Sheriff Appeal Court holds servitude right to single-track road did not include use of passing places

By Mitchell Skilling

The appellants, Ian and Ruth MacAllan, were granted a right of access over land now owned by the respondents, Ian, Grace, and Laura Arbuckle, when they purchased their property and argued that they enjoyed an ancillary right to use the passing places. The parties’ properties had once been part of the same estate that was subdivided when it was sold.

The appeal was heard by Sheriff Principal Marysia Lewis, sitting with Appeal Sheriffs Fiona Tait and Thomas McCartney. C MacColl, advocate, appeared for the appellants and Garrity, advocate, for the respondents.

Geographical extent

In 2016, the proprietor of the Carphin Estate in Cupar decided to subdivide and sell the estate. The appellants purchased the Mansion House in late 2016, and the respondents purchased the Lower Luthrie Farm early in 2017. The only means of pedestrian and vehicular access to the Mansion House was via a single-track road passing through the farm, over which the appellants were granted two servitudes in December 2016 and March 2017.

The areas on the cadastral plan marked as included within the servitude did not include the passing places or verges along the road. In 2018 the appellants raised an action for declarator and interdict against the respondents in which they made allegations of obstruction of their servitude right of access. The sheriff dismissed this action and determined that, in the absence of any ambiguity in the deeds and plans, the servitude right was restricted to the area highlighted on the plans.

Following the dismissal of their first action, the appellants raised a new action seeking declarator that they enjoyed an ancillary right to use the passing places and verges to the extent necessary to allow two vehicles to pass each other on the road, as well to interdict the respondents from obstructing them. The respondents counterclaimed for declarator that the appellants had no right of title to use their land beyond the defined rights.

The sheriff dismissed the appellants’ action and granted decree in the counterclaim, holding that that servitude right as defined in the title sheet was clear and unambiguous. She concluded that the rights the appellants were seeking were not truly ancillary to the servitude but merely an extension of the geographical extent of the servitude itself.

It was submitted for the appellant that the sheriff had erred in her entire approach to the case. They contended that a vehicle which could not make progress along the roadway in face of oncoming traffic because it must reverse all the way back to the start instead of back only to the most recent passing place could not be said to be enjoying the conferred servitude right, thus access to them was necessary for the comfortable use and enjoyment of the servitude.

Free from ambiguity

Delivering the opinion of the court, Sheriff Principal Lewis said of the sheriff’s approach: “The sheriff concluded that the grant was clear and unambiguous. We support her decision in that regard. The words used in the grant are precise and free from ambiguity – the benefited and burdened subjects are identified; a recognised servitude right of pedestrian and vehicular access is specified; and the route is described.”

She continued: “We endorse the sheriff’s conclusion that there is no need for evidence to be led regarding the character of possession and the use of the servitude at the time of the grant in regard to the nature of the right because they are of no relevance to the construction of the grant. The precision in the deeds and the cadastral plans identify clearly the extent of the geographical area benefitted and burdened by the servitude.”

Assessing whether any ancillary rights were necessary for the enjoyment of the servitude, Sheriff Principal Lewis noted: “The drafting involved in the disposition may have caused or contributed to the ongoing dispute because the grant makes no reference to a right to move onto and to use passing places and verges which are on adjacent land to enable other vehicles to pass. There is no provision as to rights and obligations in relation to the volume of traffic and the regulation of the flow of traffic through the use of passing places and verges.”

However, she concluded: “We acknowledge that a vehicle which cannot make progress along the roadway in face of oncoming traffic because it must reverse all the way back to the start instead of back only to the most recent passing place is inconvenienced – and no doubt sometimes significantly so – but we do not accept in light of the authorities that a right to move onto a passing place or onto the verges which lie outwith the burdened area to allow other vehicles to pass is necessary for the comfortable use and enjoyment of the servitude.”

The appeal was therefore refused on the basis that the sheriff had not erred in making her decision.

Scottish ministers’ approval of trans-inclusive guidance was lawful

The guidance says that trans men and trans women can answer the sex question in line with how they live their lives, whether or not they’ve changed the sex on their birth certificate.

Lord Sandison’s opinion states that there is no general rule of law that a person’s sex may only ever be answered by reference to the sex stated on their birth certificate or a gender recognition certificate (GRC).

