Session Cases At 200: Some favourite cases

This is an age when public law is an area of vital and immediate interest for lawyers as much as the wider public. AXA is a case which, in less than ten years, has acquired a leading place in the scholarly and professional literature.

Recapping briefly, in AXA, the Court of Session and then the UK Supreme Court were invited to consider a direct challenge to an Act of the Scottish Parliament, on common law grounds as well as of legislative competence in terms of the Scotland Act. That attracted interventions from the other devolved administrations by the time the case was before the Supreme Court. The legislation concerned liability for certain conditions associated with asbestos exposure, and the petitioner is an insurance company with potential liabilities which might arise as a result of the legislation. A number of potential claimants under the legislation sought to enter process as additional respondents.

Thus there were several strands to the proceedings, and the court was able to address a number of points which can fairly be described as constitutional in importance.

First, the Supreme Court authoritatively described the character of the Scottish Parliament and its legislation:

“The carefully chosen language in which these provisions are expressed is not as important as the general message that the words convey. The Scottish Parliament takes its place under our constitutional arrangements as a self-standing democratically elected legislature. Its democratic mandate to make laws for the people of Scotland is beyond question. Acts that the Scottish Parliament enacts which are within its legislative competence enjoy, in that respect, the highest legal authority.” [para 46]

Secondly, in addressing the question of whether and to what extent Acts of the Scottish Parliament are susceptible to judicial review at common law, the court was able to address the constitutional relationships between the courts and the UK and devolved legislatures. While legislation is not subject to challenge on common law grounds of irrationality, unreasonableness, or arbitrariness (para 52), the courts nonetheless have power to protect access to the courts and other fundamental elements of the rule of law (para 51).

Thirdly, addressing argument about the interest of the potential claimants under the legislation, Lord Reed took the opportunity to address a long-standing debate about whether the existing rules about title to challenge matters by judicial review remained appropriate. His judgement that while traditional notions of title and interest remain appropriate in private law matters, in public law matters, a more fluid conception of standing based on sufficiency of interest was now the appropriate approach, marks a very significant shift. In terms of the significance and breadth of change which this part of the judgment makes, AXA is worth its place as top Session Case alone.

Amongst its roles, the UK Supreme Court is a constitutional court, and AXA is an illustration of the practical importance of that.

K J Campbell QC is a sheriff in Edinburgh, and was Chairman of the SCLR 2018—2019

Scandal, Infidelity, Secrets & High society.  It’s like an episode of Bridgerton but much more exciting and absolutely true.  The case of Duke of Argyll v Duchess of Argyll involved a savage and brutal divorce, which captured the public’s attention.

A millionaire’s daughter, the Duchess of Argyll, was famed for her beauty and extravagant lifestyle, peppered as it was with designer clothing and multiple romances.  Her life was lived in the public eye, long before this age of social media.  Her first wedding, where she wore a fabulous gown designed by Norman Hartnell, was described by the Guardian as ‘the media event of the decade’ and mobbed by 20,000 onlookers.

Her second marriage, to the Duke, was mired by suspicion, however.  He believed she was being unfaithful and when she was away, he hired a locksmith to break into one of her cupboards where naked photos of his wife were found.  She was wearing nothing but her signature three strand pearl necklace and was in a compromising position with another man, later known as the ‘headless man’.  Various figures were accused of being the man pictured, including members of the Royal Family and a number of Cabinet Ministers.  Lord Denning was asked to investigate and after handwriting analysis, decided it was a Hollywood film star.  But the Duchess never uttered a word.

The case itself began in the Court of Session over her diary.  The Duchess had recorded in her diary a number of meetings with her paramour in 1960 and the Duke moved for Commission & Diligence to recover the diary, in order to obtain excerpts of the entries and prove adultery.  The Lord Ordinary refused to allow recovery of the diary on the grounds of confidentiality. Long before ECHR and the right to privacy, the court protected her rights to confidentiality.  No doubt a considerable relief to all teenage girls!

