Diageo fail to have damages case thrown out over Bonnybridge 'Angels' share'

Thomas and Gail Chalmers have spent a decade in litigation seeking compensation over what they allege is a nuisance that affects their home in Bonnybridge.

A judge at the Court of Session in Edinburgh rejected a move by Diageo seeking to have the claim dismissed last year.

Lady Carmichael said she would allow a hearing of evidence and stated: "On the face of matters this is a case that requires the resolution of issues of fact on the basis of disputed evidence from skilled witnesses."

Diageo Scotland brought an appeal before three judges at the court against the decision and again sought to have the case thrown out.

But the Lord Justice Clerk, Lady Dorrian, sitting with Lord Matthews and Lord Armstrong, rejected the appeal in a judgement issued yesterday (Friday).

Lady Dorrian said: "The respondents (Mr and Mrs Chalmers) own and reside at a property within a housing development in Bonnybridge, which is situated adjacent to a whisky ageing facility, which includes nine bonded warehouses, owned and operated by the reclaimers (Diageo).

"As the whisky matures, ethanol vapour leaves the casks, the so-called Angels' share'. The respondents raised the present action in which they contend that the level of ethanol emitting from the facility, combined with the surrounding atmosphere, encourages the germination, growth and development of a fungus named Baudoinia.

"They say that this has resulted in black, sooty deposits and staining covering their property, amounting to a nuisance," said the senior judge.

Lady Dorrian added: "There is a lengthy and lamentable procedural history to the action, which commenced in 2014."

She said the procedural hearing which led to the appeal was the third debate in which Diageo sought dismissal of the action on the basis that the couple's pleadings were "irrelevant and lacking in specification".

Lady Dorrian said the appeal judges agreed with Lady Carmichael's comment that "there is no lack of clarity" as to the case that Diageo had to respond to in defending the action.

Mr and Mrs Chalmers, of Woodlea Gardens, Bonnybridge, originally raised an action seeking £40,000 which is contested by Diageo.

They bought the new build house in 2002 but said the fungus covered their home and outdoor property and affected its value.