Lord Sandison goes on to note that the way sex and gender are recognised by different public authorities (for example, DVLA and the passport office) reflects the modern reality that sex is not generally now regarded as a pure matter of biology, but is a more nuanced concept. For that reason, he concludes that Scottish Ministers were acting within their powers in issuing the Census guidance.

Fair Play for Women (FPFW) had applied for a judicial review to have the guidance scrapped because it objected to the fact it does not tell trans women and trans men that they must answer with the sex recorded on their birth certificate or gender recognition certificate. The judgment has the effect of rejecting FPFW’s petition for judicial review.

The case was heard by the Court of Session on 2nd February 2022.

Scottish Trans was granted permission to intervene in the case, in the public interest. Scottish Trans provided the court with a perspective of how trans men and trans women would be affected if the guidance were to be scrapped, and why it was the “right thing, both in law and for producing the best quality data, to count trans men and trans women as who they are on census day”.

Vic Valentine, Scottish Trans manager, said: “To change the sex on their birth certificate, a trans woman or trans man has to go through a stressful, lengthy and difficult process of applying for a gender recognition certificate, that often takes many years. Yet trans men and trans women can update all of their other identity documents, be seen by family and friends as a man or woman, and be living their lives for many years completely as themselves before applying for one.

“We believe trans men and trans women who have not changed the sex on their birth certificate have the right to have their identity respected, recognised, and counted too, and welcome this decision.”

Scottish Trans was represented pro bono by the Scottish Just Law Centre at JustRight Scotland, who instructed Kay Springham QC of Compass Chambers.

Court relies on ruling of Lord Reed and others to jail Hong Kong MP

Fernando Cheung, 64, a former Labour Party member of the Hong Kong legislative council (LegCo), was imprisoned for three weeks over a 45-minute anti-Beijing chant he delivered in 2020.

Contempt charges were brought against him under a law that was meant to protect council members who engaged in non-violent protest in the chamber.

Those protections were weakened, however, by a ruling from the Hong Kong Court of Final Appeal. Lord Reed is one of its members.

The judgment accepted that “the protection of freedom of speech and debate in LegCo is self-evidently an important right”, adding that “it enables members of LegCo to advocate opinions freely and robustly and without inhibition due to the fear of legal proceedings for such speech and debate”.

It also stated that the law had the “purpose of creating a secure and dignified environment conducive to the legislature carrying out its constitutional functions at its sittings without disruption or disturbance”.

The ruling determined that members were only protected from prosecution on the basis of their words, not their actions.

Former Conservative leader Iain Duncan Smith said: “It does astonish me that British judges are prepared to sit in a system that has become completely infected by the autocratic and abusive laws now coming from China.”

Sheriff Pino Di Emidio appointed as director of the Judicial Institute

Sheriff Di Emidio will take up the post on 1 April 2022 for a period of three years.

He replaces Sheriff Alistair Duff, who retired on December 1 last year and was charged with unknown offences and reported to the procurator fiscal last month.

Sheriff Di Emidio is a floating sheriff in the sheriffdom of Tayside Central and Fife. He was appointed as a sheriff in 2014, having had a part time appointment within the Scottish tribunal judiciary from 2012 to 2014. He also sits in the Upper Tribunal for Scotland dealing with cases from the Housing and Property Chamber of the First-tier Tribunal for Scotland.

He was a solicitor from 1981 to 1993 and became an Advocate in 1994. From 2005 to 2009 he was Director of Training and Education at the Faculty of Advocates.

Sheriff Susan Craig, interim director of the Judicial Institute, said: “I am delighted that Pino is joining the Judicial Institute where he will find a warm welcome from a wonderful team who support our critical work.

“I am sure he will bring a wealth of experience and help the continuing development of our internationally recognised suite of resources. Having been at the institute for over four and a half years I have decided the time is right to for me to return to the Bench and am very pleased that the JI will be in such safe hands.”

Stacy Keen: Businesses connected with Russia face risk of sanction fallout

The UK government this week introduced sanctions which can target businesses believed to be benefitting or supporting the Russian government and their owners, directors and trustees.

The new criteria will allow sanctions to be imposed against Russia’s largest and most strategically important businesses, including those in the chemicals, construction, defence, electronics, energy, financial services, transport and digital technologies sectors. There is considerable speculation about the wider package of sanctions that could potentially be introduced to target exports, trade and Russian financial institutions.