During a reclaiming motion, the Duchess admitted she had recorded meetings in her diary but, after the hearing, she withdrew those admissions averring that it was in her possession, was confidential and should not be admitted to probation.  The First Division refused the Minute of Amendment on the basis that by agreeing a proof before answer (PBA) the Duchess had waived her right to claim confidentiality for her diary.

She appealed to the House of Lords where they reversed the decision of the First Division on the basis that consent to PBA did not imply consent to waive confidentiality regarding the diary.  A mere admission that a diary existed was not enough to affect the right to claim confidentiality.

Unfortunately for the Duchess, Lord Wheatley later decided that that the diaries could not be excluded from consideration at the proof as confidential and that, notwithstanding that they were deliberately stolen, they were admissible in evidence.  He described her as a "wholly immoral" woman. 

The case forms the backstory of a BBC Drama ‘A Very British Scandal’ to be aired in 2021 starring Claire Foy and Paul Bettany and I, for one, can’t wait! 

Angela Grahame QC, Vice Chair of the SCLR in 2021

I have a particular affection for this case, which I argued for the appellants.  In those days, in the few weeks before Parliament resumed in November, the Law Lords used to sit in the Chamber to demonstrate that that their proceedings were indeed proceedings of Parliament.  They sat at little desks in the well of the Chamber.  Senior Counsel in full-bottomed wigs addressed them from a rostrum several feet higher, so that it was rather like peering down into a fishbowl.  There was space at the front of the rostrum for only the two leaders, with a small ledge for books or papers.  Juniors and solicitors sat several feet behind.  Peers, including Bishops in robes, wandered in and out to hear what was going on.  It was an experience that no-one will have again, now that everything is done in mufti in the Middlesex Guildhall.

The real issue in Brown was the nature and extent of the powers of the Scottish courts to review administrative acts.  The remedies available were clumsy and slow through actions of declarator and/or reduction.  Such actions could be raised in the Sheriff Court as well as the Court of Session. The question was whether, nevertheless, the Court of Session alone had power to review acts of public bodies (in Brown, the 'act' was decision of the District Council that Mr Brown was 'intentionally homeless').  The Second Division, on a literal reading of Lord President Inglis in Forbes v Underwood (1886) 13R 465, held that, since the Council's decision was not 'judicial' in character, the Court of Session did not have privative jurisdiction, so the case could proceed in the Sheriff Court. Lord Dunpark dissented. 

The idea that the power of judicial review depended on the character of the decision – whether or not it was 'judicial' or 'quasi-judicial' - had led to many intricate distinctions in English law, though it not to a great extent in Scotland.  Our task was to demonstrate, first, that judicial review (in the modern sense) was, by its nature, a jurisdiction that could belong only to the Court of Session; and second, that judicial review was concerned with the proper exercise of powers, whether judicial, quasi-judicial or administrative.  

My junior, Matthew Clarke, and I spent many days searching the institutional writers and cases in Morison's Dictionary to find the source of the power of judicial review, so as to show that it belonged exclusively to the 'pre-eminent jurisdiction' of the Court of Session.  When it came to the hearing, there was a certain thrill in showing the practical wisdom of our judges in the age of enlightenment, and to found our argument on their simple and lucid statements of principle.  At one point, Lord Diplock remarked that the words used were surprisingly modern.  Lord Fraser said in his speech that the basic principle on which judicial review is founded had been stated in 1756 "in terms which, so far as they go, would be perfectly appropriate to the present day".  (Matthew later refined our arguments as senior counsel in West v Secretary of State for Scotland 1992 SC 385). 

As Lord Fraser pointedly observed, what was not appropriate to the present day was the clumsiness and delay of the available procedure for judicial review.  I bade farewell to this chapter of my life by serving on Lord Dunpark's Working Party that devised the modern procedure. 

Sir David Edward, a former Judge of the Court of Justice of the European Communities. Sir David gave the first of the SCLR’s Macfadyen Lectures in 2010.

The legal significance of the decision in Donoghue v Stevenson, 1932 SC (HL) 31, is beyond compare so I will not rehearse its significance to the development of consumer law. It continues to be cited and loved by lawyers, academics and students throughout the common law world.  That much, I believe, can be taken as read.  

