates the growth of an unsightly black fungus which has discoloure­d their home and car.

The couple, of Woodlea Gardens, Bonnybridg­e, in Stirlingsh­ire, raised an action at the Court of Session in Edinburgh suing distillers Diageo for £100,000.

But the drinks firm sought to have the case dismissed at a procedural hearing arguing the claim was of “an unpreceden­ted nature with the potential to have radical impacts on a major industry”.

A judge has now ruled the couple’s action can go ahead to a hearing of evidence.

Lord Ericht said: “There is no doubt that damages for nuisance can be awarded by the Scottish courts.”

But the judge said it was essential the circumstan­ces were fully establishe­d before a decision was made.

He said: “In my opinion the pursuers have pled a sufficient case to allow their averments on liability to go to proof.

“They have not pled a sufficient case on loss, but I shall give them an opportunit­y to seek leave to amend.”

Craig Connal QC, for Diageo, had argued the distiller, which ages whisky in nine bonded warehouses at the site near the Woodlea Park developmen­t where the couple own their home, had a long-standing operation and the Chalmers properties were “incomers”.

He said Diageo was carrying out the business with all the required permits issued by public authoritie­s and that many of the couple’s assertions had been rejected by an independen­t public body.

For the Chalmers, it was maintained that the bonded warehouse releases ethanol at a level which germinates the fungus Baudoinia compniacen­sis – known as the “warehouse staining fungus” – which covers their property in a black coating and that amounted in law to a nuisance.

They alleged the growth has attacked wooden garden furniture and paving stones and a sun-deck was destroyed.

They maintain it has discoloure­d garden tables and chairs, potted plants and outdoor toys and left the roof with visible black staining.

They complain they need to have their home and car cleaned regularly in a continuing bid to control the fungus and that the damage has lowered the value of the property.

In the action the couple accept that during the maturing of whisky air enters casks and ethanol and other substances leave them.

But they maintain it is not an essential part of the process “that the ethanol is permitted to escape the premises and to damage neighbouri­ng properties”.

In its defence to the claim, distillery owners Diageo said: “Cosmetic discoloura­tion has no impact on property value and has had no impact on the value of properties in the Bonnybridg­e area.”

It said its warehouse developmen­t became operationa­l in 1979 but the neighbouri­ng estate which was built on undevelope­d land was built in 2002.

The drinks giant added that any ethanol derived from its operation in the area where the Chalmers live “is at levels so low as not to be capable of ready detection and measuremen­t”.

 ??  ?? CRAIG CONNAL: Said Diageo had all necessary permits.
CRAIG CONNAL: Said Diageo had all necessary permits.

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