Businesses can take steps in advance of any escalation in sanctions, starting with a review of the business’ contractual arrangements in place with Russian counterparties. Termination, choice of law and jurisdiction clauses in any contracts linked to Russia should be reviewed to identify the contractual remedies available should those relationships be impacted by any new sanctions.

For new contracts, consideration should be given to adding a sanctions clause which enables the contract to be suspended should sanctions be escalated, and the contract should ideally have a choice of law and jurisdiction clause that is outside of Russia.

Although the UK, EU and US will seek to co-ordinate the sanctions to be introduced, any sanctions imposed will not be identical and corporate groups with entities registered and active in different countries may be subject to different restrictions. 

Companies may be able to put governance and structuring arrangements in place in advance of sanctions being imposed which enables business to continue, so long as the business is properly ring-fenced in a country where the business in question remains lawful. Structuring arrangements put in place after sanctions are imposed is considerably more difficult because of anti-circumvention provisions.

There may be a need to engage quickly with licensing authorities, banks and insurers and being able to show that the business holds up-to-date Customer Due Diligence records, sanctions screening records and end-use declarations for Russian-based customers will be helpful.

There will be exceptions for goods and services exported under a licence, so businesses should identify the goods, technology and/or software and services being exported into Russia or for use in Russia for which they may need a licence in future. Licence applications can take time to process and the licensing authorities may be overwhelmed by licensing applications so there will be a need to get in early. 

UK and EU sanctions often restrict categories of items by reference to their commodity code. Businesses should check whether they have records of the commodity codes for their products or materials and if not should engage experts to carry out a classification exercise to quickly identify whether or not their products or materials are caught by any further sanctions imposed.

US-origin items and foreign-made products incorporating US-origin items should also be identified as these may be caught by US trade sanctions and wider export controls, even if the export takes place outside of the US.

Stacy Keen is a senior associate at Pinsent Masons

Mrs Justice Eady becomes president of Employment Appeal Tribunal

She took up the post earlier this month and succeeds Mr Justice Choudhury who stood down from the role on 31 December 2021 having served three years as president.

Mrs Justice Eady sat as a fee-paid employment judge from 2001-2008, and became a recorder in 2004, before being appointed as a senior circuit judge for the Employment Appeal Tribunal in 2013 until she became a High Court judge, assigned to the Queen’s Bench Division, in 2019.

England: Hemp court wigs on trial

Samuel March, of 9 King’s Bench Walk, wants to see his hemp wigs replace traditional horsehair wigs at the bar but is first ensuring they can withstand wear and tear.

He said: “Hemp is a notoriously tough material so I do not anticipate any issues, but there is always a risk where you’re the first in the world to try something.

“Making them here [in the UK] on this scale and price point means my market is largely limited to vegan barristers, which is a small market – but one that I intend to keep selling to.”

Posting on social media last year, Mr March said: “The prototype has arrived. This is the world’s first hemp barrister’s wig.”

He said at the time he hoped the wigs would be the norm in “a few years”.

SYLA: Connecting Trainees – various sessions in February/March 2022

Starting a traineeship remotely rather than in the office can feel rather strange and can be a daunting prospect. Many of us will feel that we are missing out, as we have not been able to meet fellow trainees, and chat informally with people in the same position as us.

We will discuss a couple of prepared discussion points to start the conversation, our experiences together, tips, and bring together fellow trainees from the 2020/2021/2022 intake.

We hope that this event will allow us to meet fellow trainees virtually, with a view to meeting in person! Attendees will be placed into small groups throughout, so as to allow everyone the chance to speak comfortably. However, if you have any questions in advance of the session or proposed topics of conversation, then please do email these into us at mail@syla.co.uk.

All current trainees/trainees starting before September 2022 are welcome.

• Dundee and Fife Session - Monday 21 February 2022
• Edinburgh Session – Tuesday 22 February 2022
• Aberdeen and Highlands Session - Monday 28 February 2022
• Glasgow and Borders Session – Wednesday 9 March 2022

Sign up - https://www.eventbrite.co.uk/o/scottish-young-lawyers-association-1867524801

Fines collection bouncing back from Covid

The three-year collection rates for all fine/penalty types show improvement for both value and number when the figures as at 18 January 2022 are compared with 18 October 2021 with the exception of Sheriff Court fines value rates which have been maintained at last quarter’s level. The three-year rate for Sheriff Court fines by value paid or on track to be paid in the latest quarter, remains strong at 88 per cent.