There have already been two International Conferences in Paisley devoted to the case and they both attracted attendees from around the globe. The books, articles and cases dealing with Donoghue v Stevenson are simply too numerous to specify.  

However, in addition to global legal importance, ‘The Paisley Snail’ case also has the following unique features which serve to set it apart from all other cases:   

1.  It is the case which is given the most prominence elsewhere on this website - and it is featured in detail in the associated educational materials and videos.   

2.  I believe it to be the only case to have a statue of the pursuer - and a commemorative plaque - erected at the locus.  The locus being The Wellmeadow in Paisley.  

3.  It is also, I believe, the only case to have had a pipe tune named after it.  ‘The Paisley Snail’ pipe tune was composed by a Canadian piper in honour of Martin Taylor QC.  It was a gift from ‘The Paisley Irregulars of Vancouver’ - a group of lawyers who are devoted to the case.  They also helped to produce a film about the case and have been working on an opera.  Martin’s contributions feature on the SCLR website too.  

4.  The case also caught the imagination of a renowned Scottish artist, David Michie OBE, RSA.  A copy of David’s painting entitled “Hail to the Snail” appears here.  A fitting tribute to a great case.  

In short, the clear winner of the ‘Top Session Case Poll’ will be Donoghue v Stevenson, almost inevitably.

Lord Kinclaven is a former Vice Chairman of the SCLR.

My choice is Dunlop v McGowans, the Inner House decision on prescription reported in 1979 SC 22.  Those were the days when keen young Session Cases Reporters – in this case, myself – sat in the reporters’ box noting counsel’s arguments and judges’ interventions.  That particular hearing was gladiatorial.  Lords Wheatley, Kissen and Thomson were presented with arguments from the pursuer’s team challenging Lord Stott’s judgment.  The temperature and language in court became heated.  Memorable even now is the vision of junior counsel Alastair Cameron standing up to rapid fire from the bench, urged on by “Tiger” Morison QC to stick to an argument that “every time a new loss emerges, a new 5-year prescriptive period begins”.  The furious reaction from the bench was noted by senior counsel, who, in his address the next day, effortlessly abandoned that argument.  

The case went to the House of Lords, who affirmed the Inner House decision that the claim was indeed time-barred (1980 SC (HL) 73).  Thus Dunlop v McGowans became a leading case.  But in the years following, problems arose in some circumstances where a pursuer was wholly unaware of any breach or loss.  Ultimately the Supreme Court decision in David T Morrison v ICL Plastics Ltd (2014 SC (UKSC) 222) meant that what might have seemed unexceptional expenditure at the time – a solicitor’s fee, an airline ticket – triggered the prescriptive period before a pursuer was aware that anything had gone wrong.  Logical application of ICL Plastics produced some remarkable results.  Gordon’s Trs v Campbell Riddell Breeze Paterson LLP [2017] UKSC 75 and Heather Capital Ltd (In Liquidation) v Levy & McRae [2017] CSIH 19 are examples, and also Midlothian Council v Raeburn Drilling and Geotechnical Ltd [2019] CSOH 29 where a Council, wholly unaware of a gas problem at the site of its 64-house development completed in 2009 (and only becoming aware in 2013) was held to be time-barred in a negligence claim against defenders who had been instructed in 2005 to investigate the site and to advise.  It is now hoped that the Prescription (Scotland) Act 2018 will result in a fairer balance of interests, once its transitional provisions are finalised.

Dunlop v McGowans is not only a leading case, but also a reminder of a bygone era.  In 1979 there were no word processors, digital recordings, notes of argument, consulting rooms, or electronic systems such as Webex or Zoom.  “Cutting and pasting” meant just that, with an adjusted record developing into a document festooned with flapping bits of paper.  Without notes of argument, ambush by submission could occur.  Shorthand writers sat in person beside the judge.  Judges’ hand-written opinions were deciphered by typists using old-fashioned typewriters.  Any suggestion that being a judge might mean sitting alone surrounded by screens and keyboards, with the clerk, lawyers, and witnesses as talking heads, productions on a split screen, and lawyers’ submissions transmitted electronically from offices or homes, would have been dismissed as pure fantasy.

