06 September 2019

In mythical Scotland, where Haggis run wild in the hills and where the Loch Ness Monster lurks beneath, whisky is the water of life and the small sacrifice made for these great gifts is known as the Angels’ share.

The Angels’ share has been taken when an unopened bottle or cask of mature whisky appears to have a couple of “nips” missing, as if consumed straight from the bottle by the Angels themselves. Such tales succeed in making the mundane a little more interesting. 

The reality is that the Angels’ share is due to ethanol evaporating and escaping as the whisky ages. This more pragmatic explanation, like those debunking as fake pictures of Nessie, or those that say Haggis is offal wrapped in sheep intestine, is a twist which makes the romantic seem disappointing.

The recent opinion of Lord Tyre in the case Chalmers and Chalmers v Diageo Scotland Limited [2019] CSOH 63 strikes the unusual chord of blending the mythical via an unexpected dark twist with some pragmatic analysis to provide genuine interest for those dealing with nuisance claims.

In the action, it is claimed that ethanol escaping downwind from barrels of whisky at the defender’s premises has resulted in black fungus upon neighbouring property. 

This black fungus is said to have caused: damage to the claimant’s home and outdoor furniture resulting in time and cost to replace and clean; a reduction in the value of their property; and a loss of amenity. 

The action called before Lord Tyre at a debate because the legal basis for the claimants’ purported losses was being challenged on a couple of fronts, including that:

• Claims for Diminution in value / Loss of amenity could not be made in addition to claims in respect of cleaning costs – The rationale being that one couldn’t claim the cost of removing the blackening and for losses arising from its presence.
• Lord Tyre provided a helpful reminder of what compensation for loss of amenity / Diminution is for in this context and a reminder of how there may be different considerations in claims where the nuisance is ongoing, or has been abated.  His review of the authorities highlights that:
• Diminution and loss of amenity are alternative methods of calculating the reduction in the  value of the right to occupy property. 
• An award for both Diminution and loss of amenity will be inappropriate and would result in double compensation. 
• Where the nuisance is transitory, there is unlikely to be Diminution and compensation is based upon loss of amenity. 
• Where there is physical damage to land, the owner will in addition be entitled to recover consequential losses – e.g. profits otherwise derived from the land damaged. 
• A claimant’s injury, annoyance or inconvenience is not damage consequential upon injury to land.  These are facets of loss of amenity and as such are not heads paid in addition to Diminution / loss of amenity.

In the case of the Angels’ share, there was certainly potential for overlap between the Diminution and a loss of amenity claim, but that did not mean that the case could not proceed to proof. 

Claims for Diminution / loss of amenity and the past/future cleaning costs were distinct heads. Cleaning costs were consequential upon the loss of right to occupy land and so potentially recoverable in addition. 

The court would, after evidence, have to balance all of these aspects in any assessment of quantum to ensure that there was no double compensation.

It remains to be seen if ultimately the fungus is found to have been caused by Angels’ share, if that will be deemed to be a nuisance and what balance may be struck in relation to any damages. 

What is certain is that this darker take on Angels’ share has a new home in Scottish legal folklore.

 Contact: Mark McCluskie, Senior Associate,  mmc@bto.co.uk T: 0141 221 8012