Figures on the Victim Surcharge show that collection has risen by £100,000 over the last quarter and stands at £354,811 for fines imposed to the end of September 2021, up from £254,000. The £354,811 paid amounts to 78 per cent of the value of these penalties. The Victim Surcharge penalty was introduced by the Scottish government at the end of 2019 on fines relating to offences committed on or after 25 November 2019.

The overall fines collection performance reflects continuing and targeted action by Fines Enforcement Officers. However, SCTS has recognised that individuals face the very real risk of suffering significant financial hardship during the Coronavirus crisis and has focussed on fines collection measures that also enable officers to provide information, advice and support to customers who are struggling to maintain their payments. An online form has been introduced to simplify the process for customers to seek information and advice.

Liability to pay fines remains, however, and failure to engage with fines officers will result in enforcement action being taken. Customers can pay easily using our 24/7 online and telephone payment channels.

SCTS executive director of court operations David Fraser said: “These figures show reassuring progress in recovery from the effects of the Coronavirus pandemic with continuing rises recorded in the new report.

“We recognise the impact that Coronavirus can have on fines payers however, and we are maintaining additional support, with information and advice, to take account of that. The strong rates over time, evident in this report, show that our processes and systems are maintaining efficient collection.

“We will employ robust sanctions against offenders who we are satisfied have failed to pay without reasonable excuse. The message to fines customers remains clear – continue to pay your fines or seek advice if you are struggling. Doing nothing is not an option.”

Fines Enforcement Units have a number of measures available to pursue non-payers. These include freezing bank accounts, arresting earnings, deducting from benefits, clamping vehicles or obtaining arrest warrants. In all cases, offenders have opportunities to make payment of their fines at a reasonable and affordable instalment rate. All defaulters are issued with warnings before action is taken. Those in genuine financial difficulty can engage with enforcement officers to discuss payment terms.

Cycle Law Scotland raises £2,000 for Doddie Aid 2022

Doddie Aid is a mass participation event which encourages participants to get active in January and raise funds to help find a cure for Motor Neurone Disease. It was founded by former Scotland captain and British and Irish Lion, Rob Wainwright, who raised a staggering £1 million in January 2021, with 27,000 people taking part.

This year, a new league feature was added to the app to record miles, allowing participants to compete against family, teammates and colleagues.

With the aid of some extra big miles from a couple of team members towards the end of the six-week challenge, the Cycle Law Scotland team was able to break through the 4000-mile barrier, recording a total of 4050 miles from 348 workout sessions.

Brenda Mitchell, senior partner, said: “I was delighted to see the wide participation from so many members of the team. However, our two top performers deserve a special mention. Roz Boynton, CLS’s Aberdeen based solicitor rode a staggering 1400 miles, all completed indoors on her turbo trainer.

“Roz doesn’t like the rain and the cold, but she is a machine on her turbo. On the other hand, Marny Waddell, a member of our admin team doesn’t mind our Scottish weather and completed 500 miles on her bike as well as a few rounds of golf in challenging conditions; a fantastic effort as Marny had a hip replacement just a few years ago. All in all, one massive team effort for such a deserving cause.”

The firm will be donating £2,000 to My Name’5 Doddie Foundation, in addition to £310 already donated by individuals.

Event: SYLA Women In Law 2022

The event is sponsored by Fraser Irvine Sheriff Officers. Fraser Irvine is a firm of Messengers-at-Arms & Sheriff Officers providing bespoke services to the Scottish legal marketplace.

Speakers will offer a candid insight into their paths through the profession and their reflections on the profession of women within the legal community.

This year’s event will be chaired by Laila Kennedy, SYLA vice president and second-year trainee solicitor at Ledingham Chalmers LLP.

This year’s panel includes:

• Grace Rose Gwynne - barrister at No 5 Barristers Chambers
• Laura Dunlop QC
• Sheriff Principal Anwar
• Angela Grahame QC

There will be a panel Q&A - please submit any questions in advance to mail@syla.co.uk.

£5 of each ticket price will be donated directly to LawCare. LawCare is a dedicated mental wellbeing charity for the legal profession. This year we believe it is more important than ever to access and benefit from mental health support, and recent figures reported from LawCare support this.

Register here

Quote of the day

The character of the Judges is public property, and if they have done anything amiss, they ought to be censured.