Decades later, in 2021, virtual judging has become a reality and the law of prescription continues to cause problems.  So Dunlop v McGowans is a landmark case, with a personal resonance for me.

Lady Paton, a past member of the SCLR and sometime law reporter for Session Cases.   

In 1840, John Boyd Dunlop was born in Dreghorn, Ayrshire.  He qualified as a vet and moved to Ireland.  In his spare time, in 1887, he developed a pneumatic tyre for his son’s tricycle.  His tyres were made commercially in Scotland; literally and metaphorically, they took off (despite an intellectual property hitch – in 1846 Robert Thomson of Stonehaven had already patented a pneumatic tyre).  The Dunlop Pneumatic Tyre Company Limited was incorporated in May 1896.

In 1898, in Kilmarnock, brothers Robert and John Fisher Dunlop started a cycle and motor repairing business, R and J F Dunlop.  In 1904, it became the Dunlop Motor Company Limited.  In 1905, the tyre company sought interdict against this use of the name ‘Dunlop’, on the basis of alleged passing off.

At proof, Lord Dundas examined whether the name ‘Dunlop’ had become associated with the complainers’ goods.  Would the respondents’ use of that name result in the ‘confounding’ of the businesses?  On the first point, the name Dunlop was clearly identified with the tyre company and its products.  On the second, the respondents’ company carried on business as motor manufacturers and dealers.  Advertising at incorporation in terms ‘of preposterous exaggeration’, their ambition appears not to have endeared them to the judge, who described the history of their company as of a ‘nebulous and unsubstantial quality’.  Dealing as they did in types of goods and lines of business overlapping with the complainers, confusion would be likely and interdict was justified.

The Second Division disagreed (1906) 8F 1146.  The tyre company had no exclusive right to the name Dunlop for all commerce; they could not (using an ‘extreme example’) claim sole use of the name ‘in connection with … golf balls’ (note: Dunlop golf balls appeared in 1910, with the Maxfli launched in 1922).  A company could only acquire an exclusive right to use a name for classes of goods in which it actually dealt. 

The nub of the case appeared to be motor vehicles.  By forcing the motor company to rename, the tyre company would preserve the option of expanding into that market.  Were tyres and other accessories so akin to cars as to generate a belief that the motor company was a branch of the tyre company?  Would ‘the average citizen of Kilmarnock’ be deceived?  

Tyres were proprietary articles.  Everything manufactured by the tyre company was stamped with ‘Dunlop’.  No such branding attached to anything sold by the respondents.  A thoughtless person’s assumption of connection fell far short of proving the case.

The House of Lords succinctly agreed.  Dunlop ‘is a common name in Scotland’.  There was insufficient similarity between the businesses of the two companies to compel the respondents to select another name, especially when the name chosen was their own. 

Is this the case that thwarted the Model ‘D’ Dunlop?  I doubt it.  And I see no trace of the motor company today.  What must have been its shop in John Finnie Street is to let.  Reassuringly, however, Dunlop Street remains only a stone’s throw away.

Laura Dunlop QC was Vice Chairman of the SCLR 2008—2011. She is unrelated to anyone in the case, and thanks Michael Upton for alerting her to it, many years ago.

In addition to reporting cases illustrating ground breaking legal principles, Session Cases also reports cases which have attracted considerable public interest, providing a historical record of the most sensational cases of the day. 

Nat Fraser was twice found guilty of murdering his wife, Arlene, who had disappeared from her home in Elgin in 1998.  Her body has never been found.  In the first trial the Crown had relied on the finding of Arlene Fraser’s wedding, engagement and eternity rings nine days after she had disappeared.  The Crown invited the jury to conclude that Nat Fraser had removed the rings from her dead body and returned them to the house to make it look as if she had decided to walk away from family life.  This was the cornerstone of the Crown case, and the jury were directed that if they were not prepared to hold that Nat Fraser had returned the rings, it was not open to them to convict of murder.  Nat Fraser appealed, and during the appeal process it was discovered that a police officer had seen the rings in the house on the night of Arlene Fraser’s disappearance.  A full investigation was carried out into why that information had not been disclosed.  Following a lengthy and procedurally complex appeal process, the details of which are set out in the 2011 report, the Supreme Court allowed the appeal. 

