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Mr. Charlie Thom
1 pm
Mr. Brian H. Donohoe (Cunninghame, South): This debate has been rather overshadowed by events in Scotland today. I understand that at Dunblane primary school in Dunblane 13 children and two adults have been killed and eight others have been injured. I offer my sincere condolences to the families and relatives of those killed or injured in the tragedy. I understand that, later today, formal statements will be made by the Leader of the House and the shadow Leader of the House. I also understand that the Minister of State wants to say a few words, and I give way to him.
The Minister of State, Scottish Office (Lord James Douglas-Hamilton): The whole House will share the sense of distress, horror and outrage that children lost their lives at Dunblane primary school this morning in an appalling incident. The whole House will wish the deepest sympathies to be expressed to the families of the victims and to the families of those who have been injured. My right hon. Friend the Secretary of State for Scotland and the hon. Member for Hamilton (Mr. Robertson), the shadow Scottish Secretary, left this morning to travel to Dunblane, and I understand that the Under-Secretary of State responsible for education, my hon. Friend the Member for Aberdeen, South (Mr. Robertson), is already there.
The House should expect a full statement to be made as soon as all the facts have been established. My right hon. Friend the Leader of the House will confirm the arrangements for a statement at 3.30 pm today.
Mr. Donohoe:
I am grateful to be able to present the case in this short Adjournment debate of Charlie Thom of35, Ashgrove road in Kilwinning, which involves a march-fence division wall. The case could be considered to be very complicated. Indeed, from reading several documents and letters concerning it, I consider it complicated. I shall try to make it as simple as possible and break it down into three different sectors. The first concerns the courts, the second concerns politicians and the Government and the third concerns the Scottish Law Commission.
I shall try to approach the matter from a simple commonsense point of view and outline the case briefly.I understand that the wall was built in the early 1950s and that a wooden fence was subsequently built next to it without Mr. Thom's permission. Lord Jauncey, the Lord Ordinary, heard the case over 28 days in 1987 and, on24 April 1987, came to the conclusion that the case was not made by Mr. Thom. He said that huge sums of money had been spent in defending and prosecuting the case. It has been estimated that more than £50,000 was spent--concerning a wall that cost between £700 and £1,000 to build.
In the opinion of the pursuer, Mr. Thom, Lord Jauncey's statement ignored all previous decisions.To find case history, one has to go back to the19th century, when there were five cases that specifically concerned boundary walls. The first such case was Wallace v. Brown on 21 January 1808, and the last was Cochran's Travellers v. Caledonian Railway Company in 1898.
Mr. Thom argues that Lord Jauncey came to his conclusion on the basis of tenement gable cases in the 1900s and took into account the minority view of the last case in the previous century, to which I have referred. Lord Jauncey concluded:
I understand that the Scottish Office Minister became involved on 27 October 1987, when he wrote:
Two Lord Advocates became involved in the case.The first, Lord Cameron of Lochbroom, said on21 December that Mr. Thom should refer the matter to the Scottish Law Commission, as did his successor, Lord Fraser of Carmyllie, on 2 March 1992.
At about the same time, Mr. Thom wrote to the Faculty of Advocates, and on 4 June 1993 was told by the dean of the faculty to take the matter up with the deputy principal clerk of session. That had disastrous consequences for Mr. Thom, of which I am sure the Minister is aware. It has caused such a delay that the case has still not been considered by a judge.
After a fairly lengthy written and verbal dialogue with Mr. Thom, the third vehicle in the case, the Scottish Law Commission, produced a consultation document in June 1992. It was very supportive, as was a letter from Lord Davidson, the chairman of the commission. Shortly before the research undertaken by the commission on the subject was completed, Lord Davidson said:
I would argue that there is a remedy. It is clear that the law on dividing walls is in total disarray. The law faces two ways and there are two lines of decision that cannot satisfactorily be reconciled. It is clear that my constituent no longer has any confidence in the Scottish legal system--and with some justification, given what I have described. The extent of the events that have occurred in the Scottish Court Service is astonishing, as I understand the Minister is aware.
What can we do to remedy the situation? For one part, compensation is due. We need only to approach the matter from a commonsense point of view. Everyone knows that it is not possible to own half a brick, yet the judgment seems to suggest that it is. As it is not possible to own half a child, it is certainly not possible to own half a brick. Such a premise makes a nonsense of the law, and the law falls into disrepute in the eyes of the public as a result.
Lord Jauncey had absolutely no right or power to change the law. As I understand it, to change a point of law in Scotland, five judges sitting together are required to make a majority decision. A single judge does not have that power.
The only other two ways in which the law can be changed are through the House of Lords, on a case basis, and through the House of Commons, by statute or by parliamentary order. Those are clearly not open to Mr. Thom. In terms of his rights of appeal, it would be nonsense for him to approach the case from the angle suggested by many people. The use of judicial discretion in the case has been highly questionable.
The most recent annual report of the Scottish Law Commission said that the case would have to be set aside because, as with other cases of equal importance, more resources are needed from the Government to continue with it. The Government must examine the resourcing of the Scottish Law Commission. In my discussions with the commission, that fact has been clearly borne out.
The time spent on the case has been inordinate. My constituent has been almost literally banging his head against a brick wall for more than 15 years. He feels that the system of law has been ganging up against him, and that there has been some form of collusion. So far as I can determine, all facets of the law suggest that he has a right of appeal. The Scottish Law Commission alone stands against that possibility.
About 3,000 years ago, in a book called the Mishnah, the Jews determined what would happen if two parties decided to build a dividing wall:
I fail to understand why, if the Jews could get it right 3,000 years ago, the Government in Scotland cannot get it right after more than 10 years.
The Minister of State, Scottish Office (Lord James Douglas-Hamilton):
I congratulate the hon. Member for Cunninghame, South (Mr. Donohoe) on obtaining this Adjournment debate. I have studied the issue closely, and there is one issue of concern to me that may provide the basis for some claim for recompense--the failure of an officer of the Court of Session to process Mr. Thom's application for a reduction of Lord Jauncey's judgment in 1993. If the hon. Gentleman or Mr. Thom believes that that failure led to additional or abortive costs forMr. Thom, I ask them to let the chief executive of the Scottish Court Service or myself have details so that consideration can be given to an ex gratia payment to cover those additional costs.
I shall describe to the hon. Gentleman and the rest of the House the present legal position. "Common property" means a single piece of property jointly owned by two or more people. "Mutual property" means a piece of property of which two or more people own a part. The law on boundaries is mostly common law not statute law, and it is interpreted by the courts in the circumstances of the time.
The modern interpretation of the law on garden boundary walls is that each neighbour owns his own half of the wall. The two neighbours have a shared interest in the upkeep of the wall as a whole. That interpretation of the law formed the basis of Lord Jauncey's judgment against Mr. Thom in 1987. In effect, he ruled that the garden wall was mutual property, whereas Mr. Thom had argued that it was common property. That interpretation of the law has been in place since 1886, and the leading authority on property law, "The Laws of Scotland Stair Memorial Encyclopaedia", says that
"However I can see no reason why the principles of law applicable to the interest in a gable built half on A's land and half on B's land should differ from the principles applicable to the simple division wall similarly built".
"The Secretary of State cannot interfere in the judgements of the courts. Such judgements can only be overturned in the normal manner by appealing to a higher court and Mr. Thom should consult his own solicitor regarding this."
"case law on the subject is in disarray".
"If they acted with each other's consent, they should build the wall in the middle and make the boundary mark on either side; hence if the wall fell down the place and the stones belong to them both."
"The modern law"--
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