Lord Kenyon, ‘Holt’s Case’ (1793), 22 How. St. Tr. 1234.

Rights watch

Syria: Lawyers call on ICC to probe Iran’s responsibility for war crimes | Middle East Eye

Lawyers representing Syrians forced to flee their country during the ongoing war have called for the first time on the International Criminal Court to investigate Iran’s role, alongside those of Syrian officials, in perpetrating alleged war crimes.

China censors Swiss embassy’s Weibo post on missing human rights lawyer | Swissinfo

The Chinese authorities have deleted a message on the Chinese social network Weibo that referred to disappearance of Tang Jitian.

Turkey: Rights group calls for rights defender, lawyer Tarık Güneş’s release | bianet

Turkey’s Human Rights Association (İHD) has called on the Ministry of Justice and Ministry of Interior to act in compliance with the UN Declaration on Human Rights Defenders and demanded the release of arrested lawyer and rights advocate Tarık Güneş.

Israel won’t cooperate with UN rights probe | DW

Israel has formally said it would not be cooperating with a special commission established by the UN Human Rights Council to investigate alleged abuses committed against Palestinians.

Sudanese security forces embark on abduction spree of protesters | Al Jazeera

Since a palace coup last October, the interim military government has indiscriminately arrested dozens of dissidents.

Amnesty faces pressure to leave Thailand amid ‘growing intolerance’ | The Guardian

Amnesty International has said attacks against its operations in Thailand were taking place against a backdrop of “growing intolerance for human rights discourse” among the country’s authorities, and warned of a clampdown on civil society groups.

These cybercriminals plant criminal evidence on human rights defender, lawyer devices | ZDNet

Cybercriminals are hijacking the devices of civil rights activists and planting “incriminating evidence” in covert cyberattacks, researchers warn.

Human rights defenders threatened at Poland-Belarus border | UN News

Independent UN experts have expressed deep concern over allegations that human rights defenders have been threatened at the Polish-Belarusian border, including media workers and interpreters.

Jordanian activists go on hunger strike to protest their arrest | The New Arab

At least two Jordanian political activists have gone on hunger strike following their arrest and subsequent imprisonment, their lawyers have said.

And finally… suspect sheriffs

House Bill 254, proposed by Republican representative Chris Hurt, would expand the definition of “law enforcement officer” to include anyone with an enhanced handgun carry permit.

There are currently 686,348 such permit holders in the state of Tennessee, ABC News reports, sparking concerns the proposed law would lead to vigilantism.

A similar bill has been introduced in the state senate by Joey Hensley, who said the law would mean “people who go to the extreme to get this extra permit can have the right to defend themselves in more places”.

However, experienced firearms instructor Jonathan Gold said: “I don’t understand our regression to the old West, because this is what it feels like. I’ve studied the old West, and I don’t think anyone wants to go back to the murder rate of Tombstone.”

Scholarships: The Clark Foundation for Legal Education now open for applications

In furtherance of the above, the Foundation’s trustees invite applications for Grants and Scholarships from post-graduate and under-graduate students to assist them with courses of study in Scots law, or comparative legal systems, or the law of the European Community, or foreign languages or business management or to undertake research into Scots Law and /or its relationship with other legal systems or to attend international student competitions and conferences. The trustees will also consider applications from persons practising law in Scotland, whether as solicitors or advocates, those teaching Scots law, those arranging conferences, seminars and lectures, and those involved in research in, and the writing of legal text books or other publications or presentations on Scots law and/or its relationship with other legal systems or the institutions of the European Community. Applications may also be made for Grants to provide facilities and equipment (including computers and other IT, hardware, software or peripheral equipment) for study and research including for the establishment and maintenance of libraries and study centres.

The grant and amount of any award, and the period for which it is to run, is within the discretion of the trustees.

Awards will be made in September 2022 and all applications, which are to be completed on a standard application form available by downloading from the Foundation website (www.clarkfoundation.org.uk) or upon request to the email address noted below, must be submitted in electronic form by no later than 31 March 2022. Please note that the Foundation does not support students studying for LLB/Diploma in Professional Legal Practice other than in exceptional hardship circumstances, which should be explained in the application form (and for 2022/23 such exceptional hardship circumstances may include hardship arising as a result of Covid-19).

Please send your completed application before the stated deadline by email to: clarkfoundation@lindsays.co.uk

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