The second trial was a difficult trial to run, having regard to the extensive publicity surrounding the previous trial, and the risk that witnesses might refer to previous incidents of domestic abuse.  It was a lengthy trial, and witnesses made brief references to Nat Fraser having been banned from the house, an assault, and Arlene Fraser having been in a women’s refuge.  Another witness referred to Nat Fraser’s personality having changed after he had been imprisoned for a previous incident.  The trial judge did not desert the trial.  Instead, he gave an immediate direction to the jury to ignore that reference, and he directed the jury again during his charge at the end of the trial.  The jury heard weeks of evidence, including evidence about Arlene Fraser’s actions on the day she went missing, Nat Fraser’s alibi for that morning, the marital breakdown and Arlene Fraser consulting a solicitor about a financial settlement, Nat Fraser’s jealousy and the importance of money to him, Nat Fraser telling a friend two days before his wife’s disappearance to purchase a car which the friend subsequently set on fire, flattened with a digger and took to a scrapyard after her disappearance, and the friend stating that Nat Fraser had told him that he had arranged for someone to murder Arlene Fraser.  The appeal against the decision not to desert the trial was refused. 

The second trial was filmed in its entirety and made into an award-winning television documentary.  It was the first time that cameras had been allowed to film a whole murder trial in a British criminal court. 

Sheriff Alison Stirling, Advocate, Deputy Editor of Session Cases 2001—2016

Sometimes, a legal rule is identified by the name of the case with which it is associated. In Scots law, none is more famous than the Moorov doctrine. Samuel Moorov, a Glasgow draper, was prosecuted in 1930 on an indictment containing 21 charges of assault and sexual assault against nineteen of his female employees. In relation to most of the charges, the only direct evidence came from the complainer.  

The Full Bench decision, on the accused’s appeal against his conviction, is the leading case on the application to such cases of the law of corroboration. The court affirmed that, where there is a sufficient connexion between the circumstances, the evidence of the complainers may be corroborative of one another.

The doctrine was not entirely novel. It had been discussed in other contexts by the institutional writers. It had been previously been applied in cases of alleged sexual offences against children, notably in the case of Charles McDonald, also reported in Justiciary Cases at 1928 JC 42. But Moorov’s case was the first to apply it to sexual offences involving adult complainers and, as a decision of the Full Bench, that case crystallised the law.

The decision resonates today in the context of MeToo and our contemporary commitment to tackling gender-based crime. The Justiciary Cases report mentions incidentally that “the appellant’s conduct had resulted in the women banding themselves together for self-defence”. It resonates today, also, because the great majority of High Court prosecutions are sexual offences and in many of those cases the Crown relies on the principle established in Moorov. 

Six of the seven judges who sat issued substantive opinions. They were not entirely at one; and the test they applied is open-textured. Unsurprisingly, contemporary volumes of Justiciary Cases contain many decisions of the Appeal Court calibrating the proper scope of the Moorov doctrine. Working out the implications of the case continues to be fruitful for developing the law – for example in the approval by the Appeal Court in recent cases (some of them reported in Justiciary Cases) of the use of docket evidence. And the question of whether the doctrine articulated in 1930 is too restrictive has been asked – including in the pages of Justiciary Cases (RBA v HM Advocate 2020 JC 16).

That is, of course, how caselaw works. In the pages of the law reports, the voices of our predecessors speak to us across the years. Our contemporary engagement with the Moorov doctrine illustrates how, by reflecting on the way that past judges analysed and addressed legal problems, we are equipped to know what the law is and how it may be applied to current questions. That is possible only because, for 200 years, law reporters have, diligently and accurately, preserved the decisions of our courts in the pages of Session Cases. Their collective achievement is well worth a celebration.

James Wolffe QC, now Lord Advocate, was Chairman of the SCLR 2011—2014

Every judgement tells a story.  Law reports make those stories come alive.  Powerful images illustrate legal principles.  A Newhaven fishwife on the tram shocked to the core by a motorcyclist’s fatal crash on an Edinburgh suburban street (but not close enough to claim).  The desiccated snail spilling out of a bottle of ‘ginger’ into the books of legal history.  The house on the foreshore at the bottom of a sea cliff, with no parking of its own.  For me, the story that lingers longest is the one that never happened.  The story of the escaped tiger and the fleeing milk girl.

Scott & Sons v Del Sel (1922 S.C. 592) concerned a firm of jute merchants in Dundee who, in 1917, were contracted to ship 2800 bales of jute from Calcutta to Buenos Aires.  The terms of the contract provided that any dispute that might arise between parties was to be settled by arbitration in Dundee.  Before the shipment was complete, the Indian government placed an embargo on exports. The purchasers of the shipment held the sellers to their bargain and sought to arbitrate in Dundee.   The jute merchants argued that the actions of the Indian government effectively frustrated the contract.  The parties fell out and found themselves in Edinburgh instead.

Frustration of contract rests upon the principle that, rather than simply something unexpected making a contract impossible to perform, a term or condition is implied into the contract itself which brings the contract to an end.  The Court of Session was not persuaded that the Indian government’s intervention absolved the jute merchants from their obligations under contract.  Lord Sands sets the scene.

 ‘A tiger has escaped from a travelling menagerie. The milkgirl fails to deliver the milk. Possibly the milkman may be exonerated from any breach of contract; but, even so, it would seem hardly reasonable to base that exoneration on the ground that “tiger days excepted” must be held as if written into the milk contract. …I think, however … that the doctrine of implied term of the contract must be given its logical consequence, and that, if contracts are to be held as frustrated in virtue of the failure of an implied term, the question whether there is such an implied term is a question arising under the contract.’  So, the case was subject to arbitration in Dundee.  The parties appealed.  They found themselves before the House of Lords in London.  Their Lordships agreed with Lord Sands.  The parties were sent back to Dundee.

There was never a tiger.  There was no milkgirl.  But the image – and the doctrine of frustration – stays with me.  The case of ‘tiger days excepted’ is more than just a vivid illustration of an unlikely implied term in contract.  It provides a precept to live by.

Jackie McRae, solicitor, Chair of the SCLR in 2021

Access to the countryside for the purposes of recreation, including walking, has long been an important aspect of Scottish life. In recent years it has been the subject of legislation in the Scottish Parliament. However, there is a significant historical background in the earlier law, as interpreted and applied by the Scottish courts in cases brought before them. This is one such case.

Duncan Macpherson was the proprietor of an estate which included Glen Doll in Angus (then Forfarshire). Through that estate ran a route which the pursuers claimed was part of a public right of way. The route commenced at Auchallater, a few miles south of Braemar on the public road leading to Blairgowrie, and proceeded through Glen Callater, the Glen of the White Water and Glen Doll to a point on the public road in Glen Clova. Although the pursuers did not lead in evidence testimony from any ‘tourists’ (recreational walkers) there was evidence from others of such use. The evidence on which the pursuers primarily relied was the use of the route, over at least the prescriptive period (then 40 years), for the driving of sheep from the market in Braemar to a market at Cullow in Forfarshire.

The defender denied that the public had any right of way over the route in so far as it traversed his ground.

The Lord Ordinary (Lord Kinnear) described the ‘road’ as ‘a natural hill pass between Aberdeenshire and Forfarshire. It traverses some very high ground and is in some parts steep and rugged; but there is no doubt that it a practicable way for foot-passengers and sheep’. The amount of the public usage proved was not extensive but ‘the extent of the use which will indicate right must depend upon the nature of the country and the requirements of the inhabitants. It must be such a use as might reasonably be expected if the way were reputed to be public and admitted to be so by the proprietors of the land...’. He granted declarator (that it was a public right of way).

A reclaiming motion by the defender failed (Lord Young dissenting), the majority endorsing the Lord Ordinary's approach.

The defender's appeal to the House of Lords was dismissed unanimously. A difference between Scots law and English law was noticed by the Lord Chancellor (Lord Halsbury), English law requiring that it can reasonably be inferred ‘that the owner had a real intention of dedicating that way to the use of the public’, while Scots law required only that it can be established ‘that for the necessary period there has in fact been such a use of the way which negatives a mere licence or permission’. Lord Selbourne and Lord Watson expressly endorsed the view that the evidence which was required depended on the particular circumstances.

Apart, possibly, from the observations about the required evidence, this case did not itself make new law; it turned largely on the facts. The relevant principles of positive prescription, which went back at least to Stair's Institutions, had been restated by Lord Watson in Mann v Brodie 1885 12 R (HL) 52 at p.57. A number of other cases in the nineteenth and twentieth centuries applied these principles including Marquis of Bute v McKirdy and McMillan 1937 SC 93 (access from a public road across private land to a part of the foreshore used for bathing and recreation).

Lord Hamilton, a former Lord President of the Court of Session, delivered the SCLR’s Macfadyen Lecture in 2013

Is any case more colourful than Steuart v Robertson (1875) 2R (HL) 80? It involves gallantry, dissipation, a disputed marriage, entailed estates, and a lengthy law suit.

Major Steuart was the oldest son of an ancient family. He served with distinction in the 93^rd Highlanders, being awarded the Victoria Cross. But after leaving the army he fell into a life of dissolutionhHK. His alcoholism resulted in attacks of delirium tremens and ultimately to his death in 1868 aged 37.

A young woman, ‘Mary’, came forward and made a claim on his considerable estate. She maintained that she was the Major’s widow, having wed him two years earlier, when she was 16.

Major Steuart had boarded with her family in a flat above her father’s fishing tackle shop at the top of Leith Walk in Edinburgh. After supper one evening Mary’s father told Major Steuart that he could no longer stay under their roof, because his presence in the flat was tarnishing Mary’s reputation.

Major Steuart sat quiet for a minute or two and tears came into his eyes. He then said: “I am poor now and cannot marry, but I will marry her in the Scotch fashion.” He went down on his knee, put a ring on the third finger of Mary’s left hand and said “you are my wife before Heaven, so help me, oh God”. Those present then saw the couple embrace, kiss and go to bed together.

Following that night the parties’ conduct followed an uncertain pattern. Sometimes the Major acknowledged that he was married to Mary. Sometimes he did not. She likewise claimed to be his wife, but also held herself out as single. It was not disputed that she gave birth to his child about 14 months later.

A narrow majority of the full bench of the Court of Session held that the couple were man and wife. Lord Justice Clerk Moncreiffe said “I am unable to resist the large and consistent mass of evidence on which the pursuer’s case depends”.

The House of Lords, however, unanimously reversed that decision. The speeches contain great rolling passages of morality. Here, for example, is Lord O’Hagan: “It does seem somewhat startling to give such an effect to such doubtful words, spoken, if at all, at a nocturnal carouse by a habitual drunkard, even then emerging from a state of intoxication, weak in mind and body, and weeping maudlin tears.”

Steuart isn’t the most influential decision in Session Cases. It’s rarely cited today. But it reminds us that litigation is about people and their very human problems. It could and should have provided the engine for a great Victorian novel.

Lord Woolman was Chairman of the SCLR from 2001—2002

“The law on this subject cannot be better expressed than it is by Monkbarns in a work of fiction, with which we are all well acquainted.” Thus Lord Gillies, giving a preliminary view of the case Thom v Black in the First Division, reported 1828 7 S 158. The “S” stands for “Shaw”.

Patrick Shaw’s report is of interest for the fact that unusually if not uniquely for a law report—at least for a law report which is not concerned with literary property—it includes a long quotation from a novel, added by way of Shaw’s footnote, as if the novelist were an “Institutional Writer”. The novel is The Antiquary, and the passage footnoted is the one alluded to by Lord Gillies containing a disquisition by the antiquary of the title, Jonathan Oldbuck of Monkbarns, on “the elegance of the legal fiction” which underlies the warrant to incarcerate debtors decamping in meditatione fugae.

The reflections of Lord Gillies lead us into a gallery of mirrors, using as they do literary fiction to explain a legal fiction, itself an ambiguous phrase meaning both a fiction of the law and a fiction about the law—the latter being a fair description of The Antiquary as of many other tales from the same pen. (Especially relevant is Redgauntlet, in which a “fugie warrant” is one of the drivers of the action.) The words “with which we are all well acquainted” suggest a circle of initiates, a circle which extends to Lord Gillies’ friend the clerk of court, sitting mute beneath the bench, who had maintained for years the fiction that he was not the author. Also on the bench was Lord Meadowbank, the same who, at the Edinburgh Theatrical Fund Dinner on 23 February 1827, had revealed the true authorship of the novels. The clerk and the author, both, were, of course, Sir Walter Scott.

The monoped Shaw—he had suffered a childhood amputation—was still experimenting with the format of his new series of court reports. He and James Ballantine published the first volume in 1822, Cases decided in the Court of Session, from May 12, 1821... Alexander Dunlop became co-editor in 1822 after Ballantine had to leave at short notice for the Continent, presumably in meditatione, creditors at his heels. A second edition of Volume 1 was published in 1824, and an enlarged edition of Volumes 1—5, with added notes and different pagination, was published in 1834—1835. The early success of the new reports is evidenced by the literary notice they attracted. In The Last of the Lairds (1826), the novelist John Galt, referred to a fictional case “accurately reported in that amusing periodical Shaw and Dunlop’s Decisions of the Court of Session”.

And so, here we are 200 years on, and the “amusing periodical” is still going strong, as strongly as it ever did. Time to celebrate, in a dignified way of course, as if those worthies Shaw, Dunlop, Macpherson, Rettie and Fraser were of the company.

Lord Stewart was Chairman of the SCLR 1997—2001

In about 1972 the instructors and pupils of the Cairngorm Canoeing and Sailing School began to venture down the River Spey from Loch Insh as far as Aberlour in the county of Moray.  In so doing they paddled through a stretch of salmon fishings at Knockando owned by the Rt Hon George Neville Clive, Second Baron Wigram of Clower and others, the Trustees of Major Hugh Wills.  The trustees’ consequent and unsuccessful application for interdict reached the House of Lords four years later, where it engaged the Judicial Committee for a full two weeks.

The report of Wills’ Trs v Cairngorm Canoeing and Sailing School Ltd at 1976 SC (HL) 30 conveniently includes all of the judgments in the Outer House (Lord Maxwell), the 1^st Division and the House of Lords.  It is rich in historical detail.  The issue was whether the Spey was a public navigable river.  Timber had been floated down river from Rothiemurchus Forest for at least 40 years during the 19^th century.  Timber rafts were sometimes used by local inhabitants to transport butter, cheese and themselves.  There was sporadic use by picnickers and mussel pearl fishermen. For their part, the trustees produced evidence that the passage of the canoes caused the fish to suffer a sort of PTSD that induced them to lie still in deep pools, rather than coming up to be caught, as they were meant to do.

Citation of authority began with Ulpian in the Digest, and made its way forward through the institutional writers, the French jurist Dalloz, the 18^th century cruive (a dyke or weir) fishing practices of the Duke of Gordon, and the commercial use of various Scottish rivers.

The trustees lost at every level, for differing reasons.  The House of Lords (including, appropriately, Lord Salmon) held that a public right of navigation could not be lost by non-use, and that use for recreation was as effective to prove navigability as use for commercial purposes.  The case is a fascinating illustration of conflict between old and new recreational and economic activities, and I commend it to anyone interested in Scottish legal and cultural history.

When I visited the café at the Loch Insh Outdoor Centre a few years ago, they had on the wall a splendidly witty poem about the Wills’ Trs litigation, written by Clive Freshwater and published in his memoirs Making Waves.

Finally, the case has law reporting interest.  Frequent reference is made to the unreliability of the reporters of cases in Morison’s Dictionary.  And Lord Hailsham mentions the violent objection of 18^th century Scottish judges to law reporting: according to Lord Cockburn, in what could be adopted as an advertising slogan by the Scottish Council of Law Reporting, Lord Esgrove exclaimed “The fellow takes doon ma very words”!

Lord Tyre is a member of the